GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

S	1 

SENATE BILL 157*

Short Title:  Corporate Amendments.	(Public)

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Sponsors: Senators Hartsell; and Odom.

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Referred to:  Commerce.

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February 17, 1997

A BILL TO BE ENTITLED
AN ACT TO AMEND THE LAW GOVERNING DISSENTERS' RIGHTS PROCEDURES AND THE FILING OF DOCUMENTS BY LIMITED LIABILITY COMPANIES, TO ALLOW FACSIMILE SIGNATURES AND ADVISORY REVIEW OF DOCUMENTS BY THE SECRETARY OF STATE, AND TO CLARIFY CORRECTIONS PROCEDURES, LIMITED LIABILITY NAME AVAILABILITY, AND THE DEFINITION OF FOREIGN PROFESSIONAL CORPORATIONS AS RECOMMENDED BY THE GENERAL STATUTES COMMISSION.
The General Assembly of North Carolina enacts:
PART I.  AMENDMENT OF DISSENTERS' RIGHTS PROCEDURES.
Section 1.  G.S. 55-13-22(b) reads as rewritten:
	"(b)	The dissenters' notice must be sent no later than 10 days after shareholder approval, or if no shareholder approval is required, after the approval of the board of directors, of the corporate action creating dissenters' rights under G.S. 55-13-02, and must:
(1)	State where the payment demand must be sent and where and when certificates for certificated shares must be deposited;
(2)	Inform holders of uncertificated shares to what extent transfer of the shares will be restricted after the payment demand is received;
(3)	Supply a form for demanding payment;
(4)	Set a date by which the corporation must receive the payment demand, which date may not be fewer than 30 nor more than 60 days after the date the subsection (a) notice is mailed; and 
(5)	Be accompanied by a copy of this Article."
Section 2.  G.S. 55-13-30 reads as rewritten:
"§ 55-13-30.  Court action.
(a)	If a demand for payment under G.S. 55-13-28 remains unsettled, the dissenter may commence a proceeding within 60 days after the date of his payment demand under G.S. 55-13-28 by filing a complaint with the Superior Court Division of the General Court of Justice to determine the fair value of the shares and accrued interest.  Within 10 days after service upon it of the complaint, the corporation shall pay to the dissenter the amount offered by the corporation under G.S. 55-13-25.
(a1)	If the dissenter does not commence the proceeding within the 60-day period, the dissenter shall have an additional 30 days to either (i) accept in writing the amount offered by the corporation under G.S. 55-13-25, upon which the corporation shall pay such amount to the dissenter in full satisfaction of his demand, or (ii) withdraw his demand for payment and resume the status of a nondissenting shareholder.  A dissenter who takes no action within such 30-day period shall be deemed to have withdrawn his dissent and demand for payment.
(b)	Reserved for future codification purposes.
(c)	The court shall have the discretion to make all dissenters (whether or not residents of this State) whose demands remain unsettled parties to the proceeding as in an action against their shares and all parties must be served with a copy of the complaint.  Nonresidents may be served by registered or certified mail or by publication as provided by law.
(d)	The jurisdiction of the superior court in which the proceeding is commenced under subsection (a) is plenary and exclusive.  The court may appoint one or more persons as appraisers to receive evidence and recommend decision on the question of fair value.  The appraisers have the powers described in the order appointing them, or in any amendment to it. The parties are entitled to the same discovery rights as parties in other civil proceedings.  The proceeding shall be tried as in other civil actions.  However, in a proceeding by a dissenter in a corporation that was a public corporation immediately prior to consummation of the corporate action giving rise to the right of dissent under G.S. 55-13-02, there is no right to a trial by jury.
(e)	Each dissenter made a party to the proceeding is entitled to judgment for the amount, if any, by which the court finds the fair value of his shares, plus interest, exceeds the amount paid by the corporation."
PART II.  ADVISORY REVIEW OF PRELIMINARY DRAFTS OF DOCUMENTS.
Section 3.  Article 1 of Chapter 55 of the General Statutes is amended by adding a new section to read:
"§ 55-1-22.2.  Advisory review of documents.
