GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2001
H	2
HOUSE BILL 385*
Committee Substitute Favorable 3/7/01

Short Title:	Consolidate Business Provisions.	()	
Sponsors:	     	
Referred to:	     	
March 1, 2001

A BILL TO BE ENTITLED
AN ACT TO CONSOLIDATE IN ONE PLACE IN THE GENERAL STATUTES VARIOUS BUSINESS ASSOCIATION PROVISIONS TO AVOID UNNECESSARY REPETITION, AS RECOMMENDED BY THE GENERAL STATUTES COMMISSION.

The General Assembly of North Carolina enacts:

PART I. CONSOLIDATION OF FILING REQUIREMENTS.

SECTION 1.  The General Statutes are amended by adding a new Chapter to read:
"Chapter 55D.
"Filings for
Corporations, Nonprofit Corporations, Limited Liability Companies,
Limited Partnerships, and Limited Liability Partnerships.
"Article 1.
"General Provisions.
"§ 55D-1.  Applicable definitions.
The following definitions apply in this Chapter:
(1)	'Corporation' or 'domestic corporation' is defined in G.S. 55-1-40(4).
(2)	'Deliver' is defined in G.S. 55-1-40(5).
(3)	'Entity' is defined in G.S. 55-1-40(9).
(4)	'Foreign corporation' is defined in G.S. 55-1-40(10).
(5)	'Foreign limited liability company' is defined in G.S. 57C-1-03(8).
(6)	'Foreign limited liability partnership' is defined in G.S. 59-32(4a).
(7)	'Foreign limited partnership' is defined in G.S. 59-102(5).
(8)	'Foreign nonprofit corporation' means a foreign corporation as defined in G.S. 55A-1-40(11).
(9)	'Individual' is defined in G.S. 55-1-40(13).
(10)	'Limited liability company' or 'domestic limited liability company' is defined in G.S. 57C-1-03(11).
(11)	'Limited liability partnership' or 'registered limited liability partnership' means a registered limited liability partnership as defined in G.S. 59-32(7).
(12)	'Limited partnership' or 'domestic limited partnership' is defined in G.S. 59-102(8).
(13)	'Nonprofit corporation' or 'domestic nonprofit corporation' means a corporation as defined in G.S. 55A-1-40(5).
(14)	'Person' is defined in G.S. 55-1-40(16)."
SECTION 2.  Chapter 55D of the General Statutes, as enacted by this act, is amended by adding a new Article to read:
"Article 2.
"Submission of Documents to the Secretary of State for Filing."
SECTION 3.(a)  G.S. 55‑1‑20(a) through (e) and (g) through (i) are recodified as G.S. 55D‑10 in Article 2 of Chapter 55D of the General Statutes, as enacted by this act.  The catch line of G.S. 55D‑10, as enacted by this section, is "Filing requirements."
SECTION 3.(b)  G.S. 55‑1‑22.1, 55‑1‑22.2, 55‑1‑23, 55‑1‑24, 55‑1‑25, 55‑1‑26, 55‑1‑27, and 55‑1‑29 are recodified as G.S. 55D‑11, 55D‑12, 55D‑13, 55D‑14, 55D‑15, 55D‑16, 55D‑17, and 55D‑18, respectively, in Article 2 of Chapter 55D of the General Statutes.
SECTION 4.  Article 2 of Chapter 55D of the General Statutes, as enacted by Section 2 and amended by Section 3 of this act, reads as rewritten:
"Article 2.
"Submission of Documents to the Secretary of State for Filing.
"§ 55D‑10. Filing requirements.
(a)	To be entitled to filing by the Secretary of State under  Chapter 55, 55A, 55B, 57C, or 59 of the General Statutes, a document must satisfy the requirements of this section, and of any other section of the General Statutes that adds to or varies these requirements.
(b)	The document must meet all of the following requirements:
(1)	The document must be one that is required or permitted by  Chapter 55, 55A, 55B, 57C, or 59 of the General Statutes to be filed in the office of the Secretary of State.
	(2)	The document must contain the information required by Chapter 55, 55A, 55B, 57C, or 59 of the General Statutes for that document. It may contain other information as well.
	(3)	The document must be  typewritten, printed, or in an electronic form acceptable to the Secretary of State.
	(4)	The document must be in the English language. A  name need not be in English if written in English letters or Arabic or Roman numerals, and the certificate of existence required of foreign  corporations, foreign nonprofit corporations, foreign limited liability companies, and foreign limited liability partnerships  need not be in English if accompanied by a reasonably authenticated English translation.
(5)	A document submitted by an entity must be executed by a person authorized to execute documents (i) under G.S. 55-1-20 if the entity is a domestic or foreign corporation, (ii) under G.S. 55A-1-20 if the entity is a domestic or foreign nonprofit corporation, (iii) under G.S. 57C-1-20 if the entity is a domestic or foreign limited liability company, (iv) under G.S. 59-204 if the entity is a domestic or foreign limited partnership, or (v) under G.S. 59-35.1 if the entity is any other partnership as defined in G.S. 59-36 whether or not formed under the laws of the State.
