NRAI Compliance Updates - July, 2006

 


NRAI Compliance Updates - July 2006


Greetings,

This month’s newsletter includes a higher percentage of bills that have become law. This is due to the time of year with effective dates and legislator’s vacations looming. 

Of the more interesting entries below are three Delaware Bills:

Delaware Senate Bill 333 which gives the Securities and Exchange Commission clearance to certify questions of law to the Delaware Supreme Court.

Delaware House Bill 414 updating and amending the Delaware Limited Liability Company Act

Delaware House Bill 430 which proposes a new chapter to regulate non-profit business engaged in credit counseling and debt management services.

I am expecting legislative activity to slow down for the next month or so.

Robert K. Rowell
General Counsel


New, Pending and Passed Legislation


Arizona

HB2273

AN ACT amending sections 10-122.01, 10-124, 10-401, 10-402 and 10-403, Arizona Revised Statutes; repealing section 10-504, Arizona Revised Statutes; amending title 10, chapter 5, article 1, Arizona Revised Statutes, by adding a new section 10-504; amending sections 10-720 and 10 1506, Arizona Revised Statutes; repealing section 10-1510, Arizona Revised Statutes; amending title 10, chapter 15, article 1, Arizona Revised Statutes, by adding a new section 10-1510; amending title 10, chapter 15, article 2, Arizona Revised Statutes, by adding section 10-1521; amending sections 10 1622, 10-2054, 10-2124 and 10 2215, Arizona Revised Statutes; repealing section 10-3122, Arizona Revised Statutes, as amended by Laws 2005, chapter 253, section 5; amending section 10-3122, Arizona Revised Statutes, as amended by Laws 2005, chapter 262, section 2; amending sections 10-3124, 10-3401, 10-3402 and 10-3403, Arizona Revised Statutes; repealing section 10-3504, Arizona Revised Statutes; amending title 10, chapter 28, article 1, Arizona Revised Statutes, by adding a new section 10-3504; amending section 10-11506, Arizona Revised Statutes; repealing section 10-11510, Arizona Revised Statutes; amending title 10, chapter 38, article 1, Arizona Revised Statutes, by adding a new section 10 11510; amending title 10, chapter 38, article 2, Arizona Revised Statutes, by adding section 10 11521; amending sections 10-11632, 29-601, 29 602, 29 603, 29-606, 29-633, 29-634, 29-637, 29-681, 29-781, 29-781.01, 29 783, 29 802, 29-803, 29-805, 29-841, 29-841.01, 29-845 and 29-851, Arizona Revised Statutes; relating to corporations and limited liability companies. 

Full Text available at: http://www.azleg.gov/legtext/47leg/2r/bills/hb2273h.pdf

Current Bill Status: June 15, 2006 signed by Governor as Chapter 320 with an effective date of December 31, 2006.


California

SB1183

Foreign corporations: supermajority vote.

(1) Existing law imposes various requirements on foreign corporations, as defined, that transact intrastate business, as defined. Existing law provides that a foreign corporation is not considered to be transacting intrastate business merely because its subsidiary transacts intrastate business. This bill would additionally provide that a foreign corporation is not transacting intrastate business merely because of its status as a
shareholder, limited partner, or member or manager of a domestic corporation, limited partnership, or limited liability company or a foreign corporation, limited partnership, or limited liability company transacting intrastate business.

(2) Existing law requires, with respect to certain corporations with outstanding shares of record held by at least 100 persons, that an amendment to the articles of incorporation or a certificate of determination that includes a supermajority vote requirement, as defined, shall be approved by a specified proportion of shares. Existing law provides that the supermajority vote requirement is ineffective 2 years after the most recent filing of the amendment or certificate of determination to adopt or readopt the supermajority vote requirement, unless it is renewed, as specified. This bill would eliminate that provision that the supermajority vote requirement is ineffective 2 years after that specified filing. The bill would make other technical, nonsubstantive, and conforming changes.

