BUSINESS ORGANIZATIONS ACT
SECTION
1-101. SHORT TITLES.
(a) This [act] may be cited as the Business Organizations
Act.
(b) This [article] may be cited as the Business
Organizations Act - General Provisions.
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) “Commercial registered agent” means a person listed under
Section 1-405.
(4) “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.
(5) “Domestic”, with respect to an entity, means governed
as to its internal affairs by the law of this state.
(6) “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) “Entity”:
(A) means:
(i) a business corporation;
(ii) a nonprofit corporation;
(iii) a general
partnership;
(iv) a 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 a
legal existence separate from any interest holder of that person or that has
the power to acquire an interest in real property in its own name; and
(B)
does not include:
(i) an individual;
(ii) a testamentary, inter vivos,
or 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 excluded under
Section 1-106.]
(8) “Entity filing” means a record delivered for filing
to the [Secretary of State] pursuant to this [act].
(9) “Filed record” means a record filed by the [Secretary
of State] pursuant to this [article].
(10) “Filing entity” means an entity that is formed by
filing a public organic record.
(11) “Foreign”, with respect to an entity, means governed
as to its internal affairs by the law of a jurisdiction other than this state.
[(12) “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) “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) “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
involving the internal affairs of the entity.
(15) “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 person under whose authority the
powers of an entity are exercised and under whose direction the business and
affairs of the entity are managed pursuant to the entity’s organic law and
organic rules.
(16) “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
interest in any other type of unincorporated entity.
(17) “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 of a statutory trust,
business trust, or common-law business trust; or
(K) any other direct holder of an interest.
(18) “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) “Jurisdiction of formation” of an entity means the
jurisdiction whose law includes the organic law of the entity.
(20) “Limited cooperative association” means a domestic
limited cooperative association formed under or subject to [Article] 8 or a
foreign limited cooperative association.
(21) “Limited liability company” means a domestic limited
liability company formed under or subject to [Article] 7 or a foreign limited
liability company.
(22) “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) “Limited liability partnership” means a domestic
limited liability partnership registered under or subject to [Article] 5 or a
foreign limited liability partnership.
(24) “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) “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 agent
for service of process of an entity; or
(B) an individual who holds the office or
other position in an entity that is designated as the agent for service of
process pursuant to Section 1-404(a)(2)(B).
(26) “Nonfiling
entity” means an entity that is formed other than by filing a public organic
record.
(27) “Nonprofit corporation” means a domestic nonprofit
corporation incorporated under or subject to [Article] 4 or a foreign nonprofit
corporation.
(28)
“Organic law” means the law of an entity’s jurisdiction of formation that
governs the internal affairs of the entity.
(29) “Organic rules” means the public organic record and
private organic rules of an entity.
(30) “Person” means an individual, corporation,
partnership, limited partnership, limited liability company, [general
cooperative association,] limited cooperative association, unincorporated
nonprofit trust 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) “Principal office” means the office, 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) “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 instrument of a statutory
trust, business trust, or common-law business trust.
(33) “Proceeding” includes a civil action, arbitration,
mediation, administrative proceeding, criminal prosecution, and investigatory
action.
(34) “Property” means all property, real, personal, or
mixed, or tangible or intangible, or any interest therein.
(35) “Public organic record” means the record the public
filing of which forms an entity and any amendment 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, business trust, or common-law business trust.
(36) “Qualified 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].
(37) “Receipt” means actual receipt. “Receive” has a
corresponding meaning.
(38) “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) “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.
(40) “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) “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) “Statutory trust” means
a domestic statutory trust formed under or subject to [Article] 10 or a foreign
statutory trust.”
(43) “Transfer” includes an assignment, conveyance,
lease, mortgage, deed, and encumbrance.
(44) “Transferable interest” means the right under an
unincorporated entity’s organic law to receive distributions from the entity.
(45) “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) “Unincorporated nonprofit association” means a
domestic unincorporated nonprofit association formed under or subject to
[Article] 9 or a foreign unincorporated nonprofit association.
Legislative Note: If this state uses a term for
the public organic record of a particular entity different from that set forth
in paragraph (35), it should substitute its own term. Some states, for example, use the term
“articles of organization” for the public organic document of a limited
liability company and should substitute that term for “certificate of
organization” in paragraph (35)(D), and, if the state adopts Section 1-212,
Alternative A, in Section 1-212(b)(14).
Comment
In
general. The definitions in this section apply
generally throughout the act unless a particular term is defined differently in
another article.
Many of the definitions in this section were
developed for use in the Model Entity Transactions Act (META). Definitions that are common to this Act and META are:
“domestic” (corresponding to the META term
“domestic entity”)
“entity”
“filing entity”
“foreign” (corresponding to the META term “foreign
entity”)
“governance interest”
“governor”
“interest”
“interest holder”
“jurisdiction of formation” (corresponding to the META
term “jurisdiction of organization”)
“organic law”
“organic rules”
“person”
“private organic rules”
“public organic record”
“qualified foreign entity”
“record”
“sign”
“transferable interest”
“type of entity” (corresponding to the META
term “type”)
The
comments below with respect to defined terms taken from META
are substantively the same as the corresponding comments in META.
Other
definitions in this Act were developed for use in the Model Registered Agents
Act (MRRA). Part 4 of this Act is
derived from MRRA and contains definitions of the following MRRA terms:
“appointment
of agent”
“nonqualified
foreign entity”
“nonresident
limited liability partnership statement”
“registered
agent filing”
“Commercial registered agent” and
“noncommercial registered agent” are defined in this Section in part by
reference to Part 4.
“Commercial
registered agent.” [(3)] – A commercial registered agent is an individual
or entity that is in the business of serving as a registered agent in the state
and that files a listing statement under Section 1-404. Being listed as a commercial registered agent
is voluntary and persons serving as registered agents are not required to be
listed under Section 1-405. The benefits
to the registered agent of being listed under Section 1-405, however, are
substantial and most registered agents will elect to be so listed. Although this definition and Section 1-405 do
not expressly require that a foreign entity that is listed as a commercial
registered agent be qualified to do business in the state, the activity of
serving as a registered agent is one that requires such registration.
“Domestic.”
[(5)] – The term “domestic”,
with respect to an entity, means in this Act an entity whose internal affairs
are governed by the organic laws of the adopting state. Except in the case of general partnerships
and unincorporated nonprofit associations, this will mean an entity that is
formed, organized, or incorporated under domestic law. In the case of a general partnership
organized under the Uniform Partnership Act (1997) (RUPA), it will mean a
general partnership whose governing law under RUPA § 106 is the law of the
adopting state. Under RUPA § 106 the
governing law is determined by the location of the partnership’s chief
executive office, except for limited liability partnerships where the governing
law is the state where the statement of qualification is filed. It is a factual question whether the
activities and organization of an unincorporated nonprofit association make it
a domestic or foreign entity.
