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Introduced Version Senate Bill 624 History

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Key: Green = existing Code. Red = new code to be enacted
SB624 intr
Senate Bill No. 624

(By Senators White, Williams and Jenkins)

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[Introduced February 19, 2010; referred to the Committee on the Judiciary.]

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A BILL 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; to amend and reenact §47-9A-2 and §47-9A-3 of said code; and to amend and reenact §47B-10-1 and §47B-10-4 of said code, all relating to enacting consistency of filing deadlines for all organizations filing annual reports with the Secretary of State; and collection of email 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; that §47-9A-2 and §47-9A-3 of said code be amended and reenacted; and that §47B-10-1 and §47B-10-4 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); and
(8) The purpose or purposes for which the limited liability company is organized; and
(9) An e-mail address to 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; and
(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 to 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 April 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 April 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); and
(10) The purpose or purposes for which the limited liability company is organized; and
(11) An e-mail address to 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; and
(6) The mailing address of the corporation's principal office; and
(7) An e-mail address to 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; and
(7) Purpose or purposes for transaction of business in West Virginia; and
(8) An e-mail address to 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; and
(6) The mailing address of the corporation's principal office; and
(7) An e-mail address to 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; and
(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 to 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; and
(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 to 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; and
(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 to 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.
CHAPTER 47B. UNIFORM PARTNERSHIP ACT.

ARTICLE 10. LIMITED LIABILITY PARTNERSHIP.
§47B-10-1. Registered limited liability partnerships.

(a) To become a registered limited liability partnership, a partnership shall deliver and file with the Secretary of State a statement of registration stating the name of the partnership; the address of its principal office; the address of a registered office and the name and address of a registered agent for service of process, if any; an e-mail address to where informational notices and reminders of annual filings may be sent, unless there is a technical inability to comply; a brief statement of the business in which the partnership engages; the name and address of each partner authorized to execute instruments on behalf of the partnership; any other matters that the partnership determines to include; and that the partnership thereby registers as a registered limited liability partnership.
(b) The registration shall be executed by one or more partners authorized to execute a registration.
(c) The registration shall be accompanied by a fee of $250.
(d) The Secretary of State shall register as a registered limited liability partnership any partnership that submits a completed registration with the required fee and deliver to the partnership or its representative a receipt for the record and the fees.
(e) A partnership registered under this section shall pay, in each year following the year in which its registration is filed, on a date specified by the Secretary of State, an annual fee of $500. The fee shall be accompanied by a notice, on a form provided by the Secretary of State, of any material changes in the information contained in the partnership's registration. The annual notice and fee is due between January 1 and July 1 of each year.
(f) Registration is effective:
(1) Immediately after the date a registration is filed; or
(2) On a date specified in the statement of registration, which date shall not be more than sixty days after the date of filing.
(g) Registration remains effective until:
(1) It is voluntarily withdrawn by filing with the Secretary of State a statement of withdrawal; or
(2) Thirty days after receipt by the partnership of a notice from the Secretary of State, which shall be sent by certified mail, return receipt requested, that the partnership has failed to make timely payment of the annual fee specified in subsection (e) of this section, unless the fee is paid within a thirty-day period. It is administratively dissolved by the Secretary of State provided that the Secretary of State commenced a proceeding to dissolve a limited liability partnership due to the partnership not paying any fees imposed by this chapter or other law within sixty days after they were due or not delivering its annual notice to the Secretary of State within sixty days after it was due and notification of proceeding of administrative dissolution was delivered to the limited liability partnership.
(h) The status of a partnership as a registered limited liability partnership and the liability of the partners thereof shall not be affected by:
(1) Errors in the information contained in a statement of registration under subsection (a) of this section or notice under subsection (e) of this section; or
(2) Changes after the filing of the statement of registration or notice in the information stated in the registration or notice.
(i) The Secretary of State may provide forms for the statement of registration under subsection (a) of this section or a notice under subsection (e) of this section.
(j) All fees and moneys collected by the Secretary of State pursuant to the provisions of this article shall be deposited by the Secretary of State as follows: One-half shall be deposited in the state General Revenue Fund and one-half shall be deposited in the service fees and collections account established by section two, article one, chapter fifty-nine of this code for the operation of the office of the Secretary of State. The Secretary of State shall dedicate sufficient resources from that fund or other funds to provide the services required in this article.
§47B-10-4. Applicability of article to foreign and interstate commerce.

(a) A registered limited liability partnership formed under this article may conduct its business, carry on its operations and have and exercise the powers granted by this chapter in any state, territory, district or possession of the United States or in any foreign country.
(b) It is the intent of the Legislature that the legal existence of registered limited liability partnerships formed under this article be recognized outside the boundaries of this state and that the laws of this state governing such registered limited liability partnerships doing business outside this state be granted the protection of full faith and credit under the Constitution of the United States.
(c) Notwithstanding section six, article one of this chapter, the internal affairs of registered limited liability partnerships formed under this article, including the liability of partners for debts, obligations and liabilities of or chargeable to the partnership, shall be subject to and governed by the laws of this state.
(d) Before transacting business in this state, a foreign registered limited liability partnership shall:
(i) (1) Comply with any statutory or administrative registration or filing requirements governing the specific type of business in which the partnership is engaged; and
(ii) (2) File a notice with the Secretary of State, stating the name of the partnership or if its name is unavailable for use in this state, a limited partnership name that satisfies the requirements of section four-e of this article, including a copy of the resolution of its partners adopting the fictitious name; the address of its principal office; the address of a registered office and the name and address of a registered agent for service of process, if any; an e-mail address to where informational notices and reminders of annual filings may be sent, unless there is a technical inability to comply; a brief statement of the business in which the partnership engages; the name and address of each partner authorized to execute instruments on behalf of the partnership and any other matters that the partnership determines to include; and a brief statement of the business in which the partnership engages. Such notice shall be effective for two years from the date of filing, after which time the partnership shall file a new notice.
(e) The name of a foreign registered limited liability partnership doing business in this state shall contain the words "Registered Limited Liability Partnership" or the abbreviation "L.L.P." or "LLP" as the last words or letters of its name.
(f) Notwithstanding section six, article one of this chapter, the internal affairs of foreign registered limited liability partnerships, including the liability of partners for debts, obligations and liabilities of or chargeable to the partnership, shall be subject to and governed by the laws of the jurisdiction in which the foreign registered limited liability partnership is registered.


NOTE: The purpose of this bill is to bring consistency of filing deadlines for all organizations filing annual reports with the Secretary of State and collection of e-mail addresses for informational notices.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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