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S.B. 88
1
UNIFORM MODEL REGISTERED AGENT ACT
2
2008 GENERAL SESSION
3
STATE OF UTAH
4
Chief Sponsor: Lyle W. Hillyard
5
House Sponsor:
Jack R. Draxler
6
7
LONG TITLE
8
General Description:
9
This bill enacts Title 16, Chapter 16, Uniform Model Registered Agents Act, and makes
10
conforming amendments.
11
Highlighted Provisions:
12
This bill:
13
. defines terms;
14
. provides for the manner of a business's appointment, change, and termination of a
15
registered agent;
16
. addresses service of process on a business entity with a registered agent;
17
. provides a venue for certain actions concerning a company with or without a
18
registered agent;
19
. provides duties for a registered agent;
20
. addresses the effect of other laws;
21
. specifically provides that Title 16, Chapter 16, Uniform Model Registered Agents
22
Act, does not have retrospective effect;
23
. makes conforming amendments to other business entity provisions, including
24
concerning:
25
. registered agents, registered offices, designated offices, and principal offices;
26
and
27
. time limits for which a business entity may be without a registered agent; and
28
. makes technical changes.
29
Monies Appropriated in this Bill:
30
None
31
Other Special Clauses:
32
None
33
Utah Code Sections Affected:
34
AMENDS:
35
3-1-44, as last amended by Laws of Utah 2000, Chapter 300
36
16-6a-102, as last amended by Laws of Utah 2007, Chapter 315
37
16-6a-105, as last amended by Laws of Utah 2006, Chapter 127
38
16-6a-110, as enacted by Laws of Utah 2000, Chapter 300
39
16-6a-202, as last amended by Laws of Utah 2002, Chapter 197
40
16-6a-703, as enacted by Laws of Utah 2000, Chapter 300
41
16-6a-710, as enacted by Laws of Utah 2000, Chapter 300
42
16-6a-1002, as last amended by Laws of Utah 2003, Chapter 131
43
16-6a-1105, as last amended by Laws of Utah 2002, Chapter 197
44
16-6a-1407, as enacted by Laws of Utah 2000, Chapter 300
45
16-6a-1410, as enacted by Laws of Utah 2000, Chapter 300
46
16-6a-1415, as enacted by Laws of Utah 2000, Chapter 300
47
16-6a-1503, as enacted by Laws of Utah 2000, Chapter 300
48
16-6a-1504, as enacted by Laws of Utah 2000, Chapter 300
49
16-6a-1514, as enacted by Laws of Utah 2000, Chapter 300
50
16-6a-1515, as enacted by Laws of Utah 2000, Chapter 300
51
16-6a-1604, as enacted by Laws of Utah 2000, Chapter 300
52
16-6a-1607, as last amended by Laws of Utah 2001, Chapter 127
53
16-7-15, as enacted by Laws of Utah 2004, Chapter 16
54
16-10a-103, as last amended by Laws of Utah 2005, Chapter 141
55
16-10a-120, as last amended by Laws of Utah 2006, Chapter 127
56
16-10a-125, as enacted by Laws of Utah 1992, Chapter 277
57
16-10a-202, as enacted by Laws of Utah 1992, Chapter 277
58
16-10a-703, as enacted by Laws of Utah 1992, Chapter 277
59
16-10a-720, as enacted by Laws of Utah 1992, Chapter 277
60
16-10a-809, as enacted by Laws of Utah 1992, Chapter 277
61
16-10a-1002, as last amended by Laws of Utah 1993, Chapter 184
62
16-10a-1107, as enacted by Laws of Utah 1992, Chapter 277
63
16-10a-1330, as enacted by Laws of Utah 1992, Chapter 277
64
16-10a-1407, as last amended by Laws of Utah 2006, Chapter 127
65
16-10a-1420, as enacted by Laws of Utah 1992, Chapter 277
66
16-10a-1431, as enacted by Laws of Utah 1992, Chapter 277
67
16-10a-1503, as last amended by Laws of Utah 2005, Chapter 71
68
16-10a-1504, as enacted by Laws of Utah 1992, Chapter 277
69
16-10a-1521, as enacted by Laws of Utah 1992, Chapter 277
70
16-10a-1530, as last amended by Laws of Utah 2005, Chapter 71
71
16-10a-1604, as last amended by Laws of Utah 1996, Chapter 198
72
16-10a-1607, as enacted by Laws of Utah 1992, Chapter 277
73
16-15-104, as enacted by Laws of Utah 1995, Chapter 310
74
16-15-109, as enacted by Laws of Utah 1995, Chapter 310
75
31A-5-203, as last amended by Laws of Utah 2000, Chapter 300
76
31A-5-401, as last amended by Laws of Utah 1992, Chapter 277
77
31A-8-202, as last amended by Laws of Utah 1992, Chapter 277
78
31A-8-204, as last amended by Laws of Utah 2000, Chapter 300
79
31A-14-204, as last amended by Laws of Utah 1992, Chapter 277
80
48-1-42, as last amended by Laws of Utah 2005, Chapter 71
81
48-2a-201, as last amended by Laws of Utah 2005, Chapter 141
82
48-2a-202.5, as enacted by Laws of Utah 2002, Chapter 193
83
48-2a-210, as last amended by Laws of Utah 2000, Chapter 131
84
48-2a-902, as last amended by Laws of Utah 1991, Chapters 5 and 189
85
48-2c-102, as last amended by Laws of Utah 2006, Chapter 21
86
48-2c-113, as enacted by Laws of Utah 2001, Chapter 260
87
48-2c-115, as enacted by Laws of Utah 2001, Chapter 260
88
48-2c-203, as last amended by Laws of Utah 2005, Chapter 141
89
48-2c-204, as enacted by Laws of Utah 2001, Chapter 260
90
48-2c-211, as enacted by Laws of Utah 2001, Chapter 260
91
48-2c-309, as enacted by Laws of Utah 2001, Chapter 260
92
48-2c-403, as last amended by Laws of Utah 2005, Chapter 141
93
48-2c-406, as enacted by Laws of Utah 2001, Chapter 260
94
48-2c-411, as enacted by Laws of Utah 2001, Chapter 260
95
48-2c-704, as enacted by Laws of Utah 2001, Chapter 260
96
48-2c-809, as enacted by Laws of Utah 2001, Chapter 260
97
48-2c-1204, as last amended by Laws of Utah 2005, Chapter 141
98
48-2c-1206, as enacted by Laws of Utah 2001, Chapter 260
99
48-2c-1207, as last amended by Laws of Utah 2005, Chapter 141
100
48-2c-1208, as enacted by Laws of Utah 2001, Chapter 260
101
48-2c-1211, as last amended by Laws of Utah 2005, Chapter 141
102
48-2c-1306, as enacted by Laws of Utah 2001, Chapter 260
103
48-2c-1511, as enacted by Laws of Utah 2001, Chapter 260
104
48-2c-1603, as enacted by Laws of Utah 2001, Chapter 260
105
48-2c-1604, as last amended by Laws of Utah 2005, Chapter 71
106
48-2c-1611, as enacted by Laws of Utah 2001, Chapter 260
107
48-2c-1612, as last amended by Laws of Utah 2005, Chapter 71
108
48-2c-1614, as enacted by Laws of Utah 2001, Chapter 260
109
ENACTS:
110
16-16-101, Utah Code Annotated 1953
111
16-16-102, Utah Code Annotated 1953
112
16-16-201, Utah Code Annotated 1953
113
16-16-202, Utah Code Annotated 1953
114
16-16-203, Utah Code Annotated 1953
115
16-16-204, Utah Code Annotated 1953
116
16-16-205, Utah Code Annotated 1953
117
16-16-206, Utah Code Annotated 1953
118
16-16-207, Utah Code Annotated 1953
119
16-16-208, Utah Code Annotated 1953
120
16-16-209, Utah Code Annotated 1953
121
16-16-210, Utah Code Annotated 1953
122
16-16-301, Utah Code Annotated 1953
123
16-16-302, Utah Code Annotated 1953
124
16-16-401, Utah Code Annotated 1953
125
16-16-402, Utah Code Annotated 1953
126
16-16-403, Utah Code Annotated 1953
127
16-16-404, Utah Code Annotated 1953
128
REPEALS:
129
16-6a-501, as last amended by Laws of Utah 2002, Chapter 197
130
16-6a-502, as enacted by Laws of Utah 2000, Chapter 300
131
16-6a-503, as last amended by Laws of Utah 2002, Chapter 197
132
16-6a-504, as enacted by Laws of Utah 2000, Chapter 300
133
16-6a-1508, as enacted by Laws of Utah 2000, Chapter 300
134
16-6a-1509, as enacted by Laws of Utah 2000, Chapter 300
135
16-10a-501, as enacted by Laws of Utah 1992, Chapter 277
136
16-10a-502, as enacted by Laws of Utah 1992, Chapter 277
137
16-10a-503, as enacted by Laws of Utah 1992, Chapter 277
138
16-10a-504, as last amended by Laws of Utah 1999, Chapter 220
139
16-10a-1508, as enacted by Laws of Utah 1992, Chapter 277
140
16-10a-1509, as enacted by Laws of Utah 1992, Chapter 277
141
42-2-11, as last amended by Laws of Utah 1992, Chapter 277
142
48-2a-104, as last amended by Laws of Utah 2005, Chapter 141
143
48-2a-104.5, as enacted by Laws of Utah 1996, Chapter 41
144
48-2c-111, as enacted by Laws of Utah 2001, Chapter 260
145
48-2c-112, as enacted by Laws of Utah 2001, Chapter 260
146
48-2c-301, as enacted by Laws of Utah 2001, Chapter 260
147
48-2c-302, as enacted by Laws of Utah 2001, Chapter 260
148
48-2c-303, as enacted by Laws of Utah 2001, Chapter 260
149
48-2c-304, as enacted by Laws of Utah 2001, Chapter 260
150
48-2c-306, as enacted by Laws of Utah 2001, Chapter 260
151
48-2c-307, as enacted by Laws of Utah 2001, Chapter 260
152
48-2c-308, as enacted by Laws of Utah 2001, Chapter 260
153
48-2c-310, as last amended by Laws of Utah 2006, Chapter 127
154
155
Be it enacted by the Legislature of the state of Utah:
156
Section 1.
Section
3-1-44
is amended to read:
157
3-1-44. Registered office and agent.
158
(1) An association shall continuously maintain a registered office in this state. The
159
registered office may be the principal place of business of the association.
160
(2) (a) An association shall designate a registered agent.
161
(b) The registered agent may be a person residing in this state, a domestic corporation,
162
or a foreign corporation authorized to transact business in this state.
163
(c) The registered agent's address shall be the same as that of the registered office.
164
(3) (a) An association shall file a statement with the Division of Corporations and
165
Commercial Code designating or changing its registered office, its registered agent, or both.
166
(b) The statement in Subsection (3)(a) shall set forth:
167
(i) the name of the association;
168
(ii) the address of the association's registered office;
169
(iii) the name of the association's registered agent and the registered agent's address;
170
and
171
(iv) a statement that the designation or change was authorized by a resolution of the
172
board of directors.
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(4) (a) A registered agent of an association may resign by filing with the division a
174
signed written notice of resignation, including a statement that a signed copy of the notice has
175
been given to the association at its principal place of business.
176
(b) The appointment of the agent terminates 30 days after notice is filed with the
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division.