The Secretary of State may honor a request for review of a document prior to its submission for filing to determine whether it satisfies the requirements of this Chapter.  Submission of a document for review shall be accompanied by the proper fee and shall be in accordance with procedures adopted by rule by the Secretary of State.  At the time of the advisory review, the Secretary of State shall notify the person submitting the document of all deficiencies in the document that would prevent its filing."
Section 4.  Article 1 of Chapter 55A of the General Statutes is amended by adding a new section to read:
"§ 55A-1-22.2.  Advisory review of documents.
The Secretary of State may honor a request for review of a document prior to its submission for filing to determine whether it satisfies the requirements of this Chapter.  Submission of a document for review shall be accompanied by the proper fee and shall be in accordance with procedures adopted by rule by the Secretary of State.  At the time of the advisory review, the Secretary of State shall notify the person submitting the document of all deficiencies in the document that would prevent its filing."
Section 5.  Article 1 of Chapter 57C of the General Statutes is amended by adding a new section to read:
"§ 57C-1-22.2.  Advisory review of documents.
The Secretary of State may honor a request for review of a document prior to its submission for filing to determine whether it satisfies the requirements of this Chapter.  Submission of a document for review shall be accompanied by the proper fee and shall be in accordance with procedures adopted by rule by the Secretary of State.  At the time of the advisory review, the Secretary of State shall notify the person submitting the document of all deficiencies in the document that would prevent its filing."
Section 6.  Article 5 of Chapter 59 of the General Statutes is amended by adding a new section to read:
"§ 59-206.2.  Advisory review of documents.
The Secretary of State may honor a request for review of a document prior to its submission for filing to determine whether it satisfies the requirements of this Article.  Submission of a document for review shall be accompanied by the proper fee and shall be in accordance with procedures adopted by rule by the Secretary of State.  At the time of the advisory review, the Secretary of State shall notify the person submitting the document of all deficiencies in the document that would prevent its filing."
Section 7.  G.S. 55-1-22(a) reads as rewritten:
"(a)	The Secretary of State shall collect the following fees when the documents described in this subsection are delivered to him for filing:
	Document	Fee
(1)	Articles of incorporation	$100.00
(2)	Application for reserved name	 10.00
(3)	Notice of transfer of reserved name	10.00
(4)	Application for registered name	10.00
(5)	Application for renewal of
	registered name	10.00
(6)	Corporation's statement of change of
	registered agent or registered
	office or both	5.00
(7)	Agent's statement of change of
	registered office for each affected
	corporation	5.00
(8)	Agent's statement of resignation	No fee
(9)	Designation of registered agent or
	registered office or both	5.00
(10)	Amendment of articles of
	incorporation	50.00
(11)	Restated articles of incorporation	10.00
	with amendment of articles	50.00
(12)	Articles of merger or share exchange	50.00
(13)	Articles of dissolution	30.00
(14)	Articles of revocation of
	dissolution	10.00
(15)	Certificate of administrative
	dissolution	No fee
(16)	Application for reinstatement
	following administrative dissolution	25.00
(17)	Certificate of reinstatement	No fee
(18)	Certificate of judicial dissolution	No fee
(19)	Application for certificate of
	authority	200.00
(20)	Application for amended certificate
	of authority	50.00
(21)	Application for certificate of
	withdrawal	10.00
(22)	Certificate of revocation of
	authority to transact business	No fee
(23)	Annual report	10.00
(24)	Articles of correction	10.00
(25)	Application for certificate of
	existence or authorization	5.00
(26)	Any other document required or
	permitted to be filed by this Chapter	
		10.00
(27)	Advisory review of a document	200.00."
