ENROLLED
COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 624
(Senators White, Williams and Jenkins, original sponsors)
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[Passed March 13, 2010; in effect ninety days from passage.]
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AN ACT to amend and reenact §31B-2-203 and §31B-2-211 of the Code
of West Virginia, 1931, as amended; to amend and reenact
§31B-10-1002 of said code; to amend and reenact §31D-2-202 of
said code; to amend and reenact §31D-15-1503 of said code; to
amend and reenact §31E-2-202 of said code; to amend and
reenact §31E-14-1403 of said code; and to amend and reenact
§47-9A-2 and §47-9A-3 of said code, all relating to business
organizations and associations generally; providing
consistency of filing deadlines for all organizations filing
annual reports with the Secretary of State; and requiring e-
mail addresses for informational notices.
Be it enacted by the Legislature of West Virginia:
That §31B-2-203 and §31B-2-211 of the Code of West Virginia,
1931, as amended, be amended and reenacted; that §31B-10-1002 of
said code be amended and reenacted; that §31D-2-202 of said code be amended and reenacted; that §31D-15-1503 of said code be amended
and reenacted; that §31E-2-202 of said code be amended and
reenacted; that §31E-14-1403 of said code be amended and reenacted;
and that §47-9A-2 and §47-9A-3 of said code be amended and
reenacted, all to read as follows:
CHAPTER 31B. UNIFORM LIMITED LIABILITY COMPANY ACT.
ARTICLE 2. ORGANIZATION.
§31B-2-203. Articles of organization.
(a) Articles of organization of a limited liability company
must set forth:
(1) The name of the company;
(2) The address of the initial designated office in West
Virginia, if any, and the mailing address of the principal office;
(3) The name and address of the initial agent for service of
process, if any;
(4) The name and address of each organizer and of each member
having authority to execute instruments on behalf of the limited
liability company;
(5) Whether the company is to be a term company and, if so,
the term specified;
(6) Whether the company is to be manager-managed and, if so,
the name and address of each initial manager;
(7) Whether one or more of the members of the company are to
be liable for its debts and obligations under section 3-303(c);
(8) The purpose or purposes for which the limited liability company is organized; and
(9) An e-mail address where informational notices and
reminders of annual filings may be sent, unless there is a
technical inability to comply.
(b) Articles of organization of a limited liability company
may set forth:
(1) Provisions permitted to be set forth in an operating
agreement; or
(2) Other matters not inconsistent with law.
(c) Articles of organization of a limited liability company
may not vary the nonwaivable provisions of section 1-103(b). As to
all other matters, if any provision of an operating agreement is
inconsistent with the articles of organization:
(1) The operating agreement controls as to managers, members
and members' transferees; and
(2) The articles of organization control as to persons other
than managers, members and their transferees who reasonably rely on
the articles to their detriment.
§31B-2-211. Annual report for Secretary of State.
(a) A limited liability company, and a foreign limited
liability company authorized to transact business in this state,
shall deliver to the Secretary of State for filing an annual report
that sets forth:
(1) The name of the company and the state or country under
whose law it is organized;
(2) The address of its designated office, if any and the name and address of its agent for service of process in this state, if
any;
(3) The address of its principal office;
(4) The names and business addresses of any managers and the
name and address of each member having authority to execute
instruments on behalf of the limited liability company; and
(5) An e-mail address where informational notices and
reminders of annual filings may be sent, unless there is a
technical inability to comply.
(b) Information in an annual report must be current as of the
date the annual report is signed on behalf of the limited liability
company.
(c) The first annual report must be delivered to the Secretary
of State between January 1 and July 1 of the year following the
calendar year in which a limited liability company was organized or
a foreign company was authorized to transact business. Subsequent
annual reports must be delivered to the Secretary of State between
January 1 and July 1 of the ensuing calendar years.
(d) If an annual report does not contain the information
required in subsection (a) of this section, the Secretary of State
shall promptly notify the reporting limited liability company or
foreign limited liability company and return the report to it for
correction. If the report is corrected to contain the information
required in subsection (a) of this section and delivered to the
Secretary of State within thirty days after the effective date of
the notice, it is timely filed.