178
(5) Service of process, notice, or any demand upon an association shall be made as
179
provided in [Section
16-6a-504
] Title 16, Chapter 16, Model Registered Agents Act.
180
Section 2.
Section
16-6a-102
is amended to read:
181
16-6a-102. Definitions.
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As used in this chapter:
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(1) (a) "Address" means a location where mail can be delivered by the United States
184
Postal Service.
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(b) "Address" includes:
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(i) a post office box number;
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(ii) a rural free delivery route number; and
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(iii) a street name and number.
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(2) "Affiliate" means a person that directly or indirectly through one or more
190
intermediaries controls, or is controlled by, or is under common control with, the person
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specified.
192
(3) "Articles of incorporation" include:
193
(a) amended articles of incorporation;
194
(b) restated articles of incorporation;
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(c) articles of merger; and
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(d) a document of a similar import to the documents described in Subsections (3)(a)
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through (c).
198
(4) "Assumed corporate name" means the name assumed for use in this state:
199
(a) by a:
200
(i) foreign corporation pursuant to Section
16-10a-1506
; or
201
(ii) a foreign nonprofit corporation pursuant to Section
16-6a-1506
; and
202
(b) because the corporate name of the foreign corporation described in Subsection
203
(4)(a) is not available for use in this state.
204
(5) (a) Except as provided in Subsection (5)(b), "board of directors" means the body
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authorized to manage the affairs of the domestic or foreign nonprofit corporation.
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(b) Notwithstanding Subsection (5)(a), a person may not be considered a member of
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the board of directors because of powers delegated to that person pursuant to Subsection
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16-6a-801
(2).
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(6) (a) "Bylaws" means the one or more codes of rules, other than the articles of
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incorporation, adopted pursuant to this chapter for the regulation or management of the affairs
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of the domestic or foreign nonprofit corporation irrespective of the name or names by which
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the codes of rules are designated.
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(b) "Bylaws" includes:
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(i) amended bylaws; and
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(ii) restated bylaws.
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(7) (a) "Cash" or "money" means:
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(i) legal tender;
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(ii) a negotiable instrument; or
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(iii) other cash equivalent readily convertible into legal tender.
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(b) "Cash" and "money" are used interchangeably in this chapter.
221
(8) (a) "Class" refers to a group of memberships that have the same rights with respect
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to voting, dissolution, redemption, transfer, or other characteristics.
223
(b) For purposes of Subsection (8)(a), rights are considered the same if they are
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determined by a formula applied uniformly to a group of memberships.
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(9) (a) "Conspicuous" means so written that a reasonable person against whom the
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writing is to operate should have noticed the writing.
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(b) "Conspicuous" includes printing or typing in:
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(i) italics;
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(ii) boldface;
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(iii) contrasting color;
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(iv) capitals; or
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(v) underlining.
233
(10) "Control" or a "controlling interest" means the direct or indirect possession of the
234
power to direct or cause the direction of the management and policies of an entity by:
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(a) the ownership of voting shares;
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(b) contract; or
237
(c) means other than those specified in Subsection (10)(a) or (b).
238
(11) Subject to Section
16-6a-207
, "cooperative nonprofit corporation" or "cooperative"
239
means a nonprofit corporation organized or existing under this chapter.
240
(12) "Corporate name" means:
241
(a) the name of a domestic corporation as stated in the domestic corporation's articles
242
of incorporation;
243
(b) the name of a domestic nonprofit corporation as stated in the domestic nonprofit
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corporation's articles of incorporation;
245
(c) the name of a foreign corporation as stated in the foreign corporation's:
246
(i) articles of incorporation; or
247
(ii) document of similar import to articles of incorporation; or
248
(d) the name of a foreign nonprofit corporation as stated in the foreign nonprofit
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corporation's:
250
(i) articles of incorporation; or
251
(ii) document of similar import to articles of incorporation.
252
(13) "Corporation" or "domestic corporation" means a corporation for profit, which is
253
not a foreign corporation, incorporated under or subject to Chapter 10a, Utah Revised Business
254
Corporation Act.
255
(14) "Delegate" means any person elected or appointed to vote in a representative
256
assembly:
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(a) for the election of a director; or
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(b) on matters other than the election of a director.
259
(15) "Deliver" includes delivery by mail and any other means of transmission
260
authorized by Section
16-6a-103
, except that delivery to the division means actual receipt by
261
the division.
262
(16) "Director" means a member of the board of directors.
263
(17) (a) "Distribution" means the payment of a dividend or any part of the income or
264
profit of a nonprofit corporation to the nonprofit corporation's:
265
(i) members;
266
(ii) directors; or
267
(iii) officers.
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(b) "Distribution" does not include fair-value payments for:
269
(i) goods sold; or
270
(ii) services received.
271
(18) "Division" means the Division of Corporations and Commercial Code.
272
(19) "Effective date," when referring to a document filed by the division, means the
273
time and date determined in accordance with Section
16-6a-108
.
274
(20) "Effective date of notice" means the date notice is effective as provided in Section
275
16-6a-103
.
276
(21) (a) "Employee" includes an officer of a nonprofit corporation.
277
(b) (i) Except as provided in Subsection (21)(b)(ii), "employee" does not include a
278
director of a nonprofit corporation.
279
(ii) Notwithstanding Subsection (21)(b)(i), a director may accept duties that make that
280
director an employee of a nonprofit corporation.
281
(22) "Executive director" means the executive director of the Department of
282
Commerce.
283
(23) "Entity" includes:
284
(a) a domestic or foreign corporation;
285
(b) a domestic or foreign nonprofit corporation;
286
(c) a limited liability company;
287
(d) a profit or nonprofit unincorporated association;
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(e) a business trust;
289
(f) an estate;
290
(g) a partnership;
291
(h) a trust;
292
(i) two or more persons having a joint or common economic interest;
293
(j) a state;
294
(k) the United States; or
295
(l) a foreign government.
296
(24) "Foreign corporation" means a corporation for profit incorporated under a law
297
other than the laws of this state.
298
(25) "Foreign nonprofit corporation" means an entity:
299
(a) incorporated under a law other than the laws of this state; and
300
(b) that would be a nonprofit corporation if formed under the laws of this state.
301
(26) "Governmental subdivision" means:
302
(a) a county;
303
(b) a city;
304
(c) a town; or
305
(d) any other type of governmental subdivision authorized by the laws of this state.
306
(27) "Individual" means:
307
(a) a natural person;
308
(b) the estate of an incompetent individual; or
309
(c) the estate of a deceased individual.
310
(28) "Internal Revenue Code" means the federal "Internal Revenue Code of 1986," as
311
amended from time to time, or to corresponding provisions of subsequent internal revenue laws
312
of the United States of America.
313
(29) (a) "Mail," "mailed," or "mailing" means deposit, deposited, or depositing in the
314
United States mail, properly addressed, first-class postage prepaid.
315
(b) "Mail," "mailed," or "mailing" includes registered or certified mail for which the
316
proper fee has been paid.
317
(30) (a) "Member" means one or more persons identified or otherwise appointed as a
318
member of a domestic or foreign nonprofit corporation as provided:
319
(i) in the articles of incorporation;
320
(ii) in the bylaws;
321
(iii) by a resolution of the board of directors; or
322
(iv) by a resolution of the members of the nonprofit corporation.
323
(b) "Member" includes "voting member."
324
(31) "Membership" refers to the rights and obligations of a member or members.
325
(32) "Mutual benefit corporation" means a nonprofit corporation:
326
(a) that issues shares of stock to its members evidencing a right to receive distribution
327
of water or otherwise representing property rights; or
328
(b) all of whose assets are contributed or acquired by or for the members of the
329
nonprofit corporation or their predecessors in interest to serve the mutual purposes of the
330
members.
331
(33) "Nonprofit corporation" or "domestic nonprofit corporation" means an entity,
332
which is not a foreign nonprofit corporation, incorporated under or subject to the provisions of
333
this chapter.
334
(34) "Notice" is as provided in Section
16-6a-103
.
335
(35) "Party related to a director" means:
336
(a) the spouse of the director;
337
(b) a child of the director;
338
(c) a grandchild of the director;
339
(d) a sibling of the director;
340
(e) a parent of the director;
341
(f) the spouse of an individual described in Subsections (35)(b) through (e);
342
(g) an individual having the same home as the director;
343
(h) a trust or estate of which the director or any other individual specified in this
344
Subsection (35) is a substantial beneficiary; or
345
(i) any of the following of which the director is a fiduciary:
346
(i) a trust;
347
(ii) an estate;
348
(iii) an incompetent;
349
(iv) a conservatee; or
350
(v) a minor.
351
(36) "Person" means an:
352
(a) individual; or
353
(b) entity.
354
(37) "Principal office" means:
355
(a) the office, in or out of this state, designated by a domestic or foreign nonprofit
356
corporation as its principal office in the most recent document on file with the division
357
providing that information, including:
358
(i) an annual report;
359
(ii) an application for a certificate of authority; or
360
(iii) a notice of change of principal office; or
361
(b) if no principal office can be determined, a domestic or foreign nonprofit
362
corporation's registered office.
363
(38) "Proceeding" includes:
364
(a) a civil suit;
365
(b) arbitration;
366
(c) mediation;
367
(d) a criminal action;
368
(e) an administrative action; or
369
(f) an investigatory action.
370
(39) "Receive," when used in reference to receipt of a writing or other document by a
371
domestic or foreign nonprofit corporation, means the writing or other document is actually
372
received:
373
(a) by the domestic or foreign nonprofit corporation at:
374
(i) its registered office in this state; or
375
(ii) its principal office;
376
(b) by the secretary of the domestic or foreign nonprofit corporation, wherever the
377
secretary is found; or
378
(c) by any other person authorized by the bylaws or the board of directors to receive the
379
writing or other document, wherever that person is found.
380
(40) (a) "Record date" means the date established under Part 6, Members or 7, Member
381
Meetings and Voting on which a nonprofit corporation determines the identity of the nonprofit
382
corporation's members.
383
(b) The determination described in Subsection (40)(a) shall be made as of the close of
384
business on the record date unless another time for doing so is specified when the record date is
385
fixed.
386
(41) "Registered agent" means the registered agent of:
387
(a) a domestic nonprofit corporation [required to be maintained pursuant to Subsection
388
16-6a-501
(1)(b)]; or
389
(b) a foreign nonprofit corporation [required to be maintained pursuant to Subsection
390
16-6a-1508
(1)(b)].
391
(42) "Registered office" means the office within this state designated by a domestic or
392
foreign nonprofit corporation as its registered office in the most recent document on file with
393
the division providing that information, including:
394
(a) articles of incorporation;
395
(b) an application for a certificate of authority; or
396
(c) a notice of change of registered office.
397
(43) "Secretary" means the corporate officer to whom the bylaws or the board of
398
directors has delegated responsibility under Subsection
16-6a-818
(3) for:
399
(a) the preparation and maintenance of:
400
(i) minutes of the meetings of:
401
(A) the board of directors; or
402
(B) the members; and
403
(ii) the other records and information required to be kept by the nonprofit corporation
404
pursuant to Section
16-6a-1601
; and
405
(b) authenticating records of the nonprofit corporation.
406
(44) "Shareholder" means the person in whose name a share is registered in the records
407
of a nonprofit corporation.
408
(45) "Share" means a unit of interest in a nonprofit corporation.