Section 8.  G.S. 55A-1-22(a) reads as rewritten:
"(a)	The Secretary of State shall collect the following fees when the documents described in this subsection are delivered to the Secretary for filing:
Document	Fee
(1)	Articles of incorporation	$50.00
(2)	Application for reserved name	$10.00
(3)	Notice of transfer of reserved name	$10.00
(4)	Application for registered name	$10.00
(5)	Application for renewal of registered
	name	$10.00
(6)	Corporation's statement of change of
	registered agent or registered office or
	both	$ 5.00
(7)	Agent's statement of change of registered
	office for each affected corporation	 $ 5.00
(8)	Agent's statement of resignation	No fee
(9)	Designation of registered agent or
	registered office or both	$ 5.00
(10)	Amendment of articles of incorporation	$25.00
(11)	Restated articles of incorporation without
	amendment of articles	$10.00
(12)	Restated articles of incorporation with
	amendment of articles	$25.00
(13)	Articles of merger	$25.00
(14)	Articles of dissolution	$15.00
(15)	Articles of revocation of dissolution	$10.00
(16)	Certificate of administrative dissolution	No fee
(17)	Application for reinstatement following
	administrative dissolution	$25.00
(18)	Certificate of reinstatement	No fee
(19)	Certificate of judicial dissolution	No fee
(20)	Application for certificate of authority	$100.00
(21)	Application for amended certificate of
	authority	$25.00
(22)	Application for certificate of withdrawal	$10.00
(23)	Certificate of revocation of authority to
	conduct affairs	            No fee
(24)	Corporation's Statement of Change of
	Principal Office	$5.00
(24a)	Designation of Principal Office Address	$5.00
(25)	Articles of correction	$10.00
(26)	Application for certificate of existence or
	authorization	 $ 5.00
(27)	Any other document required or
	permitted to be filed by this Chapter	 
		$10.00
(28)	Advisory review of a document	$200.00."
Section 9.  G.S. 57C-1-22(a) reads as rewritten:
"(a)	The Secretary of State shall collect the following fees when the documents described in this subsection are delivered to the Secretary of State for filing:
Document	Fee
(1)	Articles of organization	$100.00
(2)	Application for reserved name	10.00
(3)	Notice of transfer of reserved name	10.00
(4)	Application for registered name	10.00
(5)	Application for renewal of registered name	10.00
(6)	Limited liability company's statement of
	change of registered agent or registered
	office or both	5.00
(7)	Agent's statement of change of registered
	office for each affected limited
	liability company	5.00
(8)	Agent's statement of resignation	No fee
(9)	Designation of registered agent or
	registered office or both	5.00
(10)	Amendment of articles of organization	50.00
(11)	Restated articles of organization
	without amendment of articles	10.00
(12)	Restated articles of organization
	with amendment of articles	50.00
(13)	Articles of merger	50.00
(14)	Articles of dissolution	30.00
(15)	Articles of revocation of dissolution	10.00
(16)	Certificate of administrative dissolution	No fee
(17)	Certificate of reinstatement	No fee
(18)	Certificate of judicial dissolution	No fee
(19)	Application for certificate of authority	200.00
(20)	Application for amended certificate
	of authority	50.00
(21)	Application for certificate of withdrawal	10.00
(22)	Certificate of revocation of authority
	to transact business	No fee
(23)	Articles of correction	10.00
(24)	Application for certificate of existence
	or authorization	5.00
(25)	Annual report	200.00
(26)	Any other document required or permitted
	to be filed by this Chapter	
		10.00
(27)	Advisory review of a document	200.00."
Section 10.  G.S. 59-1106 reads as rewritten:
"§ 59-1106.  Fees.
The Secretary of State shall collect the following fees and remit them to the State Treasurer for the use of the State:
(1)	For filing a certificate of limited partnership
	(G.S. 59-201)	$50.00
(2)	For filing a certificate of amendment
	(G.S. 59-202; 59-905)	 25.00
(3)	For filing a certificate of cancellation
	(G.S. 59-203; 59-906)	 25.00
(4)	For filing an application for reservation of name
	(G.S. 59-104(a))	 10.00
(5)	For filing a transfer of name
	(G.S. 59-104(d))	 10.00
(6)	For filing an application for registration
	as foreign limited partnership
	(G.S. 59-502)	 50.00
(7)	For preparing and furnishing a copy of any
	document, instrument or paper filed or recorded
	relating to a limited partnership
	(G.S. 59-206(c)) For each page	  1.00
	For affixing the certificate and official seal thereto   5.00
(8)	For comparing a copy furnished to him of any
	document, instrument or paper filed or recorded
	relating to a limited partnership
	For each page	  1.00
(9)	For filing any other document not herein specifically
	provided for	 10.00
(10)	For the expedited filing by the end of the same
	business day of a document received in good order
	by 12:00 noon Eastern Standard Time	200.00
		additional fee
(11)	For the expedited filing of a document received in
	good order within 24 hours after receipt, excluding
	weekends and holidays	100.00 
				additional fee
(12)	Advisory review of a document	200.00.

