MODEL REGISTERED AGENTS ACT

AND AMENDMENTS TO ENTITY ACTS TO RATIONALIZE ANNUAL FILINGS

drafted by the

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

and by it

APPROVED AND RECOMMENDED FOR ENACTMENT

IN ALL THE STATES

at its

ANNUAL CONFERENCE

MEETING IN ITS ONE-HUNDRED-AND-FIFTEENTH YEAR

HILTON HEAD, SOUTH CAROLINA

July 7-14, 2006

WITH PREFATORY NOTE AND COMMENTS

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

November 6, 2006

ABOUT NCCUSL

The National Conference of Commissioners on Uniform State Laws (NCCUSL), now in its 115^th year, provides states with non-partisan, well-conceived and well-drafted legislation that brings clarity and stability to critical areas of state statutory law.

Conference members must be lawyers, qualified to practice law. They are practicing lawyers, judges, legislators and legislative staff and law professors, who have been appointed by state governments as well as the District of Columbia, Puerto Rico and the U.S. Virgin Islands to research, draft and promote enactment of uniform state laws in areas of state law where uniformity is desirable and practical.

• NCCUSL strengthens the federal system by providing rules and procedures that are consistent from state to state but that also reflect the diverse experience of the states.

• NCCUSL statutes are representative of state experience, because the organization is made up of representatives from each state, appointed by state government.

• NCCUSL keeps state law up-to-date by addressing important and timely legal issues.

• NCCUSL’s efforts reduce the need for individuals and businesses to deal with different laws as they move and do business in different states.

• NCCUSL’s work facilitates economic development and provides a legal platform for foreign entities to deal with U.S. citizens and businesses.

• NCCUSL Commissioners donate thousands of hours of their time and legal and drafting expertise every year as a public service, and receive no salary or compensation for their work.

• NCCUSL’s deliberative and uniquely open drafting process draws on the expertise of commissioners, but also utilizes input from legal experts, and advisors and observers representing the views of other legal organizations or interests that will be subject to the proposed laws.

• NCCUSL is a state-supported organization that represents true value for the states, providing services that most states could not otherwise afford or duplicate.

DRAFTING COMMITTEE on MODEL Registered Agents ACT and AMENDMENTS TO ENTITY ACTS TO RATIONALIZE Annual Filings

The Committee appointed by and representing the National Conference of Commissioners on Uniform State Laws in drafting this Act consists of the following individuals:

TERRY J. CARE, 333 S. Sixth St., Las Vegas, NV 89101, Chair

MIKE CERBO, State of Colorado, 200 E. Colfax Ave., Rm. 271, Denver, CO 80209

STEPHEN Y. CHOW, 125 Summer St., Boston, MA 02110-1624

SUE ANN DERR, State Capitol Building, 2300 N. Lincoln, Room 109, Oklahoma City, OK 73105

PETER J. HAMASAKI, P.O. Box 2800, Honolulu, HI 96803-2800

THOMAS S. HEMMENDINGER, 362 Broadway, Providence, RI 02909-1434

EARL F. LEITESS, 3 Whitecap Lane, Ocean Pines, MD 21811

LEONARD J. REESE, 1806 Niles Rd., Austin, TX 78703

RODNEY W. SATTERWHITE, P.O. Box 1540, Midland, TX 79702

WILLIAM H. CLARK, JR., One Logan Square, 18th & Cherry Streets, Philadelphia, PA 19103‑6996, Reporter

EX OFFICIO

HOWARD J. SWIBEL, 120 S. Riverside Plaza, Suite 1200, Chicago, IL 60606, President

LANI LIU EWART, 1099 Alakea St., Suite 1800, Honolulu, HI 96813, Division Chair

AMERICAN BAR ASSOCIATION ADVISOR

HEATHER D. JEFFERSON, 300 Martin Luther King Blvd., Ste. 200, Wilmington, DE 19801-2465, ABA Advisor

INTERNATIONAL ASSOCIATION OF COMMERCIAL

ADMINISTRATORS ADVISORS

TIMOTHY R. POULIN, 101 State House Station, Augusta, ME 04333-0101, Chair, Business Organization Section, International Association of Commercial Administrators

KELLY KOPYT, 1 Ashburton Pl., Rm. 1710, Boston, MA 02108, Vice-Chair, Business Organization Section, International Association of Commercial Administrators

