Download Zipped Introduced WordPerfect SB0173.ZIP
[Status][Bill Documents][Fiscal Note][Bills Directory]
7 LONG TITLE
8 General Description:
9 This bill modifies provisions in Title 16, Corporations, Title 48, Partnership, Title 76,
10 Utah Criminal Code, and Title 78B, Judicial Code, related to business entities required
11 to file with the Division of Corporations and Commercial Code, including addressing
12 issues regarding filings and the responsibilities of the division.
13 Highlighted Provisions:
14 This bill:
15 . repeals outdated language related to registered agents;
16 . requires certain documents to be in a machine printed format;
17 . addresses the Division of Corporations and Commercial Code's subpoena powers;
18 . addresses the notice requirement in articles of organization for series limited
19 liability companies;
20 . repeals language in the criminal code that addresses filings or service of process
21 with the Division of Corporations and Commercial Code;
22 . repeals language related to sworn certificates being required of a nonresident doing
23 business in the state; and
24 . makes technical and conforming changes.
25 Monies Appropriated in this Bill:
27 Other Special Clauses:
29 Utah Code Sections Affected:
31 16-6a-202, as last amended by Laws of Utah 2008, Chapter 364
32 16-10a-202, as last amended by Laws of Utah 2008, Chapter 364
33 16-10a-1503, as last amended by Laws of Utah 2008, Chapters 249 and 364
34 42-2-5, as last amended by Laws of Utah 2008, Chapter 307
35 48-2c-113, as last amended by Laws of Utah 2008, Chapter 364
36 48-2c-410, as enacted by Laws of Utah 2001, Chapter 260
37 48-2c-606, as enacted by Laws of Utah 2006, Chapter 92
38 48-2c-607, as enacted by Laws of Utah 2006, Chapter 92
39 76-10-1209, as last amended by Laws of Utah 2009, Chapter 183
40 76-10-1219, as last amended by Laws of Utah 1984, Chapter 66
41 76-10-1220, as last amended by Laws of Utah 1984, Chapter 66
42 76-10-1221, as last amended by Laws of Utah 1984, Chapter 66
43 78B-3-204, as renumbered and amended by Laws of Utah 2008, Chapter 3
45 78B-3-203, as renumbered and amended by Laws of Utah 2008, Chapter 3
47 Be it enacted by the Legislature of the state of Utah:
48 Section 1. Section 16-6a-202 is amended to read:
49 16-6a-202. Articles of incorporation.
50 (1) The articles of incorporation shall set forth:
51 (a) one or more purposes for which the nonprofit corporation is organized;
52 (b) a corporate name for the nonprofit corporation that satisfies the requirements of
53 Section 16-6a-401 ;
54 (c) the information required by Subsection 16-17-203 (1);
55 (d) the name and address of each incorporator;
56 (e) whether or not the nonprofit corporation will have voting members;
57 (f) if the nonprofit corporation is to issue shares of stock evidencing membership in the
58 nonprofit corporation or interests in water or other property rights:
59 (i) the aggregate number of shares that the nonprofit corporation has authority to issue;
61 (ii) if the shares are to be divided into classes:
62 (A) the number of shares of each class;
63 (B) the designation of each class; and
64 (C) a statement of the preferences, limitations, and relative rights of the shares of each
65 class; and
66 (g) provisions not inconsistent with law regarding the distribution of assets on
68 (2) The articles of incorporation may but need not set forth:
69 (a) the names and addresses of the individuals who are to serve as the initial directors;
70 (b) provisions not inconsistent with law regarding:
71 (i) managing the business and regulating the affairs of the nonprofit corporation;
72 (ii) defining, limiting, and regulating the powers of:
73 (A) the nonprofit corporation;
74 (B) the board of directors of the nonprofit corporation; and
75 (C) the members of the nonprofit corporation or any class of members;
76 (iii) whether cumulative voting will be permitted; and
77 (iv) the characteristics, qualifications, rights, limitations, and obligations attaching to
78 each or any class of members; and
79 (c) any provision that under this chapter is permitted to be in the articles of
80 incorporation or required or permitted to be set forth in the bylaws, including elective
81 provisions that in accordance with this chapter shall be included in the articles of incorporation
82 to be effective.
