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S.B. 137
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BUSINESS ORGANIZATION AND DIVISION
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OF CORPORATIONS AND COMMERCIAL CODE
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AMENDMENTS
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2006 GENERAL SESSION
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STATE OF UTAH
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Chief Sponsor: Gregory S. Bell
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House Sponsor:
Ross I. Romero
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LONG TITLE
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General Description:
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This bill makes changes to certain provisions affecting business organizations and the
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Division of Corporations and Commercial Code.
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Highlighted Provisions:
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This bill:
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. allows a document required to be filed by a nonprofit corporation or a corporation to
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be signed by an attorney in fact;
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. provides that a claim against a dissolved corporation may not be made more than
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seven years after the dissolution;
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. changes the fee that may be collected by the Division of Corporations and
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Commercial Code for service of process upon the division under Sections
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41-12a-505 and 48-2c-310; and
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. makes technical changes.
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Monies Appropriated in this Bill:
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None
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Other Special Clauses:
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None
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Utah Code Sections Affected:
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AMENDS:
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16-6a-105, as enacted by Chapter 300, Laws of Utah 2000
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16-10a-120, as enacted by Chapter 277, Laws of Utah 1992
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16-10a-1407, as enacted by Chapter 277, Laws of Utah 1992
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41-12a-505, as last amended by Chapter 40, Laws of Utah 1989
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48-2c-310, as enacted by Chapter 260, Laws of Utah 2001
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
16-6a-105
is amended to read:
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16-6a-105. Filing requirements.
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(1) To be entitled to filing by the division, a document shall satisfy the requirements of:
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(a) this section; and
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(b) any other section of this chapter that adds to or varies the requirements of this
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section.
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(2) This chapter shall require or permit filing the document with the division.
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(3) (a) A document shall contain the information required by this chapter.
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(b) In addition to the document information required by this chapter, [it] a document
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may contain other information.
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(4) A document shall be:
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(a) typewritten; or
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(b) machine printed.
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(5) (a) A document shall be in the English language.
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(b) A corporate name need not be in English if written in:
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(i) English letters; or
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(ii) Arabic or Roman numerals.
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(c) Notwithstanding Subsection (5)(a), a certificate of existence required of a foreign
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nonprofit corporation need not be in English if accompanied by a reasonably authenticated
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English translation.
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(6) (a) A document shall be:
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(i) executed by a person in Subsection (6)(b); or
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(ii) a true copy made by photographic, xerographic, electronic, or other process that
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provides similar copy accuracy of a document that has been executed by a person listed in
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Subsection (6)(b).
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(b) A document shall be executed by:
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(i) the chair of the board of directors of a domestic or foreign nonprofit corporation;
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(ii) all of the directors of a domestic or foreign nonprofit corporation;
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(iii) an officer of the domestic or foreign nonprofit corporation;
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(iv) if directors have not been selected or the domestic or foreign nonprofit corporation
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has not been formed, an incorporator;
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(v) if the domestic or foreign nonprofit corporation is in the hands of a receiver,
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trustee, or other court-appointed fiduciary, that receiver, trustee, or court-appointed fiduciary;
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[or]
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(vi) if the document is that of a registered agent:
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(A) the registered agent, if the person is an individual; or
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(B) a person authorized by the registered agent to execute the document, if the
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registered agent is an entity[.]; or
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(vii) an attorney in fact if a nonprofit corporation retains the power of attorney with the
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nonprofit corporation's records.
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(7) A document shall state beneath or opposite the signature of the person executing
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the document:
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(a) the signer's name; and
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(b) the capacity in which the document is signed.
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(8) A document may contain:
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(a) the corporate seal;
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(b) an attestation by the secretary or an assistant secretary; or
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(c) an acknowledgment, verification, or proof.
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(9) The signature of each person signing a document, whether or not the document
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contains an acknowledgment, verification, or proof permitted by Subsection (8), [shall
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constitute] constitutes the affirmation or acknowledgment of the person, under penalties of
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perjury, that:
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(a) the document is:
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(i) the person's act and deed; or
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(ii) the act and deed of the entity on behalf of which the document is executed; and
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(b) the facts stated in the document are true.
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(10) If the division has prescribed a mandatory form or cover sheet for the document
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under Section
16-6a-106
, a document shall be:
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(a) in or on the prescribed form; or
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(b) have the required cover sheet.