This definition is patterned after Model
Entity Transactions Act § 102(8) (“domestic entity”), a term which is also
defined in Model Registered Agents Act § 2(3).
“Entity.” [(7)] – This definition determines the overall scope
of the Act.
This definition is
intended to include all forms of private organizations, regardless of whether
organized for profit, and artificial legal persons other than those excluded by
paragraphs (B)(i)-(vi). Thus, this
definition is broader than the definition of “business entity” in, e.g., Code
of Ala. § 10-15-2(2)
which does not include nonprofit entities.
This definition does not exclude regulated entities such as public
utilities, banks and insurance companies.
Inter vivos and
testamentary trusts are treated in many states as having a separate legal
existence, but they have been excluded from the definition of “entity.” Trusts that carry on a business, however,
such as a Massachusetts trust, real estate
investment trust, Illinois
land trust, or other common law or statutory business trusts are “entities.”
Section 6 of the
Uniform Unincorporated Nonprofit Association Act (2008) gives an unincorporated
nonprofit association the power to acquire an estate in real property and thus
an unincorporated nonprofit association organized in a state that has adopted
that act will be an “entity.” At common
law, an unincorporated nonprofit association was not a legal entity and did not
have the power to acquire real property.
Most states that have not adopted the Uniform Act have nonetheless
modified the common law rule, but states that have not adopted the Uniform Act
should analyze whether they should modify the definition of “entity” to add an
express reference to unincorporated nonprofit associations.
There is some
question as to whether a partnership subject to the Uniform Partnership Act
(1914) (UPA) is an entity or merely an aggregation of its partners. That question has been resolved by Section
201 of the Uniform Partnership Act (1997) (RUPA), which makes clear that a
general partnership is an entity with its own separate legal existence. Section 8 of UPA gives partnerships subject
to it the power to acquire estates in real property and thus such a partnership
will be an “entity.” As a result, all
general partnerships will be “entities” regardless of whether the state in
which they are organized has adopted RUPA.
Paragraph (B) (i)
of this definition excludes a sole proprietorship from the concept of “entity.”
Paragraph (B)(iii)
of this definition excludes from the concept of an “entity” any form of
co-ownership of property or sharing of returns from property that is not a
partnership under RUPA § 202(c) or UPA § 7.
In that connection, Section 202(c) of RUPA provides in part:
In
determining whether a partnership is formed, the following rules apply:
(1) Joint tenancy, tenancy in common, tenancy by
the entireties, joint property, common property, or part ownership does not by
itself establish a partnership, even if the co-owners share profits made by the
use of the property.
(2) The sharing of gross returns does not by
itself establish a partnership, even if the persons sharing them have a joint
or common right or interest in property from which the returns are derived.
A virtually identical provision appears in UPA § 7(3)-(4).
Limited liability partnerships and limited
liability limited partnerships are “entities” because they are general
partnerships and limited partnerships, respectively, that have made the
additional required election claiming LLP or LLLP status. A limited liability partnership is not,
therefore, a separate type of entity from the underlying general or limited
partnership that has elected limited liability partnership status.
“Filing entity.” [(10)] –
Whether an entity is a filing entity is determined by reference to whether its
legal existence is attributable to the filing of a record with the state filing
officer. While the statute refers to an
entity that is “formed,” it is intended to encompass corporations which are
“incorporated” and limited liability companies which are “organized” as well as
entities such as limited partnerships which are “formed” by a filing required
by the organic law governing the entity.
Business trusts (sometimes referred to as “statutory trusts”) present a
special problem. In some states a
business trust is a filing entity, while in other states business trusts are
recognized only by common law. Under
section 201(a) of the 2007 NCCUSL Annual Meeting Draft of the proposed Uniform
Statutory Trust Entity Act, a statutory trust entity formed under that act
would be formed by delivery of a certificate of trust to the appropriate filing
officer, and would be a filing entity.
The term does not
include a limited liability partnership because an election filed by a general
partnership claiming that status (e.g., a statement of qualification
under Uniform Partnership Act (1997), § 1001) does not create the entity. A limited liability limited partnership, on
the other hand, is a filing entity because the underlying limited partnership
is created by filing a certificate of limited partnership.
This definition is patterned after Model
Entity Transactions Act § 102(13) (“filing entity”). A similar definition appears in Model
Registered Agents Act § 2(5). See also
Model Business Corporation Act § 1.40(9B) (“filing entity”).
“Foreign.” [(11)] – The term “foreign,” with respect to an entity, includes any non-domestic
entity of any type. Where a foreign
entity is a filing entity, the entity is governed by the laws of the state of
filing. A nonfiling foreign entity is
governed by the laws of the state governing its internal affairs. It is a factual question whether a general
partnership whose internal affairs are governed by the Uniform Partnership Act
(1914) (UPA) is a domestic or foreign partnership. A UPA partnership will likely be deemed to be
a domestic entity where the greatest nexus of contacts are found. Similar issues arise with respect to
determining the domestic or foreign status of unincorporated nonprofit
associations. The domestic or foreign
characterization of partnerships under the Uniform Partnership Act (1997)
(RUPA) that have not registered as limited liability partnerships will be
governed by RUPA § 106(a) (“state where the partnership’s chief executive
office is located”).
This definition is patterned after Model
Entity Transactions Act § 102(14) (“foreign entity”). The same definition is found in Model
Registered Agents Act § 2(6).
“Governance
interest.” [(14)] – A governance
interest is typically only part of the interest that a person will hold in an
entity and is usually coupled with a transferable interest (or economic
rights). However, memberships in some
nonprofit corporations and unincorporated nonprofit associations consist solely
of governance interests and memberships in other nonprofit entities may not
include either governance interests or transferable interests. In some unincorporated business entities,
there is a more limited right to transfer governance interests than there is to
transfer transferable interests. An
interest holder in such an unincorporated business entity who transfers only a
transferable interest and retains the governance interest will also retain the
status of an interest holder. Whether a
transferee who acquires only a transferable interest will acquire the status of
an interest holder is determined by the definition of “interest holder.”
Shares in a business
corporation that are nonvoting nonetheless have a governance interest because
they entitle the holder to certain rights of access to information and to
certain statutory voting rights on amendments of the articles of incorporation.
Governors of an
entity have the kinds of rights listed in the definition of “governance
interest” by reason of their position with the entity. For a governor to have a “governance
interest,” however, requires that the governor also have those rights for a
reason other than the governor’s status as such. A manager who is not a member in a limited
liability company, for example, will not have a governance interest, but a
manager who is a member will have a governance interest arising from the
ownership of a membership interest.
This definition is patterned after Model
Entity Transactions Act § 102(15) and Model Registered Agents Act § 2(8)
(“governance interest”).