	(6)	The person executing the document  must sign it and state beneath or opposite  the person's signature, the person's name, and the capacity in which  the person signs. Any signature on the document may be a facsimile or an electronic signature in a form acceptable to the Secretary of State. The document may but need not 			 contain a seal, attestation, acknowledgment, verification, or proof. 
	(7)	If the Secretary of State has prescribed a mandatory form for the  document, the document must be in or on the prescribed form.
	(8)	The document must be delivered to the office of the Secretary of State for filing and must be accompanied by the applicable fees.
"§ 55D‑11. Expedited filings.
A person submitting a document for filing may request an expedited filing at the time the document is submitted. The Secretary of State shall guarantee the expedited filing of  the document if the document is in proper form and accompanied by all applicable fees, including the following fee:(1)	Two hundred dollars ($200.00) for the filing by the end of the same business day of a document received by 12:00 noon; or(2)	One hundred dollars ($100.00) for the filing of a document within 24 hours after receipt, excluding weekends and holidays.
The Secretary of State shall not collect the fees allowed in this section unless the person submitting the document for filing is informed by the Secretary of State of the fees prior to the filing of the document. 
"§ 55D‑12.  Advisory review of documents.
Upon request, the Secretary of State shall review  a document prior to its submission for filing to determine whether it satisfies  applicable filing requirements. Submission of a document for review shall be accompanied by  a fee of two hundred dollars ($200.00) and shall be in accordance with procedures adopted by rule by the Secretary of State. The advisory review shall be completed within 24 hours after submission, excluding weekends and holidays, unless the person submitting the document is otherwise notified in accordance with procedures adopted by rule by the Secretary of State fixing priority between submissions under this section and filings under G.S. 55D-11. Upon completion of the advisory review, the Secretary of State shall notify the person submitting the document of any deficiencies in the document that would prevent its filing. 
"§ 55D‑13.  Effective time and date of document.
(a)	Except as provided in subsection (b) of this section and in G.S. 55D-14, a document accepted for filing is effective:
(1)	At the time of filing on the date it is filed, as evidenced by the Secretary of State's date and time endorsement on the filed document; or
(2)	At the time specified in the document as its effective time on the date it is filed.
(b)	A document may specify a delayed effective time and date, and if it does so the document becomes effective at the time and date specified. If a delayed effective date but no time is specified, the document is effective at 11:59:59 p.m. on that date. A delayed effective date for a document may not be later than the 90th day after the date it is filed.
(c)	Except as provided in G.S. 55‑2‑03(b), 55A-2-03(b), and 57C-2-20(b), the fact that a document has become effective under this section does not determine its validity or invalidity or the correctness or incorrectness of the information contained in the document. 
"§ 55D‑14.  Correcting filed document.
(a)	A  person on whose behalf a document was filed in the Office of the Secretary of State may correct that document if it (i) contains a statement that is incorrect and was incorrect when  filed or (ii) was defectively executed, attested, sealed, verified, or acknowledged.
(b)	A document is  corrected by delivering to the Secretary of State for filing articles of correction that do all of the following:
(1)	Describe the document (including its filing date) or  have attached to them a copy of the document.
(2)	Specify the incorrect statement and the reason it is incorrect or the  nature of the defect.(3)	 Correct the incorrect statement or defect.	