83 (3) (a) It is sufficient under Subsection (1)(a) to state, either alone or with other
84 purposes, that the purpose of the nonprofit corporation is to engage in any lawful act for which
85 a nonprofit corporation may be organized under this chapter.
86 (b) If the articles of incorporation include the statement described in Subsection (3)(a),
87 all lawful acts and activities shall be within the purposes of the nonprofit corporation, except
88 for express limitations, if any.
89 (4) The articles of incorporation need not set forth any corporate power enumerated in
90 this chapter.
91 (5) The articles of incorporation shall:
92 (a) be signed by each incorporator; and
93 (b) meet the filing requirements of Section 16-6a-105 .
99 the bylaws, the condition is satisfied if the provision is present either in:
100 (i) the articles of incorporation; or
101 (ii) the bylaws.
102 (b) If this chapter conditions any matter upon the absence of a provision in the bylaws,
103 the condition is satisfied only if the provision is absent from both:
104 (i) the articles of incorporation; and
105 (ii) the bylaws.
106 Section 2. Section 16-10a-202 is amended to read:
107 16-10a-202. Articles of incorporation.
108 (1) The articles of incorporation shall set forth:
109 (a) the purpose or purposes for which the corporation is organized;
110 (b) a corporate name for the corporation that satisfies the requirements of Section
111 16-10a-401 ;
112 (c) the number of shares the corporation is authorized to issue;
113 (d) the information required by Section 16-10a-601 with respect to each class of shares
114 the corporation is authorized to issue;
115 (e) the information required by Subsection 16-17-203 (1); and
116 (f) the name and address of each incorporator.
117 (2) The articles of incorporation may set forth:
118 (a) the names and addresses of the individuals who are to serve as the initial directors;
119 (b) provisions not inconsistent with law regarding:
120 (i) managing the business and regulating the affairs of the corporation;
121 (ii) defining, limiting, and regulating the powers of the corporation, its board of
122 directors, and its shareholders;
123 (iii) a par value for authorized shares or classes of shares; and
124 (iv) the imposition of personal liability on shareholders for the debts of the corporation
125 to a specified extent and upon specified conditions; and
126 (c) any provision that under this chapter is permitted to be in the articles of
127 incorporation or required or permitted to be set forth in the bylaws including elective
128 provisions which, to be effective, must be included in the articles of incorporation, as provided
129 in this chapter.
130 (3) It shall be sufficient under Subsection (1)(a) to state, either alone or with other
131 purposes, that the purpose of the corporation is to engage in any lawful act or activity for which
132 corporations may be organized under [
133 chapter, and by such statement all lawful acts and activities shall be within the purposes of the
134 corporation, except for express limitations, if any.
135 (4) The articles of incorporation need not set forth any of the corporate powers
136 enumerated in this chapter.
137 (5) The articles of incorporation shall be signed by each incorporator and meet the
138 filing requirements of Section 16-10a-120 .
142 the bylaws, the condition is satisfied if the provision is present either in the articles of
143 incorporation or the bylaws.
144 (b) If this chapter conditions any matter upon the absence of a provision in the bylaws,
145 the condition is satisfied only if the provision is absent from both the articles of incorporation
146 and the bylaws.
147 Section 3. Section 16-10a-1503 is amended to read:
148 16-10a-1503. Application for authority to transact business.
149 (1) A foreign corporation may apply for authority to transact business in this state by
150 delivering to the division for filing an application for authority to transact business setting
152 (a) its corporate name and its assumed name, if any;
153 (b) the name of the state or country under whose law it is incorporated;
154 (c) its date of incorporation and period of its corporate duration;
155 (d) the street address of its principal office;
156 (e) the information required by Subsection 16-17-203 (1);
157 (f) the names and usual business addresses of its current directors and officers;
158 (g) the date it commenced or expects to commence transacting business in this state;
160 (h) any additional information the division may determine is necessary or appropriate
161 to determine whether the application for authority to transact business should be filed.
162 (2) The foreign corporation shall deliver with the completed application for authority to
163 transact business a certificate of existence, or a document of similar import, duly authorized by
164 the lieutenant governor or other official having custody of corporate records in the state or
165 country under whose law it is incorporated. The certificate of existence shall be dated within
166 90 days [
167 the division is filed.
172 transact business in this state in the same manner as a foreign corporation incorporated in
173 another state.
