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S.B. 110
1
FOREIGN BUSINESS ENTITIES AND
2
TRIBAL LAW
3
2008 GENERAL SESSION
4
STATE OF UTAH
5
Chief Sponsor: Kevin T. VanTassell
6
House Sponsor:
DeMar Bud Bowman
7
8
LONG TITLE
9
General Description:
10
This bill modifies provisions related to corporations, partnerships, and other business
11
entities to address entities created by tribal law.
12
Highlighted Provisions:
13
This bill:
14
. defines "tribe" for purposes of certain business entity provisions;
15
. modifies provisions related to nonprofit and for profit corporations, partnerships,
16
and limited liability companies to provide for an entity created by tribal law to be
17
treated as a foreign business entity authorized to transact business in the state;
18
. omits an inadvertent reference to a country of creation for a limited liability
19
partnership; and
20
. makes technical and conforming amendments.
21
Monies Appropriated in this Bill:
22
None
23
Other Special Clauses:
24
None
25
Utah Code Sections Affected:
26
AMENDS:
27
16-4-102, as enacted by Laws of Utah 2007, Chapter 367
28
16-6a-102, as last amended by Laws of Utah 2007, Chapter 315
29
16-6a-1101, as last amended by Laws of Utah 2006, Chapter 228
30
16-6a-1105, as last amended by Laws of Utah 2002, Chapter 197
31
16-6a-1503, as enacted by Laws of Utah 2000, Chapter 300
32
16-6a-1504, as enacted by Laws of Utah 2000, Chapter 300
33
16-6a-1507, as last amended by Laws of Utah 2002, Chapter 197
34
16-6a-1512, as enacted by Laws of Utah 2000, Chapter 300
35
16-6a-1513, as enacted by Laws of Utah 2000, Chapter 300
36
16-6a-1515, as enacted by Laws of Utah 2000, Chapter 300
37
16-6a-1607, as last amended by Laws of Utah 2001, Chapter 127
38
16-10a-102, as last amended by Laws of Utah 2007, Chapter 21
39
16-10a-1107, as enacted by Laws of Utah 1992, Chapter 277
40
16-10a-1503, as last amended by Laws of Utah 2005, Chapter 71
41
16-10a-1504, as enacted by Laws of Utah 1992, Chapter 277
42
16-10a-1507, as enacted by Laws of Utah 1992, Chapter 277
43
16-10a-1520, as enacted by Laws of Utah 1992, Chapter 277
44
16-10a-1530, as last amended by Laws of Utah 2005, Chapter 71
45
16-10a-1607, as enacted by Laws of Utah 1992, Chapter 277
46
48-1-1, as last amended by Laws of Utah 1994, Chapter 61
47
48-1-44, as last amended by Laws of Utah 1996, Chapter 41
48
48-2a-101, as last amended by Laws of Utah 2001, Chapter 260
49
48-2a-210, as last amended by Laws of Utah 2000, Chapter 131
50
48-2a-902, as last amended by Laws of Utah 1991, Chapters 5 and 189
51
48-2a-904, as enacted by Laws of Utah 1990, Chapter 233
52
48-2c-102, as last amended by Laws of Utah 2006, Chapter 21
53
48-2c-203, as last amended by Laws of Utah 2005, Chapter 141
54
48-2c-411, as enacted by Laws of Utah 2001, Chapter 260
55
48-2c-1604, as last amended by Laws of Utah 2005, Chapter 71
56
48-2c-1605, as enacted by Laws of Utah 2001, Chapter 260
57
48-2c-1608, as enacted by Laws of Utah 2001, Chapter 260
58
48-2c-1610, as enacted by Laws of Utah 2001, Chapter 260
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48-2c-1611, as enacted by Laws of Utah 2001, Chapter 260
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48-2c-1612, as last amended by Laws of Utah 2005, Chapter 71
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
16-4-102
is amended to read:
64
16-4-102. Definitions.
65
As used in this chapter:
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(1) "Corporation" means a nonprofit corporation or a profit corporation.
67
(2) "Nonprofit corporation" means a nonprofit corporation as defined in Section
68
16-6a-102
.
69
(3) "Profit corporation" means a corporation as defined in Section
16-10a-102
.
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(4) ["Shares"] "Share" means [shares] a share as defined in:
71
(a) Section
16-6a-102
for a nonprofit corporation; and
72
(b) Section
16-10a-102
for a profit corporation.
73
(5) "Water company" means a corporation in which a shareholder has the right, based
74
on the shareholders shares, to receive a proportionate share of water delivered by the
75
corporation.
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Section 2.
Section
16-6a-102
is amended to read:
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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
80
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
84
(iii) a street name and number.
85
(2) "Affiliate" means a person that directly or indirectly through one or more
86
intermediaries controls, or is controlled by, or is under common control with, the person
87
specified.
88
(3) "Articles of incorporation" include:
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(a) amended articles of incorporation;
90
(b) restated articles of incorporation;
91
(c) articles of merger; and
92
(d) a document of a similar import to the documents described in Subsections (3)(a)
93
through (c).
94
(4) "Assumed corporate name" means [the] a name assumed for use in this state:
95
(a) by a:
96
(i) foreign corporation pursuant to Section
16-10a-1506
; or
97
(ii) a foreign nonprofit corporation pursuant to Section
16-6a-1506
; and
98
(b) because the corporate name of the foreign corporation described in Subsection
99
(4)(a) is not available for use in this state.
100
(5) (a) Except as provided in Subsection (5)(b), "board of directors" means the body
101
authorized to manage the affairs of [the] a domestic or foreign nonprofit corporation.
102
(b) Notwithstanding Subsection (5)(a), a person may not be considered a member of
103
the board of directors because of [powers] a power delegated to that person pursuant to
104
Subsection
16-6a-801
(2).
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(6) (a) "Bylaws" means the one or more codes of rules, other than the articles of
106
incorporation, adopted pursuant to this chapter for the regulation or management of the affairs
107
of [the] a domestic or foreign nonprofit corporation irrespective of the [name or] one or more
108
names by which the codes of rules are designated.
109
(b) "Bylaws" includes:
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(i) amended bylaws; and
111
(ii) restated bylaws.
112
(7) (a) "Cash" or "money" means:
113
(i) legal tender;
114
(ii) a negotiable instrument; or
115
(iii) other cash equivalent readily convertible into legal tender.
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(b) "Cash" and "money" are used interchangeably in this chapter.
117
(8) (a) "Class" [refers to] means a group of memberships that [have] has the same
118
[rights] right with respect to voting, dissolution, redemption, transfer, or other characteristics.
119
(b) For purposes of Subsection (8)(a), [rights are] a right is considered the same if [they
120
are] it is determined by a formula applied uniformly to a group of memberships.
121
(9) (a) "Conspicuous" means so written that a reasonable person against whom the
122
writing is to operate should have noticed the writing.
123
(b) "Conspicuous" includes printing or typing in:
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(i) italics;
125
(ii) boldface;
126
(iii) contrasting color;
127
(iv) capitals; or
128
(v) underlining.
129
(10) "Control" or a "controlling interest" means the direct or indirect possession of the
130
power to direct or cause the direction of the management and policies of an entity by:
131
(a) the ownership of voting shares;
132
(b) contract; or
133
(c) a means other than those specified in Subsection (10)(a) or (b).
134
(11) Subject to Section
16-6a-207
, "cooperative nonprofit corporation" or "cooperative"
135
means a nonprofit corporation organized or existing under this chapter.
136
(12) "Corporate name" means:
137
(a) the name of a domestic corporation as stated in the domestic corporation's articles
138
of incorporation;
139
(b) the name of a domestic nonprofit corporation as stated in the domestic nonprofit
140
corporation's articles of incorporation;
141
(c) the name of a foreign corporation as stated in the foreign corporation's:
142
(i) articles of incorporation; or
143
(ii) document of similar import to articles of incorporation; or
144
(d) the name of a foreign nonprofit corporation as stated in the foreign nonprofit
145
corporation's:
146
(i) articles of incorporation; or
147
(ii) document of similar import to articles of incorporation.
148
(13) "Corporation" or "domestic corporation" means a corporation for profit[, which]
149
that:
150
(a) is not a foreign corporation[,]; and
151
(b) is incorporated under or subject to Chapter 10a, Utah Revised Business Corporation
152
Act.
153
(14) "Delegate" means [any] a person elected or appointed to vote in a representative
154
assembly:
155
(a) for the election of a director; or
156
(b) on matters other than the election of a director.
157
(15) "Deliver" includes delivery by mail [and any other] or another means of
158
transmission authorized by Section
16-6a-103
, except that delivery to the division means actual
159
receipt by the division.
160
(16) "Director" means a member of the board of directors.
161
(17) (a) "Distribution" means the payment of a dividend or any part of the income or
162
profit of a nonprofit corporation to the nonprofit corporation's:
163
(i) members;
164
(ii) directors; or
165
(iii) officers.
166
(b) "Distribution" does not include a fair-value [payments] payment for:
167
(i) [goods] a good sold; or
168
(ii) [services] a service received.
169
(18) "Division" means the Division of Corporations and Commercial Code.
170
(19) "Effective date," when referring to a document filed by the division, means the
171
time and date determined in accordance with Section
16-6a-108
.
172
(20) "Effective date of notice" means the date notice is effective as provided in Section
173
16-6a-103
.
174
(21) (a) "Employee" includes an officer of a nonprofit corporation.
175
(b) (i) Except as provided in Subsection (21)(b)(ii), "employee" does not include a
176
director of a nonprofit corporation.
177
(ii) Notwithstanding Subsection (21)(b)(i), a director may accept one or more duties
178
that make that director an employee of a nonprofit corporation.
179
(22) "Executive director" means the executive director of the Department of
180
Commerce.
181
(23) "Entity" includes:
182
(a) a domestic or foreign corporation;
183
(b) a domestic or foreign nonprofit corporation;
184
(c) a limited liability company;
185
(d) a profit or nonprofit unincorporated association;
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(e) a business trust;
187
(f) an estate;
188
(g) a partnership;
189
(h) a trust;
190
(i) two or more persons having a joint or common economic interest;
191
(j) a state;
192
(k) the United States; or
193
(l) a foreign government.
194
(24) "Foreign corporation" means a corporation for profit incorporated under a law
195
other than the laws of this state.
196
(25) "Foreign nonprofit corporation" means an entity:
197
(a) incorporated under a law other than the laws of this state; and
198
(b) that would be a nonprofit corporation if formed under the laws of this state.
199
(26) "Governmental subdivision" means:
200
(a) a county;
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(b) a city;
202
(c) a town; or
203
(d) [any other] another type of governmental subdivision authorized by the laws of this
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state.