GARTH B. JACOBSON, 520 Pike St., Suite 2610, Seattle, WA 98101

JODY M. ROBERTS, 800 Brazos, Suite 1100, Austin, TX 78701

EXECUTIVE DIRECTOR

WILLIAM H. HENNING, University of Alabama School of Law, Box 870382, Tuscaloosa, AL 35487-0382, Executive Director

Copies of this Act may be obtained from:

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

211 E. Ontario Street, Suite 1300

Chicago, Illinois 60611

312/915-0195

www.nccusl.org

MODEL REGISTERED AGENTS ACT

TABLE OF CONTENTS

PREFATORY NOTE. 1

Section 1. Short title. 3

Section 2. Definitions. 3

Section 3. Fees. 15

Section 4. Addresses in filings. 16

Section 5. Appointment of registered agent. 17

Section 6. LISTING of commercial registered agent. 18

Section 7. TERMINATION of LISTING OF commercial registered agent. 20

Section 8. Change of registered agent by entity.. 21

Section 9. Change of name OR address by NONCOMMERCIAL
registered agent. 23

Section 10. Change of name, address, OR TYPE OF ORGANIZATION by commercial registered agent. 24

Section 11. Resignation of registered agent. 25

Section 12. APPOINTMENT of agent BY NONFILING OR NONQUALIFIED FOREIGN ENTITY 27

Section 13. Service of process on entities. 28

Section 14. DutIES of registered agent. 29

Section 15. JURISDICTION AND VENUE. 30

SECTION 16. Consistency of application.. 31

Section 17. Relation to Electronic Signatures in Global and National Commerce Act 31

Section 18. Savings clause. 31

Section 19. Effective date. 31

APPENDIX.. 32

Model Registered Agents Act

PREFATORY NOTE

The Model Registered Agents Act (the “Act”) is one of several projects undertaken by the Conference and the American Bar Association (“ABA”) to integrate state entity laws into a more coherent and rational scheme. Other projects include the development of the Model Entity Transactions Act jointly by the Conference and the ABA and the addition of Chapter 9 to the Model Business Corporation Act by the Committee on Corporate Laws of the ABA Section on Business Law.

The Act grew out of discussions within the International Association of Commercial Administrators (“IACA”), which is the association of state corporation bureaus and similar filing offices in the United States and Canada. IACA was approached by representatives of corporation service companies who were seeking to solve problems they have encountered in their provision of registered agent services. IACA had also been considering on its own how filing requirements in state corporation bureaus could be simplified and standardized. IACA decided that the time was right for it to develop proposed statutory provisions on two subjects:

1. A standard set of provisions that would apply to all forms of entities that are required to designate in a public filing an agent for service of process.

2. A standard form of annual report to be filed with secretaries of state by all forms of entities.

The Ad Hoc Committee on Entity Rationalization of the ABA Section on Business Law (the “ABA Committee”) had been working cooperatively with IACA for several years on other projects of mutual interest. After IACA had prepared a first draft of provisions on registered agents and annual reports, the ABA Committee joined the drafting effort. The ABA Committee also approached the leadership of the Conference with the suggestion that the Conference also join the drafting effort. The result was the development of the Act.

The original draft of the Act contained separate articles dealing with the two subjects originally identified by IACA: (i) registered agents and (ii) annual report filings. After detailed consideration, the drafting committee and its advisors were all agreed that a separate article on annual reports was not necessary and should be omitted from the Act. Instead, the changes needed to standardize annual report filings are included in the Appendix of conforming amendments to the Act. Thus, the Act has two parts:

1. The provisions of the Act itself, which deal with registered agent issues and apply to all forms of entities.

2. An Appendix of conforming changes to all of the existing uniform, model, and prototype entity laws that have two separate purposes:

o some of the conforming amendments integrate the uniform, model, and prototype entity laws with the Act and its new registered agent provisions, and

o the remaining conforming amendments standardize the provisions of the uniform, model, and prototype entity laws on annual report filings.

Under existing uniform, model, and prototype entity laws, an entity’s registered agent and the location of the registered agent’s office serve three purposes:

1. the registered agent is an agent of the entity authorized to receive service of process on behalf of the entity;

2. the location of the office of the registered agent determines where venue is to be laid in certain actions under the entity’s organic law; and

3. the location of the office of the registered agent also determines where certain notices required by the entity’s organic law are to be published.