174 (b) If a tribal corporation elects to apply for authority to transact business in this state,
175 for purposes of this chapter, the tribal corporation shall be treated in the same manner as a
176 foreign corporation incorporated under the laws of another state.
177 Section 4. Section 42-2-5 is amended to read:
178 42-2-5. Certificate of assumed and of true name -- Contents -- Execution -- Filing
179 -- Notice.
180 (1) For purposes of this section, "filed" means the Division of Corporations and
181 Commercial Code has:
182 (a) received and approved, as to form, a document submitted under this chapter; and
183 (b) marked on the face of the document a stamp or seal indicating:
184 (i) the time of day and date of approval;
185 (ii) the name of the division; and
186 (iii) the division director's signature and division seal, or facsimiles of the signature or
189 under an assumed name, whether that business is carried on, conducted, or transacted as an
190 individual, association, partnership, corporation, or otherwise, shall file with the Division of
191 Corporations and Commercial Code a certificate setting forth:
192 (a) the name under which the business is, or is to be carried on, conducted, or
194 (b) the full true name, or names, of the person owning, and the person carrying on,
195 conducting, or transacting the business; and
199 (a) executed by the person owning, and the person carrying on, conducting, or
200 transacting the business[
201 (b) filed not later than 30 days after the time of commencing to carry on, conduct, or
202 transact the business[
208 (c) submitted in a machine printed format.
209 (4) [
210 under this chapter shall include the following notice in a conspicuous place on the face thereof:
211 NOTICE - THE FILING OF THIS APPLICATION AND ITS APPROVAL BY THE
212 DIVISION OF CORPORATIONS AND COMMERCIAL CODE DOES NOT AUTHORIZE
213 THE USE IN THE STATE OF UTAH OF AN ASSUMED NAME IN VIOLATION OF THE
214 RIGHTS OF ANOTHER UNDER FEDERAL, STATE, OR COMMON LAW (SEE UTAH
215 CODE ANN. SECTIONS 42-2-5 ET SEQ.).
216 (5) (a) A certificate filed under this section shall include a portion that allows the
217 person filing the form to voluntarily disclose the gender and race of one or more owners of the
218 entity for which the filing is made.
219 (b) Race shall be indicated under Subsection (5)(a) by selecting from the categories of
220 race listed in 15 U.S.C. Sec. 631(f).
221 (c) A person is not required to provide information under Subsection (5)(a) concerning
222 the gender or race of one or more owners of the entity for which the filing is made.
223 (d) (i) The Division of Corporations and Commercial Code shall compile information
224 concerning the gender or race included on certificates filed with the Division of Corporations
225 and Commercial Code.
226 (ii) Information compiled by the Division of Corporations and Commercial Code under
227 Subsection (5)(d)(i) may be compiled in a manner determined by the Division of Corporations
228 and Commercial Code by rules made pursuant to Title 63G, Chapter 3, Utah Administrative
229 Rulemaking Act.
230 Section 5. Section 48-2c-113 is amended to read:
231 48-2c-113. Inspection of records by members and managers.
232 (1) A current or former member or manager of a company is entitled to inspect and
233 copy, during regular business hours at the company's principal office, any of the records
234 described in Subsection (2) after first giving the company written notice of the demand at least
235 five business days before the inspection is to occur.
236 (2) Records required to be kept at the principal office under Subsection (1) include:
237 (a) a current list in alphabetical order of the full name and last-known business,
238 residence, or mailing address of each member and each manager;
239 (b) a copy of the stamped articles of organization and all certificates of amendment
240 thereto, together with a copy of all signed powers of attorney pursuant to which the articles of
241 organization or any amendment has been signed;
242 (c) a copy of the writing required of an organizer under Subsection 48-2c-401 (2);
243 (d) a copy of the company's federal, state, and local income tax returns and reports, if
244 any, for the three most recent years;
245 (e) a copy of any financial statements of the company, if any, for the three most recent
247 (f) a copy of the company's operating agreement, if any, and all amendments thereto;
248 (g) a copy of the minutes, if any, of each meeting of members and of any written
249 consents obtained from members; and
250 (h) unless otherwise set forth in the articles of organization or the operating agreement,
251 a written statement setting forth:
252 (i) the amount of cash and a description and statement of the agreed value of the other
253 property or services contributed and agreed to be contributed by each member;
254 (ii) the times at which, or events on the happening of which, any additional
255 contributions agreed to be made by each member are to be made;
256 (iii) any right of a member to receive distributions;
257 (iv) any date or event upon the happening of which a member is entitled to payment in
258 redemption of the member's interest in the company; and
259 (v) any date or event upon the happening of which the company is to be dissolved and
260 its affairs wound up.
261 (3) This section does not affect:
262 (a) the right of a member or manager to inspect records if the member or manager is in
263 litigation with the company, to the same extent as any other litigant; or
264 (b) the power of a court, independent of this chapter, to compel the production of
265 records for examination.
266 (4) A current or former member or manager may not use any information obtained
267 through the inspection or copying of records permitted by Subsection (1) for any improper
269 (5) The division may on the division's own behalf subpoena [
270 record described in Subsection (2) if a company denies any current or former member or
271 manager access to the records.
272 Section 6. Section 48-2c-410 is amended to read:
273 48-2c-410. Transfer to other jurisdiction.
274 (1) Any domestic company may transfer to or domesticate in any jurisdiction besides
275 this state that permits the transfer to or domestication in such jurisdiction of a limited liability
276 company by delivering to the division for filing articles of transfer meeting the requirements of
277 Subsection (2) if such transfer is approved by the members as provided in the company's
278 operating agreement or, if the operating agreement does not so provide, by all of the members.
279 (2) The articles of transfer shall state:
280 (a) the name of the company;
281 (b) the date of filing of the company's original articles of organization with the
283 (c) the jurisdiction to which the company shall be transferred or in which it shall be
285 (d) the future effective date, which shall be a date certain, of the transfer or
286 domestication if it is not to be effective upon the filing of the articles of transfer;
287 (e) that the transfer or domestication has been approved by the members;
288 (f) that the existence of the company as a domestic company of this state shall cease
289 when the articles of transfer become effective;
290 (g) the agreement of the company that it may be served with process in this state in any
291 proceeding for enforcement of any obligation of the company arising while it was a company
292 under the laws of this state; and
296 a foreign company pursuant to Section 48-2c-1604 , then the address to which a copy of service
297 of process [
300 (3) When the articles of transfer are filed with the division, or upon the future, delayed
301 effective date of the articles of transfer, and payment to the division of all fees prescribed under
302 this chapter, the company shall cease to exist as a domestic company of this state. Thereafter,
303 any certificate of the division as to the transfer shall be prima facie evidence of the transfer or
304 domestication by the company out of this state.
305 (4) Transfer or domestication of a company out of this state in accordance with this
306 section and the resulting cessation of its existence as a domestic company of this state shall not
307 be considered to affect any obligations or liabilities of the company incurred prior to the
308 transfer or domestication or the personal liability of any person incurred prior to the transfer or
309 domestication, including, but not limited to, any taxes owing to this state, nor shall it be
310 considered to affect the choice of law applicable to the company with respect to matters arising
311 prior to such transfer or domestication.
312 Section 7. Section 48-2c-606 is amended to read:
313 48-2c-606. Series of members, managers, or limited liability company interests.
314 (1) (a) An operating agreement may establish or provide for the establishment of one or
315 more designated series of members, managers, or interests in the company having separate
316 rights, powers, or duties with respect to specified property or obligations of the limited liability
317 company or profits and losses associated with specified property or obligations.
318 (b) The separate rights, powers, and duties of a series shall be identified in the
319 operating agreement.
320 (2) A series may have a business purpose or investment objective separate from the
322 (3) A series' debts, liabilities, obligations, and expenses are enforceable against the
323 assets of that series only, and not against the assets of the company generally or any other series
325 (a) the operating agreement provides for separate treatment of the series;
326 (b) separate and distinct records are maintained concerning the series;
327 (c) the assets associated with the series are held and accounted for separately from the
328 other assets of the company and any other series; and
329 (d) notice of the limitation on liability of a series is included in the company's articles
330 of organization in accordance with Section 48-2c-607 .
331 (4) None of the debts, liabilities, obligations, and expenses incurred, contracted for, or
332 otherwise existing with respect to the company generally or any other series are enforceable
333 against the assets of a series if:
334 (a) the operating agreement provides for separate treatment of the series;
335 (b) separate and distinct records are maintained concerning the series;
336 (c) the assets associated with the series are held and accounted for separately from the
337 other assets of the company and any other series; and
338 (d) notice of the limitation on liability of a series is included in the company's articles
339 of organization in accordance with Section 48-2c-607 .