409
(46) "State," when referring to a part of the United States, includes:
410
(a) a state;
411
(b) a commonwealth;
412
(c) the District of Columbia;
413
(d) an agency or governmental and political subdivision of a state, commonwealth, or
414
District of Columbia;
415
(e) territory or insular possession of the United States; or
416
(f) an agency or governmental and political subdivision of a territory or insular
417
possession of the United States.
418
(47) "Street address" means:
419
(a) (i) street name and number;
420
(ii) city or town; and
421
(iii) United States post office zip code designation; or
422
(b) if, by reason of rural location or otherwise, a street name, number, city, or town
423
does not exist, an appropriate description other than that described in Subsection (47)(a) fixing
424
as nearly as possible the actual physical location but only if the information includes:
425
(i) the rural free delivery route;
426
(ii) the county; and
427
(iii) the United States post office zip code designation.
428
(48) "United States" includes any district, authority, office, bureau, commission,
429
department, and any other agency of the United States of America.
430
(49) "Vote" includes authorization by:
431
(a) written ballot; and
432
(b) written consent.
433
(50) (a) "Voting group" means all the members of one or more classes of members or
434
directors that, under this chapter, the articles of incorporation, or the bylaws, are entitled to
435
vote and be counted together collectively on a matter.
436
(b) All members or directors entitled by this chapter, the articles of incorporation, or
437
the bylaws to vote generally on a matter are for that purpose a single voting group.
438
(51) (a) "Voting member" means a person entitled to vote for all matters required or
439
permitted under this chapter to be submitted to a vote of the members, except as otherwise
440
provided in the articles of incorporation or bylaws.
441
(b) A person is not a voting member solely because of:
442
(i) a right the person has as a delegate;
443
(ii) a right the person has to designate a director; or
444
(iii) a right the person has as a director.
445
(c) Except as the bylaws may otherwise provide, "voting member" includes a
446
"shareholder" if the nonprofit corporation has shareholders.
447
Section 3.
Section
16-6a-105
is amended to read:
448
16-6a-105. Filing requirements.
449
(1) To be entitled to filing by the division, a document shall satisfy the requirements of:
450
(a) this section; and
451
(b) any other section of this chapter that adds to or varies the requirements of this
452
section.
453
(2) This chapter shall require or permit filing the document with the division.
454
(3) (a) A document shall contain the information required by this chapter.
455
(b) In addition to the document information required by this chapter, a document may
456
contain other information.
457
(4) A document shall be:
458
(a) typewritten; or
459
(b) machine printed.
460
(5) (a) A document shall be in the English language.
461
(b) A corporate name need not be in English if written in:
462
(i) English letters; or
463
(ii) Arabic or Roman numerals.
464
(c) Notwithstanding Subsection (5)(a), a certificate of existence required of a foreign
465
nonprofit corporation need not be in English if accompanied by a reasonably authenticated
466
English translation.
467
(6) (a) A document shall be:
468
(i) executed by a person in Subsection (6)(b); or
469
(ii) a true copy made by photographic, xerographic, electronic, or other process that
470
provides similar copy accuracy of a document that has been executed by a person listed in
471
Subsection (6)(b).
472
(b) A document shall be executed by:
473
(i) the chair of the board of directors of a domestic or foreign nonprofit corporation;
474
(ii) all of the directors of a domestic or foreign nonprofit corporation;
475
(iii) an officer of the domestic or foreign nonprofit corporation;
476
(iv) if directors have not been selected or the domestic or foreign nonprofit corporation
477
has not been formed, an incorporator;
478
(v) if the domestic or foreign nonprofit corporation is in the hands of a receiver,
479
trustee, or other court-appointed fiduciary, that receiver, trustee, or court-appointed fiduciary;
480
(vi) if the document is that of a registered agent:
481
(A) the registered agent, if the person is an individual; or
482
(B) a person authorized by the registered agent to execute the document, if the
483
registered agent is an entity; or
484
(vii) an attorney in fact if a nonprofit corporation retains the power of attorney with the
485
nonprofit corporation's records.
486
(7) A document shall state beneath or opposite the signature of the person executing
487
the document:
488
(a) the signer's name; and
489
(b) the capacity in which the document is signed.
490
(8) A document may contain:
491
(a) the corporate seal;
492
(b) an attestation by the secretary or an assistant secretary; or
493
(c) an acknowledgment, verification, or proof.
494
(9) The signature of each person signing a document, whether or not the document
495
contains an acknowledgment, verification, or proof permitted by Subsection (8), constitutes the
496
affirmation or acknowledgment of the person, under penalties of perjury, that:
497
(a) the document is:
498
(i) the person's act and deed; or
499
(ii) the act and deed of the entity on behalf of which the document is executed; and
500
(b) the facts stated in the document are true.
501
(10) If the division has prescribed a mandatory form or cover sheet for the document
502
under Section
16-6a-106
, a document shall be:
503
(a) in or on the prescribed form; or
504
(b) have the required cover sheet.
505
(11) A document shall be:
506
(a) delivered to the division for filing; and
507
(b) accompanied by:
508
(i) one exact or conformed copy, except as provided in [Sections
16-6a-503
and]
509
Section
16-6a-1510
;
510
(ii) the correct filing fee; and
511
(iii) any franchise tax, license fee, or penalty required by this chapter or other law.
512
(12) Except with respect to [filings] a filing pursuant to Section [
16-6a-503
or]
513
16-6a-1510
, a document shall state, or be accompanied by a writing stating, the address to
514
which the division may send a copy upon completion of the filing.
515
Section 4.
Section
16-6a-110
is amended to read:
516
16-6a-110. Filing duty of division.
517
(1) If a document delivered to the division for filing satisfies the requirements of
518
Section
16-6a-105
, the division shall file the document.
519
(2) (a) The division files a document by stamping or otherwise endorsing "Filed"
520
together with the name of the division and the date and time of acceptance for filing on both
521
the document and the accompanying copy.
522
(b) After filing a document, except as provided in Sections [
16-6a-503
,]
16-6a-1510
[,]
523
and
16-6a-1608
, the division shall deliver the accompanying copy, with the receipt for any
524
filing fees:
525
(i) (A) to the domestic or foreign nonprofit corporation for which the filing is made; or
526
(B) to the representative of the domestic or foreign nonprofit corporation for which the
527
filing is made; and
528
(ii) at the address:
529
(A) indicated on the filing; or
530
(B) that the division determines to be appropriate.
531
(3) If the division refuses to file a document, the division within ten days after the day
532
the document is delivered to the division shall return to the person requesting the filing:
533
(a) the document; and
534
(b) a written notice providing a brief explanation of the reason for the refusal to file.
535
(4) (a) The division's duty to file a document under this section is ministerial.
536
(b) Except as otherwise specifically provided in this chapter, the division's filing or
537
refusal to file a document does not:
538
(i) affect the validity or invalidity of the document in whole or in part;
539
(ii) relate to the correctness or incorrectness of information contained in the document;
540
or
541
(iii) create a presumption that:
542
(A) the document is valid or invalid; or
543
(B) information contained in the document is correct or incorrect.
544
Section 5.
Section
16-6a-202
is amended to read:
545
16-6a-202. Articles of incorporation.
546
(1) The articles of incorporation shall set forth:
547
(a) one or more purposes for which the nonprofit corporation is organized;
548
(b) a corporate name for the nonprofit corporation that satisfies the requirements of
549
Section
16-6a-401
;
550
(c) the [street address of the nonprofit corporation's initial registered office]
551
information required by Subsection
16-16-203
(1);
552
[(d) the name and signature of its initial registered agent at the office listed in
553
Subsection (1)(c), which registered agent shall meet the requirements of Section
16-6a-501
;]
554
[(e)] (d) the name and address of each incorporator;
555
[(f)] (e) whether or not the nonprofit corporation will have voting members;
556
[(g)] (f) if the nonprofit corporation is to issue shares of stock evidencing membership
557
in the nonprofit corporation or interests in water or other property rights:
558
(i) the aggregate number of shares that the nonprofit corporation has authority to issue;
559
and
560
(ii) if the shares are to be divided into classes:
561
(A) the number of shares of each class;
562
(B) the designation of each class; and
563
(C) a statement of the preferences, limitations, and relative rights of the shares of each
564
class; and
565
[(h)] (g) provisions not inconsistent with law regarding the distribution of assets on
566
dissolution.
567
(2) The articles of incorporation may but need not set forth:
568
(a) the names and addresses of the individuals who are to serve as the initial directors;
569
(b) provisions not inconsistent with law regarding:
570
(i) managing the business and regulating the affairs of the nonprofit corporation;
571
(ii) defining, limiting, and regulating the powers of:
572
(A) the nonprofit corporation;
573
(B) the board of directors of the nonprofit corporation; and
574
(C) the members of the nonprofit corporation or any class of members;
575
(iii) whether cumulative voting will be permitted; and
576
(iv) the characteristics, qualifications, rights, limitations, and obligations attaching to
577
each or any class of members; and
578
(c) any provision that under this chapter is permitted to be in the articles of
579
incorporation or required or permitted to be set forth in the bylaws, including elective
580
provisions that in accordance with this chapter shall be included in the articles of incorporation
581
to be effective.
582
(3) (a) It is sufficient under Subsection (1)(a) to state, either alone or with other
583
purposes, that the purpose of the nonprofit corporation is to engage in any lawful act for which
584
a nonprofit corporation may be organized under this chapter.
585
(b) If the articles of incorporation include the statement described in Subsection (3)(a),
586
all lawful acts and activities shall be within the purposes of the nonprofit corporation, except
587
for express limitations, if any.
588
(4) The articles of incorporation need not set forth any corporate power enumerated in
589
this chapter.
590
(5) The articles of incorporation shall:
591
(a) be signed by each incorporator; and
592
(b) meet the filing requirements of Section
16-6a-105
.
593
(6) The appointment of the registered agent shall be signed by the registered agent on:
594
(a) the articles of incorporation; or
595
(b) an acknowledgment attached to the articles of incorporation.
596
(7) (a) If this chapter conditions any matter upon the presence of a provision in the
597
bylaws, the condition is satisfied if the provision is present either in:
598
(i) the articles of incorporation; or
599
(ii) the bylaws.
600
(b) If this chapter conditions any matter upon the absence of a provision in the bylaws,
601
the condition is satisfied only if the provision is absent from both:
602
(i) the articles of incorporation; and
603
(ii) the bylaws.
604
Section 6.
Section
16-6a-703
is amended to read:
605
16-6a-703. Court-ordered meeting.
606
(1) (a) Upon an application described in Subsection (1)(b) the holding of a meeting of
607
the members may be summarily ordered by:
608
(i) the district court of the county in this state where the nonprofit corporation's
609
principal office is located; or
610
(ii) if the nonprofit corporation has no principal office in this state[: (A) by the district
611
court of the county in which its registered office is located; or (B) if the nonprofit corporation
612
has no registered office, by], the district court in and for Salt Lake County.
613
(b) Subsection (1)(a) applies to an application by:
614
(i) any voting member entitled to participate in an annual meeting if an annual meeting
615
was required to be held and was not held within 15 months after:
616
(A) the corporation's last annual meeting; or
617
(B) if there has been no annual meeting, the date of incorporation; or
618
(ii) any person who participated in a call of or demand for a special meeting effective
619
under Subsection
16-6a-702
(1), if:
620
(A) notice of the special meeting was not given within 30 days after:
621
(I) the date of the call; or
622
(II) the date the last of the demands necessary to require the calling of the meeting was
623
received by the nonprofit corporation pursuant to Subsection
16-6a-702
(1)(b); or
624
(B) the special meeting was not held in accordance with the notice.
