ENTITY INFORMATION ACT

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

(1) “Appropriate request” means:

(A) a civil or criminal subpoena or summons from a local, state, 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 an international treaty, agreement, or convention, or under 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 limited cooperative association; [or]

(G) a domestic statutory trust entity[; 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 to create or confirm the status or existence of the entity.

If a type of entity described in subparagraph (B) of the definition of “unregulated privately-owned entity” is formed under a law that applies only 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 “domestic filing entity” does not need to include that type of entity for any purpose under this act.

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

(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:

(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

(6) “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].

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.” If an enacting state authorizes a business corporation with a limited number of shareholders to dispense with a board of directors in favor of management by its shareholders, the optional phrase at the end of subparagraph (A) should be included with appropriate changes to conform to the terminology used in the enacting state.

The Model Nonprofit Corporation Act permits a nonprofit corporation to give some of the responsibilities and obligations of the board of directors to another group of persons known as a “designated body.” If the law of an enacting state permits that type of governance structure, the optional phrase in subparagraph (B) should be included with appropriate changes to conform to the terminology used in the enacting state.

(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; [or]

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

(J)] a direct or record holder of an 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. See Section 7(a). 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 which 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 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.

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; [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].

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” for an unregulated privately-owned entity 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 information relating to the entity described in Section 8(a).

(16) “Responsible individual” means an individual who, directly or indirectly, participates in the control or management of an entity or, in the case of an entity being formed, will participate in the control or management of the entity.

(17) “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.

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

(19) “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.

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

(21) “Unregulated privately-owned entity” 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:

(A) in which one or more domestic or foreign entities with more than 50 interest holders do not hold, directly or indirectly, more than 25% of the outstanding interests;

(B) that is not subject to regulation as a bank or other depository institution, trust company, insurance company, public utility, or securities or commodities broker or dealer;

(D) that is not registered as an “investment advisor” under the Investment Advisors Act of 1940 or the law of any state;

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

(F) that does not own a majority of the outstanding interests in a domestic or foreign entity of a type described in subparagraph (B), (C), or (D).

Legislative Note: Subparagraph (B) should be revised to delete any of the types of entities listed that are formed under a law that applies only to that type of entity, for example a banking corporation act or insurance company act. Those entities should also not be included in the definition of “domestic filing entity” because this act does not need to include those entities for any purpose.

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. 569).

“Governor.” The second clause of subparagraph (E) of this definition, which refers to persons who are not managers of a limited liability company but participate materially in its management, is patterned after 6 Del. Code § 18-109(a). It is not intended that the power to elect or otherwise select or to participate in the election or selection of a person to be a manager of a limited liability company will, by itself, constitute participation in the management of the company.

“Interest holder.” Whether a person is a member of a nonprofit corporation will be determined under a state’s nonprofit corporation law. Many nonprofit corporations refer to their contributors as “members” as a fund-raising technique even though those contributors do not have the status of true members under the organic law of the corporation.

“Responsible individual.” A responsible individual may be an individual who is a governor of the entity, an agent of another person, an agent or officer of the entity itself, or who meets the requirements of this definition because of ownership of an interest in the entity or other factors. To qualify as the responsible individual, what is required is that the individual participate in the control or management of the entity. A responsible individual may have sole responsibility for the management of the entity or may share that responsibility with others. The term has been created for use in this act and is not intended to change the law with respect to the governance of any form of entity.

SECTION 3. FORMATION OF ENTITIES.

(a) When the initial public organic record of a domestic filing entity that is an unregulated privately-owned entity is delivered to the [Secretary of State] for filing, it must be accompanied by an initial entity contacts statement.

(b) 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 an unregulated privately-owned entity.

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

Legislative Note: The optional penultimate sentence of subsection (c) is intended to simplify the procedure for approving an amendment of the public organic record so that, for example, an amendment to the articles of incorporation to change the statement as to whether the corporation is an unregulated privately-owned entity may be filed without action by the board of directors or shareholders. Enacting states may choose to place that type of provision in the individual organic laws for each type of entity listed in the definition of “domestic filing entity” in Section 2 or may decide to vary the rule of that sentence for some types of entities by requiring, for example, approval by the governors.

