HARMONIZED UNIFORM BUSINESS
ORGANIZATION CODE*
Drafted by the
___________________________________________________
NATIONAL
CONFERENCE OF COMMISSIONERS
ON
UNIFORM STATE LAWS
___________________________________________________
AMERICAN
BAR ASSOCIATION
___________________________________________________
and by it
APPROVED AND RECOMMENDED FOR ENACTMENT
IN ALL THE STATES
at its
ANNUAL CONFERENCE
MEETING IN ITS ONE-HUNDRED-AND-TWENTIETH YEAR
VAIL, COLORADO
JULY
7 - JULY 13, 2011
WITHOUT PREFATORY NOTE OR COMMENTS
Copyright
© 2007, 2008, 2009, 2011
Jointly
By
NATIONAL
CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS
and
AMERICAN
BAR ASSOCIATION
July 18,
2011
*The
following text is subject to revision by the Committee on Style of the National
Conference of Commissioners on Uniform State Laws.
Changes
to the currently effective text of the act are shown by striking through text
to be deleted and underlining text to be added. Regular type is used to show changes that (i)
adopt language from META or MORAA, (ii) are merely relocations of current
language, or (iii) are corrections for the sake of internal consistency within
the act. Changes that adopt language from other unincorporated entity laws are
shown in italics. Changes that do not have a source in one of the
existing unincorporated entity laws are shown in small caps. The changes shown in small caps made in this act are replicated
in other acts as a matter of harmonization and are shown in those acts in
regular type.
HARMONIZED UNIFORM
BUSINESS ORGANIZATIONS ACT CODE
(a)
This [act] may be cited as the Uniform Business Organizations Act
Code.
(b)
This [article] may be cited as the Uniform Business Organizations Act
Code - General Provisions.
(c)
[Part] 4 may be cited as the Model Registered Agents Act.
SECTION 1-102.
DEFINITIONS. In this [act], except as otherwise provided
in definitions of the same terms in other articles of this [act]:
(1)
“[Annual] [Biennial] report” means the report required by Section 1-211.
(2)
“Business corporation” means a domestic business corporation incorporated under
or subject to [Article] 3 or a foreign business corporation.
(3) “Business trust” means a trust formed
under the statutory law of another state which is not a foreign statutory trust
and does not have a predominately donative purpose.
(3)
(4) “Commercial registered agent” means a person listed under Section
1-405.
(5) “Common-law business trust” means a
common-law trust that does not have a predominately donative purpose.
(4)
(6) “Debtor in bankruptcy” means a person that is the subject of:
(A)
an order for relief under Title 11 of the United States Code or a comparable
order under a successor statute of general application; or
(B)
a comparable order under federal, state, or foreign law governing insolvency.
(7) “Distributional interest” means the right
under an unincorporated entity’s organic law and organic rules to receive
distributions from the entity.
(5)
(8) “Domestic”, with respect to an entity, means governed as to its
internal affairs by the law of this state.
(6)
(9) “Effective date”, when referring to a record filed by the [Secretary
of State], means the time and date determined in accordance with Section 1-203.
(7)
(10) “Entity”:
(A) means:
(i)
a business corporation;
(ii)
a nonprofit corporation;
(iii)
a general partnership, including a
limited liability partnership;
(iv)
a limited partnership, including a
limited liability limited partnership;
(v)
a limited liability company;
[(vi)
a general cooperative association;]
(vii)
a limited cooperative association;
(viii)
an unincorporated nonprofit association;
(ix) a statutory trust, business trust, or
common-law business trust; or
(x)
any other person that has:
(I)
a legal existence separate from any interest holder of that person; or that
has
(II)
the power to acquire an interest in real property in its own name; and
(B) does not
include:
(i)
an individual;
(ii)
a testamentary, or inter vivos, trust with a predominately donative purpose
or a charitable trust, except a statutory trust, business trust, or
common-law business trust;
(iii)
an association or relationship that is not a partnership solely by reason of
[Section 202(c) of the Revised Uniform Partnership Act] [Section 7 of the
Uniform Partnership Act] or a similar provision of the law of another
jurisdiction;
(iv)
a decedent’s estate; [or]
(v)
a government or a governmental subdivision, agency, or instrumentality [; or]
[(vi)
an entity a person excluded under Section 1-106].
(8)
(11) “Entity filing” means a record delivered for filing to the
[Secretary of State] for filing pursuant to this [act].
(9)
(12) “Filed record” means a record filed by the [Secretary of State]
pursuant to this [article] [act].
(10)
(13) “Filing entity” means an entity that is formed by whose
formation requires the filing of
a public organic record. The term does not include a limited liability
partnership.
(11)
(14) “Foreign”, with respect to an entity, means governed as to its
internal affairs by the law of a jurisdiction other than this state.
[(12)
(15) “General cooperative association” means a domestic general
cooperative association formed under or subject to [cite statute of this state
under which an incorporated cooperative association is formed] or a foreign
general cooperative association.]
(13)
(16) “General partnership” means a domestic general partnership formed
under or subject to [Article] 5 or a foreign general partnership. The term includes a limited liability
partnership.
(14)
(17) “Governance interest” means a right under the organic law or
organic rules of an unincorporated entity, other than as a governor, agent,
assignee, or proxy, to:
(A)
receive or demand access to information concerning, or the books and records
of, the entity;
(B)
vote for the election of the governors of the entity; or
(C)
receive notice of or vote on issues an issue involving the internal
affairs of the entity.
(15)
(18) “Governor” means:
(A)
a director of a business corporation;
(B)
a director or trustee of a nonprofit corporation;
(C)
a general partner of a general partnership;
(D)
a general partner of a limited partnership;
(E)
a manager of a manager-managed limited liability company;
(F)
a member of a member-managed limited liability company;
[(G)
a director of a general cooperative association;]
(H)
a director of a limited cooperative association;
(I)
a manager of an unincorporated nonprofit association;
(J)
a trustee of a statutory trust, business trust, or common-law business trust;
or
(K)
any other person under whose authority the powers of an entity are
exercised and under whose direction the business activities and affairs of the
entity are managed pursuant to the entity’s organic law and organic
rules of the entity.
(16)
(19) “Interest” means:
(A)
a share in a business corporation;
(B)
a membership in a nonprofit corporation;
(C)
a partnership interest in a general partnership;
(D)
a partnership interest in a
limited partnership;
(E)
a membership interest in a limited liability company;
[(F)
a share in a general cooperative association;]
(G)
a member’s interest in a limited cooperative association;
(H)
a membership in an unincorporated nonprofit association;
(I)
a beneficial interest in a statutory trust, business trust, or common-law
business trust; or
(J)
a governance interest or transferable distributional interest in
any other type of unincorporated entity.
(17)
(20) “Interest holder” means:
(A)
a shareholder of a business corporation;
(B)
a member of a nonprofit corporation;
(C)
a general partner of a general partnership;
(D)
a general partner of a limited partnership;
(E)
a limited partner of a limited partnership;
(F)
a member of a limited liability company;
[(G)
a shareholder of a general cooperative association;]
(H)
a member of a limited cooperative association;
(I)
a member of an unincorporated nonprofit association;
(J)
a beneficiary or beneficial owner
of a statutory trust, business trust, or common-law business trust; or
(K)
any other direct holder of an interest.
(18)
(21) “Jurisdiction”, used to refer to a political entity, means the
United States, a state, a foreign country, or a political subdivision of a
foreign country.
(19)
(22) “Jurisdiction of formation” means the jurisdiction whose law
includes the organic law of an entity.
(20)
(23) “Limited cooperative association” means a domestic limited
cooperative association formed under or subject to [Article] 8 or a foreign
limited cooperative association.
(21)
(24) “Limited liability company” means a domestic limited liability
company formed under or subject to [Article] 7 or a foreign limited liability
company.
(22)
(25) “Limited liability limited partnership” means a domestic limited
liability limited partnership formed under or subject to [Article] 6 or a
foreign limited liability limited partnership.
(23)
(26) “Limited liability partnership” means a domestic limited liability
partnership registered under or subject to [Article] 5 or a foreign limited
liability partnership.
(24)
(27) “Limited partnership” means a domestic limited partnership formed
under or subject to [Article] 6 or a foreign limited partnership. The term
includes a limited liability limited partnership.
(25)
(28) “Noncommercial registered agent” means a person that is not a
commercial registered agent and is:
(A) an individual or domestic
or foreign entity that serves in this state as the registered agent for
service of process of an entity; or
(B)
an individual who holds the office or other position in an entity who which is designated as the registered agent
for service of process
pursuant to Section 1-404(a)(2)(B).
(26)
(29) “Nonfiling entity” means an entity that is formed other than by
filing a public organic record.
(27)
(30) “Nonprofit corporation” means a domestic nonprofit corporation
incorporated under or subject to [Article] 4 or a foreign nonprofit
corporation.
(31)
“Nonregistered foreign entity” means a foreign entity that is not registered to
do business in this state pursuant to a statement of registration filed by the
[Secretary of State].
(28)
(32) “Organic law” means the law of an entity’s jurisdiction of
formation which governs governing the internal affairs of the
entity.
(29)
(33) “Organic rules” means the public organic record and private organic
rules of an entity.
(30)
(34) “Person” means an individual, business corporation, nonprofit
corporation, partnership, limited partnership, limited liability company,
[general cooperative association,] limited cooperative association, unincorporated
nonprofit association, statutory trust, business trust, or common-law
business trust, estate, trust, association, joint venture, public corporation,
government or governmental subdivision, agency, or instrumentality, or any
other legal or commercial entity.
(31)
(35) “Principal office” means the principal
executive office of an
entity, whether or not the
office is located in or
outside this state,
designated by a filing entity as its principal office in the most recent filed
record that contains that designation.
(32)
(36) “Private organic rules” means the rules, whether or not in a
record, that govern the internal affairs of an entity, are binding on all of
its interest holders, and are not part of its public organic record, if
any. The term includes:
(A)
the bylaws of a business corporation;
(B)
the bylaws of a nonprofit corporation;
(C)
the partnership agreement of a general partnership;
(D)
the partnership agreement of a limited partnership;
(E)
the operating agreement of a limited liability company;
[(F)
the bylaws of a general cooperative association;]
(G)
the bylaws of a limited cooperative association;
(H)
the governing principles of an
unincorporated nonprofit association; and
(I)
the governing trust
instrument of a statutory trust, or similar rules of a business
trust, or common-law business trust.
(33)
(37) “Proceeding” includes a civil action, arbitration, mediation,
administrative proceeding, criminal prosecution, and investigatory action.
(34)
(38) “Property” means all property, whether
real, personal, or mixed, or tangible or intangible, or any right or interest therein.
(35)
(39) “Public organic record” means the record the public filing of which by the [Secretary of State] is required to
form forms an
entity and any amendment to
or restatement of that record. The term
includes:
(A)
the articles of incorporation of a business corporation;
(B)
the articles of incorporation of a nonprofit corporation;
(C)
the certificate of limited partnership of a limited partnership;
(D)
the certificate of organization of a limited liability company;
[(E)
the articles of incorporation of a general cooperative association;]
(F)
the articles of organization of a limited cooperative association; and
(G)
the certificate of trust of a
statutory trust, or similar record of a business
trust, or common-law business trust.
(36) “Qualified foreign entity” means a
foreign entity that is authorized to do business in this state pursuant to a
statement of registration filed by the [Secretary of State].
(37)
(40) “Receipt”, as used in this [article], means actual receipt.
“Receive” has a corresponding meaning.
(38)
(41) “Record”, used as a noun, means information that is inscribed on a
tangible medium or that is stored in an electronic or other medium and is
retrievable in perceivable form.
(39)
(42) “Registered agent” means an agent of an entity which is authorized
to receive service of any process, notice, or demand required or permitted by
law to be served on the entity. The term
includes a commercial registered agent and a noncommercial registered agent.
(43) “Registered foreign entity” means a
foreign entity that is registered to do business in this state pursuant to a
statement of registration filed by the [Secretary of State].
(40)
(44) “Sign” means, with present intent to authenticate or adopt a
record:
(A)
to execute or adopt a tangible symbol; or
(B)
to attach to or logically associate with the record an electronic symbol,
sound, or process.
(41)
(45) “State” means a state of the United States, the District of
Columbia, Puerto Rico, the United States Virgin Islands, or any territory or
insular possession subject to the jurisdiction of the United States.
(42)
(46) “Statutory trust” means a domestic statutory trust formed under or
subject to [Article] 10 8 or a foreign statutory trust
formed under the statutory law of a
jurisdiction other than this state which would be a statutory trust if formed
under the law of this state.
(43)
(47) “Transfer” includes:
(A) an assignment,;
(B) a conveyance,;
(C) a
sale,;
(D) a
lease, mortgage, and;
(E) an
encumbrance, including a mortgage or
security interest;
(F) a
gift; and
(G) a
transfer by operation of law.
(44) “Transferable interest”
means the right under an unincorporated entity’s organic law to receive
distributions from the entity.
(45)
(48) “Type of entity” means a generic form of entity:
(A)
recognized at common law; or
(B)
formed under an organic law, whether or not some entities formed under that organic
law are subject to provisions of that law that create different categories of
the form of entity.
(46)
(49) “Unincorporated nonprofit association” means a domestic
unincorporated nonprofit association formed under or subject to [Article] 9 or
a foreign unincorporated
nonprofit association formed under
the law of a jurisdiction other than this state which would be an
unincorporated nonprofit association if formed under the law of this state.
(50) “Written” means inscribed on a tangible
medium. “Writing” has a corresponding
meaning.
SECTION 1-103.
APPLICABILITY OF [ARTICLE]. This [article] applies to an entity formed
under or subject to this [act].
SECTION 1-104.
DELIVERY OF RECORD.
(a) Except as otherwise
provided in this [act], permissible means of delivery of a record include
delivery by hand, mail by
the United States Postal Service, commercial delivery service, and electronic
transmission.
(b) Delivery to the [Secretary
of State] is effective only when the a record is received by the
[Secretary of State].
SECTION 1-105.
RULES AND PROCEDURES. The [Secretary of State] may:
(1) adopt
rules to administer this [act]
in accordance with [this state’s administrative procedure act]; and
(2) may prescribe procedures not required to be adopted as rules which that are
reasonably necessary to perform the duties required of the [Secretary of State]
under this [act] and are not required
by [this state’s administrative procedure act] to be adopted as rules.
[SECTION 1-106.
ENTITIES EXCLUSIONS. This [act] does not apply to the following
entities:
(1) ___________________;
(2) ___________________;
(3) ___________________.]
SECTION 1-201. ENTITY FILING REQUIREMENTS.
(a)
To be filed by the [Secretary of State] pursuant to this [article act], an entity filing must be received by the
[Secretary of State], and must comply with this [act], and
satisfy the following:
(1)
The entity filing must be required or permitted by this [act].
(2)
The entity filing must be physically delivered in written form unless and to
the extent the [Secretary of State] permits electronic delivery of entity
filings in other than written form.
(3)
The words in the entity filing must be in English, and numbers must be in
Arabic or Roman numerals, but the name of the entity need not be in English if
written in English letters or Arabic or Roman numerals.
(4)
The entity filing must be signed by an
individual or on behalf of
a person authorized or
required under this [act] to sign the filing.
(5) The entity filing must
state the name and capacity, if any, of the each individual who signed it, either on the individual’s own behalf or on
behalf of the person authorized or required to sign the filing, but
need not contain a seal, attestation, acknowledgment, or verification.
(b)
If law other than this [act] prohibits the disclosure by the [Secretary of
State] of information contained in an entity filing, the [Secretary of State]
shall accept the filing if the filing otherwise complies with this section [act] but may redact the information.
(c)
When an entity filing is delivered to the [Secretary of State] for filing, any
fee required under this [article] and any fee, tax, interest, or penalty required to be paid under this
[article] or law other than this [act] must be paid in a manner permitted by
the [Secretary of State] or by that law.
(d)
The [Secretary of State] may require that an entity filing delivered in written
form be accompanied by an identical or conformed copy.
(a)
The [Secretary of State] may provide forms for entity filings required or
permitted to be made by this [act], but, except as otherwise provided in
subsection (b), their use is not required.
(b)
The [Secretary of State] may require that a cover sheet for an entity filing
and [an annual] [a biennial] report be on forms prescribed by the [Secretary of
State].
SECTION 1-203.
