SP0203, LD 508, item 1, An Act To Amend the Laws Relating to Corporations, Limited Liability Companies and Limited Liability Partnerships

An Act To Amend the Laws Relating to Corporations, Limited Liability Companies and Limited Liability Partnerships

Be it enacted by the People of the State of Maine as follows:

Sec. 1. 5 MRSA §102, sub-§16, ¶A, as enacted by PL 2007, c. 323, Pt. A, §1 and affected by Pt. G, §4, is amended to read:

A. An individual or a domestic or foreign entity that serves in this State as the agent for service of process of an entity; or

Sec. 2. 5 MRSA §108, sub-§2, as enacted by PL 2007, c. 323, Pt. A, §1 and affected by Pt. G, §4, is amended to read:

2. Approval not needed. The Except for a corporation formed under Title 13-C, the interest holders or governors of a domestic entity need not approve the filing of:

A. A statement of change under this section; or

B. A similar filing changing the clerk or registered agent or registered office of the entity in any other jurisdiction.

Sec. 3. 13 MRSA §43 is amended to read:

§ 43. Certificate of organization

Before commencing business, the president, treasurer and a majority of the directors of any corporation chartered by a special act of the Legislature shall prepare a certificate setting forth , sign, date and deliver for filing with the Secretary of State articles of incorporation as required by Title 13-C, section 202. In addition to the provisions under Title 13-C, section 202, the corporation must provide the date of approval of its charter , the name and purposes of the corporation , the amount of capital stock, the amount already paid in, the par value of the shares having par value and the number of shares without par value, the names and residences of the owners, the name of the county where it is located, the number and names of the directors and the name and residence of the clerk, and shall sign and make oath to it. Such certificate shall be recorded in the registry of deeds in the county where its principal office is to be located in a book kept for that purpose and a copy thereof, certified by such register, shall be filed in the office of the Secretary of State, who shall enter the date of filing thereon and on the original certificate to be kept by the corporation and shall record said copy in a book kept for that purpose. From the time of filing such certificate in the office of the Secretary of State, the stockholders of said corporation, their successors and assigns shall be a corporation. If articles of incorporation delivered for filing to the Secretary of State pursuant to this section satisfy the requirements of this subchapter and Title 13-C, section 202, the Secretary of State shall file the articles of incorporation. The date of filing is the date of receipt by the Secretary of State. After filing the articles of incorporation under this subchapter, the Secretary of State shall deliver to the corporation or its representative a copy of the document with an acknowledgment of the date of filing.

Sec. 4. 13 MRSA §44 is amended to read:

§ 44. Fees

The certificate mentioned in filing fee for the articles of incorporation filed under section 43 shall not be received and filed by the Secretary of State except upon the payment to him for the use of the State of: $15 if the capital stock does not exceed $5,000; $25 if the capital stock exceeds $5,000 and does not exceed $10,000; $75 if the capital stock exceeds $10,000 and does not exceed $50,000; $125 if the capital stock exceeds $50,000 and does not exceed $100,000; $60 upon every $100,000 or fraction thereof in excess of $100,000 if the capital stock exceeds $100,000; also 1¢ per share and in no case less than $10 on all shares authorized without par value. This section shall not apply to corporations chartered for charitable and benevolent purposes is the same as for a corporation filing articles of incorporation under Title 13-C.

Sec. 5. 13 MRSA §903, as repealed and replaced by PL 2003, c. 523, §1, is amended to read:

§ 903. Certificate of organization

The incorporators shall prepare, sign, date and deliver for filing with the Secretary of State a certificate of organization setting forth the name, location, officers and directors, trustees or managing board , contact person and the contact person's mailing and physical address, if different, in this State and purposes of the corporation. The certificate must clearly state that the corporation is not organized for profit and that no property or profit of the corporation inures to the benefit of any person, partnership or corporation except in furtherance of the benevolent or nonprofit purposes of the corporation. Once the Secretary of State has filed the certificate of organization, the corporation may carry on activities pursuant to this chapter.