The Secretary of State shall not collect the fees allowed in subdivisions (10)	and (11) of this section unless the person submitting the document for filing requests an expedited filing and is informed by the Secretary of State of the fees prior to the filing of the document.  Upon receipt of a document in proper form and payment of the required filing fee, the Secretary of State shall guarantee the expedited filing of the document."
PART III.  CLARIFICATION OF ARTICLES OF CORRECTION PROCEDURES.
Section 11.  G.S. 55-1-24(a) reads as rewritten:
"(a)	A domestic or foreign corporation may correct a document filed by the Secretary of State if the document (1) contains a statement that is incorrect and was incorrect when the document was filed or (2) was defectively executed, attested, sealed, verified, or acknowledged."
Section 12.  G.S. 55A-1-24(a) reads as rewritten:
"(a)	A domestic or foreign corporation may correct a document filed by the Secretary of State if the document (i) contains a statement that is incorrect and was incorrect when the document was filed or (ii) was defectively executed, attested, sealed, verified, or acknowledged."
Section 13.  G.S. 57C-1-24(a) reads as rewritten:
"(a)	A domestic or foreign limited liability company may correct a document filed by the Secretary of State if the document (i) contains a statement that is incorrect and was incorrect when the document was filed or (ii) was defectively executed, attested, sealed, verified, or acknowledged."
Section 14.  G.S. 59-206(a) is amended by adding a new subdivision to read:
"(2b)	A domestic or foreign limited partnership may correct a document filed by the Secretary of State if the document (i) contains a statement that is incorrect and was incorrect when the document was filed or (ii) was defectively executed, attested, sealed, verified, or acknowledged."
PART IV.  RESTATEMENT OF LIMITED LIABILITY COMPANY ARTICLES OF ORGANIZATION.
Section 15.  Article 2 of Chapter 57C of the General Statues is amended by adding a new section to read:
"§ 57C-2-22.1.  Restated articles of organization.
(a)	A limited liability company may restate its articles of organization at any time with or without member action.
(b)	The restated articles of organization may include one or more amendments to the articles.  Unless otherwise provided in the articles of organization or a written operating agreement, any amendment requires the unanimous vote of the members.  The restated articles of organization may include a statement of the address of the current registered office and the name of the current registered agent of the limited liability company.
(c)	A limited liability company restating its articles of organization shall deliver to the Secretary of State for filing articles of restatement that:
(1)	Set forth the name of the limited liability company.
(2)	Attach as an exhibit thereto the text of the restated articles of organization.
(3)	State that the restated articles of organization do not contain an amendment or, if the articles do contain an amendment, that there is an amendment that was approved as required by this Chapter.
(d)	Duly adopted restated articles of organization supersede the original articles of organization and all amendments to them.
(e)	The Secretary of State may certify restated articles of organization as the articles of organization currently in effect, without including the other information required by subsection (c) of this section."
PART V.  CANCELLATION OF ARTICLES OF DISSOLUTION OF LIMITED LIABILITY COMPANY.
Section 16.  Article 6 of Chapter 57C is amended by adding a new section to read:
"§ 57C-6-06.1.  Cancellation of articles of dissolution.
After the filing of articles of dissolution by a limited liability company dissolved pursuant to G.S. 57C-6-01(4)	because of the happening of an event of withdrawal, the articles of dissolution may be cancelled if, within 90 days after the event of withdrawal, all remaining members agree in writing that the business of the limited liability company should be continued and the limited liability company files articles of cancellation with the Secretary of State.  The Articles of Cancellation shall set forth:
(1)	The name of the limited liability company;
(2)	The date of the event of withdrawal described in the articles of dissolution;
(3)	The date of filing of the company's articles of dissolution;
(4)	A statement that within 90 days after the event of withdrawal, all remaining members have agreed in writing that the business of the limited liability company may be continued; and
(5)	Any other information the members or managers filing the articles of cancellation determine."