“Governor.” [(15)] – This
term has been chosen to provide a way of referring to a person who has the
authority under an entity’s organic law to make management decisions regarding
the entity that is different from any of the existing terms used in connection
with particular types of entities. Compare
Colo. § 7-90-102(35.7) which uses the term “manager” to refer to this concept,
even though “manager” is also a term of art in connection with limited
liability companies. Depending on the
type of entity or its organic rules, the governors of an entity may have the
power to act on their own authority, or they may be organized as a board or
similar group and only have the power to act collectively, and then only
through a designated agent. In other
words, a person having only the power to bind the organization pursuant to the instruction
of the governors is not a governor.
Under the organic rules, particularly those of unincorporated entities,
most or all of the management decisions may be reserved to the members or
partners. Thus, if a manager of a
limited liability company were limited to having authority to execute
management decisions made by the members and did not have any authority to make
independent management decisions, the manager would not be a governor under
this definition.
Except as described
above, the term “governor” includes:
·
Director
of a business corporation.
·
Director
or trustee of a nonprofit corporation.
·
General
partner of a general partnership.
·
General
partner of a limited partnership.
·
Manager
of a limited liability company.
·
Member
of a member-managed limited liability company.
·
[Director
of a general cooperative association.]
·
Director
of a limited cooperative association
·
Trustee
of a statutory trust entity or other statutory or common-law business trust.
This definition is patterned after Model
Entity Transactions Act § 102(16) and Model Registered Agents Act § 2(9)
(“governor”).
“Interest.” [(16)] – In the usual case, the interest held by an
interest holder will include both a governance interest and a transferable
interest (or economic rights). Members
in many nonprofit corporations or unincorporated nonprofit associations do not
have a transferable interest because they do not receive distributions, but
they nonetheless may hold a governance interest in which case they would have
the status of interest holders under the Act.
An interest holder in an unincorporated business entity may transfer all
or part of the interest holder’s transferable interest without the transferee
acquiring the governance interest of the transferor. In that case, whether the transferor will
retain the status of an interest holder will be determined by the applicable
organic law and the transferee will have the status of an interest holder under
paragraph (B) of this definition. That
paragraph will also apply to subsequent transferees from the original
transferee.
The term “interest”
includes:
·
Shares
in a business corporation
·
Membership
in a nonprofit corporation.
·
Partnership
interest in a general partnership
·
Partnership
interest in a limited partnership
·
Membership
interest in a limited liability company
·
Membership
in an unincorporated nonprofit association.
·
[Shares
in a general cooperative association.]
·
Membership
in a limited cooperative association.
·
Interest
in a statutory trust entity or other statutory or common-law trust.
·
Governance
interest or transferable interest in any other type of unincorporated entity.
This definition is patterned after Model
Entity Transactions Act § 102(17) and Model Registered Agents Act § 2(10)
(“interest”).
“Interest holder.” [(17)] – This Act does not refer
to “equity” interests or “equity” owners or holders because the term “equity”
could be confusing in the case of a nonprofit entity whose members do not have
an interest in the assets or results of operations of the entity but only have
a right to vote on its internal affairs. Compare Code of Ala. § 10-15-2(4) (“equity owner”).
The term “interest
holder” includes:
·
Shareholder
of a business corporation.
·
Member
of a nonprofit corporation.
·
General
partner of a general partnership.
·
General
partner of a limited partnership.
·
Limited
partner of a limited partnership.
·
Member
of a limited liability company.
·
Member
of an unincorporated nonprofit association.
·
[Shareholder
of a general cooperative association.]
·
Member
of a limited cooperative association
·
Beneficiary
of a statutory trust entity or other statutory or common-law business trust.
This definition is patterned after Model
Entity Transactions Act § 102(19) (“interest holder”). See also Model Business Corporation Act §
1.40(13B) (“interest holder”).
“Jurisdiction
of formation.” [(19)] – The term “jurisdiction of formation” refers
to the jurisdiction whose laws include the organic law of the entity.
This definition is patterned after Model
Entity Transactions Act § 102(21) and Model Registered Agents Act § 2(12)
(“jurisdiction of organization”).
“Noncommercial
registered agent.” [(25)] –
A noncommercial registered agent is a person that serves as an agent for
service of process but that is not listed under Section 1-405. All agents for service of process that are
not commercial registered agents are noncommercial registered agents.
This definition is patterned after Model
Registered Agents Act § 2(13) (“noncommercial registered agent”).
“Organic law.” [(28)] – Organic law means statutes other than this
Act that govern the internal affairs of an entity. Organic law includes the
entity specific articles of this Act, but does not include Article 2 based on
the Model Business Entity Transaction Act.
Entity laws in a few states purport to require that some of their
internal governance rules applicable to a domestic entity also apply to a
foreign entity with significant ties to the state. See, e.g., Cal. Gen. Corp. Law § 2115,
N.Y. N-PCL §§ 1318-1321, 15
Pa.C.S. § 6145. Such a “sticky fingers”
law is included within the definition of “organic law” for purposes of the Act.
This definition is patterned after Model
Entity Transactions Act § 102(27) and Model Registered Agents Act § 2(16)
(“organic law”). See also Model Business
Corporation Act § 1.40(15B) (“organic law”).
“Organic rules.”
[(29)] – The term “organic
rules” means an entity’s public organic document and its private organic rules.
This definition is patterned after Model
Entity Transactions Act § 102(28) and Model Registered Agents Act § 2(17)
(“organic rules”).
“Person.”
[(30)] – The
term “person” has the standard meaning of that term in uniform acts.
“Private organic
rules.” [(32)] – The term private “organic rules” is intended to
include all governing rules of an entity that are binding on all of its
interest holders, whether or not in written form, except for the provisions of
the entity’s public organic document, if any.
The term is intended to include agreements in “record” form as well as
oral partnership agreements and oral operating agreements among LLC members. Where private organic rules have been amended
or restated, the term means the private organic rules as last amended or
restated.
The term “private
organic rules” includes:
·
Bylaws
of a business corporation.
·
Bylaws
of a business trust.
·
Bylaws
of a statutory trust entity.
·
Bylaws
of a nonprofit corporation.
·
Constitution
and bylaws of an unincorporated nonprofit association.
·
Operating
agreement of a limited liability company.
·
Partnership
agreement of a general partnership.
·
Partnership
agreement of a limited partnership.
This definition is patterned after Model
Entity Transactions Act § 102(31) and Model Registered Agents Act § 2(19)
(“private organic rules”). Compare Model
Business Corporation Act § 1.40(17A) (“private organic document”).
“Public organic record”. ”
[(35)] – A “public organic record” is a record that is filed publicly to
form, organize, incorporate, or otherwise create an entity. The term does not include a statement of
partnership authority filed under Section 303 of the Uniform Partnership Act
(1997) or any of the other statements that may be filed under that act since
those statements do not create a new entity.
A limited liability partnership is the same entity as the partnership
that files the statement. For the same
reason, the term also does not include a statement of qualification filed under
Section 1001 of that act to become a limited liability partnership. Similarly, the term does not include a
statement of authority filed under Section 5 of the Uniform Unincorporated Nonprofit
Association Act or a statement appointing an agent filed under Section 10 of
that act. Where a public organic record has
been amended or restated, the term means the public organic record as last
amended or restated.