Full Text available at: http://www.leginfo.ca.gov/pub/bill/sen/sb_1151-1200/sb_1183_bill_20060707_chaptered.pdf

Current Bill Status: July 7, 2006 signed by Governor


Delaware

HB414

This Bill continues the practice of amending periodically the Delaware Limited Liability Company Act (the Act”) to keep it current and to maintain its national preeminence. The following is a section-by-section review of the proposed amendments of the Act. 

Section 1. This Section amends § 18-101(12) of the Act to confirm the broad scope of the defined term person”. 

Sections 2 and 3. These Sections amend § 18-104 of the Act to expand the types of entities that may serve as registered agents; prescribe the duties of a registered agent; require that persons or entities serving as registered agent for more than fifty entities (a Commercial Registered Agent”) be generally open during normal business hours and have a natural person present to operate such office and communicate with the Secretary of State on request; require Delaware limited liability companies to provide registered agents with a designated natural person to receive communications from the registered agent and require the registered agent to maintain in its records the identity of such persons; authorize the Secretary of State to issue regulations to enforce these provisions; authorize the Secretary of State to bring a lawsuit in the Court of Chancery to enjoin any person or entity from acting as a registered agent, or as an officer, or director or managing agent of a registered agent, any person or entity who fails to comply with the statutory requirements, who has been convicted of a felony or any crime involving dishonesty, fraud or moral turpitude, or who has used the office of registered agent in a manner intended to defraud the public; provide that the certificate of formation or registration of a domestic or foreign limited liability company will be cancelled if it fails, within a prescribed period, to obtain and designate a new registered agent if the Court of Chancery enjoins any person or entity from acting as a registered agent for such limited liability company; and authorize the Secretary of State to make a list of registered agents available to the public. 

Section 4. This Section amends § 18-203 of the Act to conform to new § 18-104(i)(4) of the Act which provides for the cancellation of a certificate of formation in the circumstances therein provided.

Section 5. This Section amends § 18-206(b) of the Act to conform to new § 18-104(i)(4) of the Act which provides for the cancellation of a certificate of formation in the circumstances therein provided. 

Section 6. This Section amends § 18-209(b) of the Act to correct words used in the subsection. Sections 7-32. 

Sections 7 through 32 of the Bill make technical changes to §18-212 (domestication of non-US entities), § 18-213 (transfer or continuance of domestic limited liability companies), § 18-214 (conversion of certain entities to a limited liability company) and § 18-216 (approval of conversion of a limited liability company) of the Act to conform these Sections to the parallel provisions in the Delaware General General Corporation Law adopted in 2005. 

Section 33. This Section amends § 18-302(d) of the Act to clarify that meetings of members of a Delaware limited liability company may be held by conference telephone or similar communications equipment unless otherwise provided in a limited liability company agreement. 

Section 34. This Section amends § 18-404(d) of the Act to clarify that meetings of managers of a Delaware limited liability company may be held by conference telephone or similar communications equipment unless otherwise provided in a limited liability company agreement. 

Section 35. This Section amends § 18-906 of the Act to conform to the provisions of § 18-904(e) and new § 18-104(i)(4) of the Act which provide for the cancellation of the registration of a foreign limited liability company under the circumstances therein provided. 

Sections 36 and 37. These Sections amend § 18-1109 of the Act to permit the revival of a certificate of formation of a limited liability company whose certificate of formation has been cancelled pursuant to new § 18-104(i)(4).

Section 38. This Section provides that the proposed amendments in Section 1 and Sections 6 through 34 of this Bill shall become effective August 1, 2006 and that the proposed amendments in Sections 2 through 5 and Sections 35, 36 and 37 of this Bill shall become effective on January 1, 2007.

Full Text available at: http://www.legis.state.de.us/LIS/lis143.nsf/vwLegislation/HB+414/$file/legis.html?open

Current Bill Status: June 28, 2006 signed by Governor with Sections 6 through 34 effective August 1, 2006 and Sections 2 through 5 and Sections 35, 36 and 37 of this Bill shall become effective on January 1, 2007.