(c)	Articles of correction are effective as of the effective time and date of the document they correct except as to persons relying on the uncorrected document and adversely affected by the correction. As to those persons, articles of correction are effective when filed. 
"§ 55D‑15.  Filing duty of Secretary of State.
(a)	If a document delivered to the office of the Secretary of State for filing satisfies the requirements of this Chapter and of Chapter 55, 55A, 55B, 57C, or 59 of the General Statutes, the Secretary of State shall file it. Documents filed with the Secretary of State under 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 law, by photographic, microfilm, optical disk media, or other means of reproduction, and may destroy the originals of those documents reproduced.
(b)	The Secretary of State files a document by endorsing "Filed", together with the Secretary's name and official title and the date and time of filing, on the document. After filing a document, the Secretary of State shall deliver a document copy to the  person submitting the document for filing and as provided in G.S. 55-5-03, 55-15-09, 55A-5-03, 55A-15-09, 57C-2-42, and 57C-7-09.(c)	If the Secretary of State refuses to file a document, the Secretary shall return it to the person submitting the document for filing within five days after the document was received, together with a  written statement of the date of the refusal and a brief explanation of the reason for refusal. 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. (d)	The Secretary of State's duty is to review and file documents that satisfy the requirements of this  Chapter and of Chapter 55, 55A, 55B, 57C, or 59 of the General Statutes. The Secretary of State's filing or refusing to file a document does  not do any of the following:
(1)	Except as provided in G.S. 55‑2‑03(b), 55A-2-03(b), or 57C-2-20(b), affect the validity or invalidity of the document in whole or part.
(2)	Relate to the correctness or incorrectness of information contained in the  document.(3)	Create a presumption that the document is valid or invalid or that information contained in the document is correct or incorrect.
"§ 55D‑16.  Appeal from Secretary of State's refusal to file document.
(a)	If the Secretary of State refuses to file a document delivered to  the Secretary of State's office for filing, the person on whose behalf the document was submitted for filing may, within 30 days after  the date of the refusal, appeal the refusal to the Superior Court of Wake County. The appeal is commenced by filing a petition with the court and with the Secretary of State requesting the court to compel the Secretary of State to file the document. The petition must have attached to it the document to be filed and the Secretary of State's explanation for  the refusal to file. The appeal to the superior court is not governed by Chapter 150B of the General Statutes, the Administrative Procedure Act, and shall be determined upon such further notice and opportunity to be heard, if any, as the court may deem appropriate under the circumstances.
(b)	Upon consideration of the petition and any response made by the Secretary of State, the court may, prior to entering final judgment, order the Secretary of State to file the document or take other action the court considers appropriate.
(c)	The court's final decision may be appealed as in other civil proceedings.
"§ 55D‑17.  Evidentiary effect of copy of filed document.
A certificate attached to a copy of a document filed by the Secretary of State, bearing the Secretary of State's signature and the seal of office (both of which may be in facsimile or in any electronic form approved by the Secretary of State) and certifying that the copy is a true copy of the document, is conclusive evidence that the original document is on file with the Secretary of State. A photographic, microfilm, optical disk media, or other reproduced copy of a document filed  under this Chapter, Chapter 55, 55A, 55B, 57C, or 59 of the General Statutes, or any predecessor law, when certified by the Secretary, shall be considered an original for all purposes and is admissible in evidence in like manner as an original. 
"§ 55D‑18.  Penalty for signing false document.
(a)	A person commits an offense if  the person signs a document  the person  knows is false in any material respect with intent that the document be delivered to the Secretary of State for filing.
(b)	An offense under this section is a Class 1 misdemeanor."