The term “public
organic record” includes:
·
Articles
of incorporation of a business corporation.
·
Articles
of incorporation of a nonprofit corporation.
·
Certificate
of limited partnership.
·
Certificate
of organization of a limited liability company.
·
[Articles
of incorporation of a general cooperative association.]
·
Articles
of organization of a limited cooperative association.
·
Certificate
of trust of a statutory trust entity.
In those states where a deed of
trust or other instrument is publicly filed to create a business trust, that
filing will constitute a public organic record.
But in those states where a business trust is not created by a public
filing, the deed of trust or similar record will be part of the private organic
rules of the business trust.
This definition is patterned after Model
Entity Transactions Act § 102(33) and Model Registered Agents Act § 2(20)
(“public organic document”).
“Qualified
foreign entity.” [(36)] – A qualified foreign entity is a foreign entity for which there is a
foreign-qualification document in effect in the adopting state.
This definition is patterned after Model
Entity Transactions Act § 102(34) and Model Registered Agents Act § 2(21)
(“qualified foreign entity”).
“Receipt.”
[37] – Section 15 of the
Uniform Electronic Transactions Act, which provides rules as to when an
electronic record is sent and received, applies to electronic records under
this Act.
“Record.”
[(38)] – The term “record” has the standard meaning
of that term in uniform acts.
“Registered
agent.” [(39)] – This term is used in the Act to refer to
agents for service of process in contexts where it is not necessary to
differentiate between commercial registered agents and noncommercial registered
agents.
The definition is patterned after Model
Registered Agents Act § 2(23).
“Sign.”
[(40)] – The term “sign” has the standard meaning of
that term in uniform acts.
“Transferable interest.” [(44)] – The term “transferable interest” is taken
from Section 102(22) of the Uniform Limited Partnership Act (2001).
This definition is patterned after Model
Entity Transactions Act § 102(38) (“transferable interest”).
“Type of entity.” [(45)] – The term “type of entity” has been developed in an attempt to
distinguish different legal forms of entities.
It is sometimes difficult to decide whether one is dealing with a
different form of entity or a variation of the same form. For example, a limited partnership, although
it has been defined as a partnership, is a different type of entity from a
general partnership, while a limited liability partnership is not a different
type of entity from a general partnership.
In some states cooperative corporations are categories of business
corporations or nonprofit corporations, while in other states cooperatives are a
separate type of entity.
This definition is patterned after Model
Entity Transactions Act § 102(39) (“type”).
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, and electronic transmission.
(b) Delivery to
the [Secretary of State] is effective only when the record is received by the
[Secretary of State].
Comment
The first sentence of
this section is derived from the definition of “deliver” in section 1.40(5) of
the Revised Model Business Corporation Act.
Delivery to the Secretary of State is effective only upon actual
receipt. The effectiveness of records
delivered other than to the Secretary of State will be controlled by provisions
in other articles of this [act] and may vary depending on the type of entity to
which the records relate and manner in which the records are delivered.
SECTION 1-105. RULES AND PROCEDURES. The [Secretary of
State] may adopt rules in accordance with [this state’s administrative
procedure act] and may prescribe procedures that are reasonably necessary to
perform the duties required of the [Secretary of State] under this [act].
[SECTION 1-106.
ENTITIES EXCLUDED. This [act] does not
apply to the following entities:
(1) ___________________;
(2)___________________;
(3) ___________________.]
Legislative Note: List any specific types of entities excluded
from this act.
SECTION 1-201. ENTITY FILING REQUIREMENTS.
(a) To be filed by the [Secretary of State] pursuant to
this [article], an entity filing must be received by the office of the
[Secretary of State] and must comply with this [act] and satisfy the following
requirements:
(1) The entity filing must be required or
permitted by this [act].
(2) The entity filing must be physically
delivered in written form unless the [Secretary of State] adopts rules
permitting electronic delivery of records 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 authorized to sign the filing under this [act].
(5) The entity filing must state the name and
capacity, if any, of the individual who signed it but need not contain a seal,
attestation, acknowledgment, or verification.
(b) If a 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 it otherwise complies
with this section but may redact that information.
(c) When an entity filing is delivered to the office of
the [Secretary of State] for filing, any fee required under this [article] and
any tax, license fee, 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.
Comment
The records filed
under this Act are referred to as “entity filings” in order to encompass
filings under corporation laws, which are typically referred to as “articles,”
and filings under limited partnership and other unincorporated entity laws,
which are typically referred to as “certificates.”
1. Form of records.
Section 1-104 provides that delivery of an
entity filing to the Secretary of State is effective only upon receipt by the
Secretary of State.
An entity filing must
be in typewritten or printed form unless the Secretary of State permits
delivery by electronic transmission. The types of electronic transmission that
may be used will be determined by the Secretary of State and is intended to
include the evolving methods of electronic delivery, including facsimile
transmissions, electronic transmissions between computers via modems and
filings through delivery of magnetic tapes or computer diskettes. The text of an entity filing must be in the
English language (except to the limited extent permitted by subsection (a)(3)).
The Secretary of State is not authorized to
prescribe forms (except to the extent permitted by Section 1-202) and as a
result may not reject entity filings on the basis of form (see Section 1-206)
if they contain the information called for by the specific statutory
requirement and meet the minimal formal requirements of this section.
2. Signature.
To be filed a record
must be signed by the appropriate person. No specific officer is designated as
the appropriate person to sign in the case of a corporation. Similarly, an unincorporated entity is given the authority
to designate the person to sign on its behalf. See Section 1-102 for a
description of the manner in which a record may be “signed.”
The requirement in
some state statutes that entity filings must be acknowledged or verified as a
condition for filing has been eliminated. These requirements serve little
purpose in connection with entity filings filed under organic laws. On the
other hand, many organizations, like lenders or title companies, may desire
that specific records include acknowledgements,
verifications, or seals; subsection (a)(4) does not prohibit the
addition of these forms of execution and their use is not intended to affect
the eligibility of the record for filing.
3. Contents.
A record must be filed
by the Secretary of State if it contains the information required by this Act..
In view of the very limited discretion granted to Secretaries of State under
this section and, Section 1-206(a) which defines the Secretary of
State’s role as “ministerial,” Section 1-206(d)(3) provides that no inference or presumption
arises from the fact that the Secretary of State accepted a document for filing.
See the Comments to Sections 1-206 and 1-208.
SECTION
1-202. FORMS.
(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 and [an annual] [a biennial] report for an entity filing be on forms
prescribed by the [Secretary of State].
Comment
As described in the
Comments to Section 1-201, records are entitled to filing if they meet the
substantive and formal requirements of this Act. In
these circumstances it is not appropriate to vest the Secretary of State with
general authority to establish mandatory forms for use under the Act. This
section authorizes (but does not require) the Secretary of State to prepare
forms suitable for filing under the Act. However, the use of these forms is
permissive and cannot be required by the Secretary of State. The Secretary of State is authorized to
prescribe forms for [annual] [biennial] reports, however, and for cover sheets
for entity filings.