625
(2) A court that orders a meeting under Subsection (1) may:
626
(a) fix the time and place of the meeting;
627
(b) determine the members entitled to participate in the meeting;
628
(c) specify a record date for determining members entitled to notice of and to vote at
629
the meeting;
630
(d) prescribe the form and content of the notice of the meeting;
631
(e) (i) fix the quorum required for specific matters to be considered at the meeting; or
632
(ii) direct that the votes represented at the meeting constitute a quorum for action on
633
the specific matters to be considered at the meeting; and
634
(f) enter other orders necessary or appropriate to accomplish the holding of the
635
meeting.
636
Section 7.
Section
16-6a-710
is amended to read:
637
16-6a-710. Members' list for meeting and action by written ballot.
638
(1) (a) Unless otherwise provided by the bylaws, after fixing a record date for a notice
639
of a meeting or for determining the members entitled to take action by written ballot, a
640
nonprofit corporation shall prepare a list of the names of all its members who are:
641
(i) (A) entitled to notice of the meeting; and
642
(B) to vote at the meeting; or
643
(ii) to take the action by written ballot.
644
(b) The list required by Subsection (1) shall:
645
(i) be arranged by voting group;
646
(ii) be alphabetical within each voting group;
647
(iii) show the address of each member entitled to notice of, and to vote at, the meeting
648
or to take such action by written ballot; and
649
(iv) show the number of votes each member is entitled to vote at the meeting or by
650
written ballot.
651
(2) (a) If prepared in connection with a meeting of the members, the members' list
652
required by Subsection (1) shall be available for inspection by any member entitled to vote at
653
the meeting:
654
(i) (A) beginning the earlier of:
655
(I) ten days before the meeting for which the list was prepared; or
656
(II) two business days after notice of the meeting is given; and
657
(B) continuing through the meeting, and any adjournment of the meeting; and
658
(ii) (A) at the nonprofit corporation's principal office; or
659
(B) at a place identified in the notice of the meeting in the city where the meeting will
660
be held.
661
(b) (i) The nonprofit corporation shall make the members' list required by Subsection
662
(1) available at the meeting.
663
(ii) Any member entitled to vote at the meeting or an agent or attorney of a member
664
entitled to vote at the meeting is entitled to inspect the members' list at any time during the
665
meeting or any adjournment.
666
(c) A member entitled to vote at the meeting, or an agent or attorney of a member
667
entitled to vote at the meeting, is entitled on written demand to inspect and, subject to
668
Subsection
16-6a-1602
(3) and Subsections
16-6a-1603
(2) and (3), to copy a members' list
669
required by Subsection (1):
670
(i) during:
671
(A) regular business hours; and
672
(B) the period it is available for inspection; and
673
(ii) at the member's expense.
674
(3) (a) On application of a member of a nonprofit corporation, the applicable district
675
court may take an action described in Subsection (3)(b) if the nonprofit corporation refuses to
676
allow a member entitled to vote at the meeting or by the written ballot, or an agent or attorney
677
of a member entitled to vote at the meeting or by the written ballot, to inspect or copy the
678
members' list during the period it is required to be available for inspection under Subsection
679
(2).
680
(b) Under Subsection (3)(a), the applicable court may:
681
(i) summarily order the inspection or copying of the members' list at the nonprofit
682
corporation's expense; and
683
(ii) until the inspection or copying is complete:
684
(A) postpone or adjourn the meeting for which the members' list was prepared; or
685
(B) postpone the time when the nonprofit corporation must receive written ballots in
686
connection with which the members' list was prepared.
687
(c) For purposes of this Subsection (3), the applicable court is:
688
(i) the district court of the county in this state where the nonprofit corporation's
689
principal office is located; or
690
(ii) if the nonprofit corporation has no principal office in this state[: (A) the district
691
court of the county where its registered office is located; or (B) if the nonprofit corporation has
692
no registered office in this state], the district court in and for Salt Lake County.
693
(4) If a court orders inspection or copying of a members' list pursuant to Subsection
694
(3), unless the nonprofit corporation proves that it refused inspection or copying of the list in
695
good faith because it had a reasonable basis for doubt about the right of the member or the
696
agent or attorney of the member to inspect or copy the members' list:
697
(a) the court shall order the nonprofit corporation to pay the member's costs, including
698
reasonable counsel fees, incurred in obtaining the order;
699
(b) the court may order the nonprofit corporation to pay the member for any damages
700
the member incurred; and
701
(c) the court may grant the member any other remedy afforded the member by law.
702
(5) If a court orders inspection or copying of a members' list pursuant to Subsection
703
(3), the court may impose reasonable restrictions on the use or distribution of the list by the
704
member.
705
(6) Failure to prepare or make available the members' list does not affect the validity of
706
action taken at the meeting or by means of the written ballot.
707
Section 8.
Section
16-6a-1002
is amended to read:
708
16-6a-1002. Amendment of articles of incorporation by board of directors or
709
incorporators.
710
(1) Unless otherwise provided in the articles of incorporation, the board of directors
711
may adopt, without member approval, one or more amendments to the articles of incorporation
712
to:
713
(a) delete the names and addresses of the initial directors;
714
(b) [delete the name and address of the initial registered agent or registered office, if a
715
statement of change is on file with the division] change the information required by Subsection
716
16-16-203
(1), but an amendment is not required to change the information;
717
(c) change the corporate name by:
718
(i) substituting the word "corporation," "incorporated," "company," "limited," or an
719
abbreviation of any such word for a similar word or abbreviation in the name; or
720
(ii) adding, deleting, or changing a geographical attribution; or
721
(d) make any other change expressly permitted by this chapter to be made without
722
member action.
723
(2) The board of directors may adopt, without member action, one or more
724
amendments to the articles of incorporation to change the corporate name, if necessary, in
725
connection with the reinstatement of a nonprofit corporation pursuant to Section
16-6a-1412
.
726
(3) (a) Subject to any approval required pursuant to Section
16-6a-1013
, if a nonprofit
727
corporation has no members, no members entitled to vote on amendments, or no members yet
728
admitted to membership, one or more amendments to the nonprofit corporation's articles of
729
incorporation may be adopted by:
730
(i) its incorporators until directors have been chosen; or
731
(ii) its directors after the directors have been chosen.
732
(b) A nonprofit corporation described in Subsection (3)(a) shall provide notice of any
733
meeting at which an amendment is to be voted upon.
734
(c) The notice required by Subsection (3)(b) shall:
735
(i) be in accordance with Section
16-6a-814
;
736
(ii) state that the purpose, or one of the purposes, of the meeting is to consider a
737
proposed amendment to the articles of incorporation; and
738
(iii) (A) contain or be accompanied by a copy or summary of the amendment; or
739
(B) state the general nature of the amendment.
740
(d) An amendment described in Subsection (3)(a) shall be approved:
741
(i) by a majority of the incorporators, until directors have been chosen; or
742
(ii) after directors are chosen by a majority of the directors in office at the time the
743
amendment is adopted.
744
Section 9.
Section
16-6a-1105
is amended to read:
745
16-6a-1105. Merger with foreign nonprofit corporation.
746
(1) One or more domestic nonprofit corporations may merge with one or more foreign
747
nonprofit corporations if:
748
(a) the merger is permitted by the law of the state or country under whose law each
749
foreign nonprofit corporation is incorporated;
750
(b) each foreign nonprofit corporation complies with the provisions of the law
751
described in Subsection (1)(a) in effecting the merger;
752
(c) if the foreign nonprofit corporation is the surviving nonprofit corporation of the
753
merger, the foreign nonprofit corporation:
754
(i) complies with Section
16-6a-1103
; and
755
(ii) in addition to the information required by Section
16-6a-1103
, provides the address
756
of its principal office; and
757
(d) each domestic nonprofit corporation complies with:
758
(i) the applicable provisions of Sections
16-6a-1101
and
16-6a-1102
; and
759
(ii) if it is the surviving nonprofit corporation of the merger, with Section
16-6a-1103
.
760
(2) Upon the merger taking effect, a surviving foreign nonprofit corporation of a
761
merger [shall:] may be served with process in any proceeding brought against it as provided in
762
Section
16-16-301
.
763
[(a) (i) maintain a registered agent to accept service in any proceeding based on a cause
764
of action arising with respect to any domestic nonprofit corporation that is merged into the
765
foreign nonprofit corporation; or]
766
[(ii) be considered to have authorized service of process on it in connection with any
767
proceeding described in Subsection (2)(a)(i) by registered or certified mail, return receipt
768
requested, to the address of its principal office as:]
769
[(A) set forth in the articles of merger; or]
770
[(B) as last changed in a notice delivered to the division; and]
771
[(b) shall comply with this chapter if it is to conduct affairs in this state.]
772
(3) Service effected pursuant to Subsection (2)[(a)(ii)] is perfected at the earliest of:
773
(a) the date the foreign nonprofit corporation receives the process, notice, or demand;
774
(b) the date shown on the return receipt, if signed on behalf of the foreign nonprofit
775
corporation; or
776
(c) five days after mailing.
777
(4) Subsection (2) does not prescribe the only means, or necessarily the required
778
means, of serving a surviving foreign nonprofit corporation of a merger.
779
Section 10.
Section
16-6a-1407
is amended to read:
780
16-6a-1407. Disposition of claims by publication.
781
(1) A dissolved nonprofit corporation may publish notice of its dissolution and request
782
that persons with claims against the nonprofit corporation present them in accordance with the
783
notice.
784
(2) The notice described in Subsection (1) shall:
785
(a) be published one time in a newspaper of general circulation in:
786
(i) the county where:
787
[(i)] (A) the dissolved nonprofit corporation's principal office is located; [or]
788
[(ii)] (B) if the dissolved nonprofit corporation has no principal office in this state, its
789
registered office is or was last located; or
790
(ii) if neither Subsection (2)(a)(i)(A) or (B) apply, Salt Lake County;
791
(b) describe the information that shall be included in a claim;
792
(c) provide an address at which any claim shall be given to the nonprofit corporation;
793
and
794
(d) state that unless sooner barred by any other statute limiting actions, a claim will be
795
barred if an action to enforce the claim is not commenced within three years after publication
796
of the notice.
797
(3) If the dissolved nonprofit corporation publishes a newspaper notice in accordance
798
with Subsection (2), then unless sooner barred under Section
16-6a-1406
or under any other
799
statute limiting actions, the claim of any claimant against the dissolved nonprofit corporation is
800
barred unless the claimant commences an action to enforce the claim against the dissolved
801
nonprofit corporation within three years after the publication date of the notice.
802
(4) For purposes of this section:
803
(a) "claim" means any claim, including claims of this state, whether:
804
(i) known;
805
(ii) due or to become due;
806
(iii) absolute or contingent;
807
(iv) liquidated or unliquidated;
808
(v) founded on contract, tort, or other legal basis; or
809
(vi) otherwise; and
810
(b) an action to enforce a claim includes:
811
(i) any civil action; and
812
(ii) any arbitration under any agreement for binding arbitration between the dissolved
813
nonprofit corporation and the claimant.