EFFECTIVE TIME AND DATE. Except as otherwise provided in Section 1-204 this [act] and subject to
Section 1-205(c)(d), an entity filing is effective:
(1)
on the date and at the time of its filing by the [Secretary of State] as
provided in Section 1-206;
(2)
on the date of filing and at the time specified in the entity filing as its
effective time, if later than the time under paragraph (1);
(3)
if permitted by this [act], at a specified delayed effective time and date,
which may not be more than 90 days after the date of filing; or
(4)
if a delayed effective date as permitted by this [act] is specified, but no
time is specified, at 12:01 a.m. on the date specified, which may not be
more than 90 days after the date of filing.
SECTION 1-204.
WITHDRAWAL OF FILED RECORD BEFORE EFFECTIVENESS.
(a)
The parties to a filed record may
withdraw the record Except as otherwise provided in this [act], a record delivered to the [Secretary of State]
for filing may be withdrawn before it takes effect by delivering to the [Secretary of State] for filing a statement of
withdrawal.
(b) To withdraw a filed record,
the parties to the record must deliver to the [Secretary of State] for filing a
statement of withdrawal.
(c) (b) A statement of
withdrawal must:
(1)
except as otherwise agreed by the
parties, be signed on
behalf of by
each party person that signed the filed record being withdrawn,
except as otherwise agreed by those persons;
(2)
identify the filed record to be withdrawn,
the date of its filing, and the parties to it; and
(3)
if filed signed by fewer than all parties the persons that signed the record being withdrawn,
state that the filed
record has been is withdrawn in accordance with
the agreement of all the parties persons that signed the record.
(d)
(c) On the delivery for
filing to by the [Secretary of State] of
a statement of withdrawal, the action or transaction evidenced by the original filed
record does not take effect.
SECTION 1-205.
CORRECTING FILED RECORD.
(a)
A person on whose behalf a filed record was delivered to the [Secretary of
State] for filing may correct the record if:
(1)
the record at the time of filing contained
an inaccuracy was
inaccurate;
(2)
the record was defectively signed; or
(3)
the electronic transmission of the record to the [Secretary of State] was
defective.
(b)
To correct a filed record, the
parties to the record must
deliver a person on whose behalf the record was delivered to
the [Secretary of State] must deliver
to the [Secretary of State] for filing a statement of correction.
(c)
A statement of correction:
(1)
may not state a delayed effective date;
(2)
must be signed on behalf of by the person correcting the filed
record;
(3)
must identify the filed record to be corrected or have attached a copy and state the date of its filing;
(4)
must specify the inaccuracy or defect to be corrected; and
(5)
must correct the inaccuracy or defect.
(d)
A statement of correction is effective as of the effective date of the filed
record that it corrects except as to persons relying on the uncorrected filed
record and adversely affected by the correction. As to those persons, the statement of
correction is effective when filed.
SECTION
1-206. DUTY OF [SECRETARY OF STATE] TO
FILE; REVIEW OF REFUSAL TO FILE.
(a)
The [Secretary of State] shall file an entity filing delivered to the
[Secretary of State] for filing which satisfies Section 1-201 this
[act]. The duty of the
[Secretary of State] under this section is ministerial.
(b)
When the [Secretary of State] files an entity filing, the [Secretary of State]
shall record it as filed on the date and at the time of its
delivery. After filing an entity filing,
the [Secretary of State] shall deliver to the domestic or foreign entity or its representative person that submitted the filing
a copy of the filing with an acknowledgment of the date and time of filing.
(c)
If the [Secretary of State] refuses to file an entity filing, the [Secretary of
State], not later than [15] business days after the filing is delivered,
shall:
(1)
return the entity filing or notify the person that submitted the filing not
later than [15] business days after the filing is delivered of the
refusal; and
(2)
, together with provide a brief explanation in a record of the
reason for the refusal.
(d)
If the [Secretary of State] refuses to file an entity filing, the person that
submitted the filing may seek review
of the refusal by the [appropriate court] under the following procedures: (1)
The review proceeding is commenced by petitioning petition the [the appropriate court] to
compel filing of the filing and
by attaching to the petition the. The filing and the explanation of
the [Secretary of State] of the refusal to file must be attached to the petition. (2) The court may summarily order the [Secretary of State] to file the filing or take
other action the court considers appropriate decide the matter in a summary proceeding. (3) The final decision of the court may be
appealed as in other civil proceedings.
(e)
The filing of or refusal to file an entity filing does not: (1)
affect the validity or invalidity of the filing in whole or in part; (2) affect the correctness or incorrectness
of information contained in the filing; or
(3) create a presumption that the filing is valid or invalid or that information contained
in the filing is correct or incorrect.
SECTION 1-207.
EVIDENTIARY EFFECT OF COPY OF FILED RECORD. A certification from the [Secretary of State]
accompanying a copy of a filed record is conclusive evidence that the copy is
an accurate representation of the original record on file with the [Secretary
of State].
SECTION 1-208.
CERTIFICATE OF GOOD STANDING OR REGISTRATION.
(a)
On request of any person, the [Secretary of State] shall issue a certificate of
good standing for a domestic filing entity or a certificate of registration for
a qualified registered foreign entity.
(b)
A certificate under subsection (a) must state:
(1)
the domestic filing entity’s name or the qualified registered
foreign entity’s name used in this state;
(2)
that the in the case of a domestic
filing entity, is formed under the
law of this state that:
(A) its public organic record has been filed
and has taken effect;
(B)
the date of its formation, the public organic record became
effective; and
(C)
the period of its the entity’s duration if the records of the [Secretary of State]
reflect that its period of duration is less than perpetual, or;
(3) that the
qualified in the case of a registered foreign
entity, that it is
registered to do business in this state;
(3)
(4) that all fees, taxes, interest,
and penalties owed to this state by
the domestic or foreign entity and
collected through the [Secretary of State] have been paid, if:
(A)
payment is reflected in the records of the [Secretary of State]; and
(B)
nonpayment affects the good standing or registration of the domestic or foreign
entity;
(4)
(5) that the entity’s most recent [annual] [biennial] report
required by Section 1-211 has been delivered for filing to the [Secretary of State] for filing;
(5)
(6) that the records of the
[Secretary of State] do not reflect that the entity has not been dissolved; and
(7) that a proceeding
is not pending under Section 1-602; and
(6) (8) other facts reflected
in the records of the [Secretary of State] of record
pertaining to the domestic or foreign
entity with the [Secretary of State] which the person requesting the
certificate reasonably requests.
(c)
Subject to any qualification stated in the certificate, a certificate issued by
the [Secretary of State] under subsection (a) may be relied upon as conclusive
evidence that the domestic filing
entity is in existence or the qualified foreign entity is registered to do
business in this state of
the facts stated in the certificate.
SECTION 1-209.
SIGNING CONSTITUTES AFFIRMATION OF ENTITY FILING.
(a) Signing an entity filing is an
affirmation under the penalties of perjury that the facts stated in the filing
are true in all material respects.
(b)
Whenever this [act] requires a
particular individual to sign an entity filing and the individual is deceased
or incompetent, the filing may be signed by a personal representative of the individual in the
place of the decedent or incompetent.
SECTION 1-210.
DELIVERY BY [SECRETARY OF STATE]. Except as otherwise provided by Section 1-602 1-412 or by law other than this [act], the [Secretary
of State] may deliver any record to a person by delivering it to:
(1)
in person to the person that submitted it,;
(2)
to the address of the person’s registered agent,;
(3)
to the principal office address of the person,; or
(4)
to another address the person provides to the [Secretary of State] for delivery.
SECTION 1-211.
[ANNUAL] [BIENNIAL] REPORT FOR [SECRETARY OF STATE].
(a)
Each A domestic filing entity,
domestic limited liability partnership, or and qualified registered
foreign entity shall deliver to the [Secretary of State] for filing [an annual]
[a biennial] report that sets forth states:
(1)
the name of the entity and its jurisdiction of formation;
(2)
the name and street and mailing address addresses of the entity’s
registered agent in this state;
(3)
the street and mailing address addresses of the entity’s
principal office; and
(4)
the names of governors name of at least one governor.
(b)
Information in the [an annual] [a biennial] report must be
current as of the date the report is signed on behalf of by the
entity.
(c)
The first [annual] [biennial] report must be delivered to the [Secretary of
State] after [January 1] and before [April 1] of the year following the
calendar year in which the public organic record of the domestic filing
entity was formed or became effective, the statement of qualification
of a domestic limited liability partnership became effective, or the
foreign filing entity registered to do business in this state. Subsequent [annual] [biennial] reports must
be delivered to the [Secretary of State] after [January 1] and before [April 1]
of each [second] calendar year thereafter.
(d)
If [an annual] [a biennial] report does not contain the information required by
this [part] section, the [Secretary of State] promptly shall
notify the reporting domestic or qualified foreign entity in a record
and return the report for correction.
(e) If [an annual] [a biennial] report
contains the name or address of a registered agent which differs from the
information shown in the records of the [Secretary of State] immediately before
the [annual] [biennial] report becomes effective, the differing information in
the [annual] [biennial] report is considered a statement of change under
Section 1-407.
Alternative
A
(a)
The [Secretary of State] shall collect the following fees for copying and
certifying the copy of any filed record:
(1)
$ [ ] per page for copying; and
(2)
$ [ ] for the certification.
(b)
The [Secretary of State] shall collect the following fees when an entity filing
is delivered for filing:
(1)
Statement of merger, $ [ ].
(2)
Statement of withdrawal of merger, $ [
].
(3)
Statement of interest exchange, $ [ ].
(4)
Statement of withdrawal of interest exchange, $ [ ].
(5)
Statement of conversion, $ [ ].
(6)
Statement of withdrawal of conversion, $ [
].
(7)
Statement of domestication, $ [ ].
(8)
Statement of withdrawal of domestication, $ [
].
(9)
[Annual] [Biennial] report, $ [ ].
(10)
Articles of incorporation of a business corporation, $ [ ].
(11)
Articles of incorporation of a nonprofit corporation, $ [ ].
(12)
Statement of qualification of a limited liability partnership, $ [ ].
(13)
Certificate of limited partnership of a limited partnership, $ [ ].
(14)
Certificate of organization of a limited liability company, $ [ ].
[(15)
Articles of incorporation of a general cooperative association, $ [ ].]
(16)
Articles of organization of a limited cooperative association, $ [ ].
(17)
Certificate of trust of a statutory trust, $ [ ].
(18)
Other public organic document, $ [ ].
(19)
Commercial-registered-agent listing statement, $ [ ].
(20)
Commercial-registered-agent termination statement, $ [ ].
(21)
Registered agent statement of change, $ [
].
(22)
Registered agent statement of resignation, no fee
(23)
Statement appointing an designating a registered
agent
for service of process, $ [ ].
(24)
Foreign entity registration statement, $ [
].
(25)
Amendment of foreign entity registration statement, $ [ ].
(26)
Notice of cancellation of foreign entity
registration statement, $ [ ].
(27) Statement of withdrawal, $ [ ].
(28) Statement of
correction, $ [ ].
[(
27) (29) Other entity filings, $ [
]. ]
(c)
The withdrawal under Section 1-204 of a filed record before it is effective or
the correction of a filed record under Section 1-205 does not entitle the
person on whose behalf the record was filed to a refund of the filing fee.
Alternative
B
(a)
The [Secretary of State] shall adopt rules in accordance with [this state’s
administrative procedure act] setting fees for entity filings authorized to be
delivered to the [Secretary of State] for filing under this [act] and for
copying and certifying a copy of any entity filing under this [act].
(b)
There is no fee for filing a registered agent’s statement of resignation.
(c)
The withdrawal under Section 1-204 of a filed record before it is effective or
the correction of a filed record under Section 1-205 does not entitle the
person on whose behalf the record was filed to a refund of the filing fee.
End of
Alternatives]
SECTION 1-301.
PERMITTED NAMES.
(a)
Except as otherwise provided in subsections
(b) and subsection
(d), the name of a domestic filing entity or domestic limited liability
partnership, and the name under which a foreign filing entity
or foreign limited liability
partnership may register to do business in this state, must be
distinguishable on the records of the [Secretary of State] from any:
(1)
name of another a domestic filing entity or
limited liability partnership;
(2)
name of a foreign filing
entity or foreign limited liability
partnership that is registered to do business in this state under
[Part] 5;
(3)
name that is reserved
under Section 1-303;
(4)
name that is registered
under Section 1-304; or
(5)
assumed name registered under [this state’s assumed name statute].
(b)
Subsection (a) does not apply if the
other entity or the person for which the name is reserved or registered If an entity consents in a
record to the use of the its name and submits an
undertaking in a form satisfactory to the [Secretary of State] to change its
name to a name that is distinguishable on the records of the [Secretary of
State] from any name in any category of names in subsection (a), the name of the consenting entity may be
used by the person to which the consent was given.
(c)
Except as otherwise provided in subsection (d), in determining whether a name
is the same as or not distinguishable on the records of the [Secretary of
State] from the name of another entity, words, phrases, or abbreviations
indicating the type of entity, such as “corporation”, “corp.”, “incorporated”,
“Inc.”, “professional corporation”, “PC”, “professional association”, “PA”,
“Limited”, “Ltd.”, “limited partnership”, “LP”,
“limited liability partnership”, “LLP”, “registered limited liability
partnership”, “RLLP”, “limited liability limited partnership”, “LLLP”,
“registered limited liability limited partnership”, “RLLLP”, “limited liability
company”, or “LLC”, may not be taken into account.
(d)
The holder of a name under subsection
(a) An entity
may consent in a record to the use of a name that is not distinguishable on the
records of the [Secretary of State] from its name except for the addition of a
word, phrase, or abbreviation indicating the type of entity described as provided in subsection (c). In such a case, the holder entity need not change its name pursuant to
subsection (b).
(e)
An entity name may not contain the words [insert prohibited words or words that
may be used only with approval by the appropriate state agency].
SECTION 1-302.
NAME REQUIREMENTS FOR CERTAIN TYPES OF ENTITIES.
(a)
The name of a business corporation must contain the word "corporation”,
"incorporated”, “company”, or “limited”, or the abbreviation “Corp.”,
“Inc.”, “Co.”, or “Ltd.”, or words or abbreviations of similar import in
another language.
(b)
The name of a limited partnership may contain the name of any partner. If
the The limited
name of a partnership that is not a limited liability limited
partnership, the name must
contain the phrase words “limited partnership” or
the abbreviation “L.P.” or “LP” and may not contain the phrase words “limited liability limited partnership” or
“registered limited liability limited partnership” or the abbreviation
“L.L.L.P.”, “LLLP”, “R.L.L.L.P.” or RLLLP”.
If the limited partnership is a limited liability limited partnership,
the name must contain the phrase words “limited liability
limited partnership” or the abbreviation “L.L.L.P.”, or
“LLLP” “R.L.L.L.P.”, or “RLLLP”
and may not contain the abbreviation “L.P.” or “LP”.
(c)
The name of a limited liability partnership that is not a limited liability
limited partnership must contain the words “limited liability partnership”
or “registered limited liability partnership” or the abbreviation “L.L.P.”,
“R.L.L.P.”, “LLP”, or “RLLP”.
(d)
The name of a limited liability company must contain the words “limited
liability company” or “limited company” or the abbreviation “L.L.C.”, “LLC”,
“L.C.”, or “LC”. “Limited” may be
abbreviated as “Ltd.”, and “company” may be abbreviated as “Co.”.
(e)
The name of a limited cooperative association must contain the words “limited
cooperative association” or “limited cooperative” or the abbreviation “L.C.A.”
or “LCA”. “Limited” may be abbreviated
as “Ltd.”. “Cooperative” may be
abbreviated as “Co-op.”, “Coop.”, “Co-op”, or “Coop”. “Association” may be abbreviated as “Assoc.”,
“Assoc”, “Assn.”, or “Assn”.
(f)
The name of a statutory trust may contain the words “company”, “association”,
“club”, “foundation”, “fund”, “institute”, “society”, “union”, “syndicate”,
“limited”, or “trust”, or words or
abbreviations of similar import, and may contain the name of a
beneficial owner, a trustee, or any other person.
[(g)
Insert requirements for names of other types of entities that may be included
in this [act], such as general cooperative associations.]
SECTION 1-303.
RESERVATION OF NAME.
(a)
A person may reserve the exclusive use of an entity name by delivering an
application to the [Secretary of State] for filing. The application must state
the name and address of the applicant and the name proposed to
be reserved. If the [Secretary of State]
finds that the entity name applied
for is available, the [Secretary of State] shall reserve the name
for the applicant’s exclusive use for a [120]-day period [120] days.
(b)
The owner of a reserved entity name may transfer the reservation to another
person that is not an individual
by delivering to the [Secretary of State] a signed notice in a
record of the transfer which states the name and address of the transferee.
SECTION 1-304.
REGISTRATION OF NAME.