The possibility of requiring a fee for filing an amendment of the public organic record under this section is allowed in the last sentence. It will be preferable, however, for states not to require a fee as a way of encouraging amendments that keep the public records up to date regarding the status of an entity. If a fee is required, the enacting state should fix a maximum fee by statute.

(d) An amendment filed under subsection (c) indicating that an entity has become an unregulated privately-owned entity must be accompanied by an initial entity contacts statement.

(e) Subsection (a) does not apply to an initial public organic record delivered to the [Secretary of State] before [the effective date of this act]. Subsections (b), (c), and (d) do not apply to a domestic filing entity that is in existence on [the effective date of this act] until the second anniversary of the effective date of this act as provided in Section 17.

Comment

The same individual may serve as the records contact and responsible individual for an unregulated privately-owned entity. When an entity needs to be formed on a rush basis, or when a records contact or responsible individual has not yet been identified for an entity, a person forming the entity, such as an incorporator, may serve as an accommodation in the capacities of records contact and responsible individual. Regardless of the reason why the person forming the entity is also shown as the records contact or responsible individual, so long as the person is named in those capacities, the person will have the duties attendant to those positions under this act.

SECTION 4. ENTITY CONTACTS STATEMENT.

(a) The initial entity contacts statement required by Section 3(a) or (d) must set forth:

(1) the name of the 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 entity contacts statement must be signed as follows:

(1) an initial statement must be signed by:

(A) the records contact named in the statement; and

(B) the responsible individual named in the statement; and

(2) an amended statement must be signed by any new records contact or new responsible individual named in the amended statement.

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

(d) A records contact or responsible individual may change his or her address or resign by delivering to the [Secretary of State] for filing a statement of change signed by the records contact or responsible that sets forth:

(1) the name of the entity; and

(2) either:

(A) the new address; or

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

(e) A records contact or responsible individual who delivers to the [Secretary of State] for filing a statement of change pursuant to subsection (d) must promptly furnish the unregulated privately-owned entity with notice in a record of the delivery to the [Secretary of State] of the statement of change and a copy of the statement.

(f) An amended entity contacts statement filed under subsection (c) or a statement of change filed under subsection (d) takes effect upon filing.

(g) The signature of an entity contacts statement or statement of change by a records contact or responsible individual constitutes an affirmation under the penalties of perjury that:

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

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

Comment

Because subsection (c) requires an amended entity contacts statement to include all of the information required by subsection (a), a domestic filing entity must always have a records contact and responsible individual identified in the records of the Secretary of State. But see the transitional provisions in Section 17.

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.

Legislative Note: Enacting states may choose to omit this section and instead prohibit the issuance of bearer certificates in the individual organic laws for each type of entity listed in the definition of “domestic filing entity” in Section 2.

SECTION 6. DUTIES OF RECORDS CONTACT.

(a) A records contact for an unregulated privately-owned entity has a duty:

(1) to request promptly from the entity the information described in Section 8 whenever the records contact receives an appropriate request for the information;

(2) to produce on a timely basis to the party making the appropriate request any information described in Section 8 which is provided by the entity to the records contact;

(3) if the records contact becomes aware that a request for information by the records contact to the entity will not be honored by the entity on a timely basis, to resign as records contact; and

(4) if information in response to an appropriate request is not provided on a timely basis by the entity upon request by the records contact, to notify the party that made the appropriate request of the name and a business or residential address of the individual whom the records contact thought would be the source of the information.

(b) A records contact, as such, does not have a duty to verify the accuracy of information described in Section 8(a) that is supplied to the records contact by the unregulated privately-owned entity.

Comment

If there is a failure to respond to an appropriate request for information, the consequences of that failure and possible sanctions will depend on the nature of the request. For example, failure to respond to a subpoena will have the same consequences and sanctions as any other failure to respond to a subpoena under the applicable federal or state law. Whether the consequences of a failure to respond to an appropriate request for information should be imposed on the records contact or on the unregulated privately-owned entity will depend on whether the records contact has performed the duties required by this section.