814
Section 11.
Section
16-6a-1410
is amended to read:
815
16-6a-1410. Grounds for administrative dissolution.
816
The division may commence a proceeding under Section
16-6a-1411
for administrative
817
dissolution of a nonprofit corporation if:
818
(1) the nonprofit corporation does not pay when they are due any taxes, fees, or
819
penalties imposed by this chapter or other applicable laws of this state;
820
(2) the nonprofit corporation does not deliver its annual report to the division when it is
821
due;
822
(3) the nonprofit corporation is without[: (a)] a registered agent[; or (b) a registered
823
office]; or
824
(4) the nonprofit corporation does not give notice to the division that:
825
(a) its registered agent [or registered office] has been changed;
826
(b) its registered agent has resigned; or
827
[(c) its registered office has been discontinued; or]
828
[(d)] (c) the nonprofit corporation's period of duration stated in its articles of
829
incorporation expires.
830
Section 12.
Section
16-6a-1415
is amended to read:
831
16-6a-1415. Procedure for judicial dissolution.
832
(1) (a) A proceeding by the attorney general or director of the division to dissolve a
833
nonprofit corporation shall be brought in:
834
(i) the district court of the county in this state where the nonprofit corporation's
835
principal office [or registered office] is located; or
836
(ii) if the nonprofit corporation has no principal [or registered] office in this state, in
837
the district court in and for Salt Lake County.
838
(b) A proceeding brought by a party that is not listed in Subsection (1)(a) but is named
839
in Section
16-6a-1414
shall be brought in:
840
(i) the district court of the county in this state where the nonprofit corporation's
841
principal office is located; or
842
(ii) if it has no principal office in this state, in the district court of [the county where its
843
registered office is or was last located] Salt Lake County.
844
(2) It is not necessary to make directors or members parties to a proceeding to dissolve
845
a nonprofit corporation unless relief is sought against the directors or members individually.
846
(3) A court in a proceeding brought to dissolve a nonprofit corporation may:
847
(a) issue injunctions;
848
(b) appoint a receiver or custodian pendente lite with all powers and duties the court
849
directs; or
850
(c) take other action required to preserve the corporate assets wherever located, and
851
carry on the activities of the nonprofit corporation until a full hearing can be held.
852
Section 13.
Section
16-6a-1503
is amended to read:
853
16-6a-1503. Application for authority to conduct affairs.
854
(1) A foreign nonprofit corporation may apply for authority to conduct affairs in this
855
state by delivering to the division for filing an application for authority to conduct affairs
856
setting forth:
857
(a) its corporate name and its assumed corporate name, if any;
858
(b) the name of the state or country under whose law it is incorporated;
859
(c) its date of incorporation;
860
(d) its period of duration;
861
(e) the street address of its principal office;
862
(f) the [address of its registered office] information required by Subsection
863
16-16-203
(1);
864
[(g) the name of its registered agent at the office listed in Subsection (1)(f);]
865
[(h)] (g) the names and usual business addresses of its current directors and officers;
866
[(i)] (h) the date it commenced or expects to commence conducting affairs in this state;
867
and
868
[(j)] (i) such additional information as the division determines is necessary or
869
appropriate to determine whether the application for authority to conduct affairs should be
870
filed.
871
(2) With the completed application required by Subsection (1) the foreign nonprofit
872
corporation shall deliver to the division for a certificate of existence, or a document of similar
873
import that is:
874
(a) authenticated by the division or other official having custody of corporate records in
875
the state or country under whose law it is incorporated; and
876
(b) dated within 90 days before the filing of the application for authority to conduct
877
affairs.
878
(3) The foreign nonprofit corporation shall include in the application for authority to
879
conduct affairs, or in an accompanying document, written consent to appointment by its
880
designated registered agent.
881
Section 14.
Section
16-6a-1504
is amended to read:
882
16-6a-1504. Amended application for authority to conduct affairs.
883
(1) A foreign nonprofit corporation authorized to conduct affairs in this state shall
884
deliver an amended application for authority to conduct affairs to the division for filing if the
885
foreign nonprofit corporation changes:
886
(a) its corporate name;
887
(b) its assumed corporate name;
888
(c) the period of its duration; [or]
889
(d) the state or country of its incorporation[.]; or
890
(e) any of the information required by Subsection
16-16-203
(1).
891
(2) The requirements of Section
16-6a-1503
for filing an original application for
892
authority to conduct affairs apply to filing an amended application for authority to conduct
893
affairs under this section.
894
Section 15.
Section
16-6a-1514
is amended to read:
895
16-6a-1514. Service on withdrawn foreign nonprofit corporation.
896
(1) A foreign nonprofit corporation that has withdrawn from this state pursuant to
897
Section
16-6a-1513
shall:
898
(a) maintain a registered agent in this state to accept service on its behalf in any
899
proceeding based on a cause of action arising during the time it was authorized to conduct
900
affairs in this state, in which case[: (i)] the continued authority of the registered agent shall be
901
specified in the application for withdrawal; [and] or
902
[(ii) any change shall be governed by the procedure set forth in Section
16-6a-1509
903
which applies to foreign nonprofit corporations authorized to conduct affairs in this state; or]
904
(b) be considered to have authorized service of process on it in connection with any
905
cause of action by registered or certified mail, return receipt requested, to:
906
(i) the address of its principal office, if any:
907
(A) set forth in its application for withdrawal; or
908
(B) as last changed by notice delivered to the division for filing; or
909
(ii) the address for service of process:
910
(A) that is stated in its application for withdrawal; or
911
(B) as last changed by notice delivered to the division for filing.
912
(2) Service effected pursuant to Subsection (1)(b) is perfected at the earliest of:
913
(a) the date the withdrawn foreign nonprofit corporation receives the process, notice, or
914
demand;
915
(b) the date shown on the return receipt, if signed on behalf of the withdrawn foreign
916
nonprofit corporation; or
917
(c) five days after mailing.
918
(3) Subsection (1) does not prescribe the only means, or necessarily the required
919
means, of serving a withdrawn foreign nonprofit corporation.
920
Section 16.
Section
16-6a-1515
is amended to read:
921
16-6a-1515. Grounds for revocation.
922
The division may commence a proceeding under Section
16-6a-1516
to revoke the
923
authority of a foreign nonprofit corporation to conduct affairs in this state if:
924
(1) the foreign nonprofit corporation does not deliver its annual report to the division
925
when it is due;
926
(2) the foreign nonprofit corporation does not pay when they are due any taxes, fees, or
927
penalties imposed by this chapter or other applicable laws of this state;
928
(3) the foreign nonprofit corporation is without a registered agent [or registered office]
929
in this state;
930
(4) the foreign nonprofit corporation does not inform the division [under Section
931
16-6a-1509
or
16-6a-1510
] by an appropriate filing, within 30 days of the change or
932
resignation, that:
933
(a) its registered agent [or registered office] has changed; or
934
(b) its registered agent has resigned; [or]
935
[(c) its registered office has been discontinued;]
936
(5) an incorporator, director, officer, or agent of the foreign nonprofit corporation signs
937
a document knowing it is false in any material respect with intent that the document be
938
delivered to the division for filing; or
939
(6) the division receives a duly authenticated certificate from the division or other
940
official having custody of corporate records in the state or country under whose law the foreign
941
nonprofit corporation is incorporated stating that the foreign nonprofit corporation has
942
dissolved or disappeared as the result of a merger.
943
Section 17.
Section
16-6a-1604
is amended to read:
944
16-6a-1604. Court-ordered inspection of corporate records.
945
(1) (a) A director or member may petition the applicable court if:
946
(i) a nonprofit corporation refuses to allow a director or member, or the director's or
947
member's agent or attorney, to inspect or copy any records that the director or member is
948
entitled to inspect or copy under Subsection
16-6a-1602
(1); and
949
(ii) the director or member complies with Subsection
16-6a-1602
(1).
950
(b) If petitioned under Subsection (1)(a), the court may summarily order the inspection
951
or copying of the records demanded at the nonprofit corporation's expense on an expedited
952
basis.
953
(2) (a) A director or member may petition the applicable court if:
954
(i) a nonprofit corporation refuses to allow a director or member, or the director's or
955
member's agent or attorney, to inspect or copy any records that the director or member is
956
entitled to inspect or copy pursuant to Subsections
16-6a-1602
(2) and (3) within a reasonable
957
time following the director's or member's demand; and
958
(ii) the director or member complies with Subsections
16-6a-1602
(2) and (3).
959
(b) If the court is petitioned under Subsection (2)(a), the court may summarily order the
960
inspection or copying of the records demanded.
961
(3) If a court orders inspection or copying of the records demanded under Subsection
962
(1) or (2), unless the nonprofit corporation proves that it refused inspection or copying in good
963
faith because it had a reasonable basis for doubt about the right of the director or member, or
964
the director's or member's agent or attorney, to inspect or copy the records demanded:
965
(a) the court shall also order the nonprofit corporation to pay the director's or member's
966
costs, including reasonable counsel fees, incurred to obtain the order;
967
(b) the court may order the nonprofit corporation to pay the director or member for any
968
damages the member incurred;
969
(c) if inspection or copying is ordered pursuant to Subsection (2), the court may order
970
the nonprofit corporation to pay the director's or member's inspection and copying expenses;
971
and
972
(d) the court may grant the director or member any other remedy provided by law.
973
(4) If a court orders inspection or copying of records demanded, it may impose
974
reasonable restrictions on the use or distribution of the records by the demanding director or
975
member.
976
(5) For purposes of this section, the applicable court is:
977
(a) the district court of the county in this state where the nonprofit corporation's
978
principal office is located; or
979
(b) if the nonprofit corporation has no principal office in this state[: (i) the district
980
court of the county in which its registered office is located; or (ii) if the nonprofit corporation
981
has no registered office], the district court in and for Salt Lake County.
982
Section 18.
Section
16-6a-1607
is amended to read:
983
16-6a-1607. Annual report for division.
984
(1) Each domestic nonprofit corporation, and each foreign nonprofit corporation
985
authorized to conduct affairs in this state, shall deliver to the division for filing an annual report
986
on a form provided by the division that sets forth:
987
(a) (i) the corporate name of the domestic or foreign nonprofit corporation; and
988
(ii) any assumed corporate name of the foreign nonprofit corporation;
989
(b) the [state or country] jurisdiction under whose law it is incorporated;
990
(c) the [street address of its registered office in this state] information required by
991
Subsection
16-16-203
(1);
992
[(d) the name of its registered agent at the office listed in Subsection (1)(c);]
993
[(e)] (d) the street address of its principal office, wherever located; and
994
[(f)] (e) the names and addresses of its directors and principal officers.
995
(2) The division shall deliver a copy of the prescribed form of annual report to each
996
domestic nonprofit corporation and each foreign nonprofit corporation authorized to conduct
997
affairs in this state.
998
(3) Information in the annual report shall be current as of the date the annual report is
999
executed on behalf of the nonprofit corporation.
1000
(4) (a) The annual report of a domestic or foreign nonprofit corporation shall be
1001
delivered annually to the division no later than 60 days past the date the report was mailed by
1002
the division.
1003
(b) Proof to the satisfaction of the division that the nonprofit corporation has mailed an
1004
annual report form is considered in compliance with this Subsection (4).
1005
(5) (a) If an annual report contains the information required by this section, the division
1006
shall file it.