HB430

This Bill creates a new chapter to license and regulate non-profit businesses engaged in offering credit counseling and debt management services. The Bill is modeled on the Uniform Debt-Management Services Act. Not-for-profit debt counseling providers may be licensed with proof of non-profit status and tax exemption. Applications for licenses must be accompanied by a nonrefundable fee of $2,000 to credit of State Banking Commissioner Regulatory Revolving Fund, a corporate surety bond of at least $500,000, (or irrevocable letter of credit), evidence of insurance against dishonest, fraud, theft and other misconduct of at least $500,000, identification of all trust accounts with an irrevocable consent authorizing the Commissioner to review and examine the trust accounts and overdraft notification agreement similar to what is imposed on all lawyers licensed in the State of Delaware who hold client trust accounts. This Bill specifies, in detail, the information that must be contained in license application, updated license information, denials of licensure (subject to Delaware Administrative Procedures Act), renewals of licenses and reciprocity of licensure. The Bill regulates the counseling of consumers before signing a Debt-Management Plan, including financial analysis, identification of which creditors are expected to participate, or not participate or not grant concessions, certain disclaimers and disclosures including whether the provider is receiving any compensation from the consumer’s creditors. All Agreements must have a three business day right of cancellation with complete refund of all fees paid by consumer. If provider communicates with consumer primarily in a language other than English the provider must furnish all disclosures and documents in that other language. All pre-Agreement disclosures and disclaimers and Agreements may be made by electronic means if the consumer consents consistent with the Federal Electronic Signatures in Global and National Commerce Act. The Bill regulates the fees that can be charged, depending on the services being provided, up to a not to exceed maximum. The Bill provides for the manner of terminating Agreements. The Bill also provides for prohibited acts by Providers that could involve or lead to collusion, conflicts of interest or other bad practices. The Bill gives the Delaware Banking Commission full authority to investigate all consumer complaints, impose cease and desist orders, order restitution, civilly prosecute and refer cases to the Delaware attorney general for criminal prosecution. The Bill also allows for consumers to seek civil damages individually or by class action including punitive damages and attorney’s fees. The Act will take effect six months after enactment. 

Full Text available at: http://www.legis.state.de.us/LIS/lis143.nsf/vwLegislation/HB+430/$file/legis.html?open

Current Bill Status: Having passed the House the bill has passed in the Senate on June 28, 2006.

SB322

Section 1 Amends § 102(a)(1) to provide that the name of a Delaware corporation must be such as to distinguish it from the names (whether reserved or of record) of each other domestic or foreign corporation, partnership, limited partnership, limited liability company or statutory trust upon the records in the office of the Division of Corporations in the Department of State, except with the written consent of the person who has reserved such name or such other corporation, partnership, limited partnership, limited liability company or statutory trust.

Section 2 Amends § 102 to add new subsection (e), which clarifies who may reserve a name that is available for use by a domestic or foreign corporation and provides the procedures to be followed by the applicant and the Secretary of State to reserve such name. 

Section 3 Amends § 141(b) to add a new provision that a resignation may be made effective upon the happening of a future event or events, coupled with authority granted in the same section to make certain resignations irrevocable. By permitting a corporation to enforce a director resignation conditioned upon the director failing to achieve a specified vote for reelection, e.g., more votes for than against, coupled with board acceptance of the resignation, these provisions permit corporations and individual directors to agree voluntarily, and give effect in a manner subsequently enforceable by the corporation, to voting standards for the election of directors which differ from the plurality default standard in Section 216. The new provisions of Section 141(b) do not, however, address whether resignations submitted in other contexts may be made irrevocable. 

Section 4 Amends the first sentence of § 141(d) to clarify that the classified terms of directors commence after the classification of the board of directors becomes effective, thereby expressly permitting certificate of incorporation or bylaw provisions that provide for classification effective at a point in time after such provisions are adopted. The new sentence added to Section 141(d) permits the certificate of incorporation or bylaw provision that divides the directors into classes to include language authorizing the board of directors to assign members of the board already in office to the board classes at the time such classification becomes effective. 

Section 5 Amends § 216 to provide that a bylaw adopted by a vote of stockholders that prescribes the required vote for the election of directors may not be altered or repealed by the board of directors. This amendment does not address any other situation in which the board of directors amends a bylaw adopted by stockholder vote.