(a)
A foreign filing entity or foreign limited liability partnership not registered
to do business in this state under [Part] 5 may register its name, or an
alternate name required by adopted pursuant to Section
1-506, if the name is distinguishable upon on the records of the
[Secretary of State] from the names that are not available under Section 1-301.
(b)
To register its name or an alternate name required
by adopted pursuant to
Section 1-506, a foreign filing entity or foreign limited liability partnership
must deliver to the [Secretary of State] for filing an application stating its the entity’s name, the jurisdiction and date of its formation, and any alternate or its name with any addition required by adopted pursuant to Section
1-506, and the jurisdiction and date of its
formation. If the [Secretary
of State] finds that the name applied for is available, the [Secretary of
State] shall register the name for the applicant’s exclusive use.
(c)
The registration of a name under this section is effective for [one year] after
the date of filing registration.
(d)
A foreign filing entity or foreign limited liability partnership whose name registration
is effective may renew the registration for successive one-year periods by
delivering, not earlier than [three months] before the expiration of the
registration year, to the
[Secretary of State] for filing a renewal application that complies with this
section. When filed, the renewal
application renews the registration for a succeeding one-year period.
(e)
A foreign filing entity or foreign limited liability partnership whose name
registration is effective may register as a foreign filing entity or foreign
limited liability partnership under the registered name or consent in a signed
record to the use of that name by: another entity.
(1) a domestic filing
entity formed under this [act];
(2) a limited
liability partnership subject to this [act]; or
(3) another foreign
filing entity or foreign limited liability partnership authorized to do
business in this state.
REGISTERED
AGENT OF
ENTITY
SECTION 1-401. DEFINITIONS. In this [part]:
(1) “Appointment Designation
of agent” means a statement appointing an designating a registered
agent for service of process delivered to the [Secretary of State]
for filing filed under: (A)
[Section 10 of the Uniform Unincorporated Nonprofit Association Act]; or
(B) Section 1-411 by a nonqualified nonregistered
foreign entity or domestic nonfiling entity.
(2)
“Nonqualified Nonregistered foreign entity” means a foreign
entity that is not a qualified foreign entity registered to do
business in this state pursuant to a statement of registration filed by the
[Secretary of State].
(3) “Nonresident limited liability
partnership statement” means:
(A) a statement of
qualification of a domestic limited liability partnership that does not have an
office in this state; or
(B) a statement of
foreign qualification of a foreign limited liability partnership that does not
have an office in this state.
(4) (3) “Registered
agent filing” means:
(A)
the public organic record of a domestic filing entity;
(B)
a nonresident limited liability
partnership statement a statement of qualification of a domestic limited
liability partnership;
(C)
a registration statement filed pursuant to Section 1-503; or
(D)
an appointment a designation of a registered agent.
(5) (4) “Represented
entity” means:
(A)
a domestic filing entity;
(B)
a domestic or qualified foreign
limited liability partnership that
does not have an office in this state;
(C)
a qualified registered foreign entity;
(D)
a domestic or foreign unincorporated nonprofit association for which an appointment
a designation of an agent has been filed is in effect;
(E)
a domestic nonfiling entity for which an appointment a designation
of an agent has been filed; or
(F)
a nonqualified nonregistered foreign entity for which an
appointment a designation of an agent has been filed.
SECTION 1-402.
ENTITIES REQUIRED TO DESIGNATE AND MAINTAIN REGISTERED AGENT. The following shall designate and maintain a
registered agent in this state:
(1)
a domestic filing entity;
(2)
a domestic limited liability partnership that
does not maintain a place of business in this state; and
(3)
a qualified registered
foreign entity.
SECTION 1-403.
ADDRESSES IN FILINGS FILING. If a provision of this [part] other than
Section 1-410(a)(4) requires that a record state an address, the record must
state:
(1)
a street address in this state; and
(2)
a mailing address in this state, if different from the address described in
paragraph (1).
SECTION 1-404.
APPOINTMENT DESIGNATION OF REGISTERED AGENT.
(a) A registered agent filing must be signed by the entity and state:
(1) the name of the
represented entity’s commercial registered agent; or
(2) if the entity does
not have a commercial registered agent:
(A) the name
and address of the entity’s noncommercial registered agent; or
(B) if
the entity designates an officer or employee to accept service of process,
the title of the an office or other position with the entity
if service of process, notices, and demands are to be sent to the individual
holding that office or position, and the address of the business office of
that person individual.
(b) The appointment designation
of a registered agent pursuant to subsection (a)(1) or (2)(A) is an affirmation
under Section 1-209 of fact by the represented entity that the
agent has consented to serve.
(c) The [Secretary of State] shall
make available in a record as soon as practicable a daily list of filings that
contain the name of a registered agent.
The list must:
(1) be available for at
least 14 calendar days;
(2) list in alphabetical
order the names of the registered agents; and
(3) state the type of
filing and name of the represented entity making the filing.
SECTION 1-405.
LISTING OF COMMERCIAL REGISTERED AGENT.
(a)
A person may become listed as a commercial registered agent by filing with
delivering to the [Secretary of State] for filing a
commercial-registered-agent listing statement signed by or on behalf of
the person which states:
(1)
the name of the individual or the name of the entity, type of entity, and
jurisdiction of formation of the entity;
(2)
that the person is in the business of serving as a commercial registered agent
in this state; and
(3)
the address of a place of business of the person in this state to which service
of process and other notice and documents, notices, and demands
being served on or sent to entities represented by the person may be delivered.
(b)
A commercial-registered-agent listing statement may include the information
regarding acceptance by the agent of service of process, notices, and
demands in a form other than a written record as provided for in Section 1-412(d).
(c)
If the name of a person filing delivering to the [Secretary of State]
for filing a commercial-registered-agent listing statement is not
distinguishable on the records of the [Secretary of State] from the name of
another commercial registered agent listed under this section, the person shall
adopt a fictitious name that is distinguishable and use that name in its
statement and when it does business in this state as a commercial registered
agent.
(d)
A listing statement takes effect on filing by the [Secretary of State].
(e)
(d) The [Secretary of State] shall note the filing of the a commercial-registered-agent listing statement in
the [index of filings]
[records] maintained by the [Secretary of
State] for each entity represented by the agent at the time of the filing. The statement has the effect of amending the registered agent filing for each
of those entities to:
(1) designate the
person becoming listed as a commercial registered agent as the commercial
registered agent of each of those entities; and
(2) deleting
delete the address of the former agent from the registered agent filing of each of
those entities.
SECTION 1-406.
TERMINATION OF LISTING OF COMMERCIAL REGISTERED AGENT.
(a)
A commercial registered agent may terminate its listing as a commercial
registered agent by delivering to the [Secretary of State] for filing a
commercial-registered-agent termination statement signed by or on behalf of
the agent which states:
(1)
the name of the agent as listed under Section 1-405; and
(2)
that the agent is no longer in the business of serving as a commercial
registered agent in this state.
(b)
A commercial-registered-agent termination statement takes effect at 12:01 a.m.
on the 31st day after the day on which it is delivered to the [Secretary of
State] for filing.
(c)
The commercial registered agent promptly shall furnish each entity represented
by the agent notice in a record of the filing of the
commercial-registered-agent termination statement.
(d)
When a commercial-registered-agent termination statement takes effect, the
commercial registered agent ceases to be an the registered agent
for service of process on each entity formerly represented by it. Until an entity formerly represented by a
terminated commercial registered agent appoints designates a new
registered agent, service of process may be made on the entity pursuant to
Section 1-412. Termination of the
listing of a commercial registered agent under this section does not affect any
contractual rights a represented entity has against the agent or that the agent
has against the entity.
SECTION 1-407.
CHANGE OF REGISTERED AGENT BY ENTITY.
(a)
A represented entity may change the information on file under Section 1-404(a)
by delivering to the [Secretary of State] for filing a statement of change
signed on behalf of by the entity which states:
(1)
the name of the entity; and
(2)
the information that is to be in effect as a result of the filing of the
statement of change.
(b)
The interest holders or governors of a domestic entity need not approve the
filing of:
(1)
a statement of change under this section; or
(2)
a similar filing changing the registered agent or registered office, if any, of the entity in any
other jurisdiction.
(c)
A statement of change under this section appointing designating a
new registered agent is an affirmation under Section 1-209 of fact
by the represented entity that the agent has consented to serve.
(d)
A statement of change under this section takes effect on delivery to the
[Secretary of State] for filing.
(e)
(d) As an alternative to using the procedure in this section, a
represented entity may change the information on file under Section 1-404(a) by
amending its most recent registered agent filing in a manner provided by the
law of this state other than this [act] for amending the filing.
SECTION 1-408.
CHANGE OF NAME OR, ADDRESS, TYPE OF ENTITY, OR
JURISDICTION OF FORMATION BY NONCOMMERCIAL REGISTERED AGENT.
(a)
If a noncommercial registered agent changes its name or, its
address in effect with respect to a represented entity under Section 1-404(a), its
type of entity, or its jurisdiction of formation, the agent shall deliver
to the [Secretary of State] for filing, with respect to each entity represented
by the agent, a statement of change signed by or on behalf of the agent
which states:
(1)
the name of the entity;
(2)
the name and address of the agent in effect with respect to the entity;
(3)
if the name of the agent has changed, the new name; and
(4)
if the address of the agent has changed, the new address.; and
(5)
if the agent is an entity:
(A)
if the type of entity of the agent has changed, the new type of entity; and
(B)
if the jurisdiction of formation of the agent has changed, the new jurisdiction
of formation.
(b)
A statement of change under this section takes effect on delivery to the
[Secretary of State] for filing.
(c)
(b) A noncommercial registered agent promptly shall furnish the
represented entity with notice in a record of the delivery of to
the [Secretary of State] for filing of a statement of change and the changes
made in the statement.
SECTION
1-409. CHANGE OF NAME, ADDRESS, TYPE OF
ENTITY, OR JURISDICTION OF FORMATION BY COMMERCIAL REGISTERED AGENT.
(a)
If a commercial registered agent changes its name, its address as listed under
Section 1-405(a), its type of entity, or its jurisdiction of formation, the
agent shall deliver to the [Secretary of State] for filing a statement of
change signed by or on behalf of the agent which states:
(1)
the name of the agent as listed under Section 1-405(a);
(2)
if the name of the agent has changed, the new name;
(3)
if the address of the agent has changed, the new address;
(4)
if the agent is an entity:
(A)
if the type of entity of the agent
has changed, the new type of entity; and
(5)
(B) if the jurisdiction of formation of the entity agent
has changed, the new jurisdiction of formation.
(b)
The delivery to the filing by the [Secretary of
State] for filing by a commercial
registered agent of a
statement of change under subsection (a) is effective to change the information
regarding the agent with respect to each entity represented by the agent.
(c)
A commercial registered agent promptly shall furnish to each entity represented by it a notice in a record of the delivery to the filing by the [Secretary of State] for filing of a statement of change
relating to the name or address of the agent and the changes made in the
statement.
(d)
If a commercial registered agent changes its address without delivering for
filing a statement of change as required by this section, the [Secretary of
State] may cancel the listing of the agent under Section 1-405. A cancellation under this subsection has the
same effect as a termination under Section 1-406. Promptly after canceling the listing of an
agent, the [Secretary of State] shall serve notice in a record in the manner
provided in Section 1-412(b) or (c) on:
(1)
each entity represented by the agent, stating that the agent has ceased to be an
the registered agent for service of process on the entity and
that, until the entity appoints designates a new registered
agent, service of process may be made on the entity as provided in Section
1-412; and
(2)
the agent, stating that the listing of the agent has been canceled under this
section.
SECTION 1-410.
RESIGNATION OF REGISTERED AGENT.
(a)
A registered agent may resign as agent for a represented entity by delivering
to the [Secretary of State] for filing a statement of resignation signed by or
on behalf of the agent which states:
(1)
the name of the entity;
(2)
the name of the agent;
(3)
that the agent resigns from serving as registered agent for service
of process for the entity; and
(4)
the address of the entity to which the agent will send the notice required by
subsection (c).
(b)
A statement of resignation takes effect on the earlier of:
(1)
the 31st day after the day on which it is delivered
to filed by the
[Secretary of State] for filing;
or
(2)
the appointment designation of a new registered agent for the
represented entity.
(c)
A registered agent promptly shall furnish to
the represented entity notice in a record of the date on which a statement of resignation
was delivered to the [Secretary of State] for filing filed.
(d)
When a statement of resignation takes effect, the registered agent ceases to
have responsibility under this [part]
for any matter thereafter
tendered to it as agent for the represented entity. The resignation does not affect any
contractual rights the entity has against the agent or that the agent has
against the entity.
(e)
A registered agent may resign with respect to a represented entity whether or
not the entity is in good standing.
SECTION 1-411.
APPOINTMENT DESIGNATION OF REGISTERED AGENT BY NONQUALIFIED
NONREGISTERED FOREIGN ENTITY OR NONFILING DOMESTIC ENTITY.
(a)
A nonqualified nonregistered foreign entity or domestic nonfiling
entity may deliver to the [Secretary of State] for filing a statement appointing
designating a registered agent signed on behalf of by the
entity which states:
(1)
the name, type of entity, and jurisdiction of formation of the entity; and
(2)
the information required by Section 1-404(a).
(b)
A statement appointing a registered agent takes effect on filing by the
[Secretary of State] and under subsection (a) is effective for five
years after the date of filing unless canceled or terminated earlier.
(c)
Appointment Designation of a registered agent under this
section subsection (a) does not qualify register a nonqualified
nonregistered foreign entity to do business in this state.
(d)
A statement appointing a registered agent under subsection (a)
may not be rejected for filing because the name of the entity filing signing
the statement is not distinguishable on the records of the [Secretary of State]
from the name of another entity appearing in those records. The filing of such a statement does not make
the name of the entity filing signing the statement unavailable
for use by another entity.
(e)
An entity that delivers to the [Secretary of State] for filing a statement
under subsection (a) appointing designating a registered agent
may cancel the statement by delivering to the [Secretary of State] for filing a
statement of cancellation that states the name of the entity and that the
entity is canceling its appointment designation of an a
registered agent for service of process in this state. The statement takes effect on filing by
the [Secretary of State].
(f)
A statement appointing a registered agent under subsection (a)
for a nonqualified nonregistered foreign entity terminates on the
date the entity becomes a qualified registered foreign entity.
SECTION
1-412. SERVICE OF PROCESS, NOTICE, OR
DEMAND ON ENTITY.
(a)
A represented entity may be served with any process, notice, or demand required
or permitted by law by serving its registered agent.
(b)
If an a represented entity that delivered to the [Secretary of State] for
filing a registered-agent filing no longer has ceases to have a registered
agent, or if its registered agent cannot with reasonable diligence be served,
the entity may be served by registered or certified mail, return receipt
requested, or by similar commercial delivery service, addressed to the governors of the entity by name at its the entity’s principal office in accordance with any applicable judicial
rules and procedures. The names of the governors and the address of the
principal office may must be as shown in the entity’s most recent [annual] [biennial] report filed with by the [Secretary of State]. Service
is effected under this subsection on the earliest of:
(1)
the date the entity receives the mail or delivery by a similar the
commercial delivery service;
(2)
the date shown on the return receipt, if signed on behalf of by
the entity; or
(3)
five days after its deposit with the United States Postal Service, or similar commercial delivery service, if correctly addressed and with
sufficient postage or payment.
(c)
If process, notice, or demand cannot be served on an entity pursuant to
subsection (a) or (b), service may be made by handing a copy to the manager, clerk, or other individual
in charge of any regular place of business or activity of the entity if the individual
served is not a plaintiff in the action.
(d)
Service of process, notice, or demand on a registered agent must be in a
written record, but service may be made on a commercial registered agent in
other forms, and subject to such requirements, as the agent has stated in its
listing under Section 1-405 that it will accept.
(e)
Service of process, notice, or demand may be made by other means under law
other than this [act].
SECTION 1-413.
DUTIES OF REGISTERED AGENT. The only duties under this [part]
of a registered agent that has complied with this [part] are:
(1)
to forward to the represented entity at the address most recently supplied to
the agent by the entity any process, notice, or demand that pertaining to the entity which is served on or received by the agent;
(2)
to provide the notices required by this [act] to the entity at the address most
recently supplied to the agent by the entity;
(3)
if the agent is a noncommercial registered agent, to keep current the
information required by Section 1-404(a) in the most recent registered agent
filing for the entity; and
(4)
if the agent is a commercial registered agent, to keep current the information
listed for it under Section 1-405(a).
SECTION 1-414.
JURISDICTION AND VENUE. The appointment designation or
maintenance in this state of a registered agent does not by itself create the
basis for personal jurisdiction over the represented entity in this state. The address of the agent does not determine
venue in an action or a proceeding involving the entity.