205
(27) "Individual" means:
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(a) a natural person;
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(b) the estate of an incompetent individual; or
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(c) the estate of a deceased individual.
209
(28) "Internal Revenue Code" means the federal "Internal Revenue Code of 1986," as
210
amended from time to time, or to corresponding provisions of subsequent internal revenue laws
211
of the United States of America.
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(29) (a) "Mail," "mailed," or "mailing" means deposit, deposited, or depositing in the
213
United States mail, properly addressed, first-class postage prepaid.
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(b) "Mail," "mailed," or "mailing" includes registered or certified mail for which the
215
proper fee [has been] is paid.
216
(30) (a) "Member" means one or more persons identified or otherwise appointed as a
217
member of a domestic or foreign nonprofit corporation as provided:
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(i) in the articles of incorporation;
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(ii) in the bylaws;
220
(iii) by a resolution of the board of directors; or
221
(iv) by a resolution of the members of the nonprofit corporation.
222
(b) "Member" includes "voting member."
223
(31) "Membership" refers to the rights and obligations of a member or members.
224
(32) "Mutual benefit corporation" means a nonprofit corporation:
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(a) that issues shares of stock to its members evidencing a right to receive distribution
226
of water or otherwise representing property rights; or
227
(b) all of whose assets are contributed or acquired by or for the members of the
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nonprofit corporation or their predecessors in interest to serve the mutual purposes of the
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members.
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(33) "Nonprofit corporation" or "domestic nonprofit corporation" means an entity[,
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which] that:
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(a) is not a foreign nonprofit corporation[,]; and
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(b) is incorporated under or subject to [the provisions of] this chapter.
234
(34) "Notice" is as provided in Section
16-6a-103
.
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(35) "Party related to a director" means:
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(a) the spouse of the director;
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(b) a child of the director;
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(c) a grandchild of the director;
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(d) a sibling of the director;
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(e) a parent of the director;
241
(f) the spouse of an individual described in Subsections (35)(b) through (e);
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(g) an individual having the same home as the director;
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(h) a trust or estate of which the director or [any other] another individual specified in
244
this Subsection (35) is a substantial beneficiary; or
245
(i) any of the following of which the director is a fiduciary:
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(i) a trust;
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(ii) an estate;
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(iii) an incompetent;
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(iv) a conservatee; or
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(v) a minor.
251
(36) "Person" means an:
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(a) individual; or
253
(b) entity.
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(37) "Principal office" means:
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(a) the office, in or out of this state, designated by a domestic or foreign nonprofit
256
corporation as its principal office in the most recent document on file with the division
257
providing that information, including:
258
(i) an annual report;
259
(ii) an application for a certificate of authority; or
260
(iii) a notice of change of principal office; or
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(b) if no principal office can be determined, a domestic or foreign nonprofit
262
corporation's registered office.
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(38) "Proceeding" includes:
264
(a) a civil suit;
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(b) arbitration;
266
(c) mediation;
267
(d) a criminal action;
268
(e) an administrative action; or
269
(f) an investigatory action.
270
(39) "Receive," when used in reference to receipt of a writing or other document by a
271
domestic or foreign nonprofit corporation, means the writing or other document is actually
272
received:
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(a) by the domestic or foreign nonprofit corporation at:
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(i) its registered office in this state; or
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(ii) its principal office;
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(b) by the secretary of the domestic or foreign nonprofit corporation, wherever the
277
secretary is found; or
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(c) by [any other] another person authorized by the bylaws or the board of directors to
279
receive the writing or other document, wherever that person is found.
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(40) (a) "Record date" means the date established under Part 6, Members, or Part 7,
281
Member Meetings and Voting, on which a nonprofit corporation determines the identity of the
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nonprofit corporation's members.
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(b) The determination described in Subsection (40)(a) shall be made as of the close of
284
business on the record date unless another time for doing so is specified when the record date is
285
fixed.
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(41) "Registered agent" means the registered agent of:
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(a) a domestic nonprofit corporation required to be maintained pursuant to Subsection
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16-6a-501
(1)(b); or
289
(b) a foreign nonprofit corporation required to be maintained pursuant to Subsection
290
16-6a-1508
(1)(b).
291
(42) "Registered office" means the office within this state designated by a domestic or
292
foreign nonprofit corporation as its registered office in the most recent document on file with
293
the division providing that information, including:
294
(a) articles of incorporation;
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(b) an application for a certificate of authority; or
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(c) a notice of change of registered office.
297
(43) "Secretary" means the corporate officer to whom the bylaws or the board of
298
directors [has delegated] delegates responsibility under Subsection
16-6a-818
(3) for:
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(a) the preparation and maintenance of:
300
(i) minutes of the meetings of:
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(A) the board of directors; or
302
(B) the members; and
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(ii) the other records and information required to be kept by the nonprofit corporation
304
pursuant to Section
16-6a-1601
; and
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(b) authenticating records of the nonprofit corporation.
306
(44) "Shareholder" means [the] a person in whose name a share is registered in the
307
records of a nonprofit corporation.
308
(45) "Share" means a unit of interest in a nonprofit corporation.
309
(46) "State," when referring to a part of the United States, includes:
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(a) a state;
311
(b) a commonwealth;
312
(c) the District of Columbia;
313
(d) an agency or governmental and political subdivision of a state, commonwealth, or
314
District of Columbia;
315
(e) territory or insular possession of the United States; or
316
(f) an agency or governmental and political subdivision of a territory or insular
317
possession of the United States.
318
(47) "Street address" means:
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(a) (i) street name and number;
320
(ii) city or town; and
321
(iii) United States post office zip code designation; or
322
(b) if, by reason of rural location or otherwise, a street name, number, city, or town
323
does not exist, an appropriate description other than that described in Subsection (47)(a) fixing
324
as nearly as possible the actual physical location, but only if the information includes:
325
(i) the rural free delivery route;
326
(ii) the county; and
327
(iii) the United States post office zip code designation.
328
(48) "Tribe" means a tribe, band, nation, pueblo, or other organized group or
329
community of Indians, including an Alaska Native village, that is legally recognized as eligible
330
for and is consistent with a special program, service, or entitlement provided by the United
331
States to Indians because of their status as Indians.
332
[(48)] (49) "United States" includes [any] a district, authority, office, bureau,
333
commission, department, and [any other] another agency of the United States of America.
334
[(49)] (50) "Vote" includes authorization by:
335
(a) written ballot; and
336
(b) written consent.
337
[(50)] (51) (a) "Voting group" means all the members of one or more classes of
338
members or directors that, under this chapter, the articles of incorporation, or the bylaws, are
339
entitled to vote and be counted together collectively on a matter.
340
(b) All members or directors entitled by this chapter, the articles of incorporation, or
341
the bylaws to vote generally on a matter are for that purpose a single voting group.
342
[(51)] (52) (a) "Voting member" means a person entitled to vote for all matters
343
required or permitted under this chapter to be submitted to a vote of the members, except as
344
otherwise provided in the articles of incorporation or bylaws.
345
(b) A person is not a voting member solely because of:
346
(i) a right the person has as a delegate;
347
(ii) a right the person has to designate a director; or
348
(iii) a right the person has as a director.
349
(c) Except as the bylaws may otherwise provide, "voting member" includes a
350
"shareholder" if the nonprofit corporation has shareholders.
351
Section 3.
Section
16-6a-1101
is amended to read:
352
16-6a-1101. Merger.
353
(1) One or more domestic corporations, foreign corporations, domestic nonprofit
354
corporations, or foreign nonprofit corporations may merge into a nonprofit corporation if:
355
(a) [if] the board of directors of each domestic corporation, foreign corporation,
356
domestic nonprofit corporation, or foreign nonprofit corporation party to the merger adopts a
357
plan of merger;
358
(b) [if] the members of each domestic nonprofit corporation entitled to vote on the plan
359
of merger, approve the plan of merger if required by Section
16-6a-1102
;
360
(c) [if] the shareholders of each domestic corporation entitled to vote on the plan of
361
merger, approve the plan of merger, if required by Section
16-10a-1103
;
362
(d) [if] the merger is permitted by and consistent with the laws of the state, tribe, or
363
country under whose law [each] a foreign corporation or foreign nonprofit corporation party to
364
the merger is incorporated;
365
(e) [if] the shareholders of each [such] foreign corporation party approve the plan of
366
merger and as required by applicable law of the states, tribes, or countries under whose law
367
each foreign corporation party to the merger is incorporated; and
368
(f) [if] the members of each [such] foreign nonprofit corporation party approve the plan
369
of merger and as required by applicable law of the states, tribes, or countries under whose law
370
each foreign nonprofit corporation party to the merger is incorporated.
371
(2) The plan of merger required by Subsection (1) shall set forth:
372
(a) the name of each party to the merger planning to merge;
373
(b) the name of the surviving domestic nonprofit corporation into which each party to
374
the merger plans to merge;
375
(c) the terms and conditions of the merger;
376
(d) the manner and basis of converting in whole or part the shares or memberships if
377
any, of each party to the merger into shares, memberships, obligations, or other interests of:
378
(i) the surviving domestic nonprofit corporation;
379
(ii) [any other] another entity; or
380
(iii) into money or other property; and
381
(e) any amendments to the articles of incorporation of the surviving domestic nonprofit
382
corporation to be effected by the merger.
383
(3) In addition to the provisions required by Subsection (2), the plan of merger may set
384
forth other provisions relating to the merger.
385
(4) One or more domestic corporations may merge into a domestic nonprofit
386
corporation if:
387
(a) the board of directors of each participating domestic corporation adopts the plan of
388
merger;
389
(b) the shareholders of each participating domestic corporation adopt the plan of
390
merger in accordance with Section
16-10a-1103
; and
391
(c) the merger is effected in compliance with Chapter 6a, Part 11, Merger.
392
Section 4.
Section
16-6a-1105
is amended to read:
393
16-6a-1105. Merger with foreign nonprofit corporation.
394
(1) One or more domestic nonprofit corporations may merge with one or more foreign
395
nonprofit corporations if:
396
(a) the merger is permitted by the law of the state, tribe, or country under whose law
397
each foreign nonprofit corporation is incorporated;
398
(b) each foreign nonprofit corporation complies with the provisions of the law
399
described in Subsection (1)(a) in effecting the merger;
400
(c) [if] the foreign nonprofit corporation is the surviving nonprofit corporation of the
401
merger, the foreign nonprofit corporation:
402
(i) complies with Section
16-6a-1103
; and
403
(ii) in addition to the information required by Section
16-6a-1103
, provides the address
404
of its principal office; and
405
(d) each domestic nonprofit corporation complies with:
406
(i) the applicable provisions of Sections
16-6a-1101
and
16-6a-1102
; and
407
(ii) Section 16-6a-1103, if it is the surviving nonprofit corporation of the merger[, with
408
Section
16-6a-1103
].