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(11) A document shall be:
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(a) delivered to the division for filing; and
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(b) accompanied by:
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(i) one exact or conformed copy, except as provided in Sections
16-6a-503
and
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16-6a-1510
;
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(ii) the correct filing fee; and
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(iii) any franchise tax, license fee, or penalty required by this chapter or other law.
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(12) Except with respect to filings pursuant to Section
16-6a-503
or
16-6a-1510
, a
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document shall state, or be accompanied by a writing stating, the address to which the division
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may send a copy upon completion of the filing.
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Section 2.
Section
16-10a-120
is amended to read:
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16-10a-120. Filing requirements.
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(1) A document must satisfy the requirements of this section, and of any other section
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of this chapter that adds to or varies these requirements, to be entitled to filing by the division.
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(2) This chapter must require or permit filing the document with the division.
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(3) (a) The document must contain the information required by this chapter. [It]
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(b) A document may contain [other] information [as well] in addition to that required
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in Subsection (3)(a).
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(4) The document must be typewritten or machine printed.
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(5) (a) The document must be in the English language.
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(b) A corporate name need not be in English if written in English letters, Arabic or
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Roman numerals[, and the].
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(c) The certificate of existence required of foreign corporations need not be in English
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if accompanied by a reasonably authenticated English translation.
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(6) The document must be executed, or must be a true copy made by photographic,
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xerographic, electronic, or other process that provides similar copy accuracy of a document that
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has been executed:
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(a) by the chairman of the board of directors of a domestic or foreign corporation, by
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all of its directors, or by one of its officers;
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(b) if directors have not been selected or the corporation has not been formed, by an
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incorporator;
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(c) if the corporation is in the hands of a receiver, trustee, or other court-appointed
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fiduciary, by that fiduciary; [or]
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(d) if the document is that of a registered agent, by the registered agent, if the person is
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an individual, or by a person authorized by the registered agent to execute the document, if the
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registered agent is an entity[.]; or
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(e) by an attorney-in-fact if the corporation retains the power of attorney with the
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corporation's records.
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(7) The document shall state beneath or opposite the signature of the person executing
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the document the signer's name and the capacity in which the document is signed.
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(8) The document may, but need not, contain:
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(a) the corporate seal;
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(b) an attestation by the secretary or an assistant secretary; or
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(c) an acknowledgment, verification, or proof.
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(9) The signature of each person signing the document, whether or not the document
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contains an acknowledgment, verification, or proof permitted by Subsection (8), [shall
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constitute] constitutes the affirmation or acknowledgment of the person, under penalties of
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perjury, that the document is the person's act and deed or the act and deed of the entity on
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behalf of which the document is executed, and that the facts stated in the document are true.
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(10) If the division has prescribed a mandatory form or cover sheet for the document
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under Section
16-10a-121
, the document must be in or on the prescribed form or must have the
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required cover sheet.
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(11) The document must be delivered to the division for filing and must be
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accompanied by one exact or conformed copy, except as provided in Sections
16-10a-503
and
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16-10a-1510
, the correct filing fee, and any franchise tax, license fee, or penalty required by
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this chapter or other law.
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(12) Except with respect to filings pursuant to Section
16-10a-503
or
16-10a-1510
, the
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document must state, or be accompanied by a writing stating, the address to which the division
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may send a copy upon completion of the filing.
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Section 3.
Section
16-10a-1407
is amended to read:
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16-10a-1407. Disposition of claims by publication -- Disposition in absence of
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publication.
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(1) A dissolved corporation may publish notice of its dissolution and request that
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persons with claims against the corporation present them in accordance with the notice.
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(2) The notice contemplated in Subsection (1) must:
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(a) be published one time in a newspaper of general circulation in the county where the
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dissolved corporation's principal office or, if it has no principal office in this state, its registered
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office is or was last located;
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(b) describe the information that must be included in a claim and provide an address at
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which any claim must be given to the corporation; and
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(c) state that unless sooner barred by any other statute limiting actions, the claim will
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be barred if an action to enforce the claim is not commenced within five years after the
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publication of the notice.
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(3) If the dissolved corporation publishes a newspaper notice in accordance with
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Subsection (2), then unless sooner barred under Section
16-10a-1406
or under any other statute
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limiting actions, the claim of any claimant against the dissolved corporation is barred unless the
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claimant commences an action to enforce the claim against the dissolved corporation within
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five years after the publication date of the notice.