SECTION
1-203. EFFECTIVE TIME AND DATE. Except as otherwise
provided in Section 1-204 and subject to Section 1-205(c), an entity filing is
effective:
(1) on the date and at the time of its filing by the
[Secretary of State];
(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.
Comment
Records accepted for
filing become effective at the date and time of filing, or at another specified
time on that date, unless a delayed effective date is selected.
Section 1-206(b) requires Secretaries of
State to maintain some means of recording the date and time of delivery of an
entity filing, and that the recording of that date and time constitutes filing.
That provision gives express statutory authority to the common practice of most
Secretaries of State of ignoring processing time and treating a record as filed
as of the date and time it is delivered for filing even though it may not be
reviewed and accepted for filing until several days after delivery. That section contemplates that time of
delivery, as well as the date, will be routinely recorded.
Under
paragraph (1) of this section, in the absence of provision for a delayed
effective date, an entity filing becomes effective on the date and time of
filing by the Secretary of State. Since
under 1-206(b), the date and time of filing is the recorded date and time of
delivery of the entity filing, together these provisions eliminate any doubt
about situations involving same-day transactions in which a record, for
example, a statement of merger, if delivered for filing on the morning of the
day the merger is to become effective.
Paragraph (3) does not
authorize or contemplate the retroactive establishment of an effective date
before the date of filing.
SECTION
1-204. WITHDRAWAL OF FILED RECORD BEFORE
EFFECTIVENESS.
(a) The parties to a filed record may withdraw the record
before it takes effect.
(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) A statement of withdrawal must:
(1) except as otherwise agreed by the
parties, be signed on behalf of each party that signed the filed record being
withdrawn;
(2) identify the filed record to be
withdrawn, the date of its filing, and the parties to it; and
(3) state that the filed record has been
withdrawn in accordance with the agreement of the parties.
(d) On the delivery for filing to the [Secretary of
State] of a statement of withdrawal, the action or transaction evidenced by the
original filed record does not take effect.
Comment
This
provision is considerably broader in scope than section 11.08 of the Revised
Model Business Corporation Act (“Abandonment of Merger or Share Exchange”), on
which it is patterned.
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 filed record if:
(1) the filed record at the time of filing
contained an inaccuracy;
(2) the filed record was defectively signed;
or
(3) the electronic transmission of the filed
record to the [Secretary of State] was defective.
(b) To correct a filed record, the parties to the record
must deliver to the [Secretary of State] a statement of correction.
(c) A statement of correction must:
(1) be signed on behalf of the person
correcting the filed record;
(2) identify the filed record to be corrected
or have attached a copy and state the date of its filing;
(3) specify the inaccuracy or defect to be
corrected; and
(4) 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.
Comment
This section permits
making corrections in entity filings without re-filing the entire record. Under
subsection (c), the correction relates back to the original effective date of
the entity filing being corrected, except as to persons relying on the original
entity filing and adversely affected by the correction. As to these persons,
the effective date of the statement of correction is the date the statement is
filed.
An entity filing may
be corrected either because it contains an inaccuracy or because it was
defectively executed (including defects in optional forms of execution that do
not affect the eligibility of the original record for filing). In addition, the
entity filing may be corrected if its electronic transmission was defective.
This is intended to cover the situation where an electronic filing is made but,
due to a defect in transmission, the filed record is later discovered to be
inconsistent with the record intended to be filed. If no filing is made because
of a defect in transmission, a statement of correction may not be used to make a
retroactive filing. Therefore, an entity making an electronic filing should
take steps to confirm that the filing was received by the Secretary of State.
A provision in a entity
filing setting an effective date may be corrected under this section, but the
corrected effective date must comply with the requirements of this Act limiting
delayed effective dates to within 90 days after filing. A corrected effective
date is thus measured from the date of the original filing of the record being
corrected, i.e., it cannot be before the date of filing of the record or more
than 90 day thereafter.
SECTION
1-206. DUTY OF [SECRETARY OF STATE] TO
FILE; APPEAL 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. 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 time of its
delivery. After filing an entity filing,
the [Secretary of State] shall deliver to the domestic or foreign entity or its
representative a copy of the filing with an acknowledgement of the date and
time of filing.
(c) If the [Secretary of State] refuses to file an entity
filing, the [Secretary of State] shall return the entity filing or notify the
person that submitted the filing not later than [15] business days after the
filing is delivered, together with 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 appeal the refusal to the
[appropriate court] under the following procedures:
(1) The appeal is commenced by petitioning
the court to compel filing of the filing and by attaching to the petition the
filing and the explanation of the [Secretary of State] of the refusal to file.
(2) The court may summarily order the
[Secretary of State] to file the filing or take other action the court
considers appropriate.
(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.
Comment
1. Filing duty
in general.
Under this section the
Secretary of State is required to file a entity filing if it “satisfies the
requirements of Section 1-201.” The purpose of this language is to limit the
discretion of the Secretary of State to a ministerial role in reviewing the
contents of entity filings. If the entity filing submitted is in the form
prescribed and contains the information required by Section 1-201 and the
applicable provision of this Act, the Secretary of State must file it. Consistently
with this approach, subsection (a) states explicitly that the filing duty of
the Secretary of State is ministerial and subsection (d) provides that the filing
of an entity filing by the Secretary of State does not affect the validity or
invalidity of any provision contained in the filing and does not create any
presumption with respect to any provision. Persons adversely affected by
provisions in an entity filing may test their validity in a proceeding
appropriate for that purpose. Similarly, the attorney general of the state may
also question the validity of provisions of entity filings filed with the
Secretary of State in an independent suit brought for that purpose; in neither
case should any presumption or interference be drawn about the validity of the
provision from the fact that the Secretary of State accepted the entity filing
for filing.
2. Mechanics of filing.
Subsection (b)
provides that when the Secretary of State files an entity filing, the Secretary
of State records it as filed on the date and time of delivery to the Secretary
of State, retains the original record for the state’s records, and delivers a
copy of the record to the entity or its representative with an acknowledgement
of the date and time of filing. In the case of a record transmitted
electronically, delivery may be made by electronic transmission. The copy
returned will be the exact or conformed copy if one has been required by the
Secretary of State, or will be a copy made by the Secretary of State if an
exact of conformed copy was not required. Of course, a person desiring a
certified copy of any filed record may obtain it from the office of the
Secretary of State by paying the fee prescribed in Section 1-209(b).
3. Elimination of certificates and similar records.
Subsection (b)
provides that acceptance of a filing is evidenced merely by the Secretary of
State’s delivery of a copy of the entity filing with an acknowledgment of the
date and time of filing. The Act does
not provide for the Secretary of State to issue a formal certificate of filing.
A copy of the filed record together with an acknowledgment of the date and time
of filing should sufficiently indicate that the entity filing has been accepted
for filing.
4. Rejection of document by Secretary of State.
Because of the
simplification of formal filing requirements and the limited discretion granted
to the Secretary of State by this Act, it is probable that rejection of entity
filings will occur only rarely. Subsection (c) provides that if the Secretary
of State does reject an entity filing, the Secretary of State must return it to
the entity or its representative within five days together with a brief written
explanation of the reason for rejection. In the case of an entity filing
delivered by electronic transmission, rejection of the filing may be made
electronically by the Secretary of State or by a mailing to the entity.
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].
Comment
This section is
patterned on Revised Model Business Corporation Act section 1.27.
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 foreign entity.
(b) A certificate under subsection (a) must set forth:
(1) the domestic filing entity’s name or the
qualified foreign entity’s name used in this state;
(2) that the domestic filing entity is formed
under the law of this state, the date of its formation, and the period of its
duration if less than perpetual, or that the qualified foreign entity is
registered to do business in this state;
(3) that all fees, taxes, and penalties owed
to this state 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) that the entity’s most recent [annual]
[biennial] report required by Section 1-211 has been delivered for filing to
the [Secretary of State];
(5) that the entity has not been dissolved;
and
(6) other facts of record pertaining to the
entity in the office of the [Secretary of State] that the person requesting the
certificate may reasonably request.
(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.
Comment
This section is
patterned on RMBCA section 1.28. In
addition to substituting generic terms for the corporate specific terms used in
section 1.28, this section uses the term “registration” in connection with
foreign entities, rather than “authorization.”
This is because this Act provides in Part 5 for “registration” of
foreign entities, rather than for application for a certificate of
authorization, which is the procedure under RMBCA Chapter 15.
SECTION
1-209. SIGNING CONSTITUTES AFFIRMATION. 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.
Comment
This section makes it
a criminal offense for any person to sign a document that he knows is false in
any material respect with intent that the document be submitted for filing to
the secretary of state. As provided in Section 1-102, “sign” includes any
manual, facsimile, conformed or electronic signature.
SECTION
1-210. DELIVERY BY [SECRETARY OF STATE]. Except as otherwise
provided by Section 1-602 or by law other than this [act], the [Secretary of
State] may deliver any record to a person by delivering it to the person that
submitted it, to the address of the person’s registered agent, to the principal
office address of the person, or to another address the person provides to the
[Secretary of State] for delivery.
Comment
This section
recognizes the various methods by which the Secretary of State may deliver a
record.
SECTION 1-211. [ANNUAL] [BIENNIAL] REPORT FOR [SECRETARY OF
STATE].
(a) Each domestic filing entity and qualified foreign
entity shall deliver to the [Secretary of State] for filing [an annual] [a
biennial] report that sets forth:
(1) the name of the entity and its
jurisdiction of formation;
(2) the name and address of the entity’s
registered agent in this state; and
(3) the address of the entity’s principal
office.
(b) Information in the [annual] [biennial] report must be
current as of the date the report is signed on behalf of 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 domestic filing entity was
formed 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], the [Secretary of State] promptly
shall notify the reporting domestic or qualified foreign entity in a record and
return the report for correction.
Comment
This section is modeled on section
16.22 of the Revised Model Business Corporation Act.
[SECTION
1-212. FEES.
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 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) 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
Legislative Note: If this state includes fees of this kind in
a general statute, add these fees to that statute and omit this section. If
this state sets fees of this kind by administrative rule, select Alternative B.
Comment
This section
establishes the filing fees for all documents that may be filed under the Act.
The dollar amounts for each document should be inserted by each state as it
adopts the Act.
Subsection (b) establishes
standard fees for copying filed documents and certifying that the copies are
true copies. The dollar amounts for these services should be conformed to the
fees charged for similar services under other provisions of law.
SECTION
1-301. PERMITTED NAMES.
(a) Except as otherwise provided in subsections (b) and
(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 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 consents in a record to
the use of the 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).
(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”, “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) 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 in subsection
(c). In such a case, the holder 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].
Legislative Note: In subsection (e), add specific words that this state does not permit
an entity to use as part of its name, such as “bank”, “banking”, “credit
union”, “insurance”, or words of similar import, without approval by the
appropriate state agency.
Comment
This
section adopts the “distinguishable on the records” test for availability of an
entity name and rejects the “deceptively similar” test widely used in the
past.. The section is patterned on
Revised Model Business Corporation Act section 4.01.
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 limited partnership
is not a limited liability limited partnership, the name must contain the
phrase “limited partnership” or the abbreviation “L.P.”or “LP” and may not
contain the phrase “limited liability limited partnership” or “registered
limited liability partnership” or the abbreviation “L.L.L.P.” or “LLLP”. If the limited partnership is a limited
liability limited partnership, the name must contain the phrase “limited
liability limited partnership” or the abbreviation “L.L.L.P.” or “LLLP” 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 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.]
Comment
1. Corporations.
Subsection (a) is
drawn from Model Business Corporation Act, section 4.01(a). The Model Nonprofit Corporation Act does not
require the name of a nonprofit corporation to include a corporate designator.
2. Limited Partnerships.
Subsection (b)(1)) is drawn from Uniform Limited Partnership Act (2001),
section 108(a)-(c). Predecessor
law, Revised Uniform Limited Partnership Act (RULPA) (1985) Section 102,
prohibited the use of a limited partner’s name in the name of a limited
partnership except in unusual circumstances. That approach derived from the
1916 Uniform Limited Partnership Act and has become antiquated. In 1916, most
business organizations were either unshielded (e.g., general
partnerships) or partially shielded (e.g., limited partnerships), and it
was reasonable for third parties to believe that an individual whose own name
appeared in the name of a business would “stand behind” the business. Today most
businesses have a full shield (e.g., corporations, limited liability
companies, most limited liability partnerships), and corporate, LLC and LLP
statutes generally pose no barrier to the use of an owner’s name in the name of
the entity. This Code eliminates the
restriction of RULPA(1985) restriction and puts limited partnerships on equal
footing with these other “shielded” entities.
3.
Limited Liability Partnerships.
This
section is drawn from Uniform Partnership Act (1997) (RUPA), section 1002.
4. Limited Liability Companies.
Subsection (c) is
drawn from Revised Uniform Limited Liability Company Act (2006), section
108(a).
5.
Limited Cooperative Associations.
This section is drawn from section
109(b) of the 2007 Final Draft of the Uniform Limited Cooperative Association
Act.
6. Statutory Trusts.
This
section is drawn from the 2008 Draft of the Uniform Statutory Trust Act,
section 207(b). The drafting
committee comments indicate that it considered, but opted not to require, a
traditional limited liability appellation.