Section 6 Amends § 371 to provide that before a foreign corporation shall have the right to do business in Delaware, the name of such foreign corporation must be such as to distinguish it from the names (whether reserved or of record) of each other domestic or foreign corporation, partnership, limited partnership, limited liability company or statutory trust upon the records in the office of the Division of Corporations in the Department of State, except with the written consent of the person who has reserved such name or such other corporation, partnership, limited partnership, limited liability company or statutory trust. 

Section 7 Amends § 391 to provide that a fee of up to $75 shall be collected by and paid to the Secretary of State for accepting a corporate name reservation application as well as an application for renewal of a corporate name reservation or a notice of transfer or cancellation of a corporate name reservation.

Section 8 provides that the proposed amendments set forth in Sections 1 through 7 of this Act shall become effective on August 1, 2006.

Sections 9 and 10 Amend § 132 to expand the types of entities that may serve as registered agents; prescribe the duties of a registered agent; require that persons or entities serving as registered agent for more than 50 business entities be generally open during normal business hours and have a natural person present to operate such office and communicate with the Secretary of State on request; require Delaware corporations to provide registered agents with a designated natural person to receive communications from the registered agent and require the registered agent to maintain in its records the identity of such persons; authorize the Secretary of State to issue regulations to enforce these provisions; authorize the Secretary of State to bring a lawsuit in the Court of Chancery to enjoin from acting as a registered agent, or as an officer, or director, or managing agent of a registered agent, any person or entity who fails to comply with the statutory requirements, who has been convicted of a felony or any crime involving dishonesty, fraud or moral turpitude, or who has used the office of registered agent in a manner intended to defraud the public; and authorize the Secretary of State to make a list of registered agents available to the public.

Sections 11 through 16 are technical Amendments to § 312 to make it consistent with revisions to §§ 132, 502, 503, 510, 511, 514, and 517.

Section 17 provides that the proposed Amendments set forth in Sections 9 through 16 of this Act shall become effective on January 1, 2007.

Sections 18 through 26 Amend §§ 502, 503, 510, 511, 514, and 517 to require Delaware corporations to file a complete annual franchise tax report including, among other things, the names and addresses of all of the corporation’s directors as of the filing date of the report and the name and address of the officer who signs the report, and require the Secretary of State to declare void the charter of any corporation that fails to file a complete annual franchise tax report.
Section 27 provides that the proposed Amendments set forth in Sections 18 through 26 of this Act shall become effective on January 1, 2008.

Full Text available at: http://www.legis.state.de.us/LIS/lis143.nsf/vwLegislation/SB+322/$file/legis.html?open

Current Bill Status: June 27, 2006 Signed by Governor with staggered effective dates beginning August 1, 2006

SB333

The purpose of this amendment is to add the United States Securities and Exchange Commission to the list of entities that may certify questions of law to the Delaware Supreme Court. More than half of the publicly traded companies in the United States are Delaware corporations. 

Full Text available at: http://www.legis.state.de.us/LIS/lis143.nsf/vwLegislation/SB+333/$file/legis.html?open

Current Bill Status: June 30, 2006 enacted without Governor’s signature.


Hawaii

HB2313/SB2276

Clarifies and corrects ambiguities and errors in Hawaii's business registration laws.

Full Text available at: http://www.capitol.hawaii.gov/sessioncurrent/bills/HB2313_.pdf

Current Bill Status: June 23, 2006 approved by Governor as Act 235

SB744

Clarifies ambiguities and corrects errors in business registration laws.

Full Text available at: http://www.capitol.hawaii.gov/sessioncurrent/bills/sb744_.htm

Current Bill Status: June 13, 2006 approved by Governor as Act 184


Illinois

HB5376

Amends the Business Corporation Act of 1983. Requires that fair value (instead of just value) be paid for a fractional share that is paid in cash. Defines "fair value". Provides that, in the list of those who can make a determination for purposes of indemnification of a present or former director, officer, employee or agent in a particular case, the determination shall be by a committee of the directors who are not parties to such action, suit, or proceeding, even though less than a quorum, designated by a majority vote of the directors (instead of a committee of directors designated by a majority vote of the directors). Amends the Limited Liability Company Act. Provides that the operating agreement may not contain any provision inconsistent with the voting provisions in the listed Section. Limits situations in which a person may vote to ratify or approve matters. 