409
(2) Upon the merger taking effect, a surviving foreign nonprofit corporation of a
410
merger shall:
411
(a) (i) maintain a registered agent to accept service in [any] a proceeding based on a
412
cause of action arising with respect to [any] a domestic nonprofit corporation that is merged
413
into the foreign nonprofit corporation; or
414
(ii) be considered to have authorized service of process on it in connection with [any] a
415
proceeding described in Subsection (2)(a)(i) by registered or certified mail, return receipt
416
requested, to the address of its principal office as:
417
(A) set forth in the articles of merger; or
418
(B) as last changed in a notice delivered to the division; and
419
(b) [shall] comply with this chapter if it is to conduct affairs in this state.
420
(3) Service effected pursuant to Subsection (2)(a)(ii) is perfected at the earliest of:
421
(a) the date the foreign nonprofit corporation receives the process, notice, or demand;
422
(b) the date shown on the return receipt, if signed on behalf of the foreign nonprofit
423
corporation; or
424
(c) five days after mailing.
425
(4) Subsection (2) does not prescribe the only means, or necessarily the required
426
means, of serving a surviving foreign nonprofit corporation of a merger.
427
Section 5.
Section
16-6a-1503
is amended to read:
428
16-6a-1503. Application for authority to conduct affairs.
429
(1) A foreign nonprofit corporation may apply for authority to conduct affairs in this
430
state by delivering to the division for filing an application for authority to conduct affairs
431
setting forth:
432
(a) its corporate name and its assumed corporate name, if any;
433
(b) the name of the state, tribe, or country under whose law it is incorporated;
434
(c) its date of incorporation;
435
(d) its period of duration;
436
(e) the street address of its principal office;
437
(f) the address of its registered office;
438
(g) the name of its registered agent at the office listed in Subsection (1)(f);
439
(h) the names and usual business addresses of its current directors and officers;
440
(i) the date it commenced or expects to commence conducting affairs in this state; and
441
(j) [such] the additional information [as] the division determines is necessary or
442
appropriate to determine whether the application for authority to conduct affairs should be
443
filed.
444
(2) With the completed application required by Subsection (1) the foreign nonprofit
445
corporation shall deliver to the division for a certificate of existence, or a document of similar
446
import that is:
447
(a) authenticated by the division or other official having custody of corporate records in
448
the state, tribe, or country under whose law it is incorporated; and
449
(b) dated within 90 days before the [filing of] day on which the application for
450
authority to conduct affairs is filed.
451
(3) The foreign nonprofit corporation shall include in the application for authority to
452
conduct affairs, or in an accompanying document, written consent to appointment by its
453
designated registered agent.
454
Section 6.
Section
16-6a-1504
is amended to read:
455
16-6a-1504. Amended application for authority to conduct affairs.
456
(1) A foreign nonprofit corporation authorized to conduct affairs in this state shall
457
deliver an amended application for authority to conduct affairs to the division for filing if the
458
foreign nonprofit corporation changes:
459
(a) its corporate name;
460
(b) its assumed corporate name;
461
(c) the period of its duration; or
462
(d) the state, tribe, or country of its incorporation.
463
(2) The requirements of Section
16-6a-1503
for filing an original application for
464
authority to conduct affairs apply to filing an amended application for authority to conduct
465
affairs under this section.
466
Section 7.
Section
16-6a-1507
is amended to read:
467
16-6a-1507. Registered name of foreign nonprofit corporation.
468
(1) (a) A foreign nonprofit corporation may register its corporate name as provided in
469
this section if the name would be available for use as a corporate name for a domestic nonprofit
470
corporation under Section
16-6a-401
.
471
(b) If the foreign nonprofit corporation's corporate name would not be available for use
472
as a corporate name for a domestic nonprofit corporation, the foreign nonprofit corporation
473
may register its corporate name modified by the addition of any of the following words or
474
abbreviations, if the modified name would be available for use under Section
16-6a-401
:
475
(i) "corporation";
476
(ii) "incorporated";
477
(iii) "company";
478
(iv) "corp.";
479
(v) "inc."; or
480
(vi) "co."
481
(2) A foreign nonprofit corporation registers its corporate name, or its corporate name
482
with any addition permitted by Subsection (1), by delivering to the division for filing an
483
application for registration:
484
(a) setting forth:
485
(i) its corporate name;
486
(ii) the name to be registered that [shall meet] meets the requirements of Section
487
16-6a-401
that apply to domestic nonprofit corporations;
488
(iii) the state, tribe, or country and date of incorporation; and
489
(iv) a brief description of the nature of the business in which it is engaged; and
490
(b) accompanied by a certificate of existence, or a document of similar import from the
491
state, tribe, or country of incorporation as evidence that the foreign nonprofit corporation is in
492
existence or has authority to conduct affairs under the laws of the state, tribe, or country in
493
which it is organized.
494
(3) (a) A name is registered for the applicant upon the effective date of the application.
495
(b) An initial registration is effective for one year.
496
(4) (a) A foreign nonprofit corporation that has in effect a registration of its corporate
497
name as permitted by Subsection (1) may renew the registration by delivering to the division
498
for filing a renewal application for registration, that complies with the requirements of
499
Subsection (2).
500
(b) When filed, the renewal application for registration renews the registration for the
501
year following filing.
502
(5) (a) A foreign nonprofit corporation that has in effect registration of its corporate
503
name may:
504
(i) apply for authority to conduct affairs in this state under the registered name in
505
accordance with the procedure set forth in this part; or
506
(ii) assign the registration to another foreign nonprofit corporation by delivering to the
507
division for filing an assignment of the registration that states:
508
(A) the registered name;
509
(B) the name of the assigning foreign nonprofit corporation;
510
(C) the name of the assignee; and
511
(D) the assignee's application for registration of the name.
512
(b) The assignee's application for registration of the name required by Subsection (5)(a)
513
shall meet the requirements of this part.
514
(6) (a) A foreign nonprofit corporation that has in effect registration of its corporate
515
name may terminate the registration at any time by delivering to the division for filing a
516
statement of termination:
517
(i) setting forth the corporate name; and
518
(ii) stating that the registration is terminated.
519
(b) A registration automatically terminates upon the filing of an application for
520
authority to conduct affairs in this state under the registered name.
521
(7) The registration of a corporate name under Subsection (1) constitutes authority by
522
the division to file an application meeting the requirements of this part for authority to conduct
523
affairs in this state under the registered name, but the authorization is subject to the limitations
524
applicable to corporate names as set forth in Section
16-6a-403
.
525
Section 8.
Section
16-6a-1512
is amended to read:
526
16-6a-1512. Merger of foreign nonprofit corporations authorized to conduct
527
affairs in this state.
528
(1) If two or more foreign nonprofit corporations authorized to conduct affairs in this
529
state are a party to a statutory merger permitted by the laws of the state, tribe, or country under
530
the laws of which they are incorporated within 30 days after the merger becomes effective, the
531
surviving nonprofit corporation shall file with the division a certificate of fact of merger
532
certified by the proper officer of the state, tribe, or country under the laws of which the
533
statutory merger was effected.
534
(2) [It is not necessary for a] A foreign nonprofit corporation authorized to conduct
535
affairs in this state that is a party to a statutory merger described in Subsection (1) is not
536
required to procure a new or amended certificate of authority to conduct affairs in this state
537
unless the name of the surviving nonprofit corporation is changed by the statutory merger.
538
Section 9.
Section
16-6a-1513
is amended to read:
539
16-6a-1513. Withdrawal of foreign nonprofit corporation.
540
(1) A foreign nonprofit corporation authorized to conduct affairs in this state may not
541
withdraw from this state until its application for withdrawal [has been] is filed by the division.
542
(2) A foreign nonprofit corporation authorized to conduct affairs in this state may apply
543
for withdrawal by delivering to the division for filing an application for withdrawal setting
544
forth:
545
(a) its corporate name and its assumed name, if any;
546
(b) the name of the state, tribe, or country under whose law it is incorporated;
547
(c) (i) (A) the address of its principal office; or
548
(B) if a principal office is not to be maintained, a statement that the foreign nonprofit
549
corporation will not maintain a principal office; and
550
(ii) if different from the address of the principal office or if no principal office is to be
551
maintained, the address to which service of process may be mailed pursuant to Section
552
16-6a-1514
;
553
(d) that the foreign nonprofit corporation is not conducting affairs in this state;
554
(e) that it surrenders its authority to conduct affairs in this state;
555
(f) whether its registered agent will continue to be authorized to accept service on its
556
behalf in [any] a proceeding based on a cause of action arising during the time it was
557
authorized to conduct affairs in this state; and
558
(g) any additional information that the division determines is necessary or appropriate
559
to:
560
(i) determine whether the foreign nonprofit corporation is entitled to withdraw; and
561
(ii) determine and assess any unpaid taxes, fees, and penalties payable by the foreign
562
nonprofit corporation as prescribed by this chapter.
563
(3) A foreign nonprofit corporation's application for withdrawal may not be filed by the
564
division until:
565
(a) all outstanding fees and state tax obligations [have been] are paid; and
566
(b) the division [has received] receives a certificate from the State Tax Commission
567
reciting that all taxes owed by the foreign nonprofit corporation [have been] are paid.
568
Section 10.
Section
16-6a-1515
is amended to read:
569
16-6a-1515. Grounds for revocation.
570
The division may commence a proceeding under Section
16-6a-1516
to revoke the
571
authority of a foreign nonprofit corporation to conduct affairs in this state if:
572
(1) the foreign nonprofit corporation does not deliver its annual report to the division
573
when it is due;
574
(2) the foreign nonprofit corporation does not pay when [they are] it is due [any taxes,
575
fees, or penalties] a tax, fee, or penalty imposed by this chapter or other applicable laws of this
576
state;
577
(3) the foreign nonprofit corporation is without a registered agent or registered office in
578
this state;
579
(4) the foreign nonprofit corporation does not inform the division under Section
580
16-6a-1509
or
16-6a-1510
that:
581
(a) its registered agent or registered office [has] changed;
582
(b) its registered agent [has] resigned; or
583
(c) its registered office [has been] is discontinued;
584
(5) an incorporator, director, officer, or agent of the foreign nonprofit corporation signs
585
a document knowing it is false in any material respect with intent that the document be
586
delivered to the division for filing; or
587
(6) the division receives a duly authenticated certificate from the division or other
588
official having custody of corporate records in the state, tribe, or country under whose law the
589
foreign nonprofit corporation is incorporated stating that the foreign nonprofit corporation
590
[has] is dissolved or disappeared as the result of a merger.
591
Section 11.
Section
16-6a-1607
is amended to read:
592
16-6a-1607. Annual report for division.
593
(1) [Each] A domestic nonprofit corporation, and [each] a foreign nonprofit
594
corporation authorized to conduct affairs in this state, shall deliver to the division for filing an
595
annual report on a form provided by the division that sets forth:
596
(a) (i) the corporate name of the domestic or foreign nonprofit corporation; and
597
(ii) any assumed corporate name of the foreign nonprofit corporation;
598
(b) the state, tribe, or country under whose law it is incorporated;
599
(c) the street address of its registered office in this state;
600
(d) the name of its registered agent at the office listed in Subsection (1)(c);
601
(e) the street address of its principal office; and
602
(f) the names and addresses of its directors and principal officers.
603
(2) The division shall deliver a copy of the prescribed form of annual report to each
604
domestic nonprofit corporation and each foreign nonprofit corporation authorized to conduct
605
affairs in this state.
606
(3) Information in the annual report shall be current as of the date the annual report is
607
executed on behalf of the nonprofit corporation.
608
(4) (a) The annual report of a domestic or foreign nonprofit corporation shall be
609
delivered annually to the division no later than 60 days past the [date] day on which the report
610
[was] is mailed by the division.
611
(b) Proof to the satisfaction of the division that the nonprofit corporation [has] mailed
612
an annual report form is considered in compliance with this Subsection (4).
613
(5) (a) If an annual report contains the information required by this section, the division
614
shall file [it] the annual report.
615
(b) If an annual report does not contain the information required by this section, the
616
division shall:
617
(i) promptly notify the reporting domestic or foreign nonprofit corporation in writing;
618
and
619
(ii) return the annual report to [it] the domestic or foreign nonprofit corporation for
620
correction.
621
(c) If an annual report that is rejected under Subsection (5)(b) [was] is otherwise timely
622
filed and is corrected to contain the information required by this section and delivered to the
623
division within 30 days after the effective date of the notice of rejection, the annual report is
624
considered to be timely filed.
625
(6) The fact that an individual's name is signed on an annual report form is prima facie
626
evidence for division purposes that the individual is authorized to certify the report on behalf of
627
the nonprofit corporation.
628
(7) The annual report form provided by the division may be designed to provide a
629
simplified certification by the nonprofit corporation if no changes have been made in the
630
required information from the last preceding report filed.
631
(8) A domestic or foreign nonprofit corporation may, but may not be required to,
632
deliver to the division for filing an amendment to its annual report reflecting [any] a change in
633
the information contained in its annual report as last amended.
634
Section 12.
Section
16-10a-102
is amended to read:
635
16-10a-102. Definitions.
636
As used in this chapter:
637
(1) (a) "Address" means a location where mail can be delivered by the United States
638
Postal Service.
639
(b) "Address" includes:
640
(i) a post office box number;
641
(ii) a rural free delivery route number; and
642
(iii) a street name and number.
643
(2) "Affiliate" means a person that directly or indirectly through one or more
644
intermediaries controls, or is controlled by, or is under common control with, the person
645
specified.
646
(3) "Assumed corporate name" means [the] a name assumed for use in this state by a
647
foreign corporation pursuant to Section
16-10a-1506
because its corporate name is not
648
available for use in this state.
649
(4) "Articles of incorporation" include:
650
(a) amended and restated articles of incorporation;
651
(b) articles of merger; and
652
(c) [documents] a document of a similar import to those described in Subsections
653
(4)(a) and (b).
654
(5) "Authorized shares" means the shares of all classes a domestic or foreign
655
corporation is authorized to issue.
656
(6) "Bylaws" includes amended bylaws and restated bylaws.
657
(7) "Cash" and "money" are used interchangeably in this chapter and mean:
658
(a) legal tender [and];
659
(b) a negotiable [instruments] instrument; and [other]
660
(c) a cash [equivalents] equivalent readily convertible into legal tender.
661
(8) "Conspicuous" means so written that a reasonable person against whom the writing
662
is to operate should have noticed it, including[: (a)] printing or typing in:
663
(a) italics;
664
(b) boldface;
665
(c) contrasting color;
666
(d) capitals; or
667
(e) underlining.
668
(9) "Control" or a "controlling interest" means the direct or indirect possession of the
669
power to direct or cause the direction of the management and policies of an entity, whether
670
through the ownership of voting shares, by contract, or otherwise.
671
(10) "Corporate name" means:
672
(a) the name of a domestic corporation or a domestic nonprofit corporation as stated in
673
its articles of incorporation; or
674
(b) the name of a foreign corporation or a foreign nonprofit corporation as stated in its
675
articles of incorporation or document of similar import.
676
(11) "Corporation" or "domestic corporation" means a corporation for profit[, which]
677
that:
678
(a) is not a foreign corporation[,]; and
679
(b) is incorporated under or subject to [the provisions of] this chapter.
680
(12) "Deliver" includes delivery by mail [and any other] or another means of
681
transmission authorized by Section
16-10a-103
, except that delivery to the division means
682
actual receipt by the division.
683
(13) (a) "Distribution" means the following by a corporation to or for the benefit of its
684
shareholders in respect of any of the corporation's shares:
685
(i) a direct or indirect transfer of money or other property, other than a corporation's
686
own shares; or
687
(ii) incurrence of indebtedness by the corporation.
688
(b) A distribution may be in the form of:
689
(i) a declaration or payment of a dividend;
690
(ii) a purchase, redemption, or other acquisition of shares;
691
(iii) distribution of indebtedness; or
692
(iv) [other] another form.
693
(14) "Division" means the Division of Corporations and Commercial Code.
694
(15) "Effective date," when referring to a document filed by the division, means the
695
time and date determined in accordance with Section
16-10a-123
.
696
(16) "Effective date of notice" means the date notice is effective as provided in Section
697
16-10a-103
.
698
(17) "Electronic transmission" or "electronically transmitted" means [any] a process of
699
communication not directly involving the physical transfer of paper that is suitable for the
700
receipt, retention, retrieval, and reproduction of information by the recipient, whether by
701
e-mail, facsimile, or otherwise.
702
(18) "Employee" includes an officer but not a director, unless the director accepts
703
[duties] a duty that [make] makes that director also an employee.
704
(19) "Entity" includes:
705
(a) a domestic and foreign corporation;
706
(b) a nonprofit corporation;
707
(c) a limited liability company;
708
(d) a profit or nonprofit unincorporated association;
709
(e) a business trust;
710
(f) an estate;
711
(g) a partnership;
712
(h) a trust;
713
(i) two or more persons having a joint or common economic interest;
714
(j) a state;
715
(k) the United States; and
716
(l) a foreign government.
717
(20) "Foreign corporation" means a corporation for profit incorporated under a law
718
other than the law of this state.
719
(21) "Governmental subdivision" means:
720
(a) county;
721
(b) municipality; or
722
(c) [any other] another type of governmental subdivision authorized by the laws of this
723
state.
724
(22) "Individual" means:
725
(a) a natural person;
726
(b) the estate of an incompetent individual; or
727
(c) the estate of a deceased individual.
728
(23) "Mail," "mailed," or "mailing" means deposit, deposited, or depositing in the
729
United States mail, properly addressed, first class postage prepaid, and includes registered or
730
certified mail for which the proper fee [has been] is paid.
731
(24) "Notice" is as provided in Section
16-10a-103
.
732
(25) "Principal office" means the office, in or out of this state, designated by a
733
domestic or foreign corporation as its principal office in the most recent document on file with
734
the division providing the information, including:
735
(a) an annual report;
736
(b) an application for a certificate of authority; or
737
(c) a notice of change of principal office.
738
(26) "Proceeding" includes:
739
(a) a civil suit;
740
(b) arbitration or mediation; and
741
(c) a criminal, administrative, or investigatory action.
742
(27) "Qualified shares" means, with respect to a director's conflicting interest
743
transaction pursuant to Section
16-10a-853
, [any] one or more shares entitled to vote on the
744
transaction, except [shares] a share:
745
(a) that, to the knowledge, before the vote, of the secretary, other officer, or agent of
746
the corporation authorized to tabulate votes, [are] is beneficially owned; or
747
(b) the voting of which is controlled, by:
748
(i) a director who has a conflicting interest respecting the transaction;
749
(ii) a related person of that director; or
750
(iii) [persons] a person referred to in Subsections (27)(b)(i) and (ii).
751
(28) "Receive," when used in reference to receipt of a writing or other document by a
752
domestic or foreign corporation, means the writing or other document is actually received by:
753
(a) [by] the corporation at its:
754
(i) registered office in this state; or [at its]
755
(ii) principal office;
756
(b) [by] the secretary of the corporation, wherever the secretary is found; or
757
(c) [by any other] another person authorized by the bylaws or the board of directors to
758
receive the writing or other document, wherever that person is found.
759
(29) (a) "Record date" means the date established under Part 6, Shares and
760
Distributions, or Part 7, Shareholders, on which a corporation determines the identity of its
761
shareholders.
762
(b) The determination under Subsection (29)(a) shall be made as of the close of
763
business on the record date unless another time for doing so is specified when the record date is
764
fixed.
765
(30) "Registered office" means the office within this state designated by a domestic or
766
foreign corporation as its registered office in the most recent document on file with the division
767
providing that information, including:
768
(a) articles of incorporation;
769
(b) an application for a certificate of authority; or
770
(c) a notice of change of registered office.
771
(31) "Related person" of a director means:
772
(a) the spouse of the director[, or];
773
(b) a child, grandchild, sibling, or parent of the director;
774
[(b)] (c) the spouse of a child, grandchild, sibling, or parent of the director;
775
[(c)] (d) an individual having the same home as the director;
776
[(d)] (e) a trust or estate of which the director or any other individual specified in this
777
Subsection (31) is a substantial beneficiary; or
778
[(e)] (f) a trust, estate, incompetent, conservatee, or minor of which the director is a
779
fiduciary.
780
(32) "Secretary" means the corporate officer to whom the bylaws or the board of
781
directors [has delegated] delegates responsibility under Subsection
16-10a-830
(3) for:
782
(a) the preparation and maintenance of:
783
(i) minutes of the meetings of the board of directors and of the shareholders; and
784
(ii) the other records and information required to be kept by the corporation by Section
785
16-10a-830
; and
786
(b) [for] authenticating records of the corporation.
787
(33) "[Shares] Share" means the [units] unit into which the proprietary interests in a
788
corporation are divided.