1007
(b) If an annual report does not contain the information required by this section, the
1008
division shall promptly notify the reporting domestic or foreign nonprofit corporation in
1009
writing and return the annual report to it for correction.
1010
(c) If an annual report that is rejected under Subsection (5)(b) was otherwise timely
1011
filed and is corrected to contain the information required by this section and delivered to the
1012
division within 30 days after the effective date of the notice of rejection, the annual report is
1013
considered to be timely filed.
1014
(6) The fact that an individual's name is signed on an annual report form is prima facie
1015
evidence for division purposes that the individual is authorized to certify the report on behalf of
1016
the nonprofit corporation.
1017
(7) The annual report form provided by the division may be designed to provide a
1018
simplified certification by the nonprofit corporation if no changes have been made in the
1019
required information from the last preceding report filed.
1020
(8) A domestic or foreign nonprofit corporation may, but may not be required to,
1021
deliver to the division for filing an amendment to its annual report reflecting any change in the
1022
information contained in its annual report as last amended.
1023
Section 19.
Section
16-7-15
is amended to read:
1024
16-7-15. Official representative -- Registered office -- Registered agent.
1025
(1) (a) A corporation sole altering, amending, or restating its articles of incorporation
1026
on or after May 3, 2004 shall continuously maintain with the Division of Corporations and
1027
Commercial Code the name, title, and Utah street address of an official representative for the
1028
corporation sole.
1029
(b) The official representative described in Subsection (1)(a) shall, on behalf of the
1030
corporation sole, receive communication, notices, or demands from:
1031
(i) the Division of Corporations and Commercial Code; or
1032
(ii) any other state or federal authority, agency, or official.
1033
(c) If a corporation sole appoints a registered agent pursuant to Subsection (2), that
1034
registered agent is the official representative of the corporation sole for purposes of this
1035
Subsection (1).
1036
(2) (a) A corporation sole formed under this chapter may maintain a registered office
1037
and registered agent in Utah by[:] complying with Title 16, Chapter 16, Model Registered
1038
Agents Act.
1039
[(i) filing a statement with the Division of Corporations and Commercial Code; and]
1040
[(ii) meeting the requirements imposed on a nonprofit corporation under Subsection
1041
16-6a-501
(2).]
1042
(b) A corporation sole maintaining [a registered office or] registered agent may change
1043
the [registered office or] registered agent by complying with the requirements [imposed on a
1044
nonprofit corporation under Section
16-6a-502
] of Title 16, Chapter 16, Model Registered
1045
Agents Act.
1046
(c) A registered agent of a corporation sole may resign by complying with the
1047
requirements imposed on a registered agent [of a nonprofit corporation] under [Section
1048
16-6a-503
] Title 16, Chapter 16, Model Registered Agents Act.
1049
(d) A registered agent described in this Subsection (2) is the agent of the corporation
1050
sole for service of:
1051
(i) process;
1052
(ii) notice;
1053
(iii) demand; or
1054
(iv) any type required or permitted by law to be served on the corporation sole.
1055
Section 20.
Section
16-10a-103
is amended to read:
1056
16-10a-103. Notice.
1057
(1) (a) Notice given under this chapter must be in writing unless oral notice is
1058
reasonable under the circumstances.
1059
(b) Notice by electronic transmission is written notice.
1060
(2) (a) Subject to compliance with any requirement that notice be in writing, notice may
1061
be communicated in person, by telephone, by any form of electronic transmission, or by mail or
1062
private carrier.
1063
(b) If the forms of personal notice listed in Subsection (2)(a) are impracticable, notice
1064
may be communicated [by]:
1065
(i) by a newspaper of general circulation in the county, or similar subdivision, in which
1066
the corporation's principal [or registered] office is located; [or]
1067
(ii) by radio, television, or other form of public broadcast communication in the county
1068
or subdivision[.]; or
1069
(iii) if the corporation has no office in this state, in the manner allowed by Subsection
1070
(2)(b)(i) or (ii) but in Salt Lake County.
1071
(3) (a) Written notice by a domestic or foreign corporation to its shareholders or
1072
directors, if in a comprehensible form, is effective as to each shareholder or director:
1073
(i) when mailed, if addressed to the shareholder's or director's address shown in the
1074
corporation's current record of the shareholder or director; or
1075
(ii) when electronically transmitted to the shareholder or director, in a manner and to
1076
an address provided by the shareholder or director in an unrevoked consent.
1077
(b) Consent under Subsection (3)(a)(ii) is considered revoked if:
1078
(i) the corporation is unable to deliver by electronic transmission two consecutive
1079
notices transmitted by the corporation based on that consent; and
1080
(ii) the corporation's inability to deliver notice by electronic transmission under
1081
Subsection (3)(b)(i) is known by the:
1082
(A) corporation's secretary;
1083
(B) an assistant secretary or transfer agent of the corporation; or
1084
(C) any other person responsible for providing notice.
1085
(c) Notwithstanding Subsection (3)(b), a corporation's failure to treat consent under
1086
Subsection (3)(a) as revoked does not invalidate any meeting or other act.
1087
(d) Delivery of a notice to shareholders may be excused in accordance with Subsection
1088
16-10a-705
(5).
1089
(4) Written notice to a domestic or foreign corporation authorized to transact business
1090
in this state may be addressed to the corporation's:
1091
(a) registered agent [at its registered office]; or
1092
(b) secretary at its principal office.
1093
(5) Except as provided in Subsection (3), written notice, if in a comprehensible form, is
1094
effective at the earliest of the following:
1095
(a) when received;
1096
(b) five days after it is mailed; or
1097
(c) on the date shown on the return receipt if sent by registered or certified mail, return
1098
receipt requested, and the receipt is signed by or on behalf of the addressee.
1099
(6) Oral notice is effective when communicated if communicated in a comprehensible
1100
manner.
1101
(7) Notice by publication is effective on the date of first publication.
1102
(8) (a) If this chapter prescribes notice requirements for particular circumstances, those
1103
requirements govern.
1104
(b) If articles of incorporation or bylaws prescribe notice requirements, not inconsistent
1105
with this section or other provisions of this chapter, those requirements govern.
1106
Section 21.
Section
16-10a-120
is amended to read:
1107
16-10a-120. Filing requirements.
1108
(1) A document must satisfy the requirements of this section, and of any other section
1109
of this chapter that adds to or varies these requirements, to be entitled to filing by the division.
1110
(2) This chapter must require or permit filing the document with the division.
1111
(3) (a) The document must contain the information required by this chapter.
1112
(b) A document may contain information in addition to that required in Subsection
1113
(3)(a).
1114
(4) The document must be typewritten or machine printed.
1115
(5) (a) The document must be in the English language.
1116
(b) A corporate name need not be in English if written in English letters, Arabic or
1117
Roman numerals.
1118
(c) The certificate of existence required of foreign corporations need not be in English
1119
if accompanied by a reasonably authenticated English translation.
1120
(6) The document must be executed, or must be a true copy made by photographic,
1121
xerographic, electronic, or other process that provides similar copy accuracy of a document that
1122
has been executed:
1123
(a) by the chairman of the board of directors of a domestic or foreign corporation, by
1124
all of its directors, or by one of its officers;
1125
(b) if directors have not been selected or the corporation has not been formed, by an
1126
incorporator;
1127
(c) if the corporation is in the hands of a receiver, trustee, or other court-appointed
1128
fiduciary, by that fiduciary;
1129
(d) if the document is that of a registered agent, by the registered agent, if the person is
1130
an individual, or by a person authorized by the registered agent to execute the document, if the
1131
registered agent is an entity; or
1132
(e) by an attorney in fact if the corporation retains the power of attorney with the
1133
corporation's records.
1134
(7) The document shall state beneath or opposite the signature of the person executing
1135
the document the signer's name and the capacity in which the document is signed.
1136
(8) The document may, but need not, contain:
1137
(a) the corporate seal;
1138
(b) an attestation by the secretary or an assistant secretary; or
1139
(c) an acknowledgment, verification, or proof.
1140
(9) The signature of each person signing the document, whether or not the document
1141
contains an acknowledgment, verification, or proof permitted by Subsection (8), constitutes the
1142
affirmation or acknowledgment of the person, under penalties of perjury, that the document is
1143
the person's act and deed or the act and deed of the entity on behalf of which the document is
1144
executed, and that the facts stated in the document are true.
1145
(10) If the division has prescribed a mandatory form or cover sheet for the document
1146
under Section
16-10a-121
, the document must be in or on the prescribed form or must have the
1147
required cover sheet.
1148
(11) The document must be delivered to the division for filing and must be
1149
accompanied by one exact or conformed copy, except as provided in [Sections
16-10a-503
and]
1150
Section
16-10a-1510
, the correct filing fee, and any franchise tax, license fee, or penalty
1151
required by this chapter or other law.
1152
(12) Except with respect to [filings] a filing pursuant to Section [
16-10a-503
or]
1153
16-10a-1510
, the document must state, or be accompanied by a writing stating, the address to
1154
which the division may send a copy upon completion of the filing.
1155
Section 22.
Section
16-10a-125
is amended to read:
1156
16-10a-125. Filing duty of division.
1157
(1) If a document delivered to the division for filing satisfies the requirements of
1158
Section
16-10a-120
, the division shall file it.
1159
(2) The division files a document by stamping or otherwise endorsing "Filed" together
1160
with the name of the division and the date and time of acceptance for filing on both the
1161
document and the accompanying copy. After filing a document, except as provided in Sections
1162
[
16-10a-503
,]
16-10a-1510
[,] and
16-10a-1608
, the division shall deliver the accompanying
1163
copy, with the receipt for any filing fees, to the domestic or foreign corporation for which the
1164
filing is made, or its representative, at the address indicated on the filing, or at the address the
1165
division determines to be appropriate.
1166
(3) If the division refuses to file a document, it shall return the document to the person
1167
requesting the filing within ten days after the document was delivered to the division, together
1168
with a written notice providing a brief explanation of the reason for the refusal.
1169
(4) The division's duty to file documents under this section is ministerial. Except as
1170
otherwise specifically provided in this chapter, the division's filing or refusal to file a document
1171
does not:
1172
(a) affect the validity or invalidity of the document in whole or part;
1173
(b) relate to the correctness or incorrectness of information contained in the document;
1174
or
1175
(c) create a presumption that the document is valid or invalid or that information
1176
contained in the document is correct or incorrect.
1177
Section 23.
Section
16-10a-202
is amended to read:
1178
16-10a-202. Articles of incorporation.
1179
(1) The articles of incorporation shall set forth:
1180
(a) the purpose or purposes for which the corporation is organized;
1181
(b) a corporate name for the corporation that satisfies the requirements of Section
1182
16-10a-401
;
1183
(c) the number of shares the corporation is authorized to issue;
1184
(d) the information required by Section
16-10a-601
with respect to each class of shares
1185
the corporation is authorized to issue;
1186
(e) the [street address of the corporation's initial registered office and the name and
1187
signature of its initial registered agent at that office, which registered agent shall meet the
1188
requirements of Section
16-10a-501
] the information required by Subsection
16-16-203
(1); and
1189
(f) the name and address of each incorporator.