Such a requirement would be inconsistent with current practice under the
Delaware Act. For example, the names of
mutual funds typically do not contain a limited liability appellation, though
Section 35(d) of the Investment Company Act of 1940, which is applicable to a
statutory trust that is a registered investment company, prohibits “materially
deceptive or misleading” names. 15
U.S.C. §80a-34(d). See also Rule 35d-1,
17 C.F.R. §270.35d-1 (listing types of names that have been deemed “materially
deceptive or misleading”).
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 set forth 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.
(b) The owner of a reserved entity name may transfer the
reservation to another person 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.
Comment
This section is patterned on Model Business Corporation
Act section 4.02. It should be noted that the Texas Business Organizations
Code, section 5.105, unlike the Model Business Corporation Act provision,
allows renewal of reservation of names for successive 120 day periods, by
filing an application for renewal during the 30 day period preceding expiration
of the reservation.
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 Section 1-506, if the name
is distinguishable upon 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
Section 1-506, a foreign filing entity or foreign limited liability partnership
must deliver to the [Secretary of State] for filing an application setting
forth its name, or its name with any addition required by 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.
(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:
(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.
Comment
This section is patterned on section
4.03 of the Revised Model Business Corporation Act.
SECTION 1-401. DEFINITIONS. In this [part]:
(1) “Appointment of agent” means a statement appointing
an agent for service of process filed by a nonqualified foreign entity or
domestic nonfiling entity under Section 1-411.
(2) “Nonqualified foreign entity” means a foreign entity
that is not a qualified foreign entity.
(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) “Registered agent filing” means:
(A) the public organic record of a domestic
filing entity;
(B) a nonresident limited liability
partnership statement;
(C) a registration statement filed pursuant
to Section 1-503; or
(D) an appointment of a registered agent.
(5) “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 foreign entity;
(D) a domestic or foreign unincorporated
nonprofit association for which an appointment of an agent has been filed;
(E) a domestic nonfiling entity for which an
appointment of an agent has been filed; or
(F) a nonqualified foreign entity for which
an appointment of an agent has been filed.
Comment
“Appointment
of agent.” [(1)] – An appointment of agent is an optional filing
that may be made by an entity that does not otherwise make a public filing in
the state naming an agent for service of process. If a state has not enacted the Uniform
Unincorporated Nonprofit Association Act, paragraph (A) of this definition
should be omitted.
“Nonqualified
foreign entity.” [(2)] – A nonqualified foreign entity is a foreign
entity which has not registered with the [Secretary of State] to do business in
this state.
This definition is patterned after Model
Entity Transactions Act § 102(26) “nonqualified foreign entity”). See also Model Registered Agents Act § 2(14)
(“nonqualified foreign entity”).
“Nonresident
limited liability partnership statement.” [(3)]
– A nonresident
limited liability partnership statement is the filing that is made by a limited
liability partnership under Section 1001 of the Uniform Partnership Act (1997).
This definition is patterned after Model
Registered Agents Act § 2(15) (“nonresident limited liability partnership
statement”).
“Registered
agent filing.” [(4)]– Some states require that filings in addition
to those listed in this definition, such as articles of amendment or articles
of merger, state the registered agent information of the entity making the
filing. In states where that is the
case, this definition should be amended to add the following additional
provision:
“(E) any other filing with the [Secretary of
State] under an entity’s organic law that must include the information required
by Section 1-404(a).”
“Represented
entity.” [(5)]– This
definition lists the various classes of entities for which registered agents
act as agents for service of process.
SECTION
1-402. ENTITIES REQUIRED TO DESIGNATE
AND MAINTAIN REGISTERED AGENT. The following shall designate and
continuously maintain a registered agent in this state:
(1) a domestic
filing entity;
(2) a qualified
foreign entity; and
(3) a domestic or
foreign limited liability partnership that does not maintain a place of
business in this state.
Comment
This section is derived from Texas Business Organizations
Code Section 5.201(a). A similar
provision appears in the Draft Alabama Business and Nonprofit Entity Code as
Section 10A-1-5.31. The Model Registered
Agents Act, from which this [Part] of this Act is largely drawn, does not
contain a provision mandating which entities must designate a registered agent,
leaving that to the specific entity statutes.
The Texas
statute and the Alabama Draft attempt to do that in the “Hub”. This would ultimately entail deletions in the
respective entity statutes.
Like the Texas
statute, this section covers domestic and qualified foreign filing
entities. It also covers, as does the
Alabama Draft, registered limited liability partnerships in the circumstances
in which RLLPs are required to maintain an agent for service of process under
Uniform Partnership Act (2001) Section 1001 (c)(3) (domestic RLLP) or Section
1102(a)(3) (foreign RLLP), even though those sections do not use the term
“registered agent.”
Notice that the Model Registered Agent does provide for elective
designation of a registered agent by domestic nonfiling entities and by
nonqualifed foreign entities. Model
Registered Agent Act Section. 12. Those
provisions have been imported into this Act as Section 1-410, below.
SECTION
1-403. ADDRESSES IN FILINGS. 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).
Comment
When
this Act requires that a filing state an address, the address used must always
be a geographic location. Where a person
uses a post office box as its mailing address, paragraph (2) requires that the
post office box address also be stated.
This
section, and the accompanying Comment, is derived from Model Registered Agent
Act Section 4.
SECTION 1-404. APPOINTMENT OF REGISTERED AGENT.
(a) A registered agent filing must 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 office or
other position and the address of the business office of that person.
(b) The appointment of a registered agent pursuant to
subsection (a)(1) or (2)(A) is an affirmation 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.
Legislative
Note: Subsection (c) may be omitted if (1) the
records of the Secretary of State or equivalent officer are searchable
electronically in a manner that permits filings to be identified by the date of
the filing and by the name of the registered agent named in the filing, and (2)
the searchable database is updated frequently.
Comment
Subsection
(a)(1) gives an entity the option of listing just the name of its commercial
registered agent in a registered agent filing and omitting the address of the
registered agent. If the commercial
registered agent subsequently changes its address, that change will be
reflected in the filing made by the agent under Section 1-404, as amended under
Section 1-408, but no change will be necessary in the registered agent filing
of any of the entities represented by the commercial registered agent. The address of an entity’s commercial
registered agent may be ascertained from the records of the Secretary of State
by consulting its listing under Section 1-404.
The
address of an entity’s noncommercial registered agent is usually not a business
address of the represented entity. On
the other hand, subsection 1-403(a)(2)(B) permits an entity to designate a
person within the organization, such as its general counsel, to serve as its
registered agent; and in that circumstance the address of the registered agent
may very well be a business address of the represented entity.
The
addresses required by subsection (a) to be stated in a registered agent filing
must satisfy the requirements in Section 1-402.
Subsection
(b) avoids the need to include with a registered agent filing a consent of the
registered agent to serve as such.