340 (5) A series may contract on its own behalf and in its own name, including through a
342 (6) Notwithstanding other provisions of this section:
343 (a) property and assets of a series may not be transferred to the company generally or
344 another series if the transfer impairs the ability of the series releasing the property or assets to
345 pay its debts existing at the time of the transfer unless fair value is given to the transferring
346 series for the property or assets transferred; and
347 (b) a tax or other liability of the company generally or of a series may not be assigned
348 by the series against which the tax or other liability is imposed to the company generally or to
349 another series within the company if the assignment impairs a creditor's right and ability to
350 fully collect an amount due when owed.
351 Section 8. Section 48-2c-607 is amended to read:
352 48-2c-607. Notice of series -- Articles of organization.
353 (1) Notice in a company's articles of organization of the limitation on liabilities of a
354 series, as required by Section 48-2c-606 , is sufficient whether or not the company has
355 established any series at the time the notice is included in the articles of organization.
356 (2) The notice required by Section 48-2c-606 :
357 (a) need not reference any specific series[
358 (b) for articles of organization or an amendment to articles of organization made to
359 include notice of series that is filed on or after May 11, 2010, notice in a company's articles of
360 organization is sufficient for purposes of Subsection (1) only if the notice of series appears
361 immediately following the provision stating the name of the company.
362 (3) The filing of the notice required by Section 48-2c-606 with the division constitutes
363 notice of the limitation on liability of a series.
364 Section 9. Section 76-10-1209 is amended to read:
365 76-10-1209. Injunctive relief -- Jurisdiction -- Consent to be sued.
366 (1) The district courts of this state shall have full power, authority, and jurisdiction,
367 upon application by any county attorney or city attorney within their respective jurisdictions or
368 the attorney general, to issue any and all proper restraining orders, preliminary and permanent
369 injunctions, and any other writs and processes appropriate to carry out and enforce the
370 provisions of this part. No restraining order or injunction, however, shall issue except upon
371 notice to the person sought to be enjoined. That person shall be entitled to a trial of the issues
372 commencing within three days after filing of an answer to the complaint and a decision shall be
373 rendered by the court within two days after the conclusion of the trial. If a final order or
374 judgment of injunction is entered against the person sought to be enjoined, this final order or
375 judgment shall contain a provision directing the person to surrender to the sheriff of the county
376 in which the action was brought any pornographic material in the person's possession which is
377 subject to the injunction; and the sheriff shall be directed to seize and destroy this material.
378 (2) Any person not qualified to do business in the state who sends or brings any
379 pornographic material into the state with the intent to distribute or exhibit it to others in this
380 state [
381 section [
398 Section 10. Section 76-10-1219 is amended to read:
399 76-10-1219. Qualification for distribution of films.
400 (1) A distributor which is a corporation shall be qualified to distribute films within this
401 state if:
402 (a) it is a domestic corporation in good standing or a foreign corporation authorized to
403 transact business in this state; and
404 (b) it submits itself to the jurisdiction and laws of this state relating to being a
405 distributer in this state.
420 (2) A distributor which is not a corporation shall be qualified to distribute films within
421 this state if:
422 (a) it has and continuously maintains a registered office in this state; and
423 (b) it has a registered agent whose business address is at that registered office and
424 which is either an individual residing and domiciled in this state, a domestic corporation in
425 good standing, or a foreign corporation authorized to transact business in this state[
443 required or permitted by law to be served upon a distributor, in any other manner provided by
445 Section 11. Section 76-10-1220 is amended to read:
446 76-10-1220. Change of registered office or agent by film distributor.
448 office or registered agent [
465 Section 12. Section 76-10-1221 is amended to read:
466 76-10-1221. Service of process, notice, or demand on registered agent of film
469 distributor may be served upon the registered agent of that distributor.
479 Section 13. Section 78B-3-204 is amended to read:
480 78B-3-204. Effect of failure to file certificate -- Service of process upon
482 If a nonresident person doing business [
485 Model Registered Agents Act, service of process may be made by serving any person employed
486 by or acting as an agent for the nonresident.
487 Section 14. Repealer.
488 This bill repeals:
489 Section 78B-3-203, Sworn certificate of nonresident doing business here.
Legislative Review Note
as of 2-9-10 12:29 PM