The requirement in subsection (a)(2) that information be produced on a “timely basis” is intended to satisfy the requirements of Recommendation 33 of the Financial Action Task Force. In the case of a subpoena, what will be a timely response will be controlled by the response date in the subpoena. A response date in a request made under a treaty, however, does not have the force of law and will not necessarily be binding.

Subsection (b) 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 Section 8(a) in another capacity, for example as a corporate secretary, the individual will have the obligations associated with serving in that capacity.

SECTION 7. INTEREST HOLDERS FROM OUTSIDE UNITED STATES.

(a) Except as provided in subsection (d), when a person incorporated, organized or otherwise formed under the laws of a jurisdiction other than the United States or a state first becomes, after [the effective date of this act], an interest holder or transferee in an unregulated privately-owned entity, whether by transfer, issuance of an interest, or admission as an interest holder, the interest holder or transferee must 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 interest holder or transferee.

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

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

(d) Subsections (a) and (b) apply only to an interest holder or transferee that would be an unregulated privately-owned entity if the interest holder or transferee 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. 569.

This section is not intended to require the entity to track transfers of interest before the entity has notice of a transfer. It is the obligation of a transferee to provide the certifications required by this section.

SECTION 8. RECORDS OF UNREGULATED PRIVATELY-OWNED ENTITIES.

(a) An unregulated privately-owned entity must have a records contact at all times while it is an unregulated privately-owned entity. The entity must provide on a timely basis to its records contact upon appropriate request 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 whom 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 in the entity 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 transferee or interest holder is incorporated, organized, or otherwise formed;

(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 document for 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;

(5) includes a copy of a passport, driver’s license, or other government-issued photo identification document for the responsible individual of the entity if the principal residence of the responsible individual at the time the individual became the responsible individual was outside the United States;

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

(7) 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;

(8) identifies the individuals responsible for preparing the information provided to the records contact as required by this subsection; and

(9) includes the certifications required by section 7(a) and (b).

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

Comment

A non U.S. resident is not required to supply a photo identification document as a condition to becoming a governor or responsible individual under paragraph (a)(4) or (5). Those paragraphs simply require that when an appropriate request is made the unregulated privately-owned entity must be able to supply the required document. The entity may obtain the document at that time, but many entities will choose to obtain the document earlier because they otherwise run the risk of being unable to obtain the document on a timely basis once an appropriate request has been made.

The obligation to provide information under paragraph (a)(7) about voting power in the unregulated privately-owned entity may be satisfied by supplying a copy of the operative documents that determine that voting power. Those documents will often be simply the public organic record or private organic rules of the entity, such as the articles of incorporation of a corporation or the operating agreement of a limited liability company; but may include other documents such as shareholder agreements, voting agreements, investor rights agreements, etc.

SECTION 9. JUDICIAL DISSOLUTION.

(a) The [name or describe court or courts] may dissolve an unregulated privately-owned entity in a proceeding by the attorney general if it is established that the entity materially failed to comply with Section 5 or 8.

(b) It is not necessary to make interest holders parties to a proceeding to dissolve an unregulated privately-owned entity under this section unless relief is sought against them individually.

lite with all powers and duties the court directs, take other action required to preserve the assets of the unregulated privately-owned entity wherever located, and carry on the business of the entity until a full hearing can be held.

(d) The court may appoint one or more receivers to wind up and liquidate the business and affairs of the unregulated privately-owned 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 an individual or a domestic or foreign entity authorized to transact business in this state as a receiver. The court may require the receiver to post bond, with or without sureties, in an amount the court directs.

(f) The court shall describe the powers and duties of the receiver in its appointing order, which may be amended from time to time. Among other powers the receiver may

(1) dispose of all or any part of the assets of the unregulated privately-owned 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 corporation 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 unregulated privately-owned entity or proceeds from the sale of the assets.