789
(34) (a) "Shareholder" means:
790
(i) the person in whose name [shares are] a share is registered in the records of a
791
corporation; or
792
(ii) the beneficial owner of [shares] a share to the extent recognized pursuant to Section
793
16-10a-723
.
794
(b) For purposes of this chapter:
795
[(a)] (i) the following, identified as a shareholder in a corporation's current record of
796
shareholders, constitute one shareholder:
797
[(i)] (A) (I) three or fewer coowners; or
798
[(B)] (II) in the case of more than three coowners, each coowner in excess of the first
799
three [will be] is counted as a separate shareholder;
800
[(ii)] (B) a corporation, limited liability company, partnership, trust, estate, or other
801
entity; and
802
[(iii)] (C) the trustees, guardians, custodians, or other fiduciaries of a single trust,
803
estate, or account;
804
[(b)] (ii) shareholdings registered in substantially similar names constitute one
805
shareholder if it is reasonable to believe that the names represent the same person; and
806
[(c) in any case where] (iii) if the record of [shareholders has not been] a shareholder
807
is not maintained in accordance with accepted practice, [any] an additional person who would
808
be identified as an owner on that record if it had been maintained in accordance with accepted
809
practice shall be included as a holder of record.
810
(35) "Subscriber" means a person who subscribes for shares in a corporation, whether
811
before or after incorporation.
812
(36) "Tribe" means a tribe, band, nation, pueblo, or other organized group or
813
community of Indians, including an Alaska Native village, that is legally recognized as eligible
814
for and is consistent with a special program, service, or entitlement provided by the United
815
States to Indians because of their status as Indians.
816
[(36)] (37) (a) "Voting group" means all shares of one or more classes or series that
817
under the articles of incorporation or this chapter are entitled to vote and be counted together
818
collectively on a matter at a meeting of shareholders.
819
(b) All shares entitled by the articles of incorporation or this chapter to vote generally
820
on the matter are for that purpose a single voting group.
821
Section 13.
Section
16-10a-1107
is amended to read:
822
16-10a-1107. Merger or share exchange with foreign corporations.
823
(1) One or more domestic corporations may merge or enter into a share exchange with
824
one or more foreign corporations if:
825
(a) in a merger, the merger is permitted by the law of the state, tribe, or country under
826
whose law each foreign corporation is incorporated and each foreign corporation complies with
827
that law in effecting the merger;
828
(b) in a share exchange, the corporation whose shares will be acquired is a domestic
829
corporation, whether or not a share exchange is permitted by the law of the state, tribe, or
830
country under whose law the acquiring corporation is incorporated;
831
(c) the foreign corporation:
832
(i) complies with Section
16-10a-1105
if it is the surviving corporation of the merger
833
or the acquiring corporation of the share exchange[,]; and
834
(ii) provides, in addition to the information required by Section
16-10a-1105
, the
835
address of its principal office; and
836
(d) each domestic corporation complies with the applicable provisions of Sections
837
16-10a-1101
through
16-10a-1104
and, if it is the surviving corporation of the merger with
838
Section
16-10a-1105
.
839
(2) Upon the merger or share exchange taking effect, the surviving foreign corporation
840
of a merger and the acquiring foreign corporation of a share exchange shall either:
841
(a) (i) maintain a registered agent in this state to accept service in [any] a proceeding:
842
(A) to enforce [any] an obligation or [rights of] right of a dissenting [shareholders]
843
shareholder of each domestic corporation party to the merger or share exchange[,]; or [in any
844
proceeding]
845
(B) based on a cause of action arising with respect to [any] a domestic corporation that
846
is merged into the foreign corporation; or
847
(ii) be considered to have authorized service of process on it, in connection with [any
848
such] a proceeding described in Subsection (2)(a)(i), by registered or certified mail return
849
receipt requested, to the address of its principal office:
850
(A) as set forth in the articles of merger or share exchange; or
851
(B) as last changed by notice delivered to the division for filing;
852
(b) promptly pay to the dissenting shareholders of each domestic corporation party to
853
the merger or share exchange the amount, if any, to which they are entitled under Part 13,
854
Dissenters' Rights; and
855
(c) comply with Part 15, Authority of Foreign Corporation to Transact Business, if it is
856
to transact business in this state.
857
(3) Service effected pursuant to Subsection (2)(a)(ii) is perfected at the earliest of:
858
(a) the date the foreign corporation receives the process, notice, or demand;
859
(b) the date shown on the return receipt, if signed on behalf of the foreign corporation;
860
or
861
(c) five days after mailing.
862
(4) Subsection (2) does not prescribe the only means, or necessarily the required
863
means, of serving a surviving foreign corporation of a merger or an acquiring foreign
864
corporation in a share exchange.
865
(5) This section does not limit the power of a foreign corporation to acquire all or part
866
of the shares of one or more classes or series of a domestic corporation through a voluntary
867
exchange of shares or otherwise.
868
Section 14.
Section
16-10a-1503
is amended to read:
869
16-10a-1503. Application for authority to transact business.
870
(1) A foreign corporation may apply for authority to transact business in this state by
871
delivering to the division for filing an application for authority to transact business setting
872
forth:
873
(a) its corporate name and its assumed name, if any;
874
(b) the name of the state, tribe, or country under whose law it is incorporated;
875
(c) its date of incorporation and period of its corporate duration;
876
(d) the street address of its principal office;
877
(e) the address of its registered office in this state and the name of its registered agent
878
at that office;
879
(f) the names and usual business addresses of its current directors and officers;
880
(g) the date it commenced or expects to commence transacting business in this state;
881
and
882
(h) any additional information the division may determine is necessary or appropriate
883
to determine whether the application for authority to transact business should be filed.
884
(2) The foreign corporation shall deliver with the completed application for authority to
885
transact business a certificate of existence, or a document of similar import, duly authorized by
886
the lieutenant governor or other official having custody of corporate records in the state, tribe,
887
or country under whose law it is incorporated. The certificate of existence shall be dated
888
within 90 days prior to the [filing of] day on which the application for authority to transact
889
business by the division is filed.
890
(3) The foreign corporation shall include in the application for authority to transact
891
business, or in an accompanying document, the written consent to appointment by the
892
designated registered agent.
893
Section 15.
Section
16-10a-1504
is amended to read:
894
16-10a-1504. Amended application for authority to transact business.
895
(1) A foreign corporation authorized to transact business in this state shall deliver an
896
amended application for authority to transact business to the division for filing if the foreign
897
corporation changes:
898
(a) its corporate name or its assumed corporate name;
899
(b) the period of its duration; or
900
(c) the state, tribe, or country of its incorporation.
901
(2) The requirements of Section
16-10a-1503
for obtaining an original application for
902
authority to transact business apply to filing an amended application for authority to transact
903
business under this section.
904
Section 16.
Section
16-10a-1507
is amended to read:
905
16-10a-1507. Registered name of foreign corporation.
906
(1) (a) A foreign corporation may register its corporate name as provided in this section
907
if the name [would be] is available for use as a corporate name for a domestic corporation
908
under Section
16-10a-401
.
909
(b) If the foreign corporation's corporate name [would] is not [be] available for [such
910
use, then] use for a domestic corporation, the foreign corporation may register its corporate
911
name modified by the addition of any of the following words or abbreviations, if the modified
912
name would be available for use under Section
16-10a-401
:
913
(i) "corporation[,]";
914
(ii) "incorporated[,]";
915
(iii) "company[,]";
916
(iv) "corp.[,]";
917
(v) "inc.[,]"; or
918
(vi) "co."
919
(2) A foreign corporation registers its corporate name, or its corporate name with any
920
addition permitted by Subsection (1), by delivering to the division for filing an application for
921
registration:
922
(a) setting forth:
923
(i) its corporate name[,];
924
(ii) the name to be registered, which [must meet] meets the requirements of Section
925
16-10a-401
that apply to domestic corporations[,];
926
(iii) the state, tribe, or country and date of incorporation[,]; and
927
(iv) a brief description of the nature of the business in which it is engaged; and
928
(b) accompanied by a certificate of existence, or a document of similar import from the
929
state, tribe, or country of incorporation as evidence that the foreign corporation is in existence
930
or has authority to transact business under the laws of the state, tribe, or country in which it is
931
organized.
932
(3) (a) The name is registered for the applicant upon the effective date of the
933
application[, and the].
934
(b) An initial registration is effective until the end of the calendar year in which it
935
[became] becomes effective.
936
(4) (a) A foreign corporation that has in effect a registration of its corporate name as
937
permitted by Subsection (1) may renew the registration for the following year by delivering to
938
the division for filing a renewal application for registration[, which]:
939
(i) that complies with the requirements of Subsection (2)[,]; and
940
(ii) between October 1 and December 31 of the preceding year.
941
(b) When filed, the renewal application for registration renews the registration for the
942
following calendar year.
943
(5) (a) A foreign corporation that has in effect registration of its corporate name may:
944
(i) apply for authority to transact business in this state under the registered name in
945
accordance with the procedure set forth in this part; or [it may]
946
(ii) assign the registration to another foreign corporation by delivering concurrently to
947
the division for filing:
948
(A) an assignment of the registration that states:
949
(I) the registered name[,];
950
(II) the name of the assigning foreign corporation[,]; and
951
(III) the name of the assignee[, concurrently with the delivery to the division for filing
952
of]; and
953
(B) the assignee's application for registration of the name. [The]
954
(b) An assignee's application must meet the requirements of this part.
955
(6) (a) A foreign corporation that has in effect registration of its corporate name may
956
terminate the registration at any time by delivering to the division for filing a statement of
957
termination:
958
(i) setting forth the corporate name; and
959
(ii) stating that the registration is terminated.
960
(b) A registration automatically terminates upon the filing of an application for
961
authority to transact business in this state under the registered name.
962
(7) The registration of a corporate name under Subsection (1) constitutes authority by
963
the division to file an application meeting the requirements of this part for authority to transact
964
business in this state under the registered name, but the authorization is subject to the
965
limitations applicable to corporate names as set forth in Section
16-10a-403
.
966
Section 17.
Section
16-10a-1520
is amended to read:
967
16-10a-1520. Withdrawal of foreign corporation.
968
(1) A foreign corporation authorized to transact business in this state may not withdraw
969
from this state until its application for withdrawal [has been] is filed by the division.