(a)
The law of the jurisdiction of formation of an entity governs:
(1)
the internal affairs of the entity;
(2)
the liability that a person has as an interest holder or governor for a debt,
obligation, or other liability of the entity; [and]
(3)
[the liability of a series of a series limited liability company; and
(4)]
the liability of a series of a statutory trust.
(b)
A foreign entity is not precluded from registering to do business in this state
because of any difference between the laws law of the entity’s
jurisdiction of formation and the laws law of this state.
(c)
Registration of a foreign entity to do business in this state does not
authorize it the foreign entity to engage in
any activity or exercise any power that a domestic entity of the same type may
not engage in or exercise in this state.
SECTION 1-502.
REGISTRATION TO DO BUSINESS IN THIS STATE.
(a)
A foreign filing entity or foreign limited liability partnership may not do
business in this state until it registers with the [Secretary of State] under
this [article].
(b)
A foreign filing entity or foreign limited liability partnership doing business
in this state may not maintain an action or
proceeding in this state unless it is registered to do business in
this state.
(c)
The failure of a foreign filing entity or foreign limited liability partnership
to register to do business in this state does not impair the validity of a
contract or act of the foreign filing entity or foreign limited liability
partnership or preclude it from defending a an action or proceeding in this
state.
(d)
The A limitation on the liability of an interest holder
or governor of a foreign filing entity or of a partner of a foreign limited
liability partnership is governed by
the laws of its jurisdiction of formation.
Any limitation on that liability is not waived solely because
the foreign filing entity or foreign limited liability partnership does
business in this state without registering.
(e)
Section 1-501(a) and (b) applies even if a foreign entity fails to register
under this [article].
SECTION 1-503.
FOREIGN REGISTRATION STATEMENT. To register to do business in this state, a
foreign filing entity or foreign limited liability partnership must deliver a
foreign registration statement to the [Secretary of State] for filing. The
statement must be signed by the
entity and state:
(1)
the name of the foreign filing entity or foreign limited liability partnership
and, if the name does not comply with Section 1-301, an alternate name adopted
pursuant to Section 1-506(a);
(2)
the type of entity and, if it is a limited partnership, whether it is a limited
liability limited partnership;
(3)
the entity’s jurisdiction of formation;
(4)
the street and mailing address addresses of the entity’s principal office of
the foreign filing entity
or foreign limited liability partnership and, if the laws law of it’s the entity’s jurisdiction of
formation require requires it the entity to maintain an office in that jurisdiction,
the street and mailing address addresses of the office; and
(5)
the information required by Section 1-404(a).
SECTION 1-504.
AMENDMENT OF FOREIGN REGISTRATION STATEMENT.
(a) A registered foreign
entity registered to do business in this state shall deliver to the
[Secretary of State] for filing an amendment to its foreign registration
statement if there is a change in:
(1)
the name of the entity;
(2)
the type of entity, including, if it is a limited partnership, whether the entity
became or ceased to be a limited liability limited partnership;
(3)
the entity’s jurisdiction of formation;
(4)
the an address or
addresses required by Section 1-503(4); or
(5)
the information required by Section 1-404(a).
(b) The requirements of Section 1-503 for an
original foreign registration statement apply to an amendment of a foreign registration statement under this
section.
SECTION 1-505.
ACTIVITIES NOT CONSTITUTING DOING BUSINESS.
(a)
Activities of a foreign filing entity or foreign limited liability partnership
which do not constitute doing business in this state under this [article]
include:
(1)
maintaining, defending, mediating, arbitrating, or settling a
an action or proceeding;
(2)
carrying on any activity concerning its internal affairs, including holding
meetings of its interest holders or governors;
(3)
maintaining accounts in financial institutions;
(4)
maintaining offices or agencies for the transfer, exchange, and registration of
interests in securities of the entity or
maintaining trustees or depositories with respect to those interests securities;
(5)
selling through independent contractors;
(6)
soliciting or obtaining orders by any means if the orders require acceptance
outside this state before they become contracts;
(7)
creating or acquiring indebtedness, mortgages, or security interests in
property;
(8)
securing or collecting debts or enforcing mortgages or other security interests in property securing the debts,
and holding, protecting, or maintaining property so acquired;
(9)
conducting an isolated transaction that is not in the course of similar
transactions; and
(10)
owning, without more, property; and
(11)
doing business in interstate commerce.
(b)
A person does not do business in this
state solely by being an interest holder or governor of a foreign entity that
does business in this state.
(c) This
section does not apply in determining the contacts or activities that may
subject a foreign filing entity or foreign limited liability partnership to
service of process, taxation, or regulation under law of this state other than
this [act].
SECTION 1-506. NONCOMPLYING NAME OF FOREIGN ENTITY.
(a)
A foreign filing entity or foreign limited liability partnership whose name
does not comply with Section 1-301 for an entity of its type may not register
to do business in this state until it adopts, for the purpose of doing business
in this state, an alternate name that complies with Section 1-301. A registered
foreign filing entity or foreign limited liability partnership
that registers under an alternate name under this subsection need not comply
with [this state’s fictitious or assumed or
fictitious name statute]. After
registering to do business in this state with an alternate name, a registered
foreign filing entity or foreign limited liability partnership may shall do business in this state under:
(1)
the alternate name;
(2)
its entity name, with the addition of its jurisdiction of formation clearly
identified; or
(3)
an assumed or fictitious name the entity is authorized to use under [this
state’s fictitious or assumed or fictitious name statute].
(b)
If a registered foreign filing entity registered to do
business in this state changes its name to one that does not comply with
Section 1-301, it may not do business in this state until it complies with
subsection (a) by amending its registration to adopt an alternate name that
complies with Section 1-301.
SECTION 1-507.
WITHDRAWAL OF REGISTRATION OF REGISTERED FOREIGN ENTITY.
(a)
A registered foreign entity registered to do business in this state
may withdraw its registration by delivering a statement of withdrawal to the
[Secretary of State] for filing. The statement of withdrawal must be signed by the entity and state:
(1)
the name of the foreign entity and the
name of the its jurisdiction under whose law it is
formed of formation;
(2) the type of entity including, if it is a
limited partnership, whether it is a limited liability limited partnership;
(3) (2)
that the entity is not doing business in this state and that it withdraws its
registration to do business in this state;
(4) (3) that the entity revokes the authority of its
registered agent to accept service on its behalf in this state; and
(5) (4) an address to which service of process may be
made under subsection (b).
(b)
After the withdrawal of the registration of an entity, service of process in
any action or proceeding based on a cause of action
arising during the time it the entity was registered to do
business in this state may be made pursuant to Section 1-412.
SECTION 1-508.
WITHDRAWAL DEEMED ON CONVERSION TO DOMESTIC FILING ENTITY OR DOMESTIC
LIMITED LIABILITY PARTNERSHIP. A qualified registered foreign
entity registered to do business in this state which that converts
to any type of domestic filing entity or to a domestic registered
limited liability partnership is deemed to have withdrawn its registration on
the effective date of the conversion.
SECTION 1-509. WITHDRAWAL ON DISSOLUTION OR CONVERSION TO
NONFILING ENTITY OTHER THAN LIMITED LIABILITY PARTNERSHIP.
(a)
A registered foreign
entity registered to do business in
this state which dissolves that
has dissolved and completed winding up or converts that
has converted to a domestic or foreign nonfiling entity other than a
limited liability partnership shall deliver a statement of withdrawal to the
[Secretary of State] for filing. The statement must set forth be signed by the dissolved or converted entity
and state:
(1) in
the case of a foreign entity that has completed winding up:
(A) the its
name of the foreign entity
and the name of the its jurisdiction under
whose law it was formed before the dissolution or conversion of
formation; and
(2) the type of entity the foreign entity was
before the dissolution or conversion;
(3) (B)
that the foreign entity surrenders its registration to do business in this
state as a qualified entity;
and
(4) (2) if the in the case of a foreign
entity that has converted
to a domestic or foreign
nonfiling entity other than a foreign limited liability partnership:
(A) the
name of the converting foreign entity and its jurisdiction of formation;
(B)
the type of nonfiling entity to which it has converted and the its jurisdiction whose laws govern its internal affairs of formation;
(B)
(C) that it surrenders its
registration to do business in this state and revokes the authority
of its registered agent to accept service on its behalf; and
(C)
(D) a mailing address to which service of process may be made under
subsection (b).
(b)
After the a withdrawal is effective under this section of a foreign filing entity that has converted
to a foreign nonfiling entity is effective, service of process in
any action or proceeding
based on a cause of action arising during the time it the foreign
filing entity was registered to do business in this state may be
made pursuant to Section 1-412.
(c) After the withdrawal under this section of
a foreign filing entity that has converted to a domestic nonfiling entity other
than a limited liability partnership is effective, service of process may be
made on the nonfiling entity pursuant to Section 1-412.
SECTION 1-510.
TRANSFER OF REGISTRATION.
(a)
A If a registered foreign filing entity or foreign
limited liability partnership registered to do business in this state that
merges with merges into a nonregistered foreign entity or converts
converts to a foreign entity required to register with the [Secretary of
State] to do business in this state, the foreign entity shall deliver to
the [Secretary of State] for filing an application for transfer of
registration. The application must be signed by the surviving or converted entity
and state:
(1)
the name of the applicant registered foreign entity before the merger or conversion;
(2)
the type of entity it was before the merger or conversion;
(3)
the name of the applicant
entity into which it has merged or to
which it has been converted, and, if the name does not comply with
Section 1-301, an alternate name adopted pursuant to Section 1-506(a);
(4)
the type of entity into which it has
merged or to which it has been converted of the applicant entity and the its
jurisdiction whose law governs its internal affairs of formation;
and
(5)
the following information regarding the applicant
entity into which it has merged or to
which it has been converted, if different than the information for
the applicant foreign entity before the merger or conversion:
(A)
the street and mailing address addresses of the principal
office of the entity and, if the law of the entity’s jurisdiction of formation
requires it to maintain an office in that jurisdiction, the street and mailing address addresses of that office; and
(B)
the name and street and mailing address of its registered agent in this
state information required pursuant to Section 1-404(a).
(b)
An application for transfer of registration must be delivered to the [Secretary
of State] for filing and takes effect at the time provided in Section 1-203.
(c)
(b) When an application for transfer of registration takes effect, the
registration of the applicant registered foreign entity to do
business in this state is transferred without interruption to the entity into
which it has merged or to which it has been converted.
SECTION 1-511.
TERMINATION OF REGISTRATION.
(a)
The [Secretary of State] may terminate the registration of a registered
foreign filing entity or foreign limited liability partnership to do business in this state in the
manner provided in subsections (b) and (c) if the entity does not:
(1)
pay, not later than [60 days] after the due date, any fee, tax, interest, or penalty required to be
paid to the [Secretary of State] under this [article] [act] or
law of this state other than this [act];
(2)
deliver to the [Secretary of State] for filing, not later than [60 days] after
the due date, the [an annual] [a biennial] report, if any, required of foreign entities of its
type; or
(3)
have a registered agent as required by Section 1-402; or
(4) deliver to the
[Secretary of State] for filing a statement of change under Section 1-407 not
later than 30 days after a change occurs in the name or address of the entity’s
registered agent.
(b)
The [Secretary of State] may terminate the registration of a registered
foreign filing entity or foreign limited liability partnership,
by:
(1)
filing a notice of termination or noting the termination in the records of the
[Secretary of State]; and by
(2)
delivering a copy of the notice or the information in the notation to the
entity’s registered agent in this
state, or if the entity does not have a registered agent in this state, to the entity’s
principal office as designated in
Section 1-503(4).
(c) The notice must state or the information in
the notation under subsection (b) must include:
(1)
the effective date of the termination, which must be at least [60 days] after
the date the [Secretary of State] delivers the copy; and
(2)
the grounds for termination under subsection (a).
(c)
(d) The authority of a registered foreign filing entity or
foreign limited liability partnership to do business in this state ceases
on the effective date of the notice of termination or notation under
subsection (b), unless before that date the entity cures each ground for
termination stated in the notice filed under subsection (b) or
notation. If the entity cures each
ground, the [Secretary of State] shall file a record so stating.
[SECTION 1-512.
ACTION BY [ATTORNEY GENERAL]. The [Attorney General] may maintain an action
to enjoin a foreign filing entity or foreign limited liability partnership from
doing business in this state in violation of this [act].]
SECTION 1-601. GROUNDS. The [Secretary of State] may commence a
proceeding under Section 1-602 to dissolve a domestic filing entity
administratively if the entity does not:
(1)
pay any fee, tax, interest,
or penalty required to be paid to the [Secretary of State] not later than [six
months] after it is due;
(2)
deliver [an annual] [a biennial] report to the [Secretary of State] not later
than [six months] after it is due; or
(3)
have a registered agent in this state for [60] consecutive days.
SECTION 1-602.
PROCEDURE AND EFFECT.
(a)
If the [Secretary of State] determines that one or more grounds exist under
Section 1-601 for administratively dissolving a domestic filing entity,
the [Secretary of State] shall serve the entity pursuant to Section 1-412
1-210 with notice in a record of the [Secretary of State’s]
determination.
(b)
If a domestic filing entity, not later than [60] days] after
service of the notice is effected under Section 1-412 required by
subsection (a), does not correct cure each ground for
dissolution or demonstrate to the satisfaction of the [Secretary of State] that
each ground determined by the [Secretary of State] does not exist, the
[Secretary of State] shall dissolve the entity administratively by signing a
statement of administrative dissolution that recites the ground or grounds for dissolution
and its the effective date of dissolution. The [Secretary
of State] shall file the original of
the statement and serve a copy on the entity pursuant to Section 1-412 1-210.
(c)
A domestic filing entity that is dissolved administratively continues its
existence as an entity but may not carry on any business activities
except as necessary to wind up its activities and affairs and liquidate
its business and affairs assets in the manner provided in its
organic law or to apply for reinstatement under Section 1-603.
(d)
The administrative dissolution of a domestic filing entity does not terminate
the authority of its registered agent.
(a)
A domestic filing entity that is dissolved administratively under Section 1-602
may apply to the [Secretary of State] for reinstatement [not later than
[two] years after the effective date of dissolution]. The application must be signed by the entity and state:
(1)
the name of the entity at the time of its administrative dissolution and, if
needed, a different name that satisfies Section 1-301;
(2)
the address of the principal office of the entity and the name and address of the
its registered agent;
(3)
the effective date of the entity’s administrative dissolution; and
(4)
that the grounds for dissolution either
did not exist or have been eliminated cured.
(b)
To be reinstated, an entity must pay all fees, taxes, interest, and penalties that were
due to the [Secretary of State] at the time of its administrative dissolution
and all fees, taxes, interest, and penalties that would have been due to
the [Secretary of State] while the entity was dissolved administratively.
(c)
If the [Secretary of State] determines that the an application under
subsection (a) contains the information required by subsection (a), is
satisfied that the information is correct, and determines that all payments
required to be made to the [Secretary of State] by subsection (b) have been
made, the [Secretary of State] shall:
(1)
cancel the statement of administrative dissolution and prepare a statement of
reinstatement that states the [Secretary of State’s] determination and the
effective date of reinstatement,;
(2)
file the original of the
statement,; and
(3)
serve a copy of the statement on the entity pursuant to Section 1-412.
(d)
When reinstatement under this section is effective,
(1)
it relates back to and takes effect as of the effective date of the
administrative dissolution,; and
(2)
the domestic filing entity resumes carrying on its business activities
and affairs as if the administrative dissolution had never occurred,
except for the rights of a person arising out of an act or omission in reliance
on the dissolution before the person knew or had reason to know of the
reinstatement.
SECTION 1-604.
JUDICIAL REVIEW OF DENIAL OF REINSTATEMENT.
(a)
If the [Secretary of State] denies a domestic filing entity’s application for
reinstatement following administrative dissolution, the [Secretary of State]
shall serve the entity pursuant to
Section 1-412 with a notice in a record that explains the reason or reasons for denial.
(b)
An entity may seek judicial review of denial of reinstatement in [the
appropriate court] not later than [30] days] after service of the
notice of denial.
SECTION 1-701.
RESERVATION OF POWER TO AMEND OR REPEAL. The [legislature of this state] has power to
amend or repeal all or part of this [act] at any time, and all domestic and
foreign entities subject to this [act] are governed by the amendment or repeal.
SECTION 1-702.
SUPPLEMENTAL PRINCIPLES OF LAW. Unless displaced by particular provisions of
this [act], the principles of law and equity supplement this [act].
SECTION 1-703.
UNIFORMITY OR CONSISTENCY OF APPLICATION AND CONSTRUCTION. In applying and construing the [articles] of
this [act] based on uniform or model acts, consideration must be given to the
need to promote uniformity or consistency of the law with respect to its
subject matter among states that enact it.
SECTION 1-704. SEVERABILITY CLAUSE. If any provision of this [act] or its
application to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of this [act] which can be given
effect without the invalid provision or application, and to this end the
provisions of this [act] are severable.
Legislative
Note: Include this section only if this state lacks
a general severability statute or decision by the highest court of this state
stating a general rule of severability.
SECTION 1-704 1-705. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL
AND NATIONAL COMMERCE ACT. This [act] modifies, limits, and or
supersedes the federal Electronic Signatures in Global and National
Commerce act Act, 15 U.S.C. Section 7001 et seq., but does not
modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section
7001(c), or authorize electronic delivery of any of the notices described in
Section 103(b) of that act, 15 U.S.C. Section 7003(b).
SECTION 1-705 1-706. SAVINGS CLAUSE. The repeal of a statute by this [act] does
not affect:
(1) the operation of the statute or
any action taken under it before its repeal;
(2) any ratification, right, remedy,
privilege, obligation, or liability acquired, accrued, or incurred under the
statute before its repeal;
(3) any violation of the statute or
any penalty, forfeiture, or punishment incurred because of the violation before
its repeal; or
(4) any proceeding, reorganization,
or dissolution commenced under the statute before its repeal, and the
proceeding, reorganization, or dissolution may be completed in accordance with
the statute as if it had not been repealed.
SECTION 1-706 1-707. EFFECTIVE DATE. This [act] takes effect . . .
LIMITED
COOPERATIVE ASSOCIATIONS
UNINCORPORATED
NONPROFIT ASSOCIATIONS
EXCERPTS FROM AMENDMENTS TO
HARMONIZED MODEL ENTITY TRANSACTIONS ACT
* * *
SECTION 102. DEFINITIONS. In this [act]:
*
* *
(22)
“Liability” means a debt, obligation, or any other liability arising in
any manner, regardless of whether it is secured or whether it is contingent.
*
* *
(31) “Plan of conversion” means a plan under
Section 402.
(32) “Plan of domestication” means a plan under
Section 502.
(33) “Plan of interest exchange” means a plan
under Section 302.
(34) “Plan of merger” means a plan under Section
202.
*
* *
(43) “Statement of conversion” means a statement
under Section 405.
(44) “Statement of domestication” means a
statement under Section 505.
(45) “Statement of interest exchange” means a
statement under Section 305.
(46) “Statement of merger” means a statement under
Section 205.
(36)
(47) “Surviving entity” means the
entity that continues in existence after or is created by a merger under [Article] 2.
*
* *
SECTION
104. REQUIRED NOTICE OR APPROVAL.
(a) A domestic or foreign entity that is required
to give notice to, or obtain the approval of, a governmental agency or officer in order of this state to be a party to a merger must give the
notice or obtain the approval in
order to be a party to an interest exchange, conversion, or
domestication.
(b) Property held for a charitable purpose under
the law of this state by a domestic or foreign entity immediately before a
transaction under this [act] becomes effective may not, as a result of the
transaction, be diverted from the objects for which it was donated, granted, or devised, or otherwise transferred unless,
to the extent required by or pursuant to the law of this state concerning cy
pres or other law dealing with nondiversion of charitable assets, the entity
obtains an appropriate order of [name of the appropriate court]
[the attorney general Attorney General] specifying the
disposition of the property.
* * *
SECTION 201. MERGER
AUTHORIZED.
* * *
(c)
This [article] does not apply to a transaction under:
(1) [Chapter 11 of the Model Business Corporation
Act];
(2) [Chapter 11 of the Model Nonprofit
Corporation Act];
(3) [Article 9 of the Uniform Partnership Act
(1997)];
(4) [Article 11 of the Uniform Limited
Partnership Act (2001)];
(5)
[Article 12 of the Prototype Limited Liability Company Act];
(6) [Article 9 of the Uniform Limited Liability
Company Act (1996)];
(7) (5) [Article 7 of the Uniform Statutory Trust
Entity Act];
(6) [Article 10 of the Uniform Limited Liability
Company Act (2006)]; [or]
(8) (7) [Article 15 16
of the Uniform Limited Cooperative Association Act (2007)] [; or
(9) (8) Cite provisions of any other organic law that has merger
provisions for entities of the same type].
[(d) The following entities may not participate in
a merger under this [article]:
(1)
(2).]
(a)
A domestic entity may become a party to a merger under this [article] by
approving a plan of merger. The plan
must be in a record and contain:
(1) as to each merging entity, its name,
jurisdiction of organization formation, and type of entity;
(2) if the surviving entity is to be created in
the merger, a statement to that effect and its the entity’s name, jurisdiction
of organization formation, and type of entity;
(3) the manner of converting the interests in
each party to the merger into interests, securities, obligations, rights to
acquire interests or securities, cash money, or other
property, rights to acquire interests or securities, or any combination
of the foregoing;
* * *
* * *
SECTION
203. APPROVAL OF MERGER.
(a) A plan of merger is not effective unless it
has been approved:
*
* *
(2) in a record, by each interest holder of a
domestic merging entity that will have interest holder liability for debts,
obligations, and other liabilities that arise after the merger becomes
effective, unless, in the case of an entity that is not a business corporation
or nonprofit corporation:
(A) the organic rules of the entity provide in a
record for the approval of a merger in which some or all of its interest
holders become subject to interest holder liability by the vote or consent of
fewer than all of the interest holders; and
(B) the interest holder voted for or consented in a record
to or voted for that
provision of the organic rules or became an interest holder after the adoption
of that provision.
(b) A merger under
this [article] involving a foreign merging entity is not effective
unless it the merger is approved by the foreign entity in
accordance with the law of the foreign entity’s jurisdiction of organization
formation.
SECTION
204. AMENDMENT OR ABANDONMENT OF PLAN OF
MERGER.
(a) A plan of merger of a domestic merging entity may be amended only with the consent of each party to the
plan, except as otherwise provided in the plan.
(b) A domestic merging entity may approve an
amendment of a plan of merger:
(1) in the same manner as the plan was approved,
if the plan does not provide for the manner in which it may be amended; or
(2) by the governors or interest holders of the
entity in the manner provided in the plan, but an interest holder that was
entitled to vote on or consent to approval of the merger is entitled to vote on
or consent to any amendment of the plan that will change:
(A) the amount or kind of interests, securities,
obligations, rights to acquire interests or securities, cash money, or other property, rights to acquire
interests or securities, or any combination of the foregoing, to be
received by the interest holders of any party to the plan;
(B) the public organic document record,
if any, or private organic rules of the surviving entity that will be in
effect immediately after the merger becomes effective, except for changes that
do not require approval of the interest holders of the surviving entity under
its organic law or organic rules; or
(C) any other terms or conditions of the plan, if
the change would adversely affect the interest holder in any material respect.
(b) (c) After a plan of merger has been approved by a domestic merging entity and before a statement of merger
becomes effective, the plan may be abandoned: (1) as provided in the plan; or. (2)
unless Unless
prohibited by the plan, a domestic
merging entity may abandon the plan
in the same manner as the plan was approved.
(c) (d) If a plan of merger is abandoned after a
statement of merger has been filed with delivered to the
[Secretary of State] for filing and before the filing statement
of merger becomes effective, a statement of abandonment, signed on
behalf of by a merging
entity party to the plan,
must be filed with delivered to the [Secretary of State] for
filing before the time the statement of merger becomes
effective. The statement of abandonment
takes effect upon filing, and the merger is abandoned and does not become
effective. The statement of abandonment
must contain:
(1) the name of each merging or surviving entity that is a domestic entity or a qualified foreign entity party
to the plan of merger;
*
* *
SECTION
205. STATEMENT OF MERGER; EFFECTIVE DATE.
*
* *
(d) If the surviving entity is a domestic entity,
its public organic document record, if any, must satisfy the
requirements of the law of this state, except that it the public
organic record does not need to be signed and may omit any provision
that is not required to be included in a restatement of the public organic document
record.
*
* *
SECTION
206. EFFECT OF MERGER.
(a) When a merger under this [article] becomes effective:
(1) the surviving entity continues or comes into
existence;
(2) each merging entity that is not the surviving
entity ceases to exist;
(3) all property of each merging entity vests in
the surviving entity without transfer, assignment, reversion, or
impairment;
(4) all debts, obligations, and other
liabilities of each merging entity are debts, obligations, and other
liabilities of the surviving entity;
(5) except as otherwise provided by law other than this [act] or the plan
of merger, all of the rights, privileges, immunities, powers, and purposes of
each merging entity vest in the surviving entity;
(6) if the surviving entity exists before the
merger:
(A) all of its property continues to be
vested in it without transfer, reversion, or impairment;
(B) it remains subject to all of its debts,
obligations, and other liabilities; and
(C) all of its rights, privileges,
immunities, powers, and purposes continue to be vested in it;
(7) the name of the surviving entity may be
substituted for the name of any merging entity that is a party to any pending
action or proceeding;
(8) if the surviving entity exists before the
merger:
(A) its public organic document record,
if any, is amended as provided in the statement of merger and is binding on its interest holders;
and
(B) its private organic rules that are to be in a
record, if any, are amended to the extent provided in the plan of merger and are binding on and enforceable by:
(i) its interest holders; and
(ii) in the case of a surviving entity that is not
a business corporation or a nonprofit corporation, any other person that is a
party to an agreement that is part of the surviving entity’s private organic
rules;
(9) if the surviving entity is created by the
merger:
(A) its public organic document record,
if any, is effective and is binding
on its interest holders; and
(B) its private organic rules are effective and are binding on and enforceable by:
(i) its interest holders; and
(ii) in the case of a surviving entity that is not
a business corporation or a nonprofit corporation, any other person that was a
party to an agreement that was part of the organic rules of a merging entity if
that person has agreed to be a party to an agreement that is part of the
surviving entity’s private organic rules; and
(10) the interests in each merging entity that
which are to be converted in the merger are converted, and the interest
holders of those interests are entitled only to the rights provided to them
under the plan of merger and to any appraisal rights they have under Section
109 and the merging entity’s organic law.
(b) Except as otherwise provided in the organic
law or organic rules of a merging entity, the a merger under this [article] does not give
rise to any rights that an interest holder, governor, or third party would
otherwise have upon a dissolution, liquidation, or winding-up winding
up of the merging entity.
(c) When a merger under this [article] becomes effective, a person that did
not have interest holder liability with respect to any of the merging entities
and that becomes subject to interest holder liability with respect to a
domestic entity as a result of a merger has interest holder liability only to
the extent provided by the organic law of the that entity and
only for those debts, obligations, and other liabilities that arise
after the merger becomes effective.
(d) When a merger becomes effective, the interest
holder liability of a person that ceases to hold an interest in a domestic
merging entity with respect to which the person had interest holder liability
is as follows:
(1) the The merger does not
discharge any interest holder liability under the organic law of the domestic
merging entity to the extent the interest holder liability arose before the
merger became effective;.
(2) the The person does not have
interest holder liability under the organic law of the domestic merging entity
for any liability that arises after the merger becomes effective;.
(3) the The organic law of the
domestic merging entity continues to apply to the release, collection, or
discharge of any interest holder liability preserved under paragraph (1) as if
the merger had not occurred and the surviving entity were the domestic merging
entity; and.
(4) the The person has whatever
rights of contribution from any other person as are provided by the organic law law other than this [act] or the organic rules of the domestic merging entity with respect to
any interest holder liability preserved under paragraph (1) as if the merger
had not occurred.
(e) When a merger under this [article] becomes effective, a foreign entity
that is the surviving entity: (1) may be served with process in this
state for the collection and enforcement of any debts, obligations, or other
liabilities of a domestic merging entity in accordance with applicable law;
and (2) appoints the [Secretary of State] as its agent for service of process
for collecting or enforcing those liabilities.
(f)
When a merger under this [article] becomes effective, the certificate
of authority or other foreign qualification registration to do business
in this state of any foreign merging entity that is not the surviving
entity is canceled.
SECTION
301. INTEREST EXCHANGE AUTHORIZED.
(a) Except as otherwise provided in this section,
by complying with this [article]:
(1) a domestic entity may acquire all of one or
more classes or series of interests of another domestic or foreign entity in
exchange for interests, securities, obligations, rights to acquire interests or
securities, cash money, or other property, or any combination of
the foregoing; or
(2) all of one or more classes or series of
interests of a domestic entity may be acquired by another domestic or foreign
entity in exchange for interests, securities, obligations, rights to acquire
interests or securities, cash money, or other property,
rights to acquire interests or securities, or any combination of the
foregoing.
*
* *
SECTION
302. PLAN OF INTEREST EXCHANGE.
(a) A domestic entity may be the acquired entity
in an interest exchange under this [article] by approving a plan of interest
exchange. The plan must be in a record
and contain:
(1) the name and type of entity of the
acquired entity;
(2) the name, jurisdiction of organization
formation, and type of entity of the acquiring entity;
(3) the manner of converting the interests in the
acquired entity into interests, securities, obligations, rights to acquire
interests or securities, cash money, or other
property, rights to acquire interests or securities, or any combination
of the foregoing;
(4) any proposed amendments to the public organic
document record, if any, or private organic rules that are, or
are proposed to be, in a record of the acquired entity;
(5) the other terms and conditions of the
interest exchange; and
(6) any other provision required by the law of
this state or the organic rules of the acquired entity.
*
* *
* * *
SECTION
304. AMENDMENT OR ABANDONMENT OF PLAN OF
INTEREST EXCHANGE.
*
* *
(b) A domestic acquired entity may approve an
amendment of a plan of interest exchange:
(1) in the same manner as the plan was approved,
if the plan does not provide for the manner in which it may be amended; or
(2) by the governors or interest holders of the
entity in the manner provided in the plan, but an interest holder that was
entitled to vote on or consent to approval of the interest exchange is entitled
to vote on or consent to any amendment of the plan that will change:
(A) the amount or kind of interests, securities,
obligations, rights to acquire interests or securities, cash money, or other property, rights to acquire
interests or securities, or any combination of the foregoing, to be
received by any of the interest holders of the acquired entity under the plan;
*
* *
*
* *
* * *
SECTION
306. EFFECT OF INTEREST EXCHANGE.
*
* *
(d) When an interest exchange becomes effective,
the interest holder liability of a person that ceases to hold an interest in a
domestic acquired entity with respect to which the person had interest holder
liability is as follows:
*
* *
(4) the The person has whatever
rights of contribution from any other person as are provided by law other than this [act] or the
organic law or organic rules of the domestic acquired entity with respect to
any interest holder liability preserved under paragraph (1) as if the interest
exchange had not occurred.
* * *
SECTION
402. PLAN OF CONVERSION.
(a) A domestic entity may convert to a different
type of entity under this [article] by approving a plan of conversion. The plan must be in a record and contain:
*
* *
(3) the manner of converting the interests in the
converting entity into interests, securities, obligations, rights to acquire
interests or securities, cash money, or other
property, rights to acquire interests or securities, or any combination
of the foregoing;
*
* *
*
* *
* * *
SECTION
404. AMENDMENT OR ABANDONMENT OF PLAN OF
CONVERSION.
(a) A plan of conversion of a domestic converting
entity may be amended:
*
* *
(2) by the governors or interest holders of the
entity in the manner provided in the plan, but an interest holder that was
entitled to vote on or consent to approval of the conversion is entitled to
vote on or consent to any amendment of the plan that will change:
(A) the amount or kind of interests, securities,
obligations, rights to acquire interests or securities, cash money, or other property, rights to acquire
interests or securities, or any combination of the foregoing, to be received
by any of the interest holders of the converting entity under the plan;
*
* *
*
* *
SECTION
406. EFFECT OF CONVERSION.
* * *
(d) When a conversion becomes effective:
(1) the The conversion does not
discharge any interest holder liability under the organic law of a domestic
converting entity to the extent the interest holder liability arose before the
conversion became effective;.
(2) a A person does not have
interest holder liability under the organic law of a domestic converting entity
for any liability that arises after the conversion becomes effective;.
(3) the The organic law of a
domestic converting entity continues to apply to the release, collection, or
discharge of any interest holder liability preserved under paragraph (1) as if
the conversion had not occurred; and.
(4) a A person has whatever rights
of contribution from any other person as are provided by the organic other
law or the organic rules of the domestic converting entity with respect
to any interest holder liability preserved under paragraph (1) as if the
conversion had not occurred.