1190
(2) The articles of incorporation may set forth:
1191
(a) the names and addresses of the individuals who are to serve as the initial directors;
1192
(b) provisions not inconsistent with law regarding:
1193
(i) managing the business and regulating the affairs of the corporation;
1194
(ii) defining, limiting, and regulating the powers of the corporation, its board of
1195
directors, and its shareholders;
1196
(iii) a par value for authorized shares or classes of shares; and
1197
(iv) the imposition of personal liability on shareholders for the debts of the corporation
1198
to a specified extent and upon specified conditions; and
1199
(c) any provision that under this chapter is permitted to be in the articles of
1200
incorporation or required or permitted to be set forth in the bylaws including elective
1201
provisions which, to be effective, must be included in the articles of incorporation, as provided
1202
in this chapter.
1203
(3) It shall be sufficient under Subsection (1)(a) to state, either alone or with other
1204
purposes, that the purpose of the corporation is to engage in any lawful act or activity for which
1205
corporations may be organized under the Utah Revised Business Corporation Act, and by such
1206
statement all lawful acts and activities shall be within the purposes of the corporation, except
1207
for express limitations, if any.
1208
(4) The articles of incorporation need not set forth any of the corporate powers
1209
enumerated in this chapter.
1210
(5) The articles of incorporation shall be signed by each incorporator and meet the
1211
filing requirements of Section
16-10a-120
.
1212
(6) The appointment of the registered agent shall be signed by the registered agent on
1213
the articles of incorporation or on an attached acknowledgement.
1214
(7) If this chapter conditions any matter upon the presence of a provision in the bylaws,
1215
the condition is satisfied if the provision is present either in the articles of incorporation or the
1216
bylaws. If this chapter conditions any matter upon the absence of a provision in the bylaws, the
1217
condition is satisfied only if the provision is absent from both the articles of incorporation and
1218
the bylaws.
1219
Section 24.
Section
16-10a-703
is amended to read:
1220
16-10a-703. Court-ordered meeting.
1221
(1) The district court of the county in this state where a corporation's principal office is
1222
located or, if it has no principal office in this state, [its registered office is located] the district
1223
court for Salt Lake County may summarily order a meeting of shareholders to be held:
1224
(a) on application of any shareholder of the corporation entitled to participate in an
1225
annual meeting or any director of the corporation if an annual meeting was not held within 15
1226
months after its last annual meeting, or if there has been no annual meeting, the date of
1227
incorporation; or
1228
(b) on application of any person who participated in a call of or demand for a special
1229
meeting effective under Subsection
16-10a-702
(1) if:
1230
(i) notice of the special meeting was not given within 60 days after the date of the call
1231
or the date the last of the demands necessary to require the calling of the meeting was delivered
1232
to the corporation pursuant to Subsection
16-10a-702
(1)(b), as the case may be; or
1233
(ii) the special meeting was not held in accordance with the notice.
1234
(2) The court may fix the time and place of the meeting, state whether or not it is an
1235
annual or special meeting, determine the shares entitled to participate in the meeting, specify a
1236
record date for determining shareholders entitled to notice of and to vote at the meeting,
1237
prescribe the form and content of the meeting notice, fix the quorum required for specific
1238
matters to be considered at the meeting, or direct that the votes represented at the meeting
1239
constitute a quorum for action on those matters, and enter other orders necessary or appropriate
1240
to accomplish the purpose or purposes of holding the meeting.
1241
Section 25.
Section
16-10a-720
is amended to read:
1242
16-10a-720. Shareholders' list for meeting.
1243
(1) After fixing a record date for a shareholders' meeting, a corporation shall prepare a
1244
list of the names of all its shareholders who are entitled to be given notice of the meeting. The
1245
list must be arranged by voting group, and within each voting group by class or series of shares.
1246
The list must be alphabetical within each class or series and must show the address of, and the
1247
number of shares held by, each shareholder.
1248
(2) The shareholders' list must be available for inspection by any shareholder,
1249
beginning on the earlier of ten days before the meeting for which the list was prepared or two
1250
business days after notice of the meeting is given and continuing through the meeting and any
1251
meeting adjournments, at the corporation's principal office or at a place identified in the
1252
meeting notice in the city where the meeting will be held. A shareholder or a shareholder's
1253
agent or attorney is entitled on written demand to the corporation and, subject to the
1254
requirements of Subsections
16-10a-1602
(3) and (7), and the provisions of Subsections
1255
16-10a-1603
(2) and (3), to inspect and copy the list, during regular business hours and during
1256
the period it is available for inspection.
1257
(3) The corporation shall make the shareholders' list available at the meeting, and any
1258
shareholder, or any shareholder's agent or attorney is entitled to inspect the list at any time
1259
during the meeting or any adjournment, for any purposes germane to the meeting.
1260
(4) If the corporation refuses to allow a shareholder, or the shareholder's agent or
1261
attorney, to inspect the shareholders' list before or at the meeting, or to copy the list as
1262
permitted by Subsection (2), the district court of the county where a corporation's principal
1263
office is located, or, if it has none in this state, the district court for [the county where its
1264
registered office is located] Salt Lake County, on application of the shareholder, may
1265
summarily order the inspection or copying at the corporation's expense and may postpone the
1266
meeting for which the list was prepared until the inspection or copying is complete.
1267
(5) If a court orders inspection or copying of the shareholders' list pursuant to
1268
Subsection (4), unless the corporation proves that it refused inspection or copying of the list in
1269
good faith because it had a reasonable basis for doubt about the right of the shareholder or the
1270
shareholder's agent or attorney to inspect or copy the shareholders' list:
1271
(a) the court shall also order the corporation to pay the shareholder's costs, including
1272
reasonable counsel fees, incurred to obtain the order;
1273
(b) the court may order the corporation to pay the shareholder for any damages
1274
incurred; and
1275
(c) the court may grant the shareholder any other remedy afforded by law.
1276
(6) If a court orders inspection or copying of the shareholders' list pursuant to
1277
Subsection (4), the court may impose reasonable restrictions on the use or distribution of the
1278
list by the shareholder.
1279
(7) Refusal or failure to prepare or make available the shareholders' list does not affect
1280
the validity of action taken at the meeting.
1281
Section 26.
Section
16-10a-809
is amended to read:
1282
16-10a-809. Removal of directors by judicial proceeding.
1283
(1) The district court of the county in this state where a corporation's principal office is
1284
located or, if it has no principal office in this state, [its registered office is located] the district
1285
court for Salt Lake County may remove a director in a proceeding commenced either by the
1286
corporation or by its shareholders holding at least 10% of the outstanding shares of any class if
1287
the court finds that:
1288
(a) the director engaged in fraudulent or dishonest conduct or gross abuse of authority
1289
or discretion with respect to the corporation; and
1290
(b) removal is in the best interest of the corporation.
1291
(2) The court that removes a director may bar the director from reelection for a period
1292
prescribed by the court.
1293
(3) If shareholders commence a proceeding under Subsection (1), they shall make the
1294
corporation a party defendant.
1295
(4) A director who is removed pursuant to this section may deliver to the division for
1296
filing a statement to that effect pursuant to Section
16-10a-1608
.
1297
Section 27.
Section
16-10a-1002
is amended to read:
1298
16-10a-1002. Amendment by board of directors.
1299
(1) Unless otherwise provided in the articles of incorporation, a corporation's board of
1300
directors may adopt, without shareholder action, one or more amendments to the corporation's
1301
articles of incorporation to:
1302
(a) delete the names and addresses of incorporators or initial directors or both from the
1303
articles of incorporation;
1304
(b) [delete the name and address of the initial registered agent or registered office]
1305
change the information required by Subsection
16-16-203
(1), but an amendment is not required
1306
to change the information;
1307
(c) change each issued and unissued authorized share of a class into a greater number
1308
of whole shares if the corporation has only shares of that class outstanding;
1309
(d) change the corporate name by adding the word "corporation," "incorporated," or
1310
"company," or an abbreviation of these words, or by substituting any such word or abbreviation
1311
for a similar word or abbreviation in the name; or
1312
(e) make any other change expressly permitted by this chapter to be made without
1313
shareholder action.
1314
(2) The board of directors may adopt, without shareholder action, one or more
1315
amendments to the articles of incorporation to change the corporate name, if necessary, in
1316
connection with the reinstatement of a corporation pursuant to Section
16-10a-1422
.
1317
Section 28.
Section
16-10a-1107
is amended to read:
1318
16-10a-1107. Merger or share exchange with foreign corporations.
1319
(1) One or more domestic corporations may merge or enter into a share exchange with
1320
one or more foreign corporations if:
1321
(a) in a merger, the merger is permitted by the law of the state or country under whose
1322
law each foreign corporation is incorporated and each foreign corporation complies with that
1323
law in effecting the merger;
1324
(b) in a share exchange, the corporation whose shares will be acquired is a domestic
1325
corporation, whether or not a share exchange is permitted by the law of the state or country
1326
under whose law the acquiring corporation is incorporated;
1327
(c) the foreign corporation complies with Section
16-10a-1105
if it is the surviving
1328
corporation of the merger or the acquiring corporation of the share exchange, and provides, in
1329
addition to the information required by Section
16-10a-1105
, the address of its principal office;
1330
and
1331
(d) each domestic corporation complies with the applicable provisions of Sections
1332
16-10a-1101
through
16-10a-1104
and, if it is the surviving corporation of the merger with
1333
Section
16-10a-1105
.
1334
(2) Upon the merger or share exchange taking effect, the surviving foreign corporation
1335
of a merger and the acquiring foreign corporation of a share exchange shall either:
1336
[(a) (i) maintain a registered agent in this state to accept service in any proceeding to
1337
enforce any obligation or rights of dissenting shareholders of each domestic corporation party
1338
to the merger or share exchange, or in any proceeding based on a cause of action arising with
1339
respect to any domestic corporation that is merged into the foreign corporation; or]
1340
[(ii) be considered to have authorized service of process on it, in connection with any
1341
such proceeding, by registered or certified mail return receipt requested, to the address of its
1342
principal office as set forth in the articles of merger or share exchange or as last changed by
1343
notice delivered to the division for filing;]
1344
(a) agree that service of process in a proceeding to enforce the rights of shareholders of
1345
each domestic corporation that is a party to the merger who exercise appraisal rights may be
1346
made in the manner provided in Section
16-16-301
;
1347
(b) promptly pay to the dissenting shareholders of each domestic corporation party to
1348
the merger or share exchange the amount, if any, to which they are entitled under Part 13,
1349
Dissenters' Rights; and
1350
(c) comply with Part 15, Authority of Foreign Corporation to Transact Business, if it is
1351
to transact business in this state.
1352
(3) Service effected pursuant to Subsection (2)[(a)(ii)] is perfected at the earliest of:
1353
(a) the date the foreign corporation receives the process, notice, or demand;
1354
(b) the date shown on the return receipt, if signed on behalf of the foreign corporation;
1355
or
1356
(c) five days after mailing.
1357
(4) Subsection (2) does not prescribe the only means, or necessarily the required
1358
means, of serving a surviving foreign corporation of a merger or an acquiring foreign
1359
corporation in a share exchange.
1360
(5) This section does not limit the power of a foreign corporation to acquire all or part
1361
of the shares of one or more classes or series of a domestic corporation through a voluntary
1362
exchange of shares or otherwise.
1363
Section 29.
Section
16-10a-1330
is amended to read:
1364
16-10a-1330. Judicial appraisal of shares -- Court action.