970
(2) A foreign corporation authorized to transact business in this state may apply for
971
withdrawal by delivering to the division for filing an application for withdrawal setting forth:
972
(a) its corporate name and its assumed name, if any;
973
(b) the name of the state, tribe, or country under whose law it is incorporated;
974
(c) (i) (A) the address of its principal office[,]; or [if none]
975
(B) if no principal office is to be maintained, a statement that the corporation will not
976
maintain a principal office[,]; and
977
(ii) if different from the address of the principal office or if no principal office is to be
978
maintained, the address to which service of process may be mailed pursuant to Section
979
16-10a-1521
;
980
(d) that the corporation is not transacting business in this state [and];
981
(e) that [it] the corporation surrenders its authority to transact business in this state;
982
[(e)] (f) whether its registered agent will continue to be authorized to accept service on
983
its behalf in [any] a proceeding based on a cause of action arising during the time it was
984
authorized to transact business in this state; and
985
[(f)] (g) any additional information that the division determines is necessary or
986
appropriate to:
987
(i) determine whether the corporation is entitled to withdraw[,]; and [to]
988
(ii) determine and assess [any] an unpaid [taxes, fees, and penalties] tax, fee, or penalty
989
payable by [it] the corporation as prescribed by this chapter.
990
(3) A foreign corporation's application for withdrawal may not be filed by the division
991
until:
992
(a) all outstanding fees and state tax obligations [have been] are paid; and
993
(b) the division [has received] receives a tax clearance certificate from the State Tax
994
Commission.
995
Section 18.
Section
16-10a-1530
is amended to read:
996
16-10a-1530. Grounds for revocation.
997
The division may commence a proceeding under Section
16-10a-1531
to revoke the
998
authority of a foreign corporation to transact business in this state if:
999
(1) the foreign corporation does not deliver its annual report to the division when it is
1000
due;
1001
(2) the foreign corporation does not pay when [they are due any taxes, fees, or
1002
penalties] it is due a tax, fee, or penalty imposed by this chapter or other applicable laws of this
1003
state;
1004
(3) the foreign corporation is without a registered agent or registered office in this
1005
state;
1006
(4) the foreign corporation does not inform the division under Section
16-10a-1509
or
1007
16-10a-1510
:
1008
(a) that its registered agent or registered office [has] changed[,];
1009
(b) that its registered agent [has] resigned[,]; or
1010
(c) that its registered office [has been] is discontinued;
1011
(5) an incorporator, director, officer, or agent of the foreign corporation signs a
1012
document knowing it is false in any material respect with intent that the document be delivered
1013
to the division for filing; or
1014
(6) the division receives a duly authenticated certificate from the lieutenant governor or
1015
other official having custody of corporate records in the state, tribe, or country under whose
1016
law the foreign corporation is incorporated stating that the corporation [has] is dissolved or
1017
disappeared as the result of a merger.
1018
Section 19.
Section
16-10a-1607
is amended to read:
1019
16-10a-1607. Annual report for division.
1020
(1) [Each] A domestic corporation, and [each] a foreign corporation authorized to
1021
transact business in this state, shall deliver to the division for filing an annual report on a form
1022
provided by the division that sets forth:
1023
(a) the corporate name of the domestic or foreign corporation and any assumed
1024
corporate name of the foreign corporation;
1025
(b) the state, tribe, or country under whose law it is incorporated;
1026
(c) the street address of its registered office and the name of its registered agent at that
1027
office in this state;
1028
(d) the street address of its principal office;
1029
(e) the names and addresses of its directors and principal officers; and
1030
(f) a brief description of the nature of its business.
1031
(2) The division shall deliver a copy of the prescribed form of annual report to each
1032
domestic corporation and each foreign corporation authorized to transact business in this state.
1033
(3) Information in the annual report must be current as of the date the annual report is
1034
executed on behalf of the corporation.
1035
(4) The annual report of a domestic or foreign corporation shall be delivered annually
1036
to the division no later than the end of the second calendar month following the calendar month
1037
in which the report form is mailed by the division. Proof to the satisfaction of the division that
1038
the corporation [has] mailed an annual report form is considered in compliance with this
1039
Subsection (4).
1040
(5) (a) If an annual report contains the information required by this section, the division
1041
shall file it.
1042
(b) If a report does not contain the information required by this section, the division
1043
shall:
1044
(i) promptly notify the reporting domestic or foreign corporation in writing; and
1045
(ii) return the report to [it] the domestic or foreign corporation for correction.
1046
(c) If the report [was] is otherwise timely filed and is corrected to contain the
1047
information required by this section and delivered to the division within 30 days after the
1048
effective date of the notice of rejection, the annual report is considered to be timely filed.
1049
(6) The fact that an individual's name is signed on an annual report form is prima facie
1050
evidence for division purposes that the individual is authorized to certify the report on behalf of
1051
the corporation.
1052
(7) The annual report form provided by the division may be designed to provide a
1053
simplified certification by the corporation if no changes have been made in the required
1054
information from the last preceding report filed.
1055
(8) A domestic or foreign corporation may, but may not be required to, deliver to the
1056
division for filing an amendment to its annual report reflecting any change in the information
1057
contained in its annual report as last amended.
1058
Section 20.
Section
48-1-1
is amended to read:
1059
48-1-1. Definition of terms.
1060
As used in this chapter:
1061
(1) "Bankrupt" includes "bankrupt" under the federal bankruptcy laws or "insolvent"
1062
under any state insolvency law.
1063
(2) "Business" includes every trade, occupation, or profession.
1064
(3) "Conveyance" includes every assignment, lease, mortgage, or encumbrance.
1065
(4) "Court" includes every court and judge having jurisdiction in the case.
1066
(5) "Limited liability partnership" means a general partnership:
1067
(a) registered under Section
48-1-42
; and
1068
(b) complying with Section
48-1-43
.
1069
(6) "Person" includes:
1070
(a) an individual[,];
1071
(b) a partnership[,];
1072
(c) a limited liability company[,];
1073
(d) a limited liability partnership[,];
1074
(e) a corporation[,]; or [other]
1075
(f) another association.
1076
(7) "Real property" includes land and any interest or estate in land.
1077
(8) "Tribe" means a tribe, band, nation, pueblo, or other organized group or community
1078
of Indians, including an Alaska Native village, that is legally recognized as eligible for and is
1079
consistent with a special program, service, or entitlement provided by the United States to
1080
Indians because of their status as Indians.
1081
Section 21.
Section
48-1-44
is amended to read:
1082
48-1-44. Foreign limited liability partnerships.
1083
(1) Subject to any statute regulating a specific type of business, a limited liability
1084
partnership registered and existing under the laws of another state or a tribe, may do business in
1085
this state if it registers with the division in accordance with Section
48-1-42
.
1086
(2) The internal affairs of a limited liability partnership registered and existing under
1087
the laws of another jurisdiction[, including the provisions providing for the liability of partners
1088
for debts, obligations of and liabilities chargeable to partnerships, shall be] is subject to and
1089
governed by the laws of the state or tribe where the partnership is formed[.], including the
1090
provisions providing for the liability of partners for debts, obligations of, and liabilities
1091
chargeable to a partnership.
1092
Section 22.
Section
48-2a-101
is amended to read:
1093
48-2a-101. Definitions.
1094
As used in this chapter, unless the context otherwise requires:
1095
(1) "Certificate of limited partnership" means [the]:
1096
(a) a certificate referred to in Section
48-2a-201
[,]; and [the]
1097
(b) a certificate as amended or restated.
1098
(2) "Contribution" means any of the following that a partner contributes to a limited
1099
partnership in the partner's capacity as a partner:
1100
(a) cash[,];
1101
(b) property[, services];
1102
(c) a service rendered[,]; or
1103
(d) a promissory note or other binding obligation to:
1104
(i) contribute cash [or];
1105
(ii) contribute property; or [to perform services, which a partner contributes to a limited
1106
partnership in his capacity as a partner.]
1107
(iii) perform a service.
1108
(3) "Division" means the Division of Corporations and Commercial Code of the [Utah]
1109
Department of Commerce.
1110
(4) "Event of withdrawal of a general partner" means an event that causes a person to
1111
cease to be a general partner as provided in Section
48-2a-402
.
1112
(5) "Foreign limited partnership" means a partnership:
1113
(a) formed under the laws of [any]:
1114
(i) a state other than this state [and]; or
1115
(ii) a tribe; and
1116
(b) having as partners:
1117
(i) one or more general partners; and
1118
(ii) one or more limited partners.
1119
(6) "General partner" means a person who [has been] is:
1120
(a) admitted to a limited partnership as a general partner in accordance with the
1121
partnership agreement; and
1122
(b) named in the certificate of limited partnership as a general partner.
1123
(7) "Limited partner" means a person who [has been] is admitted to a limited
1124
partnership as a limited partner in accordance with the partnership agreement.
1125
(8) "Limited partnership" and "domestic limited partnership" mean a partnership:
1126
(a) formed by two or more persons under the laws of this state; and
1127
(b) having:
1128
(i) one or more general partners; and
1129
(ii) one or more limited partners.
1130
(9) "Partner" means a limited or a general partner.
1131
(10) "Partnership agreement" means [any] a valid agreement, written or oral, of the
1132
partners as to the affairs of a limited partnership and the conduct of its business.
1133
(11) "Partnership interest" means:
1134
(a) a partner's share of the profits and losses of a limited partnership; and
1135
(b) the right to receive distributions of partnership assets.
1136
(12) "Person" means an individual, general partnership, limited partnership, limited
1137
association, domestic or foreign trust, estate, association, or corporation.
1138
(13) "State" means a state, territory, or possession of the United States, the District of
1139
Columbia, or the Commonwealth of Puerto Rico.
1140
(14) "Subject entity" means a corporation, business trust or association, a real estate
1141
investment trust, a common-law trust, or [any other] another unincorporated business,
1142
including a limited liability company, a general partnership, a registered limited liability
1143
partnership, or a foreign limited partnership.
1144
(15) "Tribe" means a tribe, band, nation, pueblo, or other organized group or
1145
community of Indians, including an Alaska Native village, that is legally recognized as eligible
1146
for and is consistent with a special program, service, or entitlement provided by the United
1147
States to Indians because of their status as Indians.
1148
Section 23.
Section
48-2a-210
is amended to read:
1149
48-2a-210. Annual report.
1150
(1) (a) [Each] A domestic limited partnership, and [each] a foreign limited partnership
1151
authorized to transact business in this state, shall file an annual report with the division:
1152
(i) during the month of its anniversary date of formation, in the case of a domestic
1153
limited [partnerships] partnership; or
1154
(ii) during the month of the anniversary date of being granted authority to transact
1155
business in this state, in the case of a foreign limited [partnerships] partnership authorized to
1156
transact business in this state.
1157
(b) The annual report required by Subsection (1)(a) shall set forth:
1158
(i) the name of the limited partnership;
1159
(ii) the state or [country] tribe under the laws of which it is formed;
1160
(iii) the name and street address of the agent for service of process required to be
1161
maintained by Section
48-2a-104
;
1162
(iv) [any] a change of address of a general partner; and
1163
(v) a change in the persons constituting the general partners.
