D R A F T

UNIFORM LAW ENFORCEMENT ACCESS TO ENTITY INFORMATION ACT

SECTION 1. SHORT TITLE. This [act] may be cited as the Uniform Law Enforcement Access to Entity Information Act.

SECTION 2. DEFINITIONS. In this [act]:

(1) “Appropriate request” means:

(A) a civil, criminal, or administrative subpoena or summons from a [state, local, or] federal law enforcement authority, [state agency,] federal agency, or committee or subcommittee of the United States Congress [or a state legislature]; or

(B) a request in the form of a record made by a federal agency on behalf of another country under:

(i) an international treaty, agreement, or convention; or

(ii) 28 U.S.C. Section 1782.

(2) “Beneficial ownership and control information” means the information described in Section 7(a).

(3 ) “Conventional privately held entity”:

(A) means a domestic filing entity that has, or will have on the effective date of its initial public organic record, no more than 50 interest holders; and

(B) does not include a domestic filing entity:

(i) in which one or more domestic or foreign entities with more than 50 interest holders holds, directly or indirectly, a majority of the outstanding interests entitled to vote on any issue ;

(ii) that is licensed or otherwise authorized to conduct business, or has filed an application which has not been denied with the appropriate federal or state agency for a license or other authorization to conduct business, as a bank or other depository institution, trust company, insurance company, public utility, or securities or commodities broker or dealer;

(iii) that is registered, or has filed an application for registration which has not been denied, as an investment company under the Investment Company Act of 1940;

(iv) that is registered, or has filed an application for registration which has not been denied, as an investment advisor under the Investment Advisors Act of 1940 or the law of any state;

(v) in which one or more domestic or foreign entities of the types described in subparagraph (ii), (iii), or (iv) holds, directly or indirectly, a majority of the outstanding interests entitled to vote on any issue ;

(vi) that holds, directly or indirectly, a majority of the outstanding interests entitled to vote on any issue in a domestic or foreign entity of a type described in subparagraph (ii), (iii), or (iv);

(vii) that has filed with the Internal Revenue Service a current annual information return as an exempt organization or private foundation ; or

(viii) that has filed with the Internal Revenue Service an application for recognition of exemption from federal income tax, if that exemption has not been denied and the due date (including any extension granted) for filing its first annual information return as an exempt organization or private foundation has not yet passed.

(4 ) “Domestic”, with respect to an entity, means governed as to its internal affairs by the law of this state.

(5 ) “Domestic filing entity” means:

(A) a domestic business corporation;

(B) a domestic nonprofit corporation;

(D) a domestic limited partnership, including a limited liability limited partnership;

(E) a domestic limited liability company;

(F) a domestic limited cooperative association; [or]

(G) a domestic statutory trust entity[; or]

[(H) list other types of entities authorized by the law of the state].

(6 ) “Entity information statement” means the initial or amended statement described in Section 4(a) or (c).

(7 ) “Foreign”, with respect to an entity, means governed as to its internal affairs by the law of a jurisdiction other than this state.

(8 ) “Governance interest” means the 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:

(i) information concerning the entity; or

(ii) the books and records of the entity;

(B) vote for the election of the governors of the entity; or

(9 ) “Governor” means:

(A) a director of a business corporation [or a shareholder of a close corporation that is managed by its shareholders instead of a board of directors];

(B) a director [or member of a designated body] of a nonprofit corporation;

(D) a general partner of a limited partnership;

(E) a manager of a limited liability company or other person that materially participates in the management of a limited liability company pursuant to its organic law and organic rules;

(F) a director of a limited cooperative association; [or]

(G) a trustee of a statutory trust entity[; or]

[(H) list governors of other types of entities authorized by the law of the state].

(10 ) “Interest” means:

(A) a governance interest;

(B) a transferable interest;

(D) a membership in a nonprofit corporation.

(11 ) “Interest holder” of an entity means:

(A) a shareholder of a business corporation;

(B) a member of a nonprofit corporation;

(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 member of a limited cooperative association; [or]

(H) a beneficiary of a statutory trust entity[; or]

[(I) list similar persons in other types of entities authorized by the law of the state].

(12 ) “Non-US entity” means an entity whose internal affairs are governed by the laws of a jurisdiction other than a state or the United States.

(13 ) “Organic law” means the statutes of an entity’s jurisdiction of incorporation, organization, or other formation which govern the internal affairs of the entity.

(14 ) “Organic rules” means the public organic record and private organic rules of an entity.

(15 ) “Person” means an individual, corporation, estate, trust, partnership, limited liability company, business or similar trust, cooperative, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.

(16 ) “Private organic rules” means:

(A) the bylaws of a business corporation;

(B) the bylaws of a nonprofit corporation;

(D) the partnership agreement of a limited partnership;

(E) the operating agreement of a limited liability company;

(F) the bylaws of a limited cooperative association;

(G) the trust instrument of a statutory trust entity; [and]

(H) [list similar documents for other types of entities authorized by the law of the state; and

(I)] any other rules, whether or not in a record, that govern the internal affairs of a domestic filing entity, are binding on all of its interest holders, and are not part of its public organic record, if any.

(17 ) “Public organic record” means:

(A) the articles of incorporation of a business corporation;

(B) the articles of incorporation of a nonprofit corporation;

(D) the certificate of limited partnership of a limited partnership;

(E) the certificate of organization of a limited liability company;

(F) the articles of organization of a limited cooperative association; [and]

(G) the certificate of trust of a statutory trust entity[; and]

[(H) list similar documents for other types of entities authorized by the law of the state].

(18 ) “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.

(19 ) “Records contact” means an individual whose principal residence is in the United States and who has access to and can produce within the United States on a timely basis upon appropriate request the beneficial ownership and control information for an entity .

(20 ) “Responsible individual” means an individual who:

(A) is generally familiar with the affairs of the conventional privately held entity;

(B) participates, directly or indirectly, in the control or management of the entity or, in the case of an entity being formed, will participate in the control or management of the entity; and

(C) is not participating in the control or management of the entity as a nominee of another person solely for the purpose of satisfying the requirement of this [act] that the entity designate a responsible individual.

(21 ) “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 sound, symbol, or process.

(22) “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.

(23) “Transferable interest” means the right under the organic law of an unincorporated entity to receive distributions from the entity.

(24) “Transferee” means a person to which all or part of a transferable interest has been transferred without a governance interest, whether or not the transferee is an interest holder.

(25) “Unincorporated entity” means an entity that is not a corporation.

SECTION 3. PUBLIC ORGANIC RECORDS.

(a) The public organic record of a domestic filing entity must include, in addition to any other information required by its organic law, a statement as to whether the entity is a conventional privately held entity. The delivery to the [Secretary of State] for filing of an initial or amended public organic record is an affirmation under the penalties of perjury by the entity and by any person signing the record that the statement required by this subsection is correct.

(b) When the initial public organic record of a conventional privately held entity is delivered to the [Secretary of State] for filing, it must be accompanied by an initial entity information statement.

(c) If the statement required by subsection (a) becomes incorrect, the entity shall deliver promptly to the [Secretary of State] for filing an amendment of its public organic record correcting the statement. [An amendment pursuant to this subsection need not be approved by the governors or interest holders.] [The [Secretary of State] may not charge a fee for filing an amendment pursuant to this subsection.]

(d) An amendment filed under subsection (c) indicating that an entity has become a conventional privately held entity must be accompanied by an entity information statement.

(e) Subsection (b) does not apply to an initial public organic record delivered to the [Secretary of State] before [the effective date of this act]. Subsections (a), (c), and (d) do not apply to a domestic filing entity that is in existence on [the effective date of this act] until the date provided in Section 16.

SECTION 4. ENTITY INFORMATION STATEMENT.

(a) An entity information statement must set forth:

(1) the name of the conventional privately held entity;

(2) the name and a business or residential address of the records contact of the entity; and

(3) the name and a business or residential address of a responsible individual of the entity.

(b) An initial entity information statement must be signed:

(1) on behalf of the conventional privately held entity;

(2) by the records contact named in the statement; and

(3) by the responsible individual named in the statement.

(c) If any of the information in a filed entity information statement becomes incorrect or incomplete, the conventional privately held entity shall deliver promptly to the [Secretary of State] for filing an amended entity information statement that is correct as of the date of its delivery to the [Secretary of State] and includes the information required by subsection (a).

(d) An amended entity information statement must be signed:

(1) on behalf of the conventional privately held entity;

(2) by any new records contact or new responsible individual named in the amended statement; and

(3) by any records contact or responsible individual whose name or address is being changed.

(e) A records contact or responsible individual must keep his or her name and address as shown in the records of the [Secretary of State] current. A records contact or responsible individual may resign at any time, and must resign when no longer qualified to serve as such or when otherwise required by this [act]. To change his or her name or address or resign, a records contact or responsible individual shall deliver to the [Secretary of State] for filing a statement of change signed by the records contact or responsible individual that sets forth:

(1) the name of the conventional privately held entity; and

(2) either:

(A) the new name or address; or

(B) a statement that the records contact or responsible individual resigns.

(f) A records contact or responsible individual who delivers to the [Secretary of State] for filing a statement of change pursuant to subsection (e) shall furnish promptly to the conventional privately held entity notice in a record of the delivery to the [Secretary of State] of the statement of change and a copy of the statement.

(g) An initial entity information statement filed under subsection (a) takes effect upon filing or any later effective time of the initial or amended public organic record in connection with which the statement is delivered to the [Secretary of State] for filing. An amended entity information statement filed under subsection (c) or a statement of change filed under subsection (e) takes effect upon filing.

(h) The signing by a records contact or responsible individual of an initial or amended entity information statement or a statement of change that reflects a change of name or address constitutes an affirmation under the penalties of perjury that:

(1) the name and address of the signing person are correct; and

(2) either:

(A) the records contact understands the duties of a records contact under this [act] and has agreed to serve in that capacity; or

(B) the responsible individual meets the definition of a responsible individual in Section 2.

(i) Every signature of a records contact on an entity information statement or statement of change must be notarized.

(j) The responsible individual identified in the current entity information statement must provide to the records contact a legible and facially legitimate copy of a passport, driver’s license, or other government-issued photo identification credential for the responsible individual. If the principal residence of the responsible individual is outside the United States, the photo identification credential must be a passport .

[(k) The [Secretary of State] may not charge a fee for filing an amended entity information statement or statement of change.]

SECTION 5. DUTIES OF RECORDS CONTACT.

(a) A records contact for a conventional privately held entity must:

(1) resign under Section 4(e) if the responsible individual does not comply with Section 4(j) within five business days after the [Secretary of State] files the initial or amended entity information statement first naming the responsible individual ;

(2) request promptly from the entity its beneficial ownership and control information when the records contact receives an appropriate request for the information;

(3) produce on a timely basis to a party making an appropriate request:

(A) a copy of the photo identification credential for the entity’s current responsible individual required by Section 4(j);

(B) any beneficial ownership and control information that is provided by the entity to the records contact; and

(4) resign under Section 4(e) if the records contact acquires actual knowledge, before receiving an appropriate request, that a request by the records contact to the entity for its beneficial ownership and control information will not be honored by the entity on a timely basis;

(5) if beneficial ownership and control information in response to an appropriate request is not provided on a timely basis by the entity upon request by the records contact, notify the party that made the appropriate request of:

(A) the name and a business or residential address of the individual whom the records contact believed would supply the information to the records contact ; or

(B) if there is no such individual, the source or location from which the records contact believed the information could be obtained; and

(6) retain all copies of photo identification credentials supplied by responsible individuals under Section 4(j) until five years after the later of when:

(A) the records contact resigns; and

(B) the winding up of the entity following its dissolution has been completed .

(b) A records contact, as such, does not have a duty to verify the accuracy of information described in Section 4(j) or 7(a) or a certification under Section 7(b).

SECTION 6. INTEREST HOLDERS FROM OUTSIDE UNITED STATES.

(a) Except as provided in subsection (e), when a non-US entity first becomes a transferee or interest holder in a conventional privately held entity after [the effective date of this act], whether by transfer, issuance of an interest, or admission as an interest holder, the transferee or interest holder shall provide the entity with a certification signed under the penalties of perjury stating the name and a business or residential address of a responsible individual for the transferee or interest holder.

(b) Except as provided in subsection (e), if any of the information in a certification provided under subsection (a) becomes incorrect, the interest holder or transferee shall provide promptly to the conventional privately held entity a corrected certification.

(c) A certification provided under subsection (a) or (b) that is incorrect or incomplete, or the failure of a conventional privately held entity to obtain a required certification, does not affect the existence of the conventional privately held entity, the validity of any acts of the entity, the interest of any interest holder or transferee, or the status of a person as an interest holder or transferee.

(d) A non-US entity that is required to provide a certification under this section may not maintain a proceeding in any court in this state with respect to the interest giving rise to the obligation to provide the certification unless the non-US entity complies with this section.

(e) Subsections (a) and (b) apply only to an interest holder or transferee that would be a conventional privately held entity if the interest holder or transferee were a domestic filing entity.

SECTION 7. RECORDS OF CONVENTIONAL PRIVATELY HELD ENTITIES.

(a) A conventional privately held entity must have a records contact at all times while it is a conventional privately held entity. When the records contact notifies the entity that an appropriate request has been received, the entity shall provide on a timely basis to the records contact information in a record that:

(1) includes the name and last known address of each current transferee of which the entity has actual knowledge, each current interest holder in the entity, and any other person to which the entity has been instructed to send distributions;

(2) indicates for each current transferee of which the entity has actual knowledge or current interest holder that is a foreign or domestic entity, the jurisdiction whose laws govern its internal affairs;

(3) includes the name and a residential or business address for each governor of the entity;

(4) includes a copy of a passport, driver’s license, or other government-issued photo identification credential for:

(A) each governor of the entity who is an individual and whose principal residence at the time the individual became a governor was outside the United States; and

(B) its current responsible individual;

(5) includes any records maintained by the entity regarding the process by which the governors of the entity are elected or otherwise designated;

(6) indicates the voting power in the entity held by each of its interest holders or describes the manner in which each interest holder’s voting power in the entity is determined;

(7) identifies the individuals responsible for preparing the information provided to the records contact under this subsection; and

(8) includes the certifications required by section 6(a) and (b).

(b) When information is provided pursuant to subsection (a), it must include a certification by the conventional privately held entity, signed under the penalties of perjury, that the information accurately reflects the current records of the entity.

SECTION 8. JUDICIAL DISSOLUTION.

(a) The [name or describe court or courts] may dissolve a conventional privately held entity in a proceeding by [the Attorney General] if it is established that the entity materially failed to comply with Sections 7 or 12.

(b) It is not necessary to make interest holders or transferees parties to a proceeding to dissolve a conventional privately held entity under this section unless relief is sought against them individually.

(c) Until a full hearing is held, the court may issue injunctions, appoint a receiver or custodian with the powers and duties the court directs, and order other action required to preserve the assets and carry on the business of the conventional privately held entity.

(d) The court may appoint a receiver to wind up and liquidate the business and affairs of the conventional privately held entity. The court shall hold a hearing, after notifying all parties to the proceeding and any interested persons designated by the court, before appointing a receiver. The court appointing a receiver has exclusive jurisdiction over the entity and all of its property wherever located.

(e) The court may appoint as a receiver an individual, a domestic entity, or a foreign entity authorized to transact business in this state. The court may require the receiver to post bond, with or without sureties, in an amount the court directs.

(f) The court shall prescribe the powers and duties of the receiver in its appointing order, which may be amended. The powers of the receiver may include the power to:

(1) dispose of all or any part of the assets of the conventional privately held entity wherever located, at a public or private sale, if authorized by the court; and

(2) sue and defend in the receiver’s own name as receiver of the entity in all courts of this state.

(g) The court from time to time during the receivership may order compensation paid and expense disbursements or reimbursements made to the receiver and counsel for the receiver from the assets of the conventional privately held entity or from proceeds from the sale of the assets.

(h) If after a hearing the court determines that a ground under this section exists for judicial dissolution of a conventional privately held entity, the court shall order dissolution of the entity and specify the effective date of the dissolution. The clerk of the court shall deliver a certified copy of the decree to the [Secretary of State] for filing.

(i) After ordering dissolution, the court shall direct the winding-up of the business and affairs of the conventional privately held entity in accordance with the organic law of the entity.

SECTION 9. ADMINISTRATIVE DISSOLUTION.

(a) The [Secretary of State] shall administratively dissolve:

(1) a conventional privately held entity if the records of the [Secretary of State] do not show a current records contact or responsible individual for the entity for [60] consecutive days; and

(2) a domestic filing entity if its public organic record does not contain the statement required by Section 3(a).

(b) If the [Secretary of State] determines that a ground exists for dissolving an entity under subsection (a), the [Secretary of State] shall file a record of the determination and serve the entity with a copy of the filed record.

(c) If not later than [60] days after service of the copy pursuant to subsection (b) the entity does not correct each ground for dissolution or demonstrate to the reasonable satisfaction of the [Secretary of State] that each ground determined by the [Secretary of State] does not exist, the [Secretary of State] shall administratively dissolve the entity by preparing, signing, and filing a declaration of dissolution stating the grounds for dissolution. The [Secretary of State] shall serve the entity with a copy of the filed declaration.

(d) An entity that has been dissolved under this section continues in existence but, subject to subsection (i), may carry on only activities necessary to wind up its activities under its organic law.

(e) The dissolution of an entity under this section does not terminate the authority of its agent for service of process or the responsibilities of a records contact shown in the records of the [Secretary of State] at the time of dissolution.

(f) An entity that has been dissolved under this section may apply to the [Secretary of State] for reinstatement by delivering to the [Secretary of State] for filing an application signed by the entity that states:

(1) the name of the entity and the effective date of its dissolution;

(2) either:

(A) the name and a business or residential address of the entity’s records contact and the name and a business or residential address of the entity’s responsible individual; or

(B) that the entity is not a conventional privately held entity; and

(3) if the entity’s name is no longer available, a new name that satisfies the requirements of the entity’s organic law.

(g) If the statement required by Section 3(a) in the public organic record of an entity that has been dissolved under this section is not consistent with the entity’s application for reinstatement under subsection (f), the application must be accompanied by an amendment of the public organic record which states whether the entity is a conventional privately held entity.

(h) If the [Secretary of State] determines that an application under subsection (f) contains the required information and is accompanied by any required amendment of the entity’s public organic record, the [Secretary of State] shall prepare a declaration of reinstatement that states those determinations, sign and file the original of the declaration of reinstatement, and serve the entity with a copy.

(i) When a reinstatement under subsection (h) becomes effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the entity may resume its activities as if the dissolution had not occurred.

(j) This section does not apply to a domestic filing entity in existence on [the effective date of this act] until the date provided in Section 16(b).

SECTION 10. LIMITATION OF LIABILITIES.

(a) A records contact of a conventional privately held entity is not liable to the entity or its interest holders or transferees for producing upon an appropriate request beneficial ownership and control information or the certification described in Section 7(b).

(b) Unless a contract between a conventional privately held entity and a records contact provides otherwise, a records contact is not liable for any inaccuracy in or omission from beneficial ownership and control information or the certification described in Section 7(b), but this subsection does not limit the liability of a records contact for recklessness, intentional misconduct, or criminal conduct.

(c) A records contact or responsible individual is not liable under law other than this [act] solely because of being identified as a records contact or responsible individual in the records of the [Secretary of State].

(d) Compliance or noncompliance by a domestic filing entity with this [act] is not a ground for imposing liability on its interest holders, beneficial owners, transferees, or governors for the debts, obligations, or other liabilities of the entity.

SECTION 11. ADDRESSES. Whenever this [act] requires the provision of an address, the following information must be provided:

(1) a street address or rural route box number; and

(2) a mailing address, if different from the address under paragraph (1).

SECTION 12. PROHIBITION OF BEARER INTERESTS. A domestic filing entity may not issue a certificate in bearer form evidencing either a whole or fractional interest.

SECTION 13. FEES.

Alternative A

(a) The [Secretary of State] shall collect the following fees when a document is delivered for filing under this [act]:

(1) initial entity information statement $___

(2) [amended entity information statement $___

(3) statement of change $___

(4)] application for reinstatement following

administrative dissolution $___

Alternative B

(a) The [Secretary of State] shall adopt rules, in accordance with [the state’s administrative procedure act] setting the fees for processing filings under this [act]. [The fees must be set at amounts such that the total amount of fees collected during a year is not less than the annual costs incurred by the [Secretary of State] in administering this [act].]

End of Alternatives

[(b) The fees collected under subsection (a) shall be deposited into a restricted account within the [general fund]. Funds in the restricted account shall be used only to administer this [act].]

SECTION 14. PROCESSING OF RECORDS. The [Secretary of State] may not file a record if the record does not comply with this [act].

[SECTION 15. CONFIDENTIALITY.

(a) The initial entity information statement of a conventional privately held entity and any amended statement or statement of change must be kept confidential by the [Secretary of State] and may be disclosed only:

(1) to an authorized agent of a [state, local, or] federal law enforcement authority, [state agency,] federal agency, or committee or subcommittee of the United States Congress [or a state legislature] upon the request of the agent in a signed record;

(2) in response to a request made in a record by a federal agency on behalf of another country under:

(A) an international treaty, agreement, or convention; or

(B) 28 U.S.C. Section 1782; or

(3) to a person that is shown in the records of the [Secretary of State] as a current records contact, responsible individual, governor, or officer of the entity upon the request of the person in a signed record.

(b) A request pursuant to subsection (a)(1) or (2) must be kept confidential by the [Secretary of State] and may be disclosed only pursuant to a request under subsection (a)(1) or (2).]

SECTION 16. TRANSITIONAL PROVISION.

(a) On or before the date provided in subsection (b), a domestic filing entity in existence on [the effective date of this act] shall deliver to the [Secretary of State] for filing:

(1) an amendment of its public organic record that contains the statement required by Section 3(a); and

(2) if it is a conventional privately held entity, an initial entity information statement.

(b) A domestic filing entity shall comply with subsection (a) by the earlier of:

(1) two years after the effective date of this act; or

(2) the date the entity first delivers any other record to the [Secretary of State] for filing under its organic law.

(c) The [Secretary of State], not earlier than one year after the effective date of this act, shall mail to every domestic filing entity that has not complied with subsection (a) a notice advising the entity of the requirement to comply with subsection (a). Failure by the [Secretary of State] to provide the notice to any entity, or failure by any person to receive the notice, shall not relieve an entity of the obligation to comply with subsection (a).

[(d) The amendment required by subsection (a)(1) need not be approved by the governors or interest holders of a domestic filing entity.]

SECTION 17. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and construing this uniform act, consideration must be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

SECTION 18. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT. This [act] modifies, limits, and supersedes the federal Electronic Signatures in Global and National Commerce Act, 15 U.S.C. Section 7001 et seq., but does not modify, limit, or supersede Section 101(c) of that act, 15 U.S.C. Section 7001(c), or authorize electronic delivery of any of the notices described in Section 103(b) of that act, 15 U.S.C. Section 7003(b).

SECTION 19. REPEALS. The following acts and parts of acts are repealed:

(1)

SECTION 20. EFFECTIVE DATE. This [act] takes effect on . . . .