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(4) (a) For purposes of this section, "claim" means any claim, including claims of this
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state, whether known, due or to become due, absolute or contingent, liquidated or unliquidated,
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founded on contract, tort, or other legal basis, or otherwise.
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(b) For purposes of this section, an action to enforce a claim includes any civil action,
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and any arbitration under any agreement for binding arbitration between the dissolved
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corporation and the claimant.
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(5) If a dissolved corporation does not publish a newspaper notice in accordance with
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Subsection (2), then unless sooner barred under Section
16-10a-1406
or under any other statute
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limiting actions, the claim of any claimant against the dissolved corporation is barred unless the
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claimant commences an action to enforce the claim against the dissolved corporation within
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seven years after the date the corporation was dissolved.
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Section 4.
Section
41-12a-505
is amended to read:
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41-12a-505. Effect upon nonresident of use of state highways.
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(1) (a) The use and operation by a nonresident or his agent, or of a resident who has
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departed Utah, of a motor vehicle on Utah highways is an appointment of the Division of
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Corporations and Commercial Code as the true and lawful attorney for service of legal process
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in any action or proceeding against [him] the person arising from the use or operation of a
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motor vehicle over Utah highways which use or operation results in damages or loss to person
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or property. [That]
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(b) The use or operation referenced in Subsection (1) is an agreement that process
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shall, in any action against [him] the person in which there is such service, be of the same legal
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force and validity as if served upon him personally in Utah.
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(2) (a) Service of process under Subsection (1) is made by serving a copy upon the
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Division of Corporations and Commercial Code or by filing a copy in that office with payment
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of a [$5] reasonable fee.
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(b) The plaintiff shall, within ten days after service of process, send notice of the
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process together with plaintiff's affidavit of compliance with this section to the defendant by
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registered mail at [his] the defendant's last-known address.
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(3) (a) The court in which the action is pending may order any continuance necessary
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to afford the defendant reasonable opportunity to defend the action, but not exceeding 90 days
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from the date of filing the action in court.
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(b) The [$5] reasonable fee paid by the plaintiff to the Division of Corporations and
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Commercial Code [shall be] is taxed as costs if the plaintiff prevails.
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(c) The division shall keep a record of all process served showing the day and hour of
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service.
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Section 5.
Section
48-2c-310
is amended to read:
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48-2c-310. Service on foreign companies not authorized to do business.
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(1) (a) Any foreign company [which] that does business in this state without authority
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[shall be] is considered to have thereby appointed and constituted the director of the division its
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agent for service of process in any proceeding against it in any state or federal court in this state
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arising or growing out of any business transacted by it within this state.
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(b) Transacting business in this state by [such] a foreign company [shall be] is a
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signification of the agreement of that foreign company that any such process when [so] served
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[shall be] upon the division is of the same legal force and validity as if served upon an
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authorized person or agent personally within this state.
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(2) Whenever the words "transacting business", "the doing of business", or "business
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done in this state", by any [such] foreign company are used in this section, they [shall] mean
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the course or practice of carrying on any business activities in this state, including[, without
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limiting the generality of the foregoing,] the solicitation of business or orders in this state.
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(3) (a) In the event of service upon the director of the division in accordance with
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Subsection (1), the director of the division shall forthwith notify the foreign company thereof
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by letter, certified mail, return receipt requested, directed to the foreign company at the address
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furnished to the director of the division by the plaintiff in [such] the action, suit, or proceeding.
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(b) The letter must enclose a copy of the process and any other papers served upon the
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director of the division.
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(c) It [shall be] is the plaintiff's duty [of the plaintiff] in the event of [such] service to
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serve process and any other papers in duplicate, to notify the director of the division that
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service is being made pursuant to this Subsection (3), and to pay to the director of the division
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[the sum of $100 for the use of this state] a reasonable fee, which sum [shall be] is taxed as part
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of the costs in the proceeding, if the plaintiff [shall prevail therein] prevails.
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(d) The director of the division shall maintain an alphabetical record of any [such]
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process served under this section setting forth the name of the plaintiff and defendant, the title,
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docket number, and nature of the proceeding in which process has been served upon the
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director, the return date thereof, and the day and hour when the service was made.
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(e) The director of the division [shall not be] is not required to retain [such] the
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information required by Subsection (3)(d) for a period longer than five years from receipt of the
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service of process by the director of the division.
Legislative Review Note
as of 1-12-06 1:26 PM
Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.