1164
(2) (a) The annual report required by Subsection (1) shall:
1165
(i) be made on [forms] a form prescribed and furnished by the division; and
1166
(ii) contain information that is given as of the date of execution of the annual report.
1167
(b) [The] An annual report [forms] form shall include a statement of notice to the
1168
limited partnership that failure to file the annual report will result in the dissolution of:
1169
(i) the limited partnership, in the case of a domestic limited partnership; or
1170
(ii) its registration, in the case of a foreign limited partnership authorized to transact
1171
business in this state.
1172
(c) The annual report shall be signed by:
1173
(i) [any] a general partner under penalty of perjury; and
1174
(ii) if the registered agent has changed since the last annual report or other appointment
1175
of a registered agent, the new registered agent.
1176
(3) (a) If the division finds that the annual report required by Subsection (1) conforms
1177
to the requirements of this chapter, it shall file the annual report.
1178
(b) If the division finds that the annual report required by Subsection (1) does not
1179
conform to the requirements of this chapter, the division shall mail the report first-class postage
1180
prepaid to the limited partnership at the addresses set forth in the certificate for any necessary
1181
corrections.
1182
(c) If the division returns an annual report in accordance with Subsection (3)(b), the
1183
penalties for failure to file the annual report within the time prescribed in Section
48-2a-203.5
1184
do not apply, [as long as] if the report is corrected and returned to the division within 30 days
1185
from the date on which the nonconforming report [was] is mailed to the limited partnership.
1186
Section 24.
Section
48-2a-902
is amended to read:
1187
48-2a-902. Registration.
1188
(1) (a) Before transacting business in this state, a foreign limited partnership shall
1189
register with the division. [In order to]
1190
(b) To register, a foreign limited partnership shall submit to the division [on forms] in a
1191
form provided by the division:
1192
(i) a certificate of good standing or similar evidence of its organization and existence
1193
under the laws of the state or tribe in which [it was formed, together with one] the foreign
1194
limited partnership is formed; and
1195
(ii) an original and one copy of an application for registration as a foreign limited
1196
partnership, signed under penalty of perjury by a general partner and setting forth:
1197
[(a)] (A) the name of the foreign limited partnership and, if that name is not available
1198
in this state, the name under which it proposes to register and transact business in this state;
1199
[(b)] (B) the state or tribe and date of its formation;
1200
[(c)] (C) the name and street address of an agent for service of process on the foreign
1201
limited partnership whom the foreign limited partnership elects to appoint[;], except that the
1202
agent must be:
1203
(I) an individual resident of this state[,];
1204
(II) a domestic corporation[,]; or
1205
(III) a foreign corporation having a place of business in and authorized to do business
1206
in this state;
1207
[(d)] (D) a statement that the director of the division is appointed the agent of the
1208
foreign limited partnership for service of process if:
1209
(I) the agent [has resigned,] resigns;
1210
(II) the agent's authority [has been] is revoked[,]; or
1211
(III) the agent cannot be found or served with the exercise of reasonable diligence;
1212
[(e)] (E) (I) the street address of the office required to be maintained in the state or
1213
tribe of its organization by the laws of that state or[,] tribe; or
1214
(II) if not [so] required to maintain the office, of the principal office of the foreign
1215
limited partnership;
1216
[(f)] (F) the name and business address of each general partner; and
1217
[(g)] (G) the street address of the office at which is kept a list of the names and
1218
addresses of the limited partners and their capital contributions, together with an undertaking
1219
by the foreign limited partnership to keep those records until the foreign limited partnership's
1220
registration in this state is canceled or withdrawn.
1221
(2) Without excluding other activities [which] that may not constitute transacting
1222
business in this state, a foreign limited partnership [shall not be] is not considered to be
1223
transacting business in this state, for the purposes of this chapter, by reason of carrying on in
1224
this state any one or more of the following activities:
1225
(a) (i) maintaining or defending any action or suit or any administrative or arbitration
1226
proceeding [or];
1227
(ii) effecting the settlement [thereof] of an action or proceeding; or
1228
(iii) effecting the settlement of [claims or disputes] a claim or dispute;
1229
(b) holding [meetings] a meeting of its general partners or limited partners or carrying
1230
on [other activities] another activity concerning its internal affairs;
1231
(c) maintaining a bank [accounts] account;
1232
(d) (i) maintaining [offices or agencies] an office or agency for the transfer, exchange,
1233
and registration of its securities[,]; or
1234
(ii) appointing and maintaining [trustees or depositaries] a trustee or depository with
1235
relation to its securities;
1236
(e) effecting sales through an independent [contractors] contractor;
1237
(f) soliciting or procuring [orders] an order, whether by mail or through [employees or
1238
agents] an employee, agent, or otherwise, [where such orders require] if the order requires
1239
acceptance without this state before becoming a binding [contracts] contract;
1240
(g) creating evidences of debt, mortgages, or liens on real or personal property;
1241
(h) securing or collecting [debts] a debt or enforcing [any rights] a right in property
1242
securing [the same] the property;
1243
(i) transacting [any] business in interstate commerce;
1244
(j) conducting an isolated transaction completed within a period of 30 days and not in
1245
the course of a number of repeated transactions of like nature; or
1246
(k) (i) acquiring, in [transactions] a transaction outside this state or in interstate
1247
commerce, of conditional sale contracts or of debts secured by mortgages or liens on real or
1248
personal property in this state[,];
1249
(ii) collecting or adjusting of principal and interest payments [thereon,] on the
1250
conditional sale contract or debt described in Subsection (2)(k)(i);
1251
(iii) enforcing or adjusting [any rights] a right in property provided for in the
1252
conditional sale [contracts] contract or securing the [debts,] debt; or
1253
(iv) taking [any actions] an action necessary to preserve and protect the interest of the
1254
conditional vendor in the property covered by the conditional sales [contracts] contract or the
1255
interest of the mortgagee or holder of the lien in the security, or any combination of [such] the
1256
one or more transactions.
1257
Section 25.
Section
48-2a-904
is amended to read:
1258
48-2a-904. Name.
1259
[A] (1) Subject to Subsection (2), a foreign limited partnership shall register with the
1260
division under the name under which it is registered in its state or tribe of organization[;
1261
provided that the name includes the words].
1262
(2) The name registered under Subsection (1) must:
1263
(a) include the terms:
1264
(i) "limited partnership"[,];
1265
(ii) "limited"[,];
1266
(iii) "L.P."[,]; or
1267
(iv) "Ltd."; and [provided that the name could]
1268
(b) be able to be registered by a domestic limited partnership.
1269
Section 26.
Section
48-2c-102
is amended to read:
1270
48-2c-102. Definitions.
1271
As used in this chapter:
1272
(1) "Bankruptcy" includes bankruptcy under federal bankruptcy law or under Utah
1273
insolvency law.
1274
(2) "Business" includes [any] a lawful trade, occupation, profession, business,
1275
investment, or other purpose or activity, whether or not that trade, occupation, profession,
1276
business, investment, purpose, or activity is carried on for profit.
1277
(3) "Capital account," unless otherwise provided in the operating agreement, means the
1278
account, as adjusted from time to time, maintained by the company for each member to reflect:
1279
(a) the value of all contributions by that member;
1280
(b) the amount of all distributions to that member or the member's assignee;
1281
(c) the member's share of profits, gains, and losses of the company; and
1282
(d) the member's share of the net assets of the company upon dissolution and winding
1283
up that are distributable to the member or the member's assignee.
1284
(4) "Company," "limited liability company," or "domestic company" means a limited
1285
liability company organized under or subject to this chapter.
1286
(5) "Designated office" means the street address in this state where the records required
1287
to be maintained by Section
48-2c-112
are kept.
1288
(6) (a) "Distribution" means a direct or indirect transfer by a company of money or
1289
other property, except:
1290
(i) an interest in the company; or
1291
(ii) incurrence of indebtedness by a company, to or for the benefit of members in the
1292
company in respect of any interest in the company.
1293
(b) "Distribution" does not include amounts constituting:
1294
(i) reasonable compensation for present or past services; or
1295
(ii) reasonable payments made in the ordinary course of business pursuant to a bona
1296
fide retirement plan or other benefits program.
1297
(7) "Division" means the Division of Corporations and Commercial Code of the Utah
1298
Department of Commerce.
1299
(8) "Entity" includes:
1300
(a) a domestic or foreign corporation;
1301
(b) a domestic or foreign nonprofit corporation;
1302
(c) a company or foreign company;
1303
(d) a profit or nonprofit unincorporated association;
1304
(e) a business trust;
1305
(f) an estate;
1306
(g) a general partnership or a domestic or foreign limited partnership;
1307
(h) a trust;
1308
(i) a state;
1309
(j) the United States; or
1310
(k) a foreign government.
1311
(9) (a) "Filed with the division" means that a statement, document, or report:
1312
(i) complies with the requirements of Section
48-2c-207
; and
1313
(ii) [has been] is accepted for filing by the division.
1314
(b) "Filed with the division" includes filing by electronic means approved by the
1315
division.
1316
(10) "Foreign company" means a limited liability company organized under a law other
1317
than the laws of this state.
1318
(11) "Interest in the company" means a member's economic rights in the company
1319
including the right to receive:
1320
(a) [the right to receive distributions] a distribution from the company; and
1321
(b) [the right to receive] a portion of the net assets of the company upon dissolution
1322
and winding up of the company.
1323
(12) "Manager" means a person elected or otherwise designated by the members to
1324
manage a manager-managed company pursuant to Part 8, Management.
1325
(13) "Manager-managed company" means a company whose management is vested in
1326
managers pursuant to Part 8, Management.
1327
(14) "Member" means a person with:
1328
(a) an ownership interest in a company; and [with]
1329
(b) the rights and obligations specified under this chapter.
1330
(15) "Member-managed company" means a company whose management is vested in
1331
its members pursuant to Part 8, Management.
1332
(16) (a) "Operating agreement" means [any] a written agreement of the members:
1333
(i) concerning the business or purpose of the company and the conduct of its affairs;
1334
and
1335
(ii) which complies with Part 5, Operating Agreements.
1336
(b) "Operating agreement" includes [any] a written [amendments] amendment agreed
1337
to by all members or other writing adopted in any other manner as may be provided in the
1338
operating agreement.
1339
(17) "Person" means an individual or entity.
1340
(18) "Proceeding" means [any] an administrative, judicial or other trial, hearing, or
1341
other action, whether civil, criminal, or investigative, the result of which may be that a court,
1342
arbitrator, or governmental agency may enter a judgment, order, decree, or other determination
1343
which, if not appealed or reversed, would be binding upon any person subject to the
1344
jurisdiction of that court, arbitrator, or governmental agency.