The first function, that of being an agent for service of process, is the principal reason why the appointment of a registered agent is required under entity organic laws. The remaining two functions made sense at a time when the registered office address of an entity was often a business address for the entity. In recent years, however, it has become common for entities to use as their registered agents businesses whose principal activity is the provision of registered agent services, and thus the address of the registered agent has become divorced from any real connection with the business activities of the represented entity.

The conforming amendments in the Appendix to this Act accordingly eliminate the functions of the registered office address as the means of determining where venue or publication is appropriate. Venue and publication will be determined by the location of an entity’s principal office; or, if the principal office is outside the state, venue and publication will be in a county specified by the legislature (for example, the county where the state capitol is located).

The conforming amendments also eliminate the provisions found in some entity organic laws that make the Secretary of State the default agent for service of process under certain circumstances.

MODEL Registered Agents Act

Section 1. Short title. This [act] may be cited as the Model Registered Agents Act.

Section 2. Definitions. In this [act]:

(1) “Appointment of agent” means a statement appointing an agent for service of process filed by:

(A) a domestic or foreign unincorporated nonprofit association under [Section 10 of the Uniform Unincorporated Nonprofit Association Act]; or

(B) a domestic entity that is not a filing entity or a nonqualified foreign entity under Section 12.

(2) “Commercial registered agent” means an individual or a domestic or foreign entity listed under Section 6.

(3) “Domestic entity” means an entity whose internal affairs are governed by the law of this state.

(4) “Entity” means a person that has a separate legal existence or has the power to acquire an interest in real property in its own name other than:

(A) an individual;

(B) a testamentary, inter vivos, or charitable trust, with the exception of a business trust, statutory trust, or similar trust;

(C) an association or relationship that is not a partnership by reason of [Section 202(c) of the Uniform Partnership Act (1997)] or a similar provision of the law of any other jurisdiction;

(D) a decedent’s estate; or

(E) a public corporation, government or governmental subdivision, agency, or instrumentality, or quasi-governmental instrumentality.

(5) “Filing entity” means an entity that is created by the filing of a public organic document.

(6) “Foreign entity” means an entity other than a domestic entity.

(7) “Foreign qualification document” means an application for a certificate of authority or other foreign qualification filing with the [Secretary of State] by a foreign entity.

(8) “Governance interest” means the right under the organic law or organic rules of an 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

(9) “Governor” means a person by or under whose authority the powers of an entity are exercised and under whose direction the business and affairs of the entity are managed pursuant to the organic law and organic rules of the entity.

(10) “Interest” means:

(A) a governance interest in an unincorporated entity;

(B) a transferable interest in an unincorporated entity; or

(11) “Interest holder” means a direct holder of an interest.

(12) “Jurisdiction of organization,” with respect to an entity, means the jurisdiction whose law includes the organic law of the entity.

(13) “Noncommercial registered agent” means a person that is not listed as a commercial registered agent under Section 6 and that is:

(A) an individual or a domestic or foreign entity that serves in this state as the agent for service of process of an entity; or

(B) the individual who holds the office or other position in an entity that is designated as the agent for service of process pursuant to Section 5(a)(2)(B).

(14) “Nonqualified foreign entity” means a foreign entity that is not authorized to transact business in this state pursuant to a filing with the [Secretary of State].

(15) “Nonresident LLP statement” means:

(A) a statement of qualification of a domestic limited liability partnership that does not have an office in this state; or

(B) a statement of foreign qualification of a foreign limited liability partnership that does not have an office in this state.

(16) “Organic law” means the statutes, if any, other than this [act], governing the internal affairs of an entity.

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

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

(19) “Private organic rules” mean the rules, whether or not in a record, that govern the internal affairs of an entity, are binding on all of its interest holders, and are not part of its public organic document, if any.

(20) “Public organic document” means the public record the filing of which creates an entity, and any amendment to or restatement of that record.

(21) “Qualified foreign entity” means a foreign entity that is authorized to transact business in this state pursuant to a filing with the [Secretary of State].

(22) “Record” 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.

(23) “Registered agent” means a commercial registered agent or a noncommercial registered agent.

(24) “Registered agent filing” means:

(A) the public organic document of a domestic filing entity;

(B) a nonresident LLP statement;

(D) an appointment of agent.