Full Text available at: http://www.ilga.gov/legislation/94/HB/PDF/09400HB5376lv.pdf

Current Bill Status: June 20, 2006 signed by Governor as Public Act 94-0889 with an effective date of January 1, 2007.


Louisiana

HB 248

Provides for required information for incorporation of domestic incorporated insurers.

Full Text available at: http://www.legis.state.la.us/billdata/streamdocument.asp?did=400976

Current Bill Status: June 13, 2006 Signed by the Governor as Act No. 340 with an effective date of June 13, 2006.

SB268

Classifies as "penalty" amounts assessed for failure by a corporation to pay estimated income tax and adjustment of overpayment of estimated income tax by a corporation

Full Text available at: http://www.legis.state.la.us/billdata/streamdocument.asp?did=403708

Current Bill Status: June 13, 2006 signed by Governor as Act 320 with an immediate effective date.


Missouri

HB1427/SB845

This bill allows the Secretary of State to waive reinstatement fees and procedures in the event a corporation was administratively dissolved for failure to file an annual registration report when the failure was due to the business owner's active military service. The Secretary of State will waive all late fees, cancel the certificate of dissolution, and reinstate the corporation in these circumstances. Annual registration report fees may still be due for the years in which no report was filed. 

Full Text available at: http://www.house.mo.gov/bills061/biltxt/truly/HB1427T.HTM

Current Bill Status: June 21, 2006 signed by Governor with an effective date of August 28, 2006.


New Hampshire

SB 295

This bill makes a variety of changes to laws relating to the registration and dissolution of certain business entities and raises certain fees. 

Full Text available at: http://www.gencourt.state.nh.us/legislation/2006/SB0295.html

Current Bill Status: Signed by the Governor on June 19, 2006 as Chapter 316 with an effective date of July 1, 2006.


New Jersey

A4706/SB1987

An Act imposing a surcharge of 3.5% on corporation business tax liability, supplementing P.L.1945, c.162 (C.5410A-1 et seq.).

Full Text available at: http://www.njleg.state.nj.us/2006/Bills/S2000/1987_R1.PDF

Current Bill Status: July 8, 2006 Reported from Senate Committee as a Substitute, 2nd Reading and substituted with A4706.

A4725

An Act imposing a surcharge of 4.5% on corporation business tax liability, supplementing P.L.1945, c.162 (C.5410A-1 et seq.). 

Full Text available at: http://www.njleg.state.nj.us/2006/Bills/A5000/4725_I1.PDF

Current Bill Status: July 5, 2006 Introduced, 1st Reading without Reference, 2nd Reading.


New York

A12035/SB8416

Relates to the members, directors and officers, and dissolution of not-for-profit corporations. 

Full Text available at: http://assembly.state.ny.us/leg/?bn=S08416&sh=t
Current Bill Status: Passed Assembly and returned to Senate on June 23, 2006.


Pennsylvania

HB2851

Amending Titles 15 (Corporations and Unincorporated Associations) and 54 (Names) of the Pennsylvania Consolidated Statutes, defining "official notice"; requiring the Department of State to establish a certain Internet website; further providing for advertisements by domestic business corporations, by foreign business corporations, domestic nonprofit corporations, foreign nonprofit corporations and domestic cooperative corporation ancillaries and for fictitious name registration; and making an editorial change. 

Full Text available at: http://www2.legis.state.pa.us/WU01/LI/BI/BT/2005/0/HB2851P4405.pdf

Current Bill Status: June 28, 2006 introduced and referred to Commerce Committee

HB2852

Amending Titles 15 (Corporations and Unincorporated Associations) and 54 (Names) of the Pennsylvania Consolidated Statutes, further providing for definitions; further providing, in registered limited liability partnerships, for ownership of certain professional partnerships, for scope, for definitions, for limitation on liability of partners, for liability of withdrawing partner, for foreign registered limited liability partnerships, for annual registration; further providing, in general partnