UNIFORM ACCESS TO ENTITY INFORMATION ACT

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

[(1) “Appropriate request” means:

(A) a civil or criminal subpoena or summons from a State agency, Federal agency, or committee or subcommittee of the U.S, Congress; or

(B) a request in the form of a record made by a Federal agency on behalf of another country under an international treaty, agreement, or convention, or 28 U.S. C. § 1782.]

(2) “Domestic,” with respect to an entity, means an entity whose internal affairs are governed by the law of this state.

(3) “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 statutory trust entity;

(G) a domestic limited cooperative association; or

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

Legislative Note: The entities referred to in this definition are illustrative only and include simply those types of entities that may be incorporated, organized or otherwise formed under the various model and uniform entity laws. An enacting state should revise this definition so that (i) the entities are referred to in the manner they are referred to in the state’s other laws and (ii) the definition includes all of the types of non-governmental entities that may be created under the state’s laws where a filing must be made with the Secretary of State for the entity to have the status listed.

If a type of entity described in paragraph (B) of the definition of “unregulated privately-owned entity” is formed under a law that only applies to that type of entity, for example a banking corporation act or insurance company act, that type of entity may be omitted from this definition because the term “domestic entity” does not need to include that type of entity for any purpose under this act.

(4) “Formation agent” means the individual who signs the initial public organic record of a domestic filing entity as required by Section 4(a).

(5) “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 information concerning, or the books and records of, the entity;

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

(6) “Governor” means:

(A) a director of a business corporation;

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

(D) a general partner of a limited partnership;

(E) a person under whose authority some or all the powers of a limited liability company are exercised and under whose direction the business and affairs of the limited liability company are managed in whole or in part pursuant to its organic law and organic rules;

(F) a director of a limited cooperative association;

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

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

Legislative Note: An enacting state should revise this definition so that it refers to the appropriate persons with respect to each type of entity listed in the definition of “domestic filing entity.”

(7) “Interest” means:

(A) a governance interest;

(B) a transferable interest;

(D) a membership in a nonprofit corporation; or

(E) a similar type of equity ownership in a person incorporated, organized or otherwise formed under the laws of a jurisdiction other than the United States or a state.

(8) “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;

(H) a beneficiary of a statutory trust entity;

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

(J) a direct or record holder of a similar type of equity ownership in or right to vote with respect to some or all of the internal affairs of a person incorporated, organized, or otherwise formed under the laws of a jurisdiction other than the United States or a state.

Legislative Note: An enacting state should revise this definition so that it includes references to the appropriate persons with respect to each type of entity listed in the definition of “domestic filing entity.” Unlike the definition of “governor,” however, this definition is used with respect to entities beyond just domestic filing entities, and thus needs to be phrased more broadly. As a result, it is important that enacting states include paragraph (J).

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

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

(11) “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.

(12) “Private organic rules” means:

(A) the bylaws of a business corporation;

(B) the bylaws of a nonprofit corporation;

(D) the partnership 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;

(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 an entity, are binding on all of its interest holders, and are not part of its public organic record, if any.

Legislative Note: An enacting state should revise this definition so that it refers to the appropriate item with respect to each type of entity listed in the definition of “domestic filing entity.”

(13) “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 incorporation of a limited cooperative association;

(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].

Legislative Note: An enacting state should revise this definition so that it refers to the appropriate document with respect to each type of entity listed in the definition of “domestic filing entity.”

(14) “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.

(15) “Records contact” means the individual required by Section 7(b).

(16) “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.

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

(18) “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.

(19) “Unregulated privately-owned entity” means a domestic filing entity that has no more than 50 interest holders and:

(A) in which one or more domestic or foreign entities with more than 50 interest holders do not hold, directly or indirectly, more than 5% of the outstanding interests;

(B) that is not subject to regulation as a bank or other financial institution, insurance company, or securities broker dealer;

(C) in which one or more domestic or foreign entities of the types described in paragraph (B) do not hold, directly or indirectly, a majority or more of the outstanding interests; and

(D) that does not own a majority or more of the outstanding interests in a domestic or foreign entity of a type described in paragraph (B).

Comment

“Appropriate request.” This definition is patterned after Section 2009(a)(1)(D) of the Homeland Security Act of 2002 (6 U.S.C. § 601 et seq.), as proposed to be added by S. 2956).

SECTION 3. FORMATION AGENTS.

Alternative 1

(a) A formation agent of an unregulated privately-owned entity has the duties and liabilities of a records contact until a records contact of the entity has been named in [an annual] [a biennial] report or the public organic record of the entity.

Alternative 2

(a) A formation agent of an unregulated privately-owned entity has the duties and liabilities of:

(1) a governor until a governor of the entity has been named in [an annual] [a biennial] report or the public organic record of the entity; and

(2) a records contact until a records contact of the entity has been named in [an annual] [a biennial] report or the public organic record of the entity.