Subsection
(c) creates a procedure that will permit registered agents to determine if they
have been named in filings of which they were not aware by periodically
consulting the list prepared by the Secretary of State. Subsection (c) requires the registered agents
to be listed in alphabetical order to facilitate the use of the list by registered
agents and also to indicate the type of filing (e.g., articles of
incorporation, certificates of limited partnership, appointments of agents
under Section 1-410 of this Act, etc.) in which each registered agent is named. Subsection (c) will not be necessary under
the circumstances described in the Legislative Note because registered agents
may consult the regular database maintained by the Secretary of State to verify
when they have been named as a registered agent.
Subsection
(a) is a generalization of Section 5.01 of the Model Business Corporation Act,
Section 114 of the Uniform Limited Partnership Act, and Section 108 of the
Uniform Limited Liability Company Act.
This
section and the accompanying Comment is derived from Section 5 of the Model
Registered Agents Act.
SECTION
1-405. LISTING OF COMMERCIAL REGISTERED
AGENT.
(a) A person may become listed as a commercial registered
agent by filing with the [Secretary of State] 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
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
in a form other than a written record as provided for in Section 1-412(d).
(c) If the name of a person 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) The [Secretary of State] shall note the filing of the
commercial-registered-agent listing statement in the index of filings
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 deleting the address of the agent from the filing of each of
those entities.
Legislative Note: If the Secretary of State or
equivalent officer is not able to identify from the records maintained by the
Secretary of State or equivalent officer all of the entities represented by a
registered agent, subsection (e) should be amended to read:
“(e) The commercial registered
agent listing statement must be accompanied by a list in alphabetical order of
the entities represented by the person.
The [Secretary of State] shall
note the filing of the commercial-registered-agent listing statement in the
index of filings maintained by the [Secretary of State] for each listed
entity. The statement has the effect of
deleting the address of the registered agent from the registered agent filing
of each of those entities.”
Comment
This
section is a substantial simplification of practice because it removes the need
to amend the filed record of every entity represented by a commercial
registered agent when the agent changes its address.
Subsection
(a)(3) only permits a commercial registered agent to list one address where
service of process and other notices may be sent to entities represented by the
agent. This may require a change in
practice for registered agents who have previously maintained more than one
address in a state and have permitted represented entities to choose which
address they would use in their registered agent filings. A corporation, for example, located in one
part of a state might include in its articles of incorporation an address for
its registered agent which is the address of an office of the agent located
close to the corporation and which is different than the address used by a
corporation in another part of the state which has the same registered agent
but uses a different office of the agent.
In the example given, the registered agent will need to pick just one
address in the state where all service of process will be sent to it. If a commercial registered agent wishes to
maintain more than one office in a state where service of process will be
received by it, it can accomplish that result by organizing separate entities
to conduct its business in the state and filing separate statements for each
entity under this section.
The
address required by subsection (a)(3) to be stated in a commercial registered
agent listing statement must satisfy the requirements in Section 1-402
above. .
Subsection
(e) is a transitional provision that deals with the effect on the entities
represented by a registered agent at the time the agent is first listed under
this section. The effect is to amend the
registered agent filing of each such entity to delete the address of the
registered agent consistent with Section 1-403(a)(1).
This
section is drawn from Section 6 of the Model Registered Agents Act, which in
turn is patterned generally after 15 Pa. Consol. Stat. § 109.
This
section provides a procedure for a commercial registered agent to withdraw from
the business of providing registered agent services. Use of the procedure in this section will
terminate the status of the registered agent as the agent for service of
process of all the entities represented by the agent. Thus, the procedure in this section differs
from the procedure in Section 1-409, which permits a registered agent to resign
with respect to just a single represented entity instead of resigning generally
with respect to all of its represented entities.
This
section and its accompanying comment is derived from Section 7 of the Model
Registered Agents Act.
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 filed.
(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 agent
for service of process on each entity formerly represented by it. Until an entity formerly represented by a
terminated commercial registered agent appoints 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.
Comment
This
section provides a procedure for a commercial registered agent to withdraw from
the business of providing registered agent services. Use of the procedure in this section will
terminate the status of the registered agent as the agent for service of
process of all the entities represented by the agent. Thus, the procedure in this section differs
from the procedure in Section 1-409, which permits a registered agent to resign
with respect to just a single represented entity instead of resigning generally
with respect to all of its represented entities.
This
section and its accompanying comment is derived from Section 7 of the Model
Registered Agents Act.
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 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 of the entity in any other jurisdiction.
(c) A statement of change under this section appointing a
new registered agent is an affirmation 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) 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 law of this state other than this [act] for amending the filing.
Comment
Changes
of the registered agent or the office address of a registered agent are usually
routine matters that do not affect the rights of the interest holders of the
represented entity. This section permits
those changes to be made without a formal amendment of an entity’s public
organic document, without approval of its interest holders, and, indeed, even
without formal approval by its governors (i.e., the persons managing the
entity’s affairs, such as the board of directors of a corporation).
Subsection
(c) avoids the need to file with a statement of change a consent of the new
registered agent being designated.
Subsection
(e) makes clear that the procedures in this section are not exclusive. A common way in which an entity changes its
registered agent or registered office is to include the change in an amendment
of its public organic document.
Subsection
(a) is a generalization of Section 5.02(a) of the Model Business Corporation
Act, Section 115 of the Uniform Limited Partnership Act, and Section 109 of the
Uniform Limited Liability Company Act.
As to subsection (c), compare Section 5.02(a)(5) of the Model Business
Corporation Act. Subsection (d) is
patterned after Section 115(b) of the Uniform Limited Partnership Act.
This
section, and the accompanying comment, is derived from Section 8 of the Model
Registered Agents Act.
SECTION 1-408. CHANGE OF NAME OR ADDRESS 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), 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;
(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.
(b) A statement of change under this section takes effect
on delivery to the [Secretary of State] for filing.
(c) A noncommercial registered agent promptly shall
furnish the represented entity with notice in a record of the filing of a
statement of change and the changes made by the filing.
Comment
This
section permits a noncommercial registered agent to change the name and address
of the agent that appears in the registered agent filing of an entity
represented by the agent. Because the
noncommercial registered agent is not listed under Section 1-404, the agent
will not be able to use the procedures in Section 338 which permit commercial
registered agents to make only one filing to change their name and address for
all entities represented by them. Thus
the noncommercial registered agent will need to make a filing under this
section for each entity represented by the agent.
An
address included in a statement of change must satisfy the requirements in
Section 1-402.
This
section is derived from Model Registered Agent Act section 9, which in turn is
patterned after 15 Pa. Consol. Stat. § 108.
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 type of entity has changed, the
new type of entity; and
(5) if the
jurisdiction of formation of the entity has changed, the new jurisdiction of
formation.
(b) A 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 statement of change under this section takes effect
on delivery to the [Secretary of State] for filing.
(d) A commercial registered agent promptly shall furnish
each entity represented by it notice in a record of the filing of a statement
of change relating to the name or address of the agent and the changes made by
the filing.
(e) If a commercial registered agent changes its address
without 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 agent for service of process on the
entity and that, until