ARTICLE 10. FOREIGN LIMITED LIABILITY COMPANIES.
§31B-10-1002. Application for certificate of authority.
(a) A foreign limited liability company may apply for a
certificate of authority to transact business in this state by
delivering an application to the Secretary of State for filing,
together with the fee prescribed by section two, article one,
chapter fifty-nine of this code.
The application shall set forth:
(1) The name of the foreign company or, if its name is
unavailable for use in this state, a name that satisfies the
requirements of section 10-1005 of this article;
(2) The name of the state or country under whose law it is
organized;
(3) The mailing address of its principal office;
(4) The name and address of each member having authority to
execute instruments on behalf of the limited liability company;
(5) The address of its initial designated office in this
state, if any;
(6) The name and address of its initial agent for service of
process in this state, if any;
(7) Whether the duration of the company is for a specified
term and, if so, the period specified;
(8) Whether the company is manager-managed and, if so, the
name and address of each initial manager;
(9) Whether the members of the company are to be liable for
its debts and obligations under a provision similar to section 3-303( c);
(10) The purpose or purposes for which the limited liability
company is organized; and
(11) An e-mail address where informational notices and
reminders of annual filings may be sent, unless there is a
technical inability to comply.
(b) A foreign limited liability company shall deliver with the
completed application a certificate of existence or a record of
similar import authenticated by the Secretary of State or other
official having custody of company records in the state or country
under whose law it is organized.
CHAPTER 31D. WEST VIRGINIA BUSINESS CORPORATION ACT.
ARTICLE 2. INCORPORATION.
§31D-2-202. Articles of incorporation.
(a) The articles of incorporation must set forth:
(1) A corporate name for the corporation that satisfies the
requirements of section four hundred one, article four of this
chapter;
(2) The number of shares the corporation is authorized to
issue, the par value of each of the shares or a statement that all
shares are without par value;
(3) The street address of the corporation's initial registered
office, if any, and the name of its initial registered agent at
that office, if any;
(4) The name and address of each incorporator;
(5) The purpose or purposes for which the corporation is
organized;
(6) The mailing address of the corporation's principal office;
and
(7) An e-mail address where informational notices and
reminders of annual filings may be sent, unless there is a
technical inability to comply.
(b) The articles of incorporation may set forth:
(1) The names and addresses of the individuals who are to
serve as the initial directors;
(2) Provisions not inconsistent with law regarding:
(A) Managing the business and regulating the affairs of the
corporation;
(B) Defining, limiting and regulating the powers of the
corporation, its board of directors and shareholders; or
(C) The imposition of personal liability on shareholders for
the debts of the corporation to a specified extent and upon
specified conditions;
(3) Any provision that, under this chapter, is required or
permitted to be set forth in the bylaws;
(4) A provision eliminating or limiting the personal liability
of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director:
Provided, That
a provision may not eliminate or limit the liability of a director:
(A) For any breach of the director's duty of loyalty to the
corporation or its stockholders; (B) for acts or omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (C) under section eight hundred thirty-three,
article eight of this chapter for unlawful distributions; or (D)
for any transaction from which the director derived an improper
personal benefit. No provision may eliminate or limit the
liability of a director for any act or omission occurring prior to
the date when that provision becomes effective; and
(5) A provision permitting or making obligatory
indemnification of a director for liability as that term is defined
in section eight hundred fifty, article eight of this chapter to
any person for any action taken, or any failure to take any action,
as a director except liability for: (A) Receipt of a financial
benefit to which he or she is not entitled; (B) an intentional
infliction of harm on the corporation or its shareholders; (C) a
violation of section eight hundred thirty-three, article eight of
this chapter for unlawful distributions; or (D) an intentional
violation of criminal law.
(c) The articles of incorporation need not set forth any of
the corporate powers enumerated in this chapter.
ARTICLE 15. FOREIGN CORPORATIONS.
§31D-15-1503. Application for certificate of authority.