Sec. 6. 13 MRSA §906, as repealed and replaced by PL 1993, c. 349, §31, is repealed.

Sec. 7. 13 MRSA §909 is enacted to read:

§ 909. Certificate of existence; certificate of fact

1. Application. A person may apply to the Secretary of State for a certificate of existence for a corporation formed under this subchapter.

2. Contents. A certificate of existence sets forth:

A. The corporation's name used in this State;

B. That the corporation is duly incorporated under the laws of this State and the date of its incorporation;

C. That all fees and penalties owed to this State have been paid if:

(1) Payment is reflected in the records of the Secretary of State; and

(2) Nonpayment affects the existence of the corporation; and

D. Any facts of record in the office of the Secretary of State that may be requested by the applicant under subsection 1.

3. Evidence of existence. Subject to any qualification stated in the certificate, a certificate of existence issued by the Secretary of State may be relied upon as conclusive evidence that the corporation is in existence in this State.

4. Certificate of fact. In addition to the certificate of existence authorized under subsection 2, the Secretary of State may issue a certificate attesting to any fact of record in the office of the Secretary of State that may be requested by the applicant under subsection 1.

Sec. 8. 13 MRSA §910 is enacted to read:

§ 910. Contact person for corporation; changes

1. Corporation to keep name of contact person on file with Secretary of State. A corporation to which this chapter applies must continually keep and maintain the name of a contact person, who is a natural person resident in this State, on file with the Secretary of State.

2. Change. If a change in the contact person under subsection 1 occurs or the name or address of the contact person changes:

A. The corporation must notify the Secretary of State by filing a certificate of change of contact person if the contact person changes. Notice by the corporation must be made within 10 business days after a change of contact person occurs; or

B. The contact person must notify the Secretary of State of a name or address change by filing a certificate of change of name or address. Notice by the contact person must be made within 10 business days after a change of name or address of the contact person occurs.

3. Application. This section applies to:

A. A new corporation formed under this chapter on or after the effective date of this section; and

B. An existing corporation formed under this chapter that files an amendment to its articles of incorporation on or after the effective date of this section.

Sec. 9. 13 MRSA §911 is enacted to read:

§ 911. Corporate name

1. Prohibition. A corporate name may not contain language stating or implying that the corporation is organized for a purpose other than that permitted under this chapter and the corporation's articles of incorporation.

2. Distinguishable name. Except as authorized by subsections 4 and 5, a corporate name must be distinguishable on the records of the Secretary of State from:

A. The name of a corporation, limited liability company, limited liability partnership or limited partnership that is incorporated, organized or authorized to transact business or carry on activities in this State;

B. Assumed, fictitious, reserved and registered name filings for all entities; and

C. Marks registered under Title 10, chapter 301-A unless the registered owner or holder of the mark is the same person or entity as the corporation seeking to use a name that is not distinguishable on the records of the Secretary of State and files proof of ownership with the Secretary of State.

3. Refuse to file name. The Secretary of State, in the Secretary of State's discretion, may refuse to file a name that:

A. Consists of or comprises language that is obscene;

B. Inappropriately promotes abusive or unlawful activity;

C. Falsely suggests an association with public institutions; or

D. Violates any other provision of the laws of this State with respect to names.

4. Authorization to use name. A corporation may apply to the Secretary of State for authorization to use a name that is not distinguishable on the records of the Secretary of State from one or more of the names described in subsection 2. The Secretary of State shall authorize use of the name applied for if:

A. The entity in possession of the name consents to the use in writing and submits an undertaking in a form satisfactory to the Secretary of State as provided in this chapter or as provided in the applicable law for that entity to change its name to a name that is distinguishable on the records of the Secretary of State from the name of the applicant; or

B. The applicant delivers to the Secretary of State a certified copy of the final judgment of a court of competent jurisdiction establishing the applicant's right to use the name applied for in this State.