(h) If after a hearing the court determines that grounds for judicial dissolution of an unregulated privately-owned entity under this section exist, it may enter a decree dissolving the entity and specifying the effective date of the dissolution, and the clerk

of the court shall deliver a certified copy of the decree to the [Secretary of State] for filing.

(i) After entering the decree of dissolution, the court shall direct the winding-up and liquidation of the business and affairs of the unregulated privately-owned entity in accordance with the organic law of the entity.

Legislative Note: If an enacting state has existing judicial dissolution procedures for some or all of the entities included in the definition of “domestic filing entity” in Section 2, this section may be revised so that it only applies to those entities for which the state does not already have judicial dissolution procedures. For those entities excluded from the scope of this section, subsection (a) will need to be added to the judicial dissolution provisions in the organic laws of those entities as an additional basis for judicial dissolution.

SECTION 10. ADMINISTRATIVE DISSOLUTION.

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

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

(2) except as provided in Section 17, a domestic filing entity if its public organic record does not contain the statement required by Section 3(b).

(b) If the [Secretary of State] determines that a ground exists for administratively 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 within 60 days after service of the copy pursuant to subsection (b) the entity does not correct each ground for dissolution, the [Secretary of State] shall administratively dissolve the entity by preparing, signing, and filing a declaration of dissolution that states 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 administratively dissolved continues in existence but, subject to subsection (i), may carry on only activities necessary to wind up its activities.

(e) The administrative 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 or responsible individual shown in the records of the [Secretary of State] at the time of dissolution.

(f) An entity that has been administratively 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) both:

(i) the name and a business or residential street address of the entity’s records contact; and

(ii) the name and a business or residential street address of the entity’s responsible individual; or

(B) that the entity is not an unregulated privately-owned entity; and

(4) 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(b) in the public organic record of an entity that has been administratively 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 that correctly states whether the entity is an unregulated privately-owned 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 second anniversary of this act].

Legislative Note: If an enacting state has existing administrative dissolution procedures for some or all of the entities included in the definition of “domestic filing entity” in Section 2, this section may be revised so that it only applies to those entities for which the state does not already have administrative dissolution procedures. For those entities excluded from the scope of this section, subsection (a) will need to be added to the administrative dissolution provisions in the organic laws of those entities as an additional basis for administrative dissolution. Some state administrative dissolution statutes may include a time limit on reinstatement, unlike this section which does not impose a time limit on reinstatement. States should decide whether they wish to impose such a limit under this section.

Comment

This section applies to all domestic filing entities and not just unregulated privately-owned entities. After the transition period provided in Section 17, failure of a domestic filing entity that is not an unregulated privately-owned entity to include in its public organic record the statement Section 3(b) will be grounds for administrative dissolution of the entity.

SECTION 11. PENALTIES OF PURJURY; NOTARIZATION.

(a) Every document that is delivered to the [Secretary of State] for filing under this [act] must be signed or delivered for filing subject to the penalties of perjury.

(b) Every signature of a records contact or responsible individual on a document delivered to the [Secretary of State] for filing under this [act] must be notarized.

Comment

The purpose of subsection (b) is to use the notarial process to provide some verification of the identity of a records contact or responsible individual since notarization requires the notary to know or verify the identity of the individual whose signature is being notarized. Modern law on notarial acts is evolving to permit notarization of electronic records, and thus even in those states where all entity filings are made electronically it should be possible to comply with subsection (b).

SECTION 12. EXCLUSION OF LIABILITIES.

(a) Except as provided in a contract for the provision of the services of a records contact, a records contact is not liable for:

(1) producing upon an appropriate request the information described in Section 8(a); or

(2) any inaccuracy in or omission from the information described in Section 8(a), except that this paragraph does not limit the liability of a records contact for recklessness, intentional misconduct or criminal conduct.

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

(c) Compliance or noncompliance by a domestic filing entity with the requirements of 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.

Comment

Subsection (c) makes clear that the failure of a domestic filing entity to comply with the requirements of this act is not a basis for piercing the veil of any entity. That subsection also makes clear that complying with this act is not a basis for imposing liability on the interest holders or governors of an entity on the basis of an alter ego theory.