Section 17.  G.S. 57C-1-22(a) reads as rewritten:
"(a)	The Secretary of State shall collect the following fees when the documents described in this subsection are delivered to the Secretary of State for filing:
Document	Fee
(1)	Articles of organization	$100.00
(2)	Application for reserved name	10.00
(3)	Notice of transfer of reserved name	10.00
(4)	Application for registered name	10.00
(5)	Application for renewal of registered name	10.00
(6)	Limited liability company's statement of
	change of registered agent or registered
	office or both	5.00
(7)	Agent's statement of change of registered
	office for each affected limited
	liability company	5.00
(8)	Agent's statement of resignation	No fee
(9)	Designation of registered agent or
	registered office or both	5.00
(10)	Amendment of articles of organization	50.00
(11)	Restated articles of organization
	without amendment of articles	10.00
(12)	Restated articles of organization
	with amendment of articles	50.00
(13)	Articles of merger	50.00
(14)	Articles of dissolution	30.00
(15)	Cancellation of articles of 
	dissolution	10.00
(16)	Certificate of administrative dissolution	No fee
(17)	Certificate of reinstatement	No fee
(18)	Certificate of judicial dissolution	No fee
(19)	Application for certificate of authority	200.00
(20)	Application for amended certificate
	of authority	50.00
(21)	Application for certificate of withdrawal	10.00
(22)	Certificate of revocation of authority
	to transact business	No fee
(23)	Articles of correction	10.00
(24)	Application for certificate of existence
	or authorization	5.00
(25)	Annual report	200.00
(26)	Any other document required or permitted
	to be filed by this Chapter	10.00."
PART VI.  AVAILABILITY OF LIMITED LIABILITY COMPANY NAME.
Section 18.  G.S. 57C-2-30(f) reads as rewritten:
"(f)	The name of a limited liability company dissolved under Article 6 of this Chapter may not be used by another limited liability company, business corporation, nonprofit corporation, or limited partnership until:
(1)	In the case of a dissolution pursuant to G.S. 57C-6-01, the later of (i) the date of filing of articles of dissolution pursuant to G.S. 57C-6-06 or (ii) the expiration of the time within which articles of dissolution of the limited liability company may be canceled pursuant to G.S. 57C-6-06.1; or
(2)	In the case of an administrative dissolution pursuant to G.S. 57C-6-03, the expiration of the period within which the limited liability company may be reinstated pursuant to G.S. 57C-6-03, if the limited liability company's period of duration stated in its articles of organization or written operating agreement has not expired,
unless the dissolved limited liability company changes its name to a name distinguishable upon the records of the Secretary of State from the names of other limited liability companies, business corporations, nonprofit corporations, or limited partnerships organized or transacting business in this State."
PART VII.  AUTHORIZATION OF FACSIMILE SIGNATURES FOR LIMITED PARTNERSHIP DOCUMENTS.
Section 19.  G.S. 59-204 is amended by adding a new subsection to read:
"( b1)	Any signature on any document authorized to be filed with the Secretary of State under any provision of this Article may be a facsimile."
PART VIII.  MODIFICATION OF DEFINITION OF FOREIGN PROFESSIONAL CORPORATION.
Section 20.  G.S. 55B-16(b) reads as rewritten:
"(b)	For purposes of this section, 'foreign professional corporation' means a corporation for profit that:
(1)	Is incorporated under a law other than the law of this State:
(2)	Is incorporated for the sole and specific purpose of rendering professional services of the type that if rendered in this State would require the obtaining of a license from a licensing board pursuant to the statutory provisions referred to in G.S. 55B-2(6); and 
(3)	Has as its shareholders only individuals who:
a.	Qualify to hold shares of a corporation organized under this Chapter;
b.	Are licensed to provide professional services as defined in G.S. 55B-2(6) in a state in which the corporation is incorporated or is authorized to transact business, provided that such professional services are the same as the professional service rendered by the corporation; or
c.	Are nonlicensed employees of a corporation rendering services of the type defined in Chapters 83A, 89A, 89C, and 89E of the General Statutes provided that all such nonlicensed employees own no more than one-third of the total issued and outstanding shares of such corporation in the aggregate."
PART IX.  CORRECTION OF DELAYED EFFECTIVE DATE STATUTES FOR LIMITED PARTNERSHIP DOCUMENTS.
Section 21.  G.S. 59-201(b) reads as rewritten:
"(b)	Unless a delayed effective date is specified in the certificate of limited partnership, a limited partnership is formed at the effective time and date of the filing of the certificate of limited partnership in the office of the Secretary of State if there has been substantial compliance with the requirements of this section."
Section 22.  G.S. 59-203 reads as rewritten:
"§ 59-203. Cancellation of certificate.
A certificate of limited partnership shall be cancelled upon the dissolution and the commencement of winding up of the partnership or at any other time that there are no limited partners. A certificate of cancellation shall be filed in the office of the Secretary of State and set forth:
(1)	The name of the limited partnership;
(2)	The date of filing of its certificate of limited partnership;
(3)	The reason for filing the certificate of cancellation;
(4)	The effective date of cancellation if it is not to be effective upon the filing of the certificate; and
(5)	Any other information the partners filing the certificate determine."
PART X.  REMOVAL OF "CONFORMING TO LAW" LANGUAGE IN REVISED UNIFORM LIMITED PARTNERSHIP ACT.
Section 23.  G.S. 59-206(a)(2) reads as rewritten:
"(2)	The original document so signed, together with the conformed copy, shall be delivered to the Secretary of State. If the Secretary finds that it satisfies the requirements of this Article, the Secretary shall, when the proper fees have been tendered, endorse upon the original the word 'filed' and the hour, day, month and year of the filing thereof and shall file the same in the Secretary's office. The Secretary of State shall thereupon immediately compare the copy with the original and if the Secretary finds that they are identical the Secretary shall make upon the conformed copy the same endorsement which appears on the original and shall attach to the copy a certificate stating that attached thereto is a true copy of the document, designated by an appropriate title, filed in the Secretary's office and showing the date of the filing. The Secretary shall thereupon return the copy so certified to the limited partnership or its representatives. Any documents filed with the Secretary of State pursuant to this Chapter may be maintained by the Secretary either in their original form or in photographic, microfilm, optical disk media, or other reproduced form. The Secretary may make reproductions of documents filed under this Chapter, or under any predecessor act, by photographic, microfilm, optical disk media, or other means of reproduction, and may destroy the originals of the documents reproduced. The Secretary of State may correct apparent errors and omissions on a document submitted for filing if authorized to make the corrections by the person submitting the document for filing. The authorization to make the corrections shall be confirmed, according to procedures adopted by rule, by the Secretary prior to making the correction."
Section 24.  G.S. 59-903(a) reads as rewritten:
"(a)	If the Secretary of State finds that an application satisfies the requirements of this Article, the Secretary shall, when all requisite fees have been tendered as in this Article prescribed:
(1)	Endorse on the application the word 'filed', and the hour, day, month and year of the filing thereof;
(2)	File in the office the application;
(3)	Issue a certificate of authority to transact business in this State to which the Secretary shall affix the conformed copy of the application; and
(4)	Send to the foreign limited partnership or its representative the certificate of authority, together with the conformed copy of the application affixed thereto."
PART XI.  EFFECTIVE DATES.
Section 25.  Sections 11 through 14, 20, and 23 through 25 of this act are effective when the act becomes law.  The remainder of this act becomes effective October 1, 1997. Section 1 of this act applies to dissenter's rights created pursuant to G.S. 55-13-02 on or after October 1, 1997, and Section 2 of this act applies to proceedings commenced on or after October 1, 1997.  Sections 3 through 10 of this act apply to requests for review of documents on or after that date.