PART II. MISCELLANEOUS AND CONFORMING AMENDMENTS.

SECTION 5.(a)  G.S. 55‑1‑40(9) reads as rewritten:
"(9)	"Entity" includes (without limiting the meaning of such term in Article  9 of this Chapter):
a.	Any domestic or foreign:
1.	Corporation; nonprofit corporation; professional corporation;
2.	Limited  liability company;
3.	Profit  and nonprofit unincorporated association; and
4.	Business  trust, estate, partnership,  trust;
b.	Two  or more persons having a joint or common economic interest; and
c.	The United States, and any state and foreign government."
SECTION 5.(b)  G.S. 55A‑1‑40(10) reads as rewritten:
"(10)	"Entity"  includes:
a.	Any domestic or foreign:
1.	Corporation; business corporation; professional corporation;
2.	Limited  liability company;
3.	Profit  and nonprofit unincorporated association, chapter or other organizational unit; and
4.	Business  trust, estate, partnership,  trust;
b.	Two  or more persons having a joint or common economic interest; and
c.	The United States, and any state and foreign government."
SECTION 6.(a)  G.S. 55‑1‑20, as amended by Section 3 of this act, reads as rewritten:
"§ 55‑1‑20.  Filing requirements.
				(a)	A document required or permitted by this Chapter to be filed by the Secretary of State must be filed under Chapter 55D of the General Statutes.
(b)	A document submitted on behalf of a domestic or foreign corporation must be executed:
(1)	By the chair of its board of directors, by its president, or by another of its officers;
(2)	If directors have not been selected or the corporation has not been formed, by an incorporator; or
(3)	If the corporation is in the hands of a receiver, trustee, or other court-appointed fiduciary, by that fiduciary."
SECTION 6.(b)  G.S. 55‑1‑22(a)(27) is repealed.
SECTION 6.(c)  G.S. 55‑8‑7(a) reads as rewritten:
"(a)	A director may resign at any time by communicating his resignation to the board of directors, its chair, or the corporation."
SECTION 7.(a)  G.S. 55A‑1‑20 reads as rewritten:
"§ 55A‑1‑20.  Filing requirements.
																
(a)	A document required or permitted by this Chapter to be filed by the Secretary of State must be filed under Chapter 55D of the General Statutes.
(b)	A document submitted on behalf of a domestic or foreign corporation must be executed:
(1)	By the presiding officer of its board of directors, by its president, or by another of its officers;
(2)	If directors have not been selected or the corporation has not been formed, by an incorporator; or
(3)	If the corporation is in the hands of a receiver, trustee, or other court-appointed fiduciary, by that fiduciary."
SECTION 7.(b)  G.S. 55A‑1‑22.1, 55A‑1‑22.2, 55A‑1‑23, 55A‑1‑24, 55A‑1‑25, 55A‑1‑26, 55A‑1‑27, and 55A‑1‑29 are repealed.
SECTION 7.(c)  G.S. 55A‑1‑22(a)(28) is repealed.
SECTION 8.(a)  G.S. 57C‑1‑20 reads as rewritten:
"§ 57C‑1‑20.  Filing requirements.
														