(25) “Represented entity” means:

(A) a domestic filing entity;

(B) a domestic or qualified foreign limited liability partnership that does not have an office in this state;

(D) a domestic or foreign unincorporated nonprofit association for which an appointment of agent has been filed;

(E) a domestic entity that is not a filing entity for which an appointment of agent has been filed; or

(F) a nonqualified foreign entity for which an appointment of agent has been filed.

(26) “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.

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

(28) “Type,” with respect to an entity, means a generic form of entity:

(A) recognized at common law; or

(B) organized under an organic law, whether or not some entities organized under that organic law are subject to provisions of that law that create different categories of the form of entity.

Comment

In general. Many of the definitions in this section were developed for use in the Model Entity Transactions Act (META). States that have adopted META should consider arranging their entity laws in such a manner that the definitions in META will apply more broadly and do not need to be repeated in other laws. The definitions that are common to this Act and META are:

“domestic entity”

“entity”

“filing entity”

“foreign entity”

“governance interest”

“governor”

“interest”

“interest holder”

“jurisdiction of organization”

“organic law”

“organic rules”

“person”

“private organic rules”

“public organic document”

“qualified foreign entity”

“record”

“sign”

“transferable interest”

“type”

The comments below with respect to defined terms taken from META are substantively the same as the corresponding comments in META.

“Appointment of agent.” [(1)] – An appointment of agent is an optional filing that may be made by an entity that does not otherwise make a public filing in the state naming an agent for service of process. If a state has not enacted the Uniform Unincorporated Nonprofit Association Act, paragraph (A) of this definition should be omitted.

“Commercial registered agent.” [(2)] – A commercial registered agent is an individual or entity that is in the business of serving as a registered agent in the state and that files a listing statement under Section 6. Being listed as a commercial registered agent is voluntary and persons serving as registered agents are not required to be listed under Section 6. The benefits to the registered agent of being listed under Section 6, however, are substantial and most registered agents will elect to be so listed. Although this definition and Section 6 do not expressly require that a foreign entity that is listed as a commercial registered agent be qualified to do business in the state, the activity of serving as a registered agent is one that requires such registration.

“Domestic entity.” [(3)] – The term “domestic entity” in this Act means an entity whose internal affairs are governed by the organic laws of the adopting state. Except in the case of general partnerships and unincorporated nonprofit associations, this will mean an entity that is formed, organized, or incorporated under domestic law. In the case of a general partnership organized under the Uniform Partnership Act (1997) (RUPA), it will mean a general partnership whose governing law under RUPA § 106 is the law of the adopting state. Under RUPA § 106 the governing law is determined by the location of the partnership’s chief executive office, except for limited liability partnerships where the governing law is the state where the statement of qualification is filed. It is a factual question whether the activities and organization of an unincorporated nonprofit association make it a domestic or foreign entity.

This definition is patterned after Model Entity Transactions Act § 102(9) (“domestic entity”).

“Entity.” [(4)] – The term “entity” includes:

· Business corporation.

· Business or statutory trust.

· General partnership, whether or not a limited liability partnership.

· Limited liability company.

· Limited partnership, whether or not a limited liability limited partnership.

· Nonprofit corporation.

· Unincorporated nonprofit association.

The term does not include a sole proprietorship.

This definition is intended to include all forms of private organizations, regardless of whether organized for profit, and artificial legal persons other than those excluded by paragraphs (A) through (E). Thus, this definition is broader than the definition of “business entity” in, e.g., Code of Ala. § 10-15-2(2) which does not include nonprofit entities. This definition does not exclude regulated entities such as public utilities, banks and insurance companies.

Inter vivos and testamentary trusts are treated in many states as having a separate legal existence, but they have been excluded from the definition of “entity.” Trusts that carry on a business, however, such as a Massachusetts trust, real estate investment trust, Illinois land trust, or other common law or statutory business trusts are “entities.”

Section 4 of the Uniform Unincorporated Nonprofit Association Act gives an unincorporated nonprofit association the power to acquire an estate in real property and thus an unincorporated nonprofit association organized in a state that has adopted that act will be an “entity.” At common law, an unincorporated nonprofit association was not a legal entity and did not have the power to acquire real property. Most states that have not adopted the Uniform Act have nonetheless modified the common law rule, but states that have not adopted the Uniform Act should analy