* * *
SECTION
501. DOMESTICATION AUTHORIZED.
*
* *
(c)
When the term domestic entity is used in this [article] with reference
to a foreign jurisdiction, it means an entity whose internal affairs are
governed by the law of the foreign jurisdiction.
*
* *
[(e)
(d) The following entities may
not engage in a domestication under this This [article] does not
apply to the domestication of:
(1) [a business corporation, if the state has
adopted Subchapter 9B of the Model Business Corporation Act]; or
(2) a limited liability company, if the state has
enacted Article 10 of the Uniform Limited Liability Company Act (2006)]; or
(3) (2).]
SECTION
502. PLAN OF DOMESTICATION.
(a) A domestic entity may become a foreign entity
in a domestication by approving a plan of domestication. The plan must be in a record and contain:
*
* *
(3) the manner of converting the interests in the
domesticating entity into interests, securities, obligations, rights to
acquire interests or securities, cash money, or other
property, rights to acquire interests or securities, or any combination
of the foregoing;
*
* *
*
* *
* * *
SECTION
504. AMENDMENT OR ABANDONMENT OF PLAN OF
DOMESTICATION.
(a) A plan of domestication of a domestic
domesticating entity may be amended:
*
* *
(2) by the governors or interest holders of the
entity in the manner provided in the plan, but an interest holder that was
entitled to vote on or consent to approval of the domestication is entitled to
vote on or consent to any amendment of the plan that will change:
(A) the amount or kind of interests, securities,
obligations, rights to acquire interests or securities, cash money, or other property, rights to acquire
interests or securities, or any combination of the foregoing, to be
received by any of the interest holders of the domesticating entity under the
plan;
*
* *
*
* *
* * *
* * *
SECTION 603. SEVERABILITY CLAUSE. If any provision of this [act] or its
application to any person or circumstance is held invalid, the invalidity does
not affect other provisions or applications of this [act] which can be given
effect without the invalid provision or application, and to this end the
provisions of this [act] are severable.
Legislative Note:
Include this section only if this state lacks a general severability
statute or a declaration by the highest court of this state stating a general
rule of severability.
* * *
EXCERPTS FROM AMENDMENTS TO
HARMONIZED REVISED UNIFORM
LIMITED LIABILITY COMPANY ACT
SECTION 101. SHORT TITLE. This [act] may be cited as the Revised
Uniform Limited Liability Company Act.
SECTION 102. DEFINITIONS. In this [act]:
* * *
(2) “Contribution”,
except in the phrase “right of contribution”, means any property or a benefit described in Section 402 which is provided by a person to
a limited liability company:
(A)
in order to become a member upon
formation of the company and in accordance with an agreement between or among
the persons that have agreed to become the initial members of the company;
(B) in
order to become a member after formation of the company and in accordance with
an agreement between the person and the company; or
(C)
in the person’s capacity as a member
and in accordance with the operating agreement or an agreement between the
member and the company.
* * *
(5) (4)“Distribution”, except as
otherwise provided in Section 405(g), means a transfer of money or other
property from a limited liability company to another a person on
account of a transferable interest or
in the person’s capacity as a member.
The term:
(A)
includes:
(I) a redemption or other purchase by a limited
liability company of a transferable interest; and
(II) a transfer to a member in return for the
member’s relinquishment of any right to participate as a member in the
management or conduct of the company’s activities and affairs or to have access
to records or other information concerning the company’s activities and
affairs; and
(B)
does not include amounts constituting reasonable compensation for present or
past service or payments made in the ordinary course of business under a bona
fide retirement plan or other bona fide benefits program.
* * *
(21) (24) “Transferable interest” means the
right, as originally initially owned by associated with a person
in the person’s capacity as a member, to receive distributions from a
limited liability company in accordance with the operating agreement, whether
or not the person remains a member or continues to own any part of the right. The
term applies to any fraction of the interest, by whomever owned.
(22)
(25) “Transferee” means a person to which all or part of a transferable
interest has been transferred, whether or not the transferor is a member. The
term includes a person that owns a transferable interest under Section
603(a)(3).
* * *
(a) A limited liability company is an entity distinct from its member or members.
* * *
SECTION 105. POWERS. A limited liability company has the capacity to sue and be sued in its own name and the power to do all things necessary or convenient to carry on its activities and affairs.
* * *
(a) Except as otherwise provided in subsections (b) and (c) and (d), the operating agreement governs:
(1) relations among the members as members and between the members and the
limited liability company;
(2) the rights and duties under this [act] of a person in the capacity of manager;
(3) the activities and affairs of the company and the conduct of those activities and affairs; and
(4) the means and conditions for amending the operating agreement.
(b) To the extent the operating agreement does not otherwise provide for a matter
described in subsection (a), this [act] governs the matter.
(c) An operating agreement may not:
(1) vary a limited liability company’s capacity under Section 105 to sue and be sued in its own name;
(2) vary the law applicable under Section 106;
(3) vary any requirement, procedure, or other
provision of this [act] pertaining to:
(A) registered agents; or
(B) the [Secretary of State],
including provisions pertaining to records authorized or required to be
delivered to the [Secretary of State] for filing under this [act];
(3) (4) vary the power provisions
of the court under Section 204;
(4) (5) subject to subsections (d) through (g); eliminate the
duty of care or the duty of loyalty;
(5) (6) subject to subsections
(d) through (g), eliminate
the contractual obligation of good faith and fair dealing under Section 409(d), but the operating agreement may
prescribe the standards, if not manifestly unreasonable, by which the
performance of the obligation is to be measured;
(6)
(7) relieve or exonerate a person from liability for conduct involving bad
faith, willful misconduct, or recklessness;
(6) (8) unreasonably restrict
the duties and rights stated in under Section 410, but the operating agreement may impose
reasonable restrictions on the availability and use of information obtained
under that section and may define appropriate remedies, including liquidated
damages, for a breach of any reasonable restriction on use;
(7) (9) vary the power of a
court to decree causes of dissolution in the circumstances
specified in Section 701(a)(4)(A) and (5);
(8) (10) vary the requirement
to wind up a limited liability the company’s business activities
and affairs as specified in Section 702(a), and (b)(1),
and (e);
(9) (11) unreasonably restrict
the right of a member to maintain an action under [Article] 9;
(12) vary the provisions of
Section 905, but the operating agreement may provide that the company may not
have a special litigation committee;
(10) (13) restrict the right to approve a merger, conversion, or domestication
under Section 1014 to a member that will have personal liability with
respect to a surviving, converted, or domesticated organization
vary the right of a member to approve a merger, interest exchange,
conversion, or domestication under Section 1023(a)(2), 1033(a)(2), 1043(a)(2),
or 1053(a)(2); or
(11)
(14) except as otherwise provided in Section 112(b) Sections
112 and 113(b), restrict the rights under this [act] of a person other than
a member or manager.
* * *
(h) (e) The court shall decide as a
matter of law any claim under subsection (c)(6) or (d)(3)
that a term of an operating agreement is manifestly unreasonable. The court:
* * *
(2) may invalidate the term only if, in light
of the purposes, and activities, and affairs of the limited
liability company, it is readily apparent that:
* * *
* * *
* * *
(b) The obligations of a limited liability company and
its members to a person in the person’s capacity as a transferee or a person
dissociated as a member are governed by the operating agreement. Subject only to any a court
order issued under Section 503(b)(2) to effectuate a charging order, an
amendment to the operating agreement made after a person becomes a transferee
or is dissociated as a member is:
(1) is effective with regard to any
debt, obligation, or other liability of the limited liability company or its
members to the person in the person’s capacity as a transferee or person
dissociated as a member; and
(2) is not effective to the extent the amendment imposes a new debt, obligation, or other liability on the transferee or person dissociated as a member.
* * *
* * *
* * *
(d) Unless the
filed certificate of organization contains the statement as provided in
subsection (b)(3), the following rules apply:
(1)
A limited liability company is formed when the
[Secretary of State] has filed the company’s certificate of
organization and the company has at
least one member, unless the certificate states a delayed effective date
pursuant to Section 205(c) becomes
effective and at least one person becomes a member.
(2)
If the certificate states a delayed effective date, a limited liability company
is not formed if, before the certificate takes effect, a statement of
cancellation is signed and delivered to the [Secretary of State] for filing and
the [Secretary of State] files the certificate.
(3)
Subject to any delayed effective date and except in a proceeding by this state
to dissolve a limited liability company, the filing of the certificate of
organization by the [Secretary of State] is conclusive proof that the organizer
satisfied all conditions to the formation of a limited liability company.
* * *
* * *
(a) A record delivered to the [Secretary of State] for filing pursuant to this [act] must be signed as follows:
* * *
(4)(3) A record filed delivered on behalf of a
dissolved limited liability company that has no members member
must be signed by the person winding up the company’s activities and affairs under Section 702(c) or
a person appointed under Section 702(d) to wind up those the activities
and affairs.
* * *
* * *
* * *
* * *
(b) A certificate under subsection (a) must state:
* * *
(2)
in the case of a limited liability company:
(A)
that a certificate of formation has been filed and has taken effect;
(B)
the date the certificate became effective;
(C)
the period of the company’s duration if the records of the [Secretary of State]
reflect that its period of duration is less than perpetual; and
(D)
that:
(i) a
statement of dissolution, statement of administrative dissolution, or statement
of termination has not been filed;
(ii)
the records of the [Secretary to State] do not otherwise reflect that the
company has been dissolved or terminated; and
(iii) a proceeding is not pending under Section 707;
(3)
in the case of a registered foreign limited liability company, that it is
registered to do business in this state;
* * *
* * *
(a) Each year, a A limited liability
company or a registered foreign limited liability company authorized
to transact business in this state shall deliver to the [Secretary of
State] for filing a [an annual] [a biennial] report that states:
* * *
(4)
if the company is member managed, the name of at least one member;
(5)
if the company is manager managed, the name of at least one manager; and
* * *
* * *
(c) The first annual report under this section
[annual] [biennial] report must be delivered to the [Secretary of State]
between after [January 1] and before [April 1] of the year
following the calendar year in which a the limited liability company was formed company’s certificate of organization became
effective or a the registered foreign limited
liability company was authorized to transact business registered to
do business in this state. A
report Subsequent [annual][biennial] reports must be delivered to
the [Secretary of State] between after [January 1] and before
[April 1] of each subsequent [second] calendar year thereafter.
* * *
* * *
* * *
(b) The failure of a limited liability company to observe
any particular formalities
relating to the exercise of
its powers or management of its activities and
affairs is not a ground for imposing liability on the members or managers for the debts,
obligations, or other liabilities of the company a member or
manager of the company for a debt, obligation, or other liability of the
company.
* * *
* * *
(b) If a
person does not fulfill an obligation
to make a required contribution, the person or the person’s estate is
obligated at the option of the limited
liability company to contribute money equal to the value of the part of
the contribution which has not been made,
at the option of the company.
* * *
* * *
(a) A limited liability company may not make a distribution, including a distribution under Section 710, if after the distribution:
(1) the company would not be able to pay its debts as they become due in the ordinary course of the company’s activities and affairs; or
(2) the company’s total assets would be less
than the sum of its total liabilities plus,
unless the operating agreement permits otherwise, the amount that
would be needed, if the company were to be dissolved, and
wound up, and terminated
at the time of the distribution, to satisfy the preferential rights upon
dissolution, and winding up, and termination of members and transferees whose preferential
rights are superior to those of persons receiving the distribution.
(b) A limited liability company may base a determination
that a distribution is not prohibited under subsection (a) on:
(1)
financial statements prepared on the basis of accounting practices and
principles that are reasonable in the circumstances; or on
(2) a fair valuation or other method that is reasonable under the circumstances.
(c) Except as otherwise provided in subsection (f)
(e), the effect of a distribution under subsection (a) is measured:
(1)
in the case of a distribution by
purchase, redemption, or other acquisition of a transferable interest in the
company as defined in
Section 102(4)(A), as of the earlier
of:
(A) the date money or other
property is transferred or debt is incurred by the company; and or
(B) the date the person entitled to the
distribution ceases to own the interest or right being acquired by the company
in return for the distribution;
(2) in the case of any other distribution of
indebtedness, as of the date the indebtedness is distributed; and
(3) in all other cases, as of the date:
(A)
the distribution is authorized, if the payment occurs within not
later than 120 days after that date; or
(B)
the payment is made, if the payment occurs more than 120 days after the
distribution is authorized.
(d) A
limited liability company’s indebtedness to a member or transferee incurred by reason of a distribution made
in accordance with this section is at parity with the company’s indebtedness to
its general, unsecured creditors,
except to the extent subordinated by agreement.
(e) A
limited liability company’s indebtedness, including indebtedness issued in connection with or as part of as a distribution, is not a
liability for purposes of subsection (a) if the terms of the indebtedness
provide that payment of principal and interest are is made only if and to the extent that payment of a distribution could then be made to members under this section. (f)
If the indebtedness is
issued as a distribution, each payment of principal or interest on the indebtedness is treated as a
distribution, the effect of which is measured on the date the payment is made.
(f) In measuring the effect of a distribution
under Section 710, the liabilities of a dissolved limited liability company do
not include any claim that has been disposed of under Section 704, 705, or 706.
* * *
* * *
(d) A person against which an action is commenced because the person is liable under subsection (a) may:
(1) implead any other person that is subject
to liability under subsection (a) and seek to compel enforce
a right of contribution from the person; and
(2) implead any person that received a
distribution in violation of subsection (c) and seek to compel enforce a right of contribution from the
person in the amount the person received in violation of subsection (c).
* * *
* * *
(b) In a member-managed limited liability company, the following rules apply:
* * *
(2) Each member has equal rights in the management and conduct of the company’s activities and affairs.
(3) A difference arising among members as to a matter in the ordinary course of the activities of the company may be decided by a majority of the members.
(4) An act outside the
ordinary course of the activities and
affairs of the company may be undertaken only with the consent of
all members.
* * *
(c) In a manager-managed limited liability company, the following rules apply:
* * *
(2) Each manager has equal rights in the
management and conduct of the company’s activities and affairs of the company.
* * *
* * *
(a) A limited liability company shall reimburse a member of a member-managed company or the
manager of a manager-managed company for any payment made and indemnify for any debt, obligation, or
other liability incurred by a the member of a member-managed company or the manager of a manager-managed company in the
course of the member’s or manager’s activities on behalf of the company, if, in making the payment or incurring the debt,
obligation, or other liability, the member or manager complied with the duties stated in Sections 405, 407, and 409 in making the payment.
(b) A limited
liability company shall indemnify and hold harmless a person with respect to
any claim or demand against the person and any debt, obligation, or other
liability incurred by the person by reason of the person’s former or present
capacity as a member or manager, if the claim, demand, debt, obligation, or
other liability does not arise from the person’s breach of Section 405, 407, or
409.
(c) In the
ordinary course of its activities and affairs, a limited liability company may
advance reasonable expenses, including attorney’s fees and costs, incurred by a
person in connection with a claim or demand against the person by reason of the
person’s former or present capacity as a member or manager, if the person
promises to repay the company if the person ultimately is determined not to be
entitled to be indemnified under subsection (b).
* * *
* * *
(b) The fiduciary duty of loyalty of a member in a member-managed limited liability company includes the duties:
(1) to account to the company and to hold as trustee for it any property, profit, or benefit derived by the member:
(A) in the conduct or winding up of the company’s activities and affairs;
(B) from a use by the member of the company’s property; or
(C) from the appropriation of a limited
liability company opportunity;
(2) to refrain from dealing with the company in the conduct or winding up of the company’s activities and affairs as or on behalf of a person having an interest adverse to the company; and
(3) to refrain from
competing with the company in the conduct of the company’s activities and affairs before the dissolution
of the company.
(c) Subject to
the business judgment rule, the The
duty of care of a member of a member-managed limited liability company in the
conduct and or winding
up of the company’s activities and
affairs is to act with the
care that a person in a like position would reasonably exercise under similar
circumstances and in a manner the member reasonably believes to be in the best
interests of the company. In discharging
this duty, a member may rely in good faith upon opinions, reports, statements,
or other information provided by another person that the member reasonably
believes is a competent and reliable source for the information refrain from engaging in grossly
negligent or reckless conduct, intentional misconduct, or a knowing violation
of law.
* * *
(h) If, as
permitted by subsection (f) or (i)(6) or the operating agreement, a member
enters into a transaction with the limited liability company which otherwise
would be prohibited by subsection (b)(2), the member’s rights and obligations
arising from the transaction are the same as those of a person that is not a
member.
(g) (i) In a manager-managed limited
liability company, the following rules apply:
* * *
(5)
Subsection (f) applies The power to ratify under subsection (f)
applies only to the members.
(5) (6) A Subject
to subsection (d), a member does not have any fiduciary duty to the company or to
any other member solely by reason of being a member.