(a)	A document required or permitted by this Chapter to be filed by the Secretary of State must be filed under Chapter 55D of the General Statutes.
(b)	A document submitted on behalf of a domestic or foreign limited liability company must be executed:
(1)	By a manager of the limited liability company;
(2)	If the limited liability company has not been formed or if no initial members of the limited liability company have been identified in the manner provided in this Chapter, by an organizer; or
(3)	If the limited liability company is in the hands of a receiver, trustee, or other court-appointed fiduciary, by that fiduciary."
SECTION 8.(b)  G.S. 57C‑1‑22.1, 57C‑1‑22.2, 57C‑1‑23, 57C‑1‑24, 57C‑1‑25, 57C‑1‑26, 57C‑1‑27, and 57C‑1‑29 are repealed.
SECTION 8.(c)  G.S. 57C‑1‑22(a)(27) is repealed.
SECTION 9.  G.S. 59‑73.7 is recodified as G.S. 59‑35.1 and reads as rewritten:
"§ 59-35.1.  Filing of documents.
(a)							
A document required or permitted by this Act to be filed by the Secretary of State must be filed under Chapter 55D of the General Statutes.
			(b)	A document submitted under this Act for filing by the Secretary of State must be executed by a general partner of the partnership.
(c)	The Secretary of State shall collect the following fees when the documents described in this subsection are submitted by a partnership to the Secretary of State for filing:
Document	Fee
Articles of Merger	$50.00
Articles of Correction	$10.00
The Secretary of State shall collect a fee of ten dollars ($10.00) each time process is served on the Secretary of State under this Act. The party to the proceeding causing service of process is entitled to recover this fee as costs if the party prevails in the proceeding.
The Secretary of State shall collect the following fees for copying, comparing, and certifying a copy of a document filed by a partnership pursuant to this Part:
(1)	One dollar ($1.00) a page for copying or comparing a copy to the original; and
(2)	Five dollars ($5.00) for the certificate.
														
(d)	Whenever title to real property in this State held by a partnership is vested by operation of law in another entity upon merger, consolidation, or conversion of the partnership, a certificate reciting the merger, consolidation, or conversion shall be recorded in the office of the register of deeds of the county where the property is located, or if the property is located in more than one county, then in each county where any portion of the property is located.
The Secretary of State shall adopt uniform certificates to be furnished for registration in accordance with this subsection. In the case of a partnership formed under a law other than the laws of this State, a similar certificate by any competent authority of the jurisdiction of organization may be registered in accordance with this subsection.
The certificate required by this subsection  must be recorded by the register of deeds in the same manner as deeds, and for the same fees, but no formalities as to acknowledgment, probate, or approval by any other officer shall be required. The former name of the partnership holding title to the real property before the merger, consolidation, or conversion shall appear in the "Grantor" index and the name of the other entity holding title to the real property by virtue of the merger, consolidation, or conversion shall appear in the "Grantee" index."
SECTION 10.(a)  G.S. 59‑73.6(b) reads as rewritten:
"(b)	If the surviving business entity is not a domestic limited liability company, a domestic corporation, a domestic nonprofit corporation, or a domestic limited partnership when the merger takes effect, the surviving business entity is deemed:
(1)	To agree that it may be served with process in this State in any proceeding for enforcement of (i) any obligation of any merging domestic limited liability company, domestic corporation, domestic nonprofit corporation, domestic limited partnership, or other partnership as defined in G.S. 59‑36 that is formed under the laws of this State, (ii) the rights of dissenting shareholders of any merging domestic corporation under Article 13 of Chapter 55 of the General Statutes, and (iii) any obligation of the surviving business entity arising from the merger; and
(2)	To have appointed the Secretary of State as its registered agent for service of process in any such proceeding. Service on the Secretary of State of any such process shall be made by delivering to and leaving with the Secretary of State or with any clerk authorized by the Secretary of State to accept service of process, duplicate copies of such process and the fees required by G.S. 59-35.1(c). Upon receipt of service of process on behalf of a surviving business entity in the manner provided for in this section, the Secretary of State shall immediately mail a copy of the process by registered or certified mail, return receipt requested, to the surviving business entity. If the surviving business entity is authorized to transact business or conduct affairs in this State, the address for mailing shall be its principal office designated in the latest document filed with the Secretary of State that is authorized by law to designate the principal office or, if there is no principal office on file, its registered office. If the surviving business is not authorized to transact business or conduct affairs in this State, the address for mailing shall be the mailing address designated pursuant to subdivision (3) of subsection (d) of this section."
SECTION 10.(b)  G.S. 59‑204(a) reads as rewritten:
"(a)	Each certificate required by this Article to be filed in the office of the Secretary of State shall be executed in the following manner:
(1)	An original certificate of limited partnership must be signed by all general partners;
(2)	A certificate of amendment must be signed by at least one general partner and by each other partner designated in the certificate as a new general partner; and
(3)	A certificate of cancellation must be signed by all general partners.
Any other document submitted by a domestic or foreign limited partnership for filing pursuant to this or any other Chapter must be signed by at least one general partner."
SECTION 10.(c)  G.S. 59‑204(b1) is repealed.
SECTION 10.(d)  G.S. 59‑206 reads as rewritten: "§ 59‑206.  Filing requirements.
(a)	A document required or permitted by this Article to be filed by the Secretary of State must be filed under Chapter 55D of the General Statutes. Whenever the provisions of this Article require any document relating to a limited partnership to be executed and filed in accordance with this Article, unless otherwise specifically stated in this Article:
				