SECTION 13. ADDRESSES. Whenever this [act] requires the provision of an address, the following information must be provided:

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

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

SECTION 14. 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 contacts statement $___

(2) 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 fee for filing an initial entity contacts statement or application for reinstatement following administrative dissolution under Section __. The fee shall be set at an amount 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 [Secretary of State] shall not charge a fee for filing an amended entity contacts statement or statement of change.

(c) 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 for the administration of this [act].

Legislative Note: Subsection (c) should be revised to conform to the enacting state’s practice in establishing special purpose funds.

Comment

Subsection (b) provides that a fee will not be charged for a filing that updates the records of the Secretary of State with respect to the records contact or responsible individual for an unregulated privately-owned entity as a way of encouraging filings that will keep those records current.

SECTION 15. PROCESSING OF DOCUMENTS. The [Secretary of State] shall refuse to file a document if the document or any aspect of its delivery to the [Secretary of State] does not comply with this [act].

[SECTION 16. CONFIDENTIALITY.

(a) The initial entity contacts statement of a domestic filing entity and any amended statement or statement of change shall be kept confidential by the [Secretary of State] and shall not be disclosed except:

(1) to an authorized agent of a local, state, or federal law enforcement agency, state agency, federal agency or committee or subcommittee of the United State 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 an international treaty, agreement or convention under 28 U.S.C. section 1782; or

(3) to a person who 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) shall be kept confidential by the [Secretary of State] and shall be disclosed only pursuant to a request under subsection (a)(1) or (2).]

Comment

This section is optional because it implicates policy concerns beyond the scope of this act. Enactment or omission of this section will not affect the purpose of this act to provide law enforcement with important sources of information about entities. Some states may decide that it is appropriate to keep entity contact statements confidential as permitted by this section. Other states may conclude that it is appropriate to make the contents of entity contact statements publicly available.

This section does not require that the request of a law enforcement agency for access to an entity contacts statement must be an “appropriate request” as defined in Section 2. Any request in a record from an authorized law enforcement agent should be honored by the Secretary of State.

Any request made under this section will not be subject to Section 11(a) because it is not delivered for filing. However, it is anticipated the Secretary of State will maintain a record of any requests received pursuant to this section.

SECTION 17. 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] must deliver to the [Secretary of State] for filing:

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

(2) if it is an unregulated privately-owned entity, an initial entity contacts statement.

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

(1) [the second anniversary of the effective date of this act]; or

(2) the date the entity first delivers to the [Secretary of State] for filing any other document.

(c) The [Secretary of State] shall, not earlier than [the first anniversary of the effective date of this act], mail to every domestic filing entity that has not complied with subsection (a) before that date 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) does not need to be approved by the governors or interest holders of a domestic filing entity.]

Legislative Note: Optional subsection (d) is intended to simplify the procedure for approving an amendment of the public organic record so that, for example, an amendment to the articles of incorporation to adopt the statement as to whether the corporation is an unregulated privately-owned entity may be filed without action by the board of directors or shareholders. As with the similar optional provision in Section 3(c), an enacting state may choose to place that provision in the individual organic laws for each type of entity listed in the definition of “domestic filing entity” in Section 2 or may decide to vary the rule of subsection (d) for some types of entities by requiring, for example, approval by the governors.

Comment

The intention of this act is that all entities will be in compliance within two years after the effective date of the act. Subsection (d) requires the Secretary of State to send out a reminder notice one year after the effective date to facilitate compliance. That notice or lack thereof does not modify or affect the requirement that all entities must comply with subsection (a) within two years after the effective date of the act.

SECTION 18. 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 19. 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 20. REPEALS. The following acts and parts of acts are repealed:

(1)

Legislative Note: If a state chooses to include optional Section 16, the state’s open records or similar law must be amended or repealed to the extent it would require that an entity contacts statement or statement of change not be kept confidential as provided in this act.

SECTION 21. EFFECTIVE DATE. This [act] takes effect on . . . .