* * *
(a) In a member-managed limited liability company, the following rules apply:
(1) On reasonable notice, a member may inspect and copy during regular business hours, at a reasonable location specified by the company, any record maintained by the company regarding the company’s activities, affairs, financial condition, and other circumstances, to the extent the information is material to the member’s rights and duties under the operating agreement or this [act].
(2) The company shall furnish to each member:
(A) without demand, any information concerning the company’s activities, affairs, financial condition, and other circumstances which the company knows and is material to the proper exercise of the member’s rights and duties under the operating agreement or this [act], except to the extent the company can establish that it reasonably believes the member already knows the information; and
(B) on demand, any other information concerning the company’s activities, affairs, financial condition, and other circumstances, except to the extent the demand or information demanded is unreasonable or otherwise improper under the circumstances.
* * *
(b) In a manager-managed limited liability company, the following rules apply:
* * *
(2) During regular business hours and at a
reasonable location specified by the company, a member may obtain from the
company and inspect and copy full information regarding the activities, affairs, financial condition, and other circumstances of the company
as is just and reasonable if:
(A) the member seeks the
information for a purpose material
reasonably related
to the member’s interest as a member;
(B) the member makes a demand in a record received by the company, describing with reasonable particularity the information sought and the purpose for seeking the information; and
(C) the information sought is directly connected to the member’s purpose.
* * *
* * *
(i) In addition to any restriction or condition
stated in its the operating agreement, a limited liability
company, as a matter within the ordinary course of its activities and affairs, may impose reasonable
restrictions and conditions on access to and use of information to be furnished
under this section, including designating information confidential and imposing
nondisclosure and safeguarding obligations on the recipient. In a dispute concerning the reasonableness of
a restriction under this subsection, the company has the burden of proving
reasonableness.
TRANSFERABLE
INTERESTS AND RIGHTS OF TRANSFEREES AND CREDITORS
SECTION
502. TRANSFER OF TRANSFERABLE INTEREST.
(a) A Subject to Section 503(f), a
transfer, in whole or in part, of a transferable interest:
(1) is permissible;
(2) does not by itself
cause a member’s dissociation or a dissolution and winding up of the limited
liability company’s activities and
affairs; and
(3) subject to Section
504, does not entitle the transferee to:
(A)
participate in the management or conduct of the company’s activities and affairs; or
(B) except
as otherwise provided in subsection (c), have access to records or other
information concerning the company’s activities and affairs.
* * *
(g) Except as otherwise provided in
Section 602(4)(B) 602(5)(B), when if a member transfers a
transferable interest, the transferor retains the rights of a member other than
the Transferrable
interest in distributions transferred
and retains all duties and obligations of a member.
* * *
(a) On application by a judgment
creditor of a member or transferee, a court may enter a charging order against
the transferable interest of the judgment debtor for the unsatisfied amount of
the judgment. A Except as
otherwise provided in subsection (f), a charging order constitutes a
lien on a judgment debtor’s transferable interest and requires the limited
liability company to pay over to the person to which the charging order was
issued any distribution that would otherwise would be paid to the
judgment debtor.
* * *
(c) Upon a showing that
distributions under a charging order will not pay the judgment debt within a
reasonable time, the court may foreclose the lien and order the sale of the
transferable interest. The Except as otherwise provided in subsection (f), the
purchaser at the foreclosure sale only obtains the transferable interest, does
not thereby become a member, and is subject to Section 502.
* * *
(f) If a court orders foreclosure of a charging order lien against the
sole member of a limited liability company:
(1)
the court shall confirm the sale;
(2)
the purchaser at the sale obtains the member’s entire interest, not
only the member’s transferable interest;
(3)
the purchaser thereby becomes a member; and
(4)
the person whose interest was subject to the foreclosed charging order is
dissociated as a member.
*
* *
SECTION 504. POWER OF PERSONAL LEGAL
REPRESENTATIVE OF DECEASED MEMBER. If a member dies, the deceased member’s personal representative or other
legal representative may exercise:
* * *
(2)
for the purposes of settling the estate, the rights of a current the
deceased member had
under Section 410.
MEMBER’S
DISSOCIATION
SECTION
601. MEMBER’S POWER TO DISSOCIATE AS MEMBER; WRONGFUL DISSOCIATION.
* * *
(b) A person’s dissociation from
a limited liability company as a member is wrongful only if the
dissociation:
* * *
(2) occurs before the termination completion of the winding up of the company and:
(A) the
person withdraws as a member by express will;
(B) the
person is expelled as a member by judicial order under Section 602(5) 602(6);
(C) the
person is dissociated under Section 602(7)(A) by becoming a debtor in bankruptcy 602(8);
or
(D) in the
case of a person that is not a trust other than a business trust, an estate, or
an individual, the person is expelled or otherwise dissociated as a member
because it willfully dissolved or terminated.
* * *
SECTION 602. EVENTS
CAUSING DISSOCIATION.
A person is dissociated as a member from
a limited liability company when:
* * *
(3) the person’s entire interest is transferred in a foreclosure sale
under Section 503(f);
* * *
(4) (5) the person is
expelled as a member by the unanimous consent of the other members if:
(A) it is unlawful to
carry on the company’s activities and
affairs with the person as a member;
* * *
(C) the person is a
corporation and, within 90 days after:
* * *
(5) (6) on application
by the company, the person is expelled as a member by judicial order because
the person:
(A) has engaged,
or is engaging, in wrongful conduct that has adversely and materially
affected, or will adversely and materially affect, the company’s activities and affairs;
* * *
(C) has engaged in,
or is engaging, in conduct relating to the company’s activities and affairs which makes it not
reasonably practicable to carry on the activities and affairs with the person as a member;
* * *
(8) (9) in the case of
a person that is a testamentary or
inter vivos trust or is acting as a member by virtue of being a
trustee of such a trust,
the trust’s entire transferable interest in the company is distributed;
* * *
(10) (11) in the case
of a member person that is not an
individual, partnership, limited
liability company, corporation, unincorporated
entity, trust, or estate, the termination existence of the member person terminates;
* * *
(14) (16) the company terminates dissolves and completes winding up.
SECTION
603. EFFECT OF PERSON’S DISSOCIATION
AS MEMBER.
(a) When If
a person is dissociated as a member of
a limited liability company:
(1) the person’s right
to participate as a member in the management and conduct of the company’s
activities and affairs
terminates;
* * *
*
* *
SECTION
701. EVENTS CAUSING DISSOLUTION.
(a) A limited liability company is
dissolved, and its activities and
affairs must be wound up, upon the occurrence of any of the
following:
* * *
(4) on application by a
member, the entry by [the appropriate court] of an order dissolving the
company on the grounds that:
* * *
(B) it is
not reasonably practicable to carry on the company’s activities and affairs in conformity with the
certificate of organization and the operating agreement; or
* * *
* * *
(a) A dissolved limited liability
company shall wind up its activities and
affairs and, except as
otherwise provided in Section 703, the company continues after
dissolution only for the purpose of winding up.
(b) In winding up its activities and affairs, a limited liability
company:
(1) shall discharge the
company’s debts, obligations, or and other liabilities, settle
and close the company’s activities and
affairs, and marshal and distribute the assets of the company; and
(2) may:
* * *
(B) preserve
the company activities, affairs,
and property as a going concern for a reasonable time;
* * *
(c) If a dissolved limited liability
company has no members, the legal representative of the last person to have
been a member may wind up the activities and
affairs of the company. If
the person does so, the person has the powers of a sole manager under Section
407(c) and is deemed to be a manager for the purposes of Section 304(a).
(d) If the legal representative
under subsection (c) declines or fails to wind up the company’s activities and affairs, a person may be
appointed to do so by the consent of transferees owning a majority of the
rights to receive distributions as transferees at the time the consent is to be
effective. A person appointed under this
subsection:
* * *
(2) shall promptly
deliver to the [Secretary of State] for filing an amendment to the company’s
certificate of organization to
stating:
* * *
(B) state the name and street and mailing addresses of the person; and
* * *
* * *
SECTION 703.
RESCINDING DISSOLUTION.
(a) A limited
liability company may rescind its dissolution, unless a statement of
termination applicable to the company is effective, [the appropriate court] has
entered an order under Section 701(a)(4) or (5) dissolving the company, or the
[secretary of state] has dissolved the
company under Section 707.
(b) Rescinding
dissolution under this section requires:
(1)
the consent of each member;
(2) if
a statement of dissolution applicable to the limited liability company has been
filed by the [Secretary of State] but has not become effective, the delivery to
the [Secretary of State] for filing of a statement of withdrawal under Section
207 applicable to the statement of dissolution; and
(3)
if a statement of dissolution applicable to the limited liability company is
effective, the delivery to the [Secretary of State] for filing of a statement
of correction under Section 208 stating that dissolution has been rescinded
under this section.
(c) If a limited
liability company rescinds its dissolution:
(1)
the company resumes carrying on its activities and affairs as if dissolution
had never occurred;
(2)
subject to paragraph (3), any liability incurred by the company after the
dissolution and before the rescission is effective is determined as if
dissolution had never occurred; and
(3)
the rights of a third party arising out of conduct in reliance on the
dissolution before the third party knew or had notice of the rescission may not
be adversely affected.
SECTION 703
704. KNOWN CLAIMS AGAINST
DISSOLVED LIMITED LIABILITY COMPANY.
* * *
(b) A dissolved limited liability
company may in a record notify its known claimants of the dissolution. The notice must:
* * *
(2) state that a claim must be in writing and
provide a mailing address to which the claim is to be sent;
* * *
* * *
SECTION 704
705. OTHER CLAIMS AGAINST
DISSOLVED LIMITED LIABILITY COMPANY.
* * *
(b) The A notice authorized
by under subsection (a) must:
* * *
(2) describe the
information required to be contained in a claim, state that the claim must be in writing, and provide a
mailing address to which the claim is to be sent; and
(3) state that a claim
against the company is barred unless an action to enforce the claim is
commenced within five not
later than three years after publication of the notice.
* * *
SECTION 706.
COURT PROCEEDINGS.
(a) A dissolved
limited liability company that has published a notice under section 705 may
file an application with [the appropriate court] in the [county] where the
dissolved company’s principal office is located , or, if the principal office
is not located in this state, where the office of its registered agent is
located, for a determination of the amount and form of security to be provided
for payment of claims that are contingent, have not been made known to the
company, or are based on an event occurring after the effective date of
dissolution but which, based on the facts known to the dissolved company, are
reasonably expected to arise after the effective date of dissolution. Security is not required for any claim that
is or is reasonably anticipated to be barred under Section 705(c).
(b) Not later
than 10 days after the filing of an application under subsection (a), the
dissolved limited liability company shall give notice of the proceeding to each
claimant holding a contingent claim known to the company.
(c) In any
proceeding under this section, the court may appoint a guardian ad litem to
represent all claimants whose identities are unknown. The reasonable fees and expenses of the
guardian, including all reasonable expert witness fees, must be paid by the
dissolved limited liability company.
(d) A dissolved
limited liability company that provides security in the amount and form ordered
by the court under subsection (a) satisfies the company’s obligations with
respect to claims that are contingent, have not been made known to the company,
or are based on an event occurring after the effective date of dissolution, and
such claims may not be enforced against a member or transferee that received
assets in liquidation.
SECTION 705
707. ADMINISTRATIVE DISSOLUTION.
* * *
(d) A limited liability company that
has been is administratively dissolved continues in existence as
an entity but, subject to Section 706, may not carry on only
any activities except as necessary to wind up its activities and affairs and liquidate its
assets under Sections 702, 704, 705, 706, and 708 710,
and to notify claimants under Sections 703 and 704 or to apply for
reinstatement under Section 708.
* * *
* * *
(a) In winding up its activities and affairs, a limited liability
company must shall apply its assets to discharge its obligations
to creditors, including members that are creditors.
* * *
* * *
* * *
SECTION 905. SPECIAL LITIGATION COMMITTEE.
* * *
(e)
After making a determination under subsection (d), a special litigation
committee shall file with the court a statement of its determination and its
report supporting its determination,
giving notice to the plaintiff and
shall serve each party with a copy of the determination and report. The court shall determine whether the members
of the committee were disinterested and independent and whether the committee
conducted its investigation and made its recommendation in good faith,
independently, and with reasonable care, with the committee having the burden
of proof. If the court finds that the
members of the committee were disinterested and independent and that the
committee acted in good faith, independently, and with reasonable care, the
court shall enforce the determination of the committee. Otherwise, the court shall dissolve the stay
of discovery entered under subsection (a) and allow the action to proceed under
the direction of the plaintiff.
* * *
EXCERPTS FROM AMENDMENTS TO
HARMONIZED UNIFORM
LIMITED PARTNERSHIP ACT (2001)
* * *
* * *
SECTION 305. LIMITED DUTIES OF LIMITED PARTNERS.
(a)
A limited partner does not have any fiduciary duty to the limited
partnership or to any other partner solely by reason of being a limited
partner.
(b)
A limited partner shall discharge the any
duties to the partnership and the other partners under this [Act] or under the
partnership agreement and exercise any rights under this
[act] or
the partnership agreement consistently with
the contractual obligation of
good faith and fair dealing.
(b)
Except as
otherwise provided in subsection (a), a limited partner does not have
any duty to the limited partnership or to any other partner solely by reason of
acting as a limited partner.
* *
*
* * *
SECTION 404. GENERAL PARTNER’S LIABILITY.
*
* *
(b)
A person that becomes a general partner of an existing limited partnership is
not personally liable for an a
debt, obligation, or other
liability of a limited
the
partnership incurred before the person became a general partner.
(c) An A debt, obligation,
or other liability of a limited partnership incurred while the limited partnership is a limited
liability limited partnership, whether
arising in contract, tort, or otherwise, is solely the debt, obligation, or other liability of the
limited liability limited
partnership. A general partner is not
personally liable, directly or indirectly, by way of contribution or otherwise,
for such a debt,
obligation, or other liability of the
limited liability limited partnership solely by reason of being or
acting as a general partner. This
subsection applies despite anything
inconsistent in the partnership agreement that existed immediately before the
consent required to become a limited liability limited partnership under
Section 406(b)(2).; or
* * *
* * *
* * *
SECTION 605.
EFFECT OF DISSOCIATION AS GENERAL PARTNER.
(a)
Upon a person’s dissociation If a person is dissociated as a
general partner:
* * *
(4) (3) the person may
sign and deliver to the [Secretary of State] for filing a statement of
dissociation pertaining to the person and, at the request of the limited
partnership, shall sign an amendment to the certificate of limited partnership
which states that the person has dissociated as a general partner; and
* * *
* * *
* * *
TRANSFERABLE
INTERESTS AND RIGHTS
* * *
SECTION 702.
TRANSFER OF PARTNER’S TRANSFERABLE INTEREST.
*
* *
(g)
Except as otherwise provided in
Sections 601(4)(B) and 603(4)(B), if a general or limited partner transfers a transferable interest, the transferor retains the
rights of a general or limited partner other than the transferable interest
transferred and retains all duties and obligations of a general or limited partner.
(h) If a
general or limited partner transfers a transferable interest to a person
A transferee that becomes a general or limited partner with respect to
a transferable interest the
transferred interest, the transferee is liable for the transferor’s obligations
under Sections 502 and 509. 506 However, the transferee is not obligated for
liabilities unknown known
to the transferee at the time when the transferee became becomes a partner.
* * *
SECTION 801. NONJUDICIAL EVENTS CAUSING
DISSOLUTION. Except
as otherwise provided in Section 802, a
(a)
A limited partnership is dissolved, and its activities and affairs must be wound up, only upon the occurrence of any
of the following:
* * *
(5) the passage of 90 consecutive days during which
the limited partnership has only one partner, unless before the end of the
period:
(A)
the partnership admits at least one person as a partner;
(B)
if the previously sole remaining partner is only a general partner, the
partnership admits the person as a limited partner; and
(C)
if the previously sole remaining partner is only a limited partner, the
partnership admits a person as a general partner;
* * *
(b) If an event occurs that imposes a deadline on a
limited partnership under subsection (a) and before the partnership has met the
requirements of the deadline, another event occurs that imposes a different
deadline on the partnership under subsection (a):
(1)
the occurrence of the second event does not affect the deadline caused by the
first event; and
(2)
the partnership’s meeting of the requirements of the first deadline does not
extend the second deadline.