End of Alternatives

(b) Subsection (a) does not apply to a formation agent of an entity whose initial public organic record is delivered to the [secretary of state] for filing before [the effective date of this act].

SECTION 4. FORMATION OF ENTITIES.

(a) The initial public organic record of a domestic filing entity must be signed by an individual, either as or on behalf of the incorporator, organizer, or other similar person authorized to deliver the filing to the [secretary of state].

Alternative 1

(b) When the initial public organic record of a domestic filing entity is delivered to the [secretary of state] for filing, it must either:

(1) be accompanied by [an annual] [a biennial] report for the entity that complies with Section 8; or

(2) include a statement as to whether the entity is an unregulated privately-owned entity and, if it is such an entity, the name and a business or residential street address of its records contact.

Alternative 2

(b) When the initial public organic record of a domestic filing entity is delivered to the [secretary of state] for filing, it must either:

(1) be accompanied by [an annual] [a biennial] report for the entity that complies with Section 8; or

(2) include a statement as to whether the entity is an unregulated privately-owned entity and, if it is such an entity:

(A) the name and a business or residential street address of its records contact; and

(B) the name and a business or residential street address of one of its governors.

End of Alternatives

(c) The [secretary of state] shall not charge a fee for filing [an annual] [a biennial] report that accompanies the initial public organic record of a domestic filing entity.

Alternative 1

(d) After an entity has filed [an annual] [a biennial] report that includes the information required by Section 8(a), the entity may delete from its public organic record the information required by subsection (b)(2) without the need for action by its interest holders.

Alternative 2

End of Alternatives

(e) Subsections (a) and (b) do not apply to an initial public organic record delivered to the [secretary of state] before [the effective date of this act].

SECTION 5. PROHIBITION OF BEARER INTERESTS. A domestic filing entity may not issue a certificate in bearer form evidencing either a whole or fractional interest in the entity.

SECTION 6. INTEREST HOLDERS FROM OUTSIDE THE UNITED STATES.

(a) Except as provided in subsection (f), when a person incorporated, organized or otherwise formed under the laws of a jurisdiction other than the United States or a state first becomes an interest holder in an unregulated privately-owned entity, whether by transfer, issuance of an interest, or admission as an interest holder, after [the effective date of this act], the person must provide the entity with a certification signed under the penalties of perjury stating the name and a business or residential street address in the United States of an individual whose principal residence is in the United States and who has access to the records described in subsection (b) and can produce the records within the United States promptly upon appropriate request [by an authorized agent of a governmental body].

(b) The records produced under subsection (a) must:

(1) include the name and last known address of each record owner of the interest holder;

(2) indicate for each record owner of the interest holder that is a person incorporated, organized, or otherwise formed by a public filing, whether within or outside the United States, the jurisdiction under whose laws the record owner is incorporated, organized, or otherwise formed; and

(3) indicate the voting power in the interest holder held by each record owner of the interest holder or describe the manner in which the record owner’s voting power in the interest holder is determined at the time the records are produced.

(c) If any of the information in a certification provided under subsection (a) becomes incorrect or incomplete, the interest holder must promptly provide the unregulated privately-owned entity with a corrected certification.

(d) Section 7(c) applies to the individual required by subsection (a).

(e) A certification provided under subsection (a) that is incorrect or incomplete does not affect the existence of the unregulated privately-owned entity or the validity of any acts of the entity.

(f) Subsections (a) – (c) do not apply to an interest holder that would not be an unregulated privately-owned entity if the interest holder were a domestic filing entity.

Comment

This section is patterned in part after Section 2009(a)(2) of the Homeland Security Act of 2002 (6 U.S.C. § 601 et seq.), as proposed to be added by S. 2956).

SECTION 7. RECORDS OF UNREGULATED PRIVATELY-OWNED ENTITIES.

(a) An unregulated privately-owned entity must maintain records that:

(1) include the name and last known address of each transferee known to the entity and each interest holder in the entity;

(2) indicate for each transferee known to the entity or interest holder in the entity that is a person incorporated or formed by a public filing, whether within or outside the United States, the jurisdiction under whose laws the person is incorporated, organized, or otherwise formed;

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

(4) indicate the voting power in the entity held by each of its interest holders or describe the manner in which each interest holder’s voting power in the entity is determined;

(5) identify the individuals responsible for preparing and maintaining the records required by this subsection; and

(6) include the certifications required by section 6(a).

(b) An unregulated privately-owned entity must at all times have an individual whose principal residence is in the United States who has access to and can produce within the United States promptly upon appropriate request [by an authorized agent of a governmental body]:

(1) the records required by subsection (a);

(2) a copy of a passport, driver’s license, or other government-issued, photo identification document for each governor of the entity who is an individual and whose principal residence at the time is outside the United States;

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

(4) a certification by the entity under the penalties of perjury that the information produced accurately reflects the current records of the entity.

(c) A records contact, as such, does not have an obligation to verify the accuracy of information described in subsection (b) that is supplied to the records contact by the unregulated privately-owned entity. A records contact is not liable for:

(1) producing records and documents under subsection (b); or

(2) any inaccuracy or omission from any records or documents produced under subsection (b), except that this paragraph does not limit the liability of an individual:

(A) for intentional misconduct or criminal conduct; or

(B) to the entity under a contract with the entity for the provision of the services of a records contact.

Comment

If a records contact fails to respond an appropriate request for information under subsection (b), the consequences of that failure and possible sanctions will depend on the nature of the request. Failure of a records contact to respond to a subpoena, for example, will have the same consequences and sanctions as any other failure to respond to a subpoena under the applicable federal or state law.

The first sentence of subsection (c) only applies to a records contact in the individual’s capacity as a records contact. If the individual also maintains the records required to be produced under subsection (b) in another capacity, for example as a corporate secretary, the individual will have the obligations associated with serving in that capacity.

SECTION 8. CONTENTS OF [ANNUAL] [BIENNIAL] REPORT FOR [SECRETARY OF STATE].

Alternative 1

(a) The [annual] [biennial] report 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 an unregulated privately-owned entity and, if it is such an entity, the name and a business or residential street address of its records contact.

Alternative 2

(1) the name and a business or residential street address of its records contact; and

(2) the name and a business or residential street address of at least one of its governors.

End of alternatives

(b) If any of the current information on file with the [secretary of state] regarding the records contact or governors of an unregulated privately-owned entity changes or becomes incorrect or incomplete, the entity must promptly:

(1) deliver to the [secretary of state] for filing an amended [annual] [biennial] report that is correct as of the date of its delivery to the [secretary of state], except that if the entity has not yet delivered its [annual] [biennial] report for the current period to the [secretary of state] for filing, the entity may deliver [an annual] [a biennial] report for the current period to the [secretary of state] for filing;

(2) notify the [secretary of state] of the change in the identity or address of its records contact in the manner provided by law for changing its registered agent or registered office; or

(3) deliver to the [secretary of state] for filing any other type of document that by law has the effect of correcting the information.

(c) A records contact may change his or her address or resign in the manner provided by law for a registered agent to change a registered office address or resign.

(d) The first [annual] [biennial] report of an unregulated privately-owned entity may state that the entity does not yet have a records contact or governor other than its formation agent.

(e) The [secretary of state] shall not charge a fee for filing an amended [annual] [biennial] report.

Alternative 1

(f) After an individual other than the formation agent has been shown in the records of the [secretary of state] as the records contact of a domestic filing entity, the [secretary of state] may commence a proceeding to administratively dissolve the entity under its organic law if the records of the [secretary of state] do not show a records contact for the entity for 60 consecutive days or more while it is an unregulated privately-owned entity. The administrative dissolution of an entity does not relieve it of the obligation to comply with Sections 6 and 7.

Alternative 2

(f) After individuals other than the formation agent have been shown in the records of the [secretary of state] as the records contact and governor of a domestic filing entity, the [secretary of state] may commence a proceeding to administratively dissolve the entity under its organic law if the records of the [secretary of state] do not show a records contact or governor for the entity for 60 consecutive days or more while it is an unregulated privately-owned entity. The administrative dissolution of an entity does not relieve it of the obligation to comply with Sections 6 and 7.

End of alternatives

Comment

The purpose of subsection (b) is to keep the information regarding an entity’s records contact and governors in the public records maintained by the secretary of state up to date. An entity has several choices for how to satisfy that requirement in subsection (b): it may file an amended or new annual report, it may correct the information in the same manner that it may correct the information in the public record regarding its agent for service of process, or it may make any other filing that has the effect of correcting the information. For example, if the records contact and governor information for a corporation appears in its articles of incorporation, as permitted by section 4(b), the information may be corrected by amending the articles of incorporation.

Subsection (d) recognizes that an entity may not have a records contact or governor by the time it files its first annual report. But the effect of subsection (d) is also to require that those persons be identified by the time a second annual report is due.

SECTION 9. PENALTY. Every document subject to this [act] that is delivered to the [secretary of state] for filing must be signed under the penalties of perjury.

SECTION 10. 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 11. 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 12. REPEALS. All acts and parts of acts are repealed: to the extent inconsistent with this [act].

SECTION 13. EFFECTIVE DATE. This [act] takes effect on . . . .