5. Use of another corporation's name. A corporation may use the name, including the assumed or fictitious name, of another domestic or foreign corporation that is used in this State if the other corporation is incorporated or authorized to transact business in this State and the corporation proposing to use the name:

A. Has merged with the other corporation;

B. Has been formed by reorganization of the other corporation; or

C. Has acquired all or substantially all of the assets, including the corporate name, of the other corporation.

6. Determining distinguishability. In determining whether names are distinguishable on the records, the Secretary of State shall disregard:

A. The words or abbreviations of words that describe the nature of the entity, including "professional association," "corporation," "company," "incorporated," "chartered," "limited," "limited partnership," "limited liability company," "professional limited liability company," "limited liability partnership," "registered limited liability partnership," "limited liability limited partnership," "service corporation" and "professional corporation";

B. The presence or absence of the words or symbols of the words "and" and "the"; and

C. The differences in the use of punctuation, capitalization or special characters.

7. Violations of this section. If a corporation has in other respects complied with this chapter and its articles of incorporation have been filed, subsequent discovery of a violation of this section does not invalidate its corporate existence or authority, but the courts of this State may, upon application of the State or of any interested or affected person, enjoin such violation and grant any other appropriate relief.

Sec. 10. 13 MRSA §1823, first ¶ is amended to read:

Articles The articles of incorporation shall be signed by each of the incorporators and acknowledged by at least 3 of them if natural persons, and by the president and secretary if associations, before an officer authorized to take acknowledgments, and shall state must set forth:

Sec. 11. 13 MRSA §1823, sub-§4 is amended to read:

4. Location of office. The location and post-office mailing address and physical address , if different, of its registered office in this State;

Sec. 12. 13 MRSA §1823, sub-§5 is amended to read:

5. Name and address of incorporators; number of shares. The name and post-office mailing address and physical address , if different, of the incorporators, and if organized with capital stock, a statement of the number of shares subscribed by each, which shall may not be less than one, and the class of shares for which each subscribes;

Sec. 13. 13 MRSA §1823, sub-§6 is amended to read:

6. Names and addresses of first directors. The names and mailing addresses and physical addresses, if different, of the first directors and their post-office addresses;

Sec. 14. 13 MRSA §1824, as amended by PL 2007, c. 231, §5, is further amended to read:

§ 1824. Filing and recording articles of incorporation

Before commencing business, the president, treasurer and a majority of the directors or trustees incorporators of every corporation organized under this subchapter shall prepare, sign, date and deliver for filing with the Secretary of State articles of incorporation, in a format approved by the Secretary of State, setting forth the names and addresses of the officers information required under section 1823. The filing fee for a corporation formed under this subchapter is the same as for a corporation organized under Title 13-C. If articles of incorporation delivered for filing to the Secretary of State pursuant to this section satisfy the requirements of this subchapter, the Secretary of State shall file the articles of incorporation. The date of filing is the date of receipt by the Secretary of State. After filing the articles of incorporation under this subchapter, the Secretary of State shall deliver to the corporation or its representative a copy of the document with an acknowledgement of the date of filing.

Sec. 15. 13-C MRSA §202, sub-§5, as enacted by PL 2001, c. 640, Pt. A, §2 and affected by Pt. B, §7, is repealed.

Sec. 16. 13-C MRSA §1503, sub-§3, as enacted by PL 2001, c. 640, Pt. A, §2 and affected by Pt. B, §7, is repealed.

Sec. 17. 24-A MRSA §3308, as amended by PL 1973, c. 585, §12, is repealed.

Sec. 18. 24-A MRSA §3308-A is enacted to read:

§ 3308-A. Filing by the Secretary of State

1. Duty to file. If a document delivered to the office of the Secretary of State for filing pursuant to this chapter satisfies the requirements of this chapter, the Secretary of State shall file the document.

2. Recording as filed; acknowledgment. The Secretary of State files a document pursuant to subsection 1 by recording it as filed on the date of receipt. After filing a document, the Secretary of State shall deliver to the corporation or its representative a copy of the document with an acknowledgment of the date of filing.