(a) A foreign corporation may apply for a certificate of
authority to transact business in this state by delivering an
application to the Secretary of State for filing. The application
must set forth:
(1) The name of the foreign corporation or, if its name is unavailable for use in this state, a corporate name that satisfies
the requirements of section one thousand five hundred six of this
article;
(2) The name of the state or country under whose law it is
incorporated;
(3) Its date of incorporation and period of duration;
(4) The mailing address of its principal office;
(5) The address of its registered office in this state, if
any, and the name of its registered agent at that office, if any;
(6) The names and usual business addresses of its current
directors and officers;
(7) Purpose or purposes for transaction of business in West
Virginia; and
(8) An e-mail address where informational notices and
reminders of annual filings may be sent, unless there is a
technical inability to comply.
(b) The foreign corporation shall deliver with the completed
application a certificate of existence, or a document of similar
import, duly authenticated by the Secretary of State or other
official having custody of corporate records in the state or
country under whose law it is incorporated.
CHAPTER 31E. WEST VIRGINIA NONPROFIT CORPORATION ACT.
ARTICLE 2. INCORPORATION.
§31E-2-202. Articles of incorporation.
(a) The articles of incorporation must set forth:
(1) A corporate name for the corporation that satisfies the
requirements of section four hundred one, article four of this
chapter;
(2) A statement that the corporation is nonprofit and that the
corporation may not have or issue shares of stock or make
distributions;
(3) Whether the corporation is to have members and, if it is
to have members, the provisions required by section six hundred
one, article six of this chapter to be set forth in the certificate
of incorporation;
(4) The mailing address of the corporation's initial
registered office, if any, and the name of its initial registered
agent at that office, if any;
(5) The name and address of each incorporator;
(6) The mailing address of the corporation's principal office;
and
(7) An e-mail address where informational notices and
reminders of annual filings may be sent, unless there is a
technical inability to comply.
(b) The articles of incorporation may set forth:
(1) The names and addresses of the individuals who are to
serve as the initial directors;
(2) Provisions not inconsistent with law regarding:
(A) Managing and regulating the affairs of the corporation; or
(B) Defining, limiting and regulating the powers of the
corporation, its board of directors and members or any class of members;
(3) Any provision that under this chapter is required or
permitted to be set forth in the bylaws;
(4) A provision eliminating or limiting the personal liability
of a director to the corporation or its members for monetary
damages for any action taken, or any failure to take any action, as
a director or member, except liability for: (A) The amount of a
financial benefit received by a director or member to which he or
she is not entitled; (B) an intentional infliction of harm on the
corporation or the members; (C) a violation of section eight
hundred thirty-three, article eight of this chapter regarding
unlawful distributions; or (D) an intentional violation of criminal
law; and
(5) A provision permitting or making obligatory
indemnification of a director for liability as that term is defined
in section eight hundred fifty, article eight of this chapter to
any person for any action taken, or any failure to take any action,
as a director, except liability for: (A) Receipt of a financial
benefit to which he or she is not entitled; (B) an intentional
infliction of harm on the corporation or its members; (C) a
violation of section eight hundred thirty-three, article eight of
this chapter for unlawful distributions; or (D) an intentional
violation of criminal law.
(c) The articles of incorporation need not set forth any of
the corporate powers enumerated in this chapter.
ARTICLE 14. FOREIGN CORPORATIONS.
§31E-14-1403. Application for certificate of authority.
(a) A foreign corporation may apply for a certificate of
authority to conduct affairs in this state by delivering an
application to the Secretary of State for filing. The application
must set forth:
(1) The name of the foreign corporation or, if its name is
unavailable for use in this state, a corporate name that satisfies
the requirements of section one thousand four hundred six of this
article;
(2) The name of the state or country under whose law it is
incorporated;
(3) Its date of incorporation and period of duration;
(4) The mailing address of its principal office;
(5) The address of its registered office in this state, if
any, and the name of its registered agent at that office, if any;
(6) The names and usual addresses of its current directors and
officers;
(7) The purpose or purposes of the corporation which it
proposes to pursue in conducting its affairs or doing or
transacting its business in this state; and
(8) An e-mail address where informational notices and
reminders of annual filings may be sent, unless there is a
technical inability to comply.