1345
(19) "Professional services" is as defined in Part 15, Professions.
1346
(20) "Profits interest" means that portion of the company's profits to be allocated to an
1347
individual member upon [any] an allocation of profits.
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(21) "Profits interests" or "interests in profits" with respect to a company means the
1349
total interests of all of the company's members in the company's profits.
1350
(22) "Signed," "signs," or "signature" means:
1351
(a) a manual signature or authorized facsimile of the signature; or
1352
(b) [any] an electronic signature approved by the division.
1353
(23) "State" means:
1354
(a) a state, territory, or possession of the United States;
1355
(b) the District of Columbia; or
1356
(c) the Commonwealth of Puerto Rico.
1357
(24) "Tribe" means a tribe, band, nation, pueblo, or other organized group or
1358
community of Indians, including an Alaska Native village, that is legally recognized as eligible
1359
for and is consistent with a special program, service, or entitlement provided by the United
1360
States to Indians because of their status as Indians.
1361
Section 27.
Section
48-2c-203
is amended to read:
1362
48-2c-203. Annual report.
1363
(1) (a) [Each] A company and [each] a foreign company authorized to transact business
1364
in this state shall file an annual report with the division:
1365
(i) during the month of its anniversary date of formation, in the case of a domestic
1366
[companies] company; or
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(ii) during the month of the anniversary date of being granted authority to transact
1368
business in this state, in the case of a foreign [companies] company authorized to transact
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business in this state.
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(b) The annual report required by Subsection (1)(a) shall set forth:
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(i) the name of the company;
1372
(ii) the state, tribe, or country under the laws of which it is formed; and
1373
(iii) any change in:
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(A) for a domestic company only, the street address of its designated office;
1375
(B) for a foreign company only, the street address of its principal office;
1376
(C) the street address of its registered office in this state;
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(D) the name of the agent for service of process at the address listed in Subsection
1378
(1)(b)(iii)(C);
1379
(E) if the street address or legal name of any manager in a manager-managed company,
1380
any member in a member-managed company, or any person with management authority of a
1381
foreign company has changed, the new street address or legal name of the manager, member, or
1382
other person; and
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(F) the identity of the persons constituting the managers in a manager-managed
1384
company or members in a member-managed company or other person with management
1385
authority of a foreign company.
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(2) (a) The annual report required by Subsection (1) shall:
1387
(i) be made on forms prescribed and furnished by the division; and
1388
(ii) contain information that is given as of the date of signing the annual report.
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(b) The annual report forms shall include a statement notifying the company that
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failure to file the annual report will result in:
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(i) the dissolution of the company, in the case of a domestic company; or
1392
(ii) the revocation of authority to transact business in this state in the case of a foreign
1393
company.
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(3) The annual report shall be signed by:
1395
(a) (i) [any] a manager in a manager-managed company;
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(ii) [any] a member in a member-managed company; or
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(iii) [any other] another person with management authority; and
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(b) if the registered agent has changed since the filing of the articles of organization or
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last annual report, [by] the new registered agent.
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(4) (a) If the annual report conforms to the requirements of this chapter, the division
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shall file the report.
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(b) If the annual report does not conform to the requirements of this chapter, the
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division shall mail the report, first class postage prepaid, to the registered agent of the company
1404
for any necessary corrections at the street address for the registered agent most recently
1405
furnished to the division by notice, annual report, or other document.
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(c) If the division returns an annual report in accordance with Subsection (4)(b), the
1407
penalties for failure to file the report within the time prescribed in this section do not apply, [as
1408
long as] if the annual report is corrected and returned to the division within 30 days from the
1409
date the nonconforming report was mailed to the registered agent of the company.
1410
Section 28.
Section
48-2c-411
is amended to read:
1411
48-2c-411. Domestication of foreign company.
1412
(1) Where the laws of another state, tribe, country, or jurisdiction allow a foreign
1413
company subject to those laws to transfer or domesticate to this state, the foreign company may
1414
become a domestic company by delivering to the division for filing articles of domestication
1415
meeting the requirements of Subsection (2) if its members approve the domestication.
1416
(2) (a) The articles of domestication shall meet the requirements applicable to articles
1417
of organization set forth in Section
48-2c-403
, except that:
1418
(i) the articles of domestication need not name, or be signed by, the organizers of the
1419
foreign company;
1420
(ii) any reference to the company's registered office, registered agent, or managers shall
1421
be to the registered office and agent in this state, and the managers then in office at the time of
1422
filing the articles of domestication; and
1423
(iii) any reference to the company's members shall be to the members at the time of
1424
filing the articles of domestication.
1425
(b) The articles of domestication shall set forth:
1426
(i) the date on which and jurisdiction where the foreign company was first formed,
1427
organized, or otherwise came into being;
1428
(ii) the name of the foreign company immediately prior to the filing of the articles of
1429
domestication;
1430
(iii) any jurisdiction that constituted the seat, location of formation, principal place of
1431
business, or central administration of the foreign company immediately prior to the filing of the
1432
articles of domestication; and
1433
(iv) a statement that the articles of domestication were approved by its members.
1434
(3) Upon the filing of articles of domestication with the division:
1435
(a) the foreign company shall:
1436
(i) be domesticated in this state[, shall thereafter be];
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(ii) be subject to all of the provisions of this chapter as a domestic company[,]; and
1438
[shall]
1439
(iii) continue as if it had been organized under this chapter; and
1440
(b) notwithstanding any other provisions of this chapter, the existence of the
1441
domesticated company [shall be] is considered to have commenced on the date the foreign
1442
company commenced its existence in the jurisdiction in which the foreign company [was] is
1443
first formed, organized, or otherwise [came] comes into being.
1444
(4) The articles of domestication, upon filing with the division[, shall]:
1445
(a) become the articles of organization of the company[,]; and [shall be]
1446
(b) are subject to amendments or restatement the same as any other articles of
1447
organization under this chapter.
1448
(5) The domestication of [any] a foreign company in this state [shall] may not be
1449
considered to affect [any] an obligation or liability of the foreign company incurred prior to its
1450
domestication.
1451
Section 29.
Section
48-2c-1604
is amended to read:
1452
48-2c-1604. Application for authority to transact business.
1453
(1) A foreign company may apply for authority to transact business in this state by
1454
delivering to the division for filing an application for authority to transact business setting
1455
forth:
1456
(a) its name and its assumed name, if any;
1457
(b) the name of the state, tribe, or country under whose law it is formed or organized;
1458
(c) the nature of the business or purposes to be conducted or promoted in this state;
1459
(d) its date of formation or organization and period of its duration;
1460
(e) the street address of its principal office;
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(f) the address of its registered office in this state and the name of its registered agent at
1462
that office;
1463
(g) (i) the names and street addresses of its current managers, if it is a
1464
manager-managed company[,]; or
1465
(ii) the names and street addresses of its members, if it is a member-managed
1466
company;
1467
(h) the date it commenced or expects to commence transacting business in this state;
1468
and
1469
(i) any additional information the division may determine is necessary or appropriate to
1470
determine whether the application for authority to transact business should be filed.
1471
(2) The foreign company shall deliver with the completed application for authority to
1472
transact business a certificate of existence, or a document of similar import, duly authorized by
1473
the lieutenant governor or other official having custody of records in the state, tribe, or country
1474
under whose law it is formed or organized. The certificate of existence shall be dated within
1475
90 days prior to the filing of the application for authority to transact business by the division.
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(3) The foreign company shall include in the application for authority to transact
1477
business, or in an accompanying document, the written consent to appointment by the
1478
designated registered agent in this state.
1479
Section 30.
Section
48-2c-1605
is amended to read:
1480
48-2c-1605. Amended application for authority to transact business.
1481
(1) A foreign company authorized to transact business in this state shall deliver an
1482
amended application for authority to transact business to the division for filing if the foreign
1483
company changes:
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(a) its name or its assumed name;
1485
(b) the period of its duration; or
1486
(c) the state, tribe, or country of its formation or organization.
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(2) The requirements of Section
48-2c-1604
for obtaining an original application for
1488
authority to transact business apply to filing an amended application for authority to transact
1489
business under this section.
1490
Section 31.
Section
48-2c-1608
is amended to read:
1491
48-2c-1608. Registered name of foreign company.
1492
(1) (a) A foreign company may register its name as provided in this section if the name
1493
would be available for use as a name for a domestic company under Section
48-2c-106
.
1494
(b) If the foreign company's name would not be available for [such use, then] use by a
1495
domestic company, the foreign company may register its name modified by the addition of any
1496
of the following words or abbreviations, if the modified name would be available for use under
1497
Section
48-2c-106
:
1498
(i) "limited liability company"[,];
1499
(ii) "limited company"[,];
1500
(iii) "L.L.C."[,];
1501
(iv) "L.C."[,];
1502
(v) "LLC"[,]; or
1503
(vi) "LC".
1504
(2) A foreign company registers its name, or its name with any addition permitted by
1505
Subsection (1), by delivering to the division for filing an application for registration:
1506
(a) setting forth:
1507
(i) its name, except that the name to be registered [which] must meet the requirements
1508
of Section
48-2c-106
that apply to domestic companies[,];
1509
(ii) the state, tribe, or country and date of formation or organization[,]; and
1510
(iii) a brief description of the nature of the business in which it is engaged; and
1511
(b) accompanied by a certificate of existence, or a document of similar import from the
1512
state, tribe, or country of formation or organization as evidence that the foreign company is in
1513
existence or has authority to transact business under the laws of the state, tribe, or country in
1514
which it is formed or organized.
1515
(3) (a) The name is registered for the applicant upon the effective date of the
1516
application[, and the].
1517
(b) An initial registration is effective until the end of the calendar year in which it
1518
[became] becomes effective.
1519
(4) (a) A foreign company that has in effect a registration of its name as permitted by
1520
Subsection (1) may renew the registration for the following year by delivering to the division
1521
for filing a renewal application for registration[, which]:
1522
(i) that complies with the requirements of Subsection (2); and
1523
(ii) between October 1 and December 31 of the preceding year.
1524
(b) When filed, the renewal application for registration renews the registration for the
1525
following calendar year.
1526
(5) (a) A foreign company that has in effect registration of its name may:
1527
(i) apply for authority to transact business in this state under the registered name in
1528
accordance with the procedure set forth in this part; or [it may]
1529
(ii) assign the registration to another foreign company by concurrently delivering to the
1530
division for filing:
1531
(A) an assignment of the registration that states:
1532
(I) the registered name[,];
1533
(II) the name of the assigning foreign corporation[,]; and
1534
(III) the name of the assignee[, concurrently with the delivery to the division for filing