* * *
*
* *
(c)
If a dissolved limited partnership does not have a general partner, a person to
wind up the dissolved limited
partnership’s activities and affairs
may be appointed by the consent of
limited partners owning a majority of the rights to receive
distributions as limited partners at the time the consent is to be
effective. A person appointed under this
subsection:
(1) has the powers of a general
partner under Section 804 but is not
liable for the debts, obligations, and liabilities of the partnership solely by
reason of having or exercising those powers or otherwise acting to wind up the
dissolved partnership’s activities and affairs; and
* * *
(d)
On the application of any partner, the [appropriate court] may order judicial
supervision of the winding up of a
dissolved limited partnership, including the appointment of a person to
wind up the dissolved limited partnership’s activities and affairs, if:
(1) a the
limited partnership does not
have a general partner and within a reasonable time following the dissolution
no person has been appointed pursuant to subsection (c); or
* * *
* * *
SECTION 808 809. LIABILITY OF GENERAL PARTNER AND PERSON
DISSOCIATED AS GENERAL PARTNER WHEN CLAIM AGAINST LIMITED PARTNERSHIP BARRED. If a claim
against a dissolved limited partnership is barred under Section 806, or 807, or 808,
any corresponding claim under Section 404 or
607 is also barred.
* * *
SECTION 812 813. DISPOSITION OF ASSETS IN WINDING UP;
WHEN CONTRIBUTIONS REQUIRED.
*
* *
(b)
Any surplus remaining after the
After a limited partnership complies with subsection
(a), any surplus must be paid in cash as a distribution distributed
in the following order, subject to any charging order in effect under Section
703:
* * *
(2)
among
partners in proportion to their respective rights to share in distributions
immediately before the dissolution of the partnership, except to the
extent necessary to comply with any transfer effective under Section 502.
* * *
* * *
EXCERPTS FROM AMENDMENTS TO
HARMONIZED UNIFORM STATUTORY TRUST ENTITY ACT
* * *
SECTION 103.
GOVERNING INSTRUMENT.
*
* *
(e)
Subject to Section 104, without limiting the terms that may be included in a
governing instrument, the governing instrument may:
*
* *
(5)
subject to Section 404,
provide for the creation of one or more classes of trustees, beneficial owners,
or beneficial interests having separate rights, powers, or duties;
*
* *
SECTION
104. MANDATORY RULES. The governing instrument may not:
*
* *
(4) vary the provisions pertaining to the
duration of a statutory trust under Section 306(a);
*
* *
(6)
(8) vary the obligation under Section 506 to act in good faith reasonably if a trustee or
other person is not to be liable for relying on a term of the governing
instrument, a record of the statutory trust, or an opinion, report, or
statement of another person, but the governing instrument may prescribe the
standards for assessing whether the reliance was in good faith, if the
standards are not manifestly unreasonable;
*
* *
(12) restrict the right of a judgment
creditor of a beneficial owner to seek a charging order vary the provisions pertaining to the
transfer of a beneficial interest and the power of a court under Section 602(b)
through (d);
*
* *
(15)
vary the rules under Section 613, if a statutory trust appoints a special
litigation committee;
*
* *
(14)
(17) vary the provisions
pertaining to dissolution in Sections 801(1) and 802 through 808 [Article] 8;
*
* *
* * *
GOVERNING LAW; AUTHORIZATION; DURATION; POWERS
SECTION
301. GOVERNING LAW. The law of
this state governs:
*
* *
(2)
the liability of a beneficial owner as beneficial owner,
and a trustee as trustee, and a person designated under Section
103(e)(8) or (9) as a person in the designated capacity, for a debt,
obligation, or other liability of a statutory trust or a series thereof; and
(3)
the enforceability of extent to which:
(A)
a debt, obligation, or other liability of the
statutory trust or a series thereof
a series trust is enforceable
against the property of the trust or
any series thereof; and
(B) a debt, obligation, or other liability of
a series of a series trust is enforceable against the property of the trust or
any other series thereof.
*
* *
(a)
A Except as otherwise provided in its
certificate of trust, a statutory trust:
(1)
has perpetual duration; and
(2) may not be terminated or revoked except in
accordance with this [act] or the terms of the trust’s certificate of trust.
(b)
A series of a statutory
trust, or any series thereof,
may not be terminated or revoked except in accordance with this [act] or the
terms of the governing instrument.
(c)
The death, incapacity, dissolution, termination, or bankruptcy of a beneficial
owner, or trustee, or person designated under Section 103(e)(8)
or (9) does not result in the termination or dissolution of a
statutory trust or any series thereof.
*
* *
*
* *
* * *
SECTION 401. STATUTORY TRUST HAVING SERIES.
*
* *
(d) Subject to Section 404, the governing
instrument may provide for the creation of one or more classes of trustees,
beneficial owners, or beneficial interests having separate rights, powers, or
duties with respect to the statutory trust or any series thereof.
SECTION 402. LIABILITY OF SERIES TRUST.
*
* *
(b)
The rules pertaining to distributions
under Sections 615 and 616 apply to a distribution from a series trust and from
the property of any series thereof, except for a distribution under Section
405.
(c) The association, disassociation, or reassociation of
property of a statutory trust or a series thereof to or with the trust or a
series thereof, including by conversion or merger a transaction
under [Article] 7, is deemed to be a transfer between separate persons under
[Uniform Fraudulent Transfers Act or other state fraudulent transfer statute] and a distribution under Section 615.
SECTION 403.
CLAIMS PERTAINING TO A SERIES.
(a)
A series of a statutory trust may not sue or be sued in its own name.
(b)
If a series trust has a claim against a person which pertains to the property
of a series thereof, the trust may assert the claim under Section 308 and
shall allocate the proceeds of the claim under Sections 401 and 402.
(c)
If a person has a claim against a series trust which pertains to the property
of a series thereof, to assert the claim the person must bring the claim against
the trust, stating that the claim pertains to the property of a series thereof
and specifying the series if known. To the extent the claim
succeeds and is reduced to judgment:
(1)
the judgment must state that it is collectable only against the property of the
specified series; and
(2) the judgment creditor may levy on the
judgment only by serving the series trust, which shall satisfy the judgment
using only the property of the specified series.
* * *
SECTION 404 405. DISSOLUTION
OF SERIES.
*
* *
(d) A person, including a
trustee, that under the governing instrument is responsible for winding up the
affairs of a series of a series trust is not liable to the creditors of the
dissolved series solely by
reason of the person’s actions in
winding up the series person
acting in that capacity.
* * *
BENEFICIARIES AND BENEFICIAL RIGHTS OWNERS
* * *
SECTION 602.
TRANSFER OF BENEFICIAL INTEREST
(a) In this section, “covered
creditor” means a judgment creditor of a beneficial owner or a person to which
a beneficial interest has been transferred by operation of law.
(b) A beneficial interest in a
statutory trust is freely transferable.
(c) The governing instrument may
not limit the transferability of a beneficial interest if the same person is
the sole trustee and sole beneficial owner.
(d) To the extent a beneficial
interest is not freely transferable by a beneficial owner such that any
transferee becomes a beneficial owner without further requirement except notice
to the statutory trust, the following rules apply:
(1) On petition by a
covered creditor, [the appropriate court] may authorize the petitioner to reach
the beneficial owner’s interest by attachment of present or future
distributions to or for the benefit of the beneficial owner or by other
means. The court may limit the award to
relief that is appropriate under the circumstances.
(2) On petition by a
covered creditor, to the extent a trustee has not complied with a standard of
distribution provided in the governing instrument or has abused the trustee's
discretion to make a distribution, [the appropriate court]:
(A) may
order a distribution to the benefit of the petititioner; and
(B) if a
distribution is ordered, shall direct the trustee to pay to the petitioner an
equitable amount but not more than the amount the trustee would have been
required to distribute to or for the benefit of the beneficial owner if the
trustee had complied with the standard or had not abused the discretion.
* * *
* * *
SECTION
801. EVENTS CAUSING DISSOLUTION.
A statutory trust is
dissolved only by:
*
* *
(2)
the filing of articles of dissolution under Section 802:
(A) on the occurrence of an event or circumstance
that the governing instrument states causes dissolution; or
(B) with
the approval of all the beneficial owners; or
(B) as provided in the certificate of trust.
*
* *
* * *
(a)
The law of the jurisdiction of formation of a foreign statutory trust governs:
*
* *
(3)
the enforceability of extent to which:
(A)
a debt, obligation, or other liability of the foreign statutory trust or any series thereof is enforceable against the
property of the trust or any series thereof; and
(B) a debt, obligation, or liability of a
series of a foreign statutory trust is enforceable against the property of the
trust or any other series thereof.
*
* *
* * *
EXCERPTS FROM AMENDMENTS TO
HARMONIZED UNIFORM
PARTNERSHIP ACT (1997)
[ARTICLE] 1
* * *
(a) Except as otherwise provided in subsection (b), the law of
jurisdiction in which a partnership has its chief executive office governs
relations among the partners and between the partners and the partnership.
(b) The law of this State governs relations
among the partners and between the partners and the partnership and the
liability of partners for an obligation of a limited liability partnership.
The internal affairs of a partnership and the
liability of a partner as a partner for the debts, obligations, or other
liabilities of the partnership are governed by:
(1) in the case of a limited liability partnership,
the law of this state; and
(2) in the case of a partnership that is not a
limited liability partnership, the law of the state of the jurisdiction in
which the partnership has its principal office.
* *
*
(b) The obligations
of a partnership and its partners to a person in the person’s capacity as a
transferee or person dissociated as a partner are governed by the partnership
agreement. Subject only to a court order issued under Section 504(b)(2) to
effectuate a charging order, an amendment to the partnership agreement made
after a person becomes a transferee or is dissociated as a partner:
*
* *
(2) is
not effective to the extent the amendment:
(A)
imposes a new debt, obligation, or other liability on the transferee or person
dissociated as a partner;
or
(B)
prejudices the rights under Section 701 of a person that dissociated as a
partner before the amendment was made.
* * *
* * *
PERSONS DEALING WITH PARTNERSHIP
* *
*
SECTION 303.
STATEMENT OF PARTNERSHIP AUTHORITY.
(a)
A partnership may file deliver to the [Secretary of State] for filing
a statement of partnership authority. which The statement:
(1)
must include:
* *
*
(ii) (B) if
the partnership is not a limited liability partnership, the street address and mailing addresses of its chief executive principal office and of one office in this State, if there is
one.
* * *
* * *
RELATIONS OF PARTNERS TO
EACH OTHER
SECTION 401.
PARTNER’S RIGHTS AND DUTIES.
(a) Each partner is deemed to have an
account that is:
(1) credited with an amount equal to the money plus
the value of any other property, net of the amount of any liabilities, the
partner contributes to the partnership and the partner’s share of the
partnership profits; and
(2) charged with an amount equal to the money plus
the value of any other property, net of the amount of any liabilities,
distributed by the partnership to the partner and the partner’s share of the
partnership losses.
(b) Each partner is entitled to an equal share of the
partnership profits and, except in
the case of a limited liability partnership, is chargeable with a
share of the partnership losses in proportion to the partner’s share of the
profits.
* * *
* * *
PARTNER’S DISSOCIATION WHEN
BUSINESS NOT WOUND UP
SECTION 701.
PURCHASE OF INTEREST OF PERSON
DISSOCIATED PARTNER’S INTEREST AS
PARTNER.
(a)
If a person is dissociated as a
partner is dissociated from a
partnership without the
dissociation resulting in a dissolution and winding up of the
partnership business under Section 801, the partnership shall cause the dissociated partner’s person’s
interest in the partnership to be purchased for a buyout price determined
pursuant to subsection (b).
* *
*
(c) Interest must
be paid accrues on the
buyout price from the date of dissociation to the date of payment., but damages (c)
Damages for wrongful dissociation under Section 602(b), and
all other amounts owing, whether or not presently due, from the person dissociated as a partner to the partnership,
must be offset against the buyout price.
Interest must be paid from the date the amount owed becomes due to the
date of payment.
(d)
A partnership shall defend,
indemnify, and hold harmless
a person dissociated as a partner whose
interest is being purchased against all partnership liabilities, whether
incurred before or after the dissociation, except liabilities incurred by an
act of the person dissociated
partner under Section 702.
* * *
* * *
SECTION 1001. STATEMENT OF QUALIFICATION.
(a)
A partnership may become a limited liability partnership pursuant to this
section.
(b)
The terms and conditions on which a partnership becomes a limited liability
partnership must be approved by the vote necessary to amend the partnership
agreement except, in the case of a partnership agreement that expressly
considers obligations to contribute to the partnership, the vote necessary to
amend those provisions.
(c)
After the approval required by subsection (b), a partnership may become a
limited liability partnership by filing delivering to the [Secretary
of State] for filing a statement of qualification. The statement must
contain:
(1)
the name of the partnership;
(2)
the street address of the partnership’s chief
executive principal office and, if different, the street address
of an office in this State state, if any;
(3) if
the partnership does not have an office in this State, the name and street
address of the partnership’s registered agent for service of process; and
(4)
a statement that the partnership elects to be become a limited
liability partnership; and
(5)
a deferred effective date, if any.
(d)
The agent of a limited liability partnership for service of process must be an
individual who is a resident of this State or other person authorized to do
business in this State.
(e) (d) The status of a partnership as a
limited liability partnership is effective on the later of the filing of the
statement or a date specified in the statement. The A partnership’s
status as a limited liability partnership remains effective, regardless
of changes in the partnership, until it is canceled pursuant to Section
105(d) subsection (f) or administratively revoked pursuant to
Section 1003 1010.
(f) (e)The status of a partnership as a limited
liability partnership and the liability of its partners for the debts,
obligations, or other liabilities of the partnership while it is a limited
liability partnership is not affected by errors or later changes in the
information required to be contained in the statement of qualification under
subsection (c).
(g) The
filing of a statement of qualification establishes that a partnership has
satisfied all conditions precedent to the qualification of the partnership as a
limited liability partnership.
(h) An amendment or cancellation of a statement of
qualification is effective when it is filed or on a deferred effective date
specified in the amendment or cancellation.
(f)
A limited liability partnership may amend or cancel its statement of
qualification by delivering to the [Secretary of State] for filing a statement
of amendment or cancellation. The
statement must be consented to by all partners and state the name of the
limited liability partnership and in the case of:
(1)
an amendment, state the amendment; and
(2)
a cancellation, state that the statement of qualification is canceled.
* *
*
SECTION
1009. ADMINISTRATIVE REVOCATION OF
STATEMENT OF QUALIFICATION.
(d) An administrative revocation under subsection (c)
affects only a partnership’s status as a limited liability partnership and is
not an event causing dissolution of the partnership.
* * *
EXCERPTS FROM
AMENDMENTS TO
HARMONIZED UNIFORM LIMITED
COOPERATIVE ASSOCIATION ACT
[ARTICLE] 6
MEMBER’S INTEREST IN LIMITED COOPERATIVE
ASSOCIATION
* * *
* * *
(f) If a court
forecloses a charging order lien against the sole member of a limited
cooperative association:
(1) the
court shall confirm the sale;
(2) the
purchaser at the sale obtains the member’s entire interest, not only
the member’s financial rights;
(3) the
purchaser thereby becomes a member; and
(4) the person whose
interest was subject to the foreclosed charging order is dissociated as a
member.
* * *
EXCERPTS FROM AMENDMENTS TO
HARMONIZED UNIFORM UNINCORPORATED NONPROFIT ASSOCIATION ACT
(a) Unless
the governing principles provide otherwise:
(1)
approval of a matter by the members requires an affirmative
majority of the votes cast at a meeting of members; and
(2)
each member is entitled to one vote on each matter that is submitted for
approval by the members.
(b) Notice and quorum requirements for member
meetings and the conduct of meetings of members are determined by the governing
principles. The governing
principles may provide for the:
(1) calling, location, and timing of
member meetings;
(2) notice and quorum requirements for
member meetings;
(3) conduct of member meetings;
(4) taking of action by the members by
consent without a meeting or casting ballots; and
(5) participation by members in a member
meeting by telephone or other means of electronic communication.
(c) If the governing principles do not provide for a
matter described in subsection (b), customary usages and principles of
parliamentary law and procedure apply.
* * *
SECTION
24. NOTICE
AND QUORUM PROCEDURAL REQUIREMENTS FOR MANAGER MEETINGS OF
MANAGERS. Notice and quorum requirements for meetings of managers
and the conduct of meetings of managers are determined by the
(a) The governing principles may provide for the:
(1) calling, location, and timing of
manager meetings;
(2) notice and quorum requirements for
manager meetings;
(3) conduct of manager meetings;
(4) taking of action by the managers by
consent without a meeting; and
(5) participation by managers in a manager
meeting by telephone or other means of electronic communication.
(b) If the governing principles do not provide for a
matter described in subsection (a), customary usages and principles of
parliamentary law and procedure apply.