(b) The foreign corporation shall deliver with the completed
application a certificate of existence, or a document of similar
import, duly authenticated by the Secretary of State or other official having custody of corporate records in the state or
country under whose law it is incorporated.
CHAPTER 47. REGULATION OF TRADE.
ARTICLE 9A. VOLUNTARY ASSOCIATIONS AND BUSINESS TRUSTS.
§47-9A-2. Application for registration of business trust; issuance
of certificate of business trust.
(a) For the purposes of this article, a "business trust" is
any trust organized for the purpose of conducting business and
commonly designated as a Massachusetts trust.
(b) Any business trust organized in this state shall file with
the Secretary of State: (1) One executed original copy of an
application for registration; and (2) one executed original copy of
the declaration, articles or agreement of trust creating the
business trust.
(c) Any business trust organized outside this state and
operating within this state shall file with the Secretary of State:
(1) One executed original copy of an application for registration;
(2) one executed original copy of the declaration, articles or
agreement of trust creating the business trust as recorded in the
state or country of origin of the business trust; and (3) a
statement or certificate from the proper officer of the state or
country of origin that the business trust is in good standing.
(d) An application for registration shall set forth:
(1) The name of the business trust;
(2) If organized within the state, a statement that it is a West Virginia business trust, or if organized outside the state,
the state in which it was organized and the formation date of the
business trust;
(3) The purpose or purposes for which the business trust is
organized;
(4) The address of its principal office;
(5) The name and address of the person to whom notice of
process may be sent, if any;
(6) The names and addresses of all trustees having authority
to act on behalf of the business trust;
(7) A statement reflecting the business trust's consent to and
recognition of the application to the business trust of the law of
this state with respect to corporations; and
(8) An e-mail address where informational notices and
reminders of annual filings may be sent, unless there is a
technical inability to comply.
(e) An application for registration may contain the notarized
signature of a trustee of the business trust.
(f) If the Secretary of State determines that an application
for registration has been properly filed in complete form and that
the fee prescribed in section two, article one, chapter fifty-nine
of this code has been paid, he or she shall file it and deliver to
the business trust or its representative a receipt for the record
and the fees.
§47-9A-3. Filing of voluntary association; issuance of certificate
of voluntary association.
(a) For purposes of this article, a "voluntary association" is
any association organized for the purpose of conducting business in
this state, but does not include an organization formed as an
unincorporated nonprofit association under the provisions of
article eleven, chapter thirty-six of this code.
(b) Any voluntary association organized in this state shall
file with the Secretary of State: (1) One executed original copy of
an application for registration; and (2) one executed original copy
of the agreement of association creating the voluntary association
(if such an agreement exists apart from the application for
registration itself).
(c) Any voluntary association organized outside this state and
operating within this state shall file with the Secretary of State:
(1) One executed original copy of an application for registration;
(2) one executed original copy of the agreement of association
creating the voluntary association; and (3) a statement or
certificate from the proper officer of the state or country of
origin that the voluntary association is in good standing.
(d) An application for registration shall set forth:
(1) The name of the voluntary association;
(2) The principal office address of the voluntary association;
(3) The mailing address of the voluntary association, if
different from the principal office address;
(4) The name and address of the person to whom notice of
process may be sent, if any;
(5) Whether the voluntary association is organized for profit or as a nonprofit voluntary association;
(6) The purpose or purposes for which the voluntary
association is formed;
(7) The full names and addresses of one or more of the
organizers of the voluntary association;
(8) The full names and addresses of no fewer than two
officers, owners or members of the voluntary association who have
signatory authority for the association;
(9) Any additional statements as may be required for the type
of business to be conducted;
(10) A statement reflecting the voluntary association's
consent to and recognition of the application of the law of this
state with respect to corporations to the voluntary association;
and
(11) An e-mail address where informational notices and
reminders of annual filings may be sent, unless there is a
technical inability to comply.
(e) An application for registration may contain the notarized
signature of at least one organizer or member of the voluntary
association.
(f) If the Secretary of State determines that an application
for registration has been properly filed in complete form and that
the fee prescribed in section two, article one, chapter fifty-nine
of this code has been paid, he or she shall file it and deliver to
the voluntary association or its representative a receipt for the
record and the fees.
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