1365
(1) If a demand for payment under Section
16-10a-1328
remains unresolved, the
1366
corporation shall commence a proceeding within 60 days after receiving the payment demand
1367
contemplated by Section
16-10a-1328
, and petition the court to determine the fair value of the
1368
shares and the amount of interest. If the corporation does not commence the proceeding within
1369
the 60-day period, it shall pay each dissenter whose demand remains unresolved the amount
1370
demanded.
1371
(2) The corporation shall commence the proceeding described in Subsection (1) in the
1372
district court of the county in this state where the corporation's principal office, or if it has no
1373
principal office in this state, [the county where its registered office is located] Salt Lake
1374
County. If the corporation is a foreign corporation [without a registered office in this state], it
1375
shall commence the proceeding in the county in this state where the [registered office] principal
1376
office of the domestic corporation merged with, or whose shares were acquired by, the foreign
1377
corporation was located, or, if the domestic corporation did not have its principal office in this
1378
state at the time of the transaction, in Salt Lake County.
1379
(3) The corporation shall make all dissenters who have satisfied the requirements of
1380
Sections
16-10a-1321
,
16-10a-1323
, and
16-10a-1328
, whether or not they are residents of this
1381
state whose demands remain unresolved, parties to the proceeding commenced under
1382
Subsection (2) as an action against their shares. All such dissenters who are named as parties
1383
must be served with a copy of the petition. Service on each dissenter may be by registered or
1384
certified mail to the address stated in his payment demand made pursuant to Section
1385
16-10a-1328
. If no address is stated in the payment demand, service may be made at the
1386
address stated in the payment demand given pursuant to Section
16-10a-1323
. If no address is
1387
stated in the payment demand, service may be made at the address shown on the corporation's
1388
current record of shareholders for the record shareholder holding the dissenter's shares. Service
1389
may also be made otherwise as provided by law.
1390
(4) The jurisdiction of the court in which the proceeding is commenced under
1391
Subsection (2) is plenary and exclusive. The court may appoint one or more persons as
1392
appraisers to receive evidence and recommend decision on the question of fair value. The
1393
appraisers have the powers described in the order appointing them, or in any amendment to it.
1394
The dissenters are entitled to the same discovery rights as parties in other civil proceedings.
1395
(5) Each dissenter made a party to the proceeding commenced under Subsection (2) is
1396
entitled to judgment:
1397
(a) for the amount, if any, by which the court finds that the fair value of his shares, plus
1398
interest, exceeds the amount paid by the corporation pursuant to Section
16-10a-1325
; or
1399
(b) for the fair value, plus interest, of the dissenter's after-acquired shares for which the
1400
corporation elected to withhold payment under Section
16-10a-1327
.
1401
Section 30.
Section
16-10a-1407
is amended to read:
1402
16-10a-1407. Disposition of claims by publication -- Disposition in absence of
1403
publication.
1404
(1) A dissolved corporation may publish notice of its dissolution and request that
1405
persons with claims against the corporation present them in accordance with the notice.
1406
(2) The notice contemplated in Subsection (1) must:
1407
(a) be published one time in a newspaper of general circulation in the county where the
1408
dissolved corporation's principal office is or was located or, if it has no principal office in this
1409
state, [its registered office is or was last located] in Salt Lake County;
1410
(b) describe the information that must be included in a claim and provide an address at
1411
which any claim must be given to the corporation; and
1412
(c) state that unless sooner barred by any other statute limiting actions, the claim will
1413
be barred if an action to enforce the claim is not commenced within five years after the
1414
publication of the notice.
1415
(3) If the dissolved corporation publishes a newspaper notice in accordance with
1416
Subsection (2), then unless sooner barred under Section
16-10a-1406
or under any other statute
1417
limiting actions, the claim of any claimant against the dissolved corporation is barred unless the
1418
claimant commences an action to enforce the claim against the dissolved corporation within
1419
five years after the publication date of the notice.
1420
(4) (a) For purposes of this section, "claim" means any claim, including claims of this
1421
state, whether known, due or to become due, absolute or contingent, liquidated or unliquidated,
1422
founded on contract, tort, or other legal basis, or otherwise.
1423
(b) For purposes of this section, an action to enforce a claim includes any civil action,
1424
and any arbitration under any agreement for binding arbitration between the dissolved
1425
corporation and the claimant.
1426
(5) If a dissolved corporation does not publish a newspaper notice in accordance with
1427
Subsection (2), then unless sooner barred under Section
16-10a-1406
or under any other statute
1428
limiting actions, the claim of any claimant against the dissolved corporation is barred unless the
1429
claimant commences an action to enforce the claim against the dissolved corporation within
1430
seven years after the date the corporation was dissolved.
1431
Section 31.
Section
16-10a-1420
is amended to read:
1432
16-10a-1420. Grounds for administrative dissolution.
1433
The division may commence a proceeding under Section
16-10a-1421
for
1434
administrative dissolution of a corporation if:
1435
(1) the corporation does not pay when they are due any taxes, fees, or penalties
1436
imposed by this chapter or other applicable laws of this state;
1437
(2) the corporation does not deliver a corporate or annual report to the division when it
1438
is due;
1439
(3) the corporation is without a registered agent [or registered office] in this state for 30
1440
days or more;
1441
(4) the corporation does not give notice to the division within 30 days that its registered
1442
agent [or registered office] has been changed[,] or that its registered agent has resigned[, or that
1443
its registered office has been discontinued]; or
1444
(5) the corporation's period of duration stated in its articles of incorporation expires.
1445
Section 32.
Section
16-10a-1431
is amended to read:
1446
16-10a-1431. Procedure for judicial dissolution.
1447
(1) A proceeding by the attorney general or director of the division to dissolve a
1448
corporation shall be brought in either the district court of the county in this state in which the
1449
principal office [or registered office] of the corporation is situated or the district court of Salt
1450
Lake County. A proceeding brought by any other party named in Section
16-10a-1430
shall be
1451
brought in the district court of the county in this state where the corporation's principal office is
1452
located or, if it has no principal office in this state, [its registered office is or was last located]
1453
in the district court of Salt Lake County.
1454
(2) It is not necessary to make shareholders parties to a proceeding to dissolve a
1455
corporation unless relief is sought against them individually.
1456
(3) A court in a proceeding brought to dissolve a corporation may issue injunctions,
1457
appoint a receiver or custodian pendente lite with all powers and duties the court directs, take
1458
other action required to preserve the corporate assets wherever located, and carry on the
1459
business of the corporation until a full hearing can be held.
1460
Section 33.
Section
16-10a-1503
is amended to read:
1461
16-10a-1503. Application for authority to transact business.
1462
(1) A foreign corporation may apply for authority to transact business in this state by
1463
delivering to the division for filing an application for authority to transact business setting
1464
forth:
1465
(a) its corporate name and its assumed name, if any;
1466
(b) the name of the state or country under whose law it is incorporated;
1467
(c) its date of incorporation and period of its corporate duration;
1468
(d) the street address of its principal office;
1469
(e) the [address of its registered office in this state and the name of its registered agent
1470
at that office] information required by Subsection
16-16-203
(1);
1471
(f) the names and usual business addresses of its current directors and officers;
1472
(g) the date it commenced or expects to commence transacting business in this state;
1473
and
1474
(h) any additional information the division may determine is necessary or appropriate
1475
to determine whether the application for authority to transact business should be filed.
1476
(2) The foreign corporation shall deliver with the completed application for authority to
1477
transact business a certificate of existence, or a document of similar import, duly authorized by
1478
the lieutenant governor or other official having custody of corporate records in the state or
1479
country under whose law it is incorporated. The certificate of existence shall be dated within
1480
90 days prior to the filing of the application for authority to transact business by the division.
1481
(3) The foreign corporation shall include in the application for authority to transact
1482
business, or in an accompanying document, the written consent to appointment by the
1483
designated registered agent.
1484
Section 34.
Section
16-10a-1504
is amended to read:
1485
16-10a-1504. Amended application for authority to transact business.
1486
(1) A foreign corporation authorized to transact business in this state shall deliver an
1487
amended application for authority to transact business to the division for filing if the foreign
1488
corporation changes:
1489
(a) its corporate name or its assumed corporate name;
1490
(b) the period of its duration; [or]
1491
(c) the state or country of its incorporation; or
1492
(d) any of the information required by Subsection
16-16-203
(1).
1493
(2) The requirements of Section
16-10a-1503
for obtaining an original application for
1494
authority to transact business apply to filing an amended application for authority to transact
1495
business under this section.
1496
Section 35.
Section
16-10a-1521
is amended to read:
1497
16-10a-1521. Service on withdrawn foreign corporation.
1498
(1) A foreign corporation that has withdrawn from this state pursuant to Section
1499
16-10a-1520
shall either:
1500
(a) maintain a registered agent in this state to accept service on its behalf in any
1501
proceeding based on a cause of action arising during the time it was authorized to transact
1502
business in this state, in which case the continued authority of the registered agent shall be
1503
specified in the application for withdrawal [and any change shall be governed by the procedure
1504
set forth in Section
16-10a-1509
which applies to foreign corporations authorized to transact
1505
business in this state]; or
1506
(b) be considered to have authorized service of process on it in connection with any
1507
cause of action by registered or certified mail, return receipt requested, to:
1508
(i) the address of its principal office, if any, set forth in its application for withdrawal
1509
or as last changed by notice delivered to the division for filing; or
1510
(ii) the address for service of process that is stated in its application for withdrawal or
1511
as last changed by notice delivered to the division for filing.
1512
(2) Service effected pursuant to Subsection (1)(b) is perfected at the earliest of:
1513
(a) the date the withdrawn foreign corporation receives the process, notice, or demand;
1514
(b) the date shown on the return receipt, if signed on behalf of the withdrawn foreign
1515
corporation; or
1516
(c) five days after mailing.
1517
(3) Subsection (1) does not prescribe the only means, or necessarily the required
1518
means, of serving a withdrawn foreign corporation.
1519
Section 36.
Section
16-10a-1530
is amended to read:
1520
16-10a-1530. Grounds for revocation.
1521
The division may commence a proceeding under Section
16-10a-1531
to revoke the
1522
authority of a foreign corporation to transact business in this state if:
1523
(1) the foreign corporation does not deliver its annual report to the division when it is
1524
due;
1525
(2) the foreign corporation does not pay when they are due any taxes, fees, or penalties
1526
imposed by this chapter or other applicable laws of this state;
1527
(3) the foreign corporation is without a registered agent [or registered office] in this
1528
state for 30 days or more;
1529
(4) the foreign corporation does not inform the division [under Section
16-10a-1509
or
1530
16-10a-1510
] by an appropriate filing within 30 days of the change or resignation that its
1531
registered agent [or registered office] has changed[,] or that its registered agent has resigned[,
1532
or that its registered office has been discontinued];
1533
(5) an incorporator, director, officer, or agent of the foreign corporation signs a
1534
document knowing it is false in any material respect with intent that the document be delivered
1535
to the division for filing; or
1536
(6) the division receives a duly authenticated certificate from the lieutenant governor or
1537
other official having custody of corporate records in the state or country under whose law the
1538
foreign corporation is incorporated stating that the corporation has dissolved or disappeared as
1539
the result of a merger.
1540
Section 37.
Section
16-10a-1604
is amended to read:
1541
16-10a-1604. Court-ordered inspection.
1542
(1) If a corporation does not allow a shareholder or director, or the shareholder's or
1543