3. Evidentiary effect of copy of filed document. A certificate from the Secretary of State delivered with a copy of a document filed by the Secretary of State is conclusive evidence that the original document is on file with the Secretary of State.

Sec. 19. 24-A MRSA §3309, as amended by PL 1973, c. 585, §12, is further amended to read:

§ 3309. Completion of incorporation; general powers, duties

The incorporation of an insurer shall be is effective as of the date of issuance filing of the appropriate document by the Secretary of State of his certificate as provided for in section 3308; 3308-A, and thereupon the corporation shall be is vested with all the powers, rights and privileges , and be is subject to all the duties, liabilities and restrictions applicable to insurer corporations ; subject to qualification and application for, and issuance to the corporation of, a certificate of authority as an insurer by the superintendent under this Title.

Sec. 20. 24-A MRSA §6717, sub-§4, as enacted by PL 1997, c. 435, §1, is amended to read:

4. Effect of transfer. Upon any transfer authorized pursuant to this section, the captive insurance company ceases to be domiciled in this State, and its corporate or other legal existence in this State ceases upon the issuance of a certificate of discontinuance filing of the notice under this section by the Secretary of State.

Sec. 21. 31 MRSA §625, sub-§1, ¶D, as enacted by PL 1993, c. 718, Pt. A, §1, is amended to read:

D. The future effective date or time of cancellation, which must be a date or time certain not more than 90 days after the filing of the certificate, if it is not to be effective upon the filing of the certificate; and

Sec. 22. 31 MRSA §825, sub-§1, ¶D, as enacted by PL 1995, c. 633, Pt. B, §1, is amended to read:

D. The future effective date or time of renunciation, which must be a date or time certain not more than 90 days after the filing of the certificate, if it is not to be effective upon the filing of the certificate; and

Sec. 23. 31 MRSA §1009, sub-§1, ¶C, as enacted by PL 2005, c. 543, Pt. A, §2, is amended to read:

C. For filing a statement of conversion under section 1092 or 1093, the fee is $150;

Sec. 24. 31 MRSA §1092, as enacted by PL 2005, c. 543, Pt. A, §2, is repealed.

summary

This bill makes the following changes to the laws governing corporations, limited liability companies and limited liability partnerships.

1. It amends the definition of "noncommercial clerk" in the newly enacted Model Registered Agents Act to clarify that the clerk cannot be a domestic or foreign entity.

2. It amends the Model Registered Agents Act to require that approval of the interest holders or governors of a domestic corporation is required when appointing a clerk of the corporation.

3. It amends the language for corporations created under special acts of the Legislature to comply with the filing requirements and fees for corporations filed under the Maine Revised Statutes, Title 13-C.

4. It amends and enacts provisions under Title 13, chapter 81 in regards to naming or changing a contact person for a corporation, obtaining a certificate of existence or certificate of fact from the Secretary of State and determining name availability.

5. It amends the language under Title 13, chapter 85 for cooperative corporations to make consistent a signature requirement.

6. It repeals provisions in Title 13-C relating to acceptance of appointment by the clerk or registered agent of the corporation.

7. It changes provisions in the Maine Insurance Code to bring these provisions in line with the duty of the Secretary of State for corporations governed by Title 13-C.

8. It amends the provisions for dissolving a limited liability company to cap the delayed effective date to not be more than 90 days after filing the certificate of dissolution.

9. It amends the provisions for dissolving a limited liability partnership to cap the delayed effective date to not be more than 90 days after filing the certificate of dissolution.

10. It repeals a duplicative provision in Title 31, chapter 17, for partnerships to convert to another type of business entity.

11. It corrects cross-references and updates a provision regarding when the incorporation of an insurer is effective.

SP0203 LD 508	First Regular Session - 124th Maine Legislature Text: MS-Word, RTF or PDF		LR 558 Item 1
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