(3a)	Whenever the name of any domestic or foreign limited partnership holding title to real property in this State is changed upon amendment to the certificate of limited partnership, or whenever title to its real property is vested by operation of law in another entity upon merger, consolidation, or conversion of the domestic or foreign limited partnership, a certificate reciting the name change, merger, consolidation, or conversion shall be recorded in the office of the register of deeds of the county where the property lies, or if the property is located in more than one county, then in each county where any portion of the property lies.
(4)	The Secretary of State shall adopt uniform certificates to be furnished for registration in accordance with this section. In the case of a foreign limited partnership, a similar certificate by any competent authority of the jurisdiction under which the limited partnership is organized may be registered in accordance with this section.
(5)	The certificate required by subdivision (3a) of this subsection shall be recorded by the register of deeds in the same manner as deeds, and for the same fees, but no formalities as to acknowledgement, probate, or approval by any other officer shall be required. The former name of the domestic or foreign limited partnership holding title to the real property before the name change, merger, consolidation, or conversion shall appear in the "Grantor" index, and the new name of the domestic or foreign limited partnership or the name of the other entity holding title to the real property by virtue of the merger, consolidation, or conversion, as applicable, shall appear in the "Grantee" index.
							"
SECTION 10.(e)  G.S. 59‑206.1 and G.S. 59‑206.2 are repealed.
SECTION 10.(f)  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  specifically
	provided for	10.00
														"
SECTION 11.  G.S. 55B‑3 reads as rewritten:
"§ 55B‑3.  North Carolina Business Corporation Act applicable; other applicable law.
(a)	Chapter 55 of the General Statutes, the  North Carolina Business Corporation Act, applies to professional corporations, including their organization, and professional corporations shall enjoy the powers and privileges and shall be subject to the duties, restrictions and liabilities of other corporations, except insofar as the same may be limited or enlarged by this Chapter. If any provision of this Chapter conflicts with the provisions of Chapter 55 of the General Statutes, the North Carolina Business Corporation Act, the provisions of this Chapter shall prevail.
(b)	A document required or permitted by this Chapter to be filed by the Secretary of State shall be filed under Chapter 55D of the General Statutes, Filings for Corporations, Nonprofit Corporations, Limited Liability Companies, Limited Partnerships, and Limited Liability Partnerships."
SECTION 12.  The Revisor of Statutes is authorized to transfer, as historical annotations, the Official Comments and the North Carolina Comments to those portions of Chapter 55 of the General Statutes that are recodified by this act to the corresponding locations in Chapter 55D of the General Statutes, as the Revisor deems appropriate.

PART III. EFFECTIVE DATE AND APPLICABILITY.

SECTION 13.  This act becomes effective October 1, 2001, and applies to documents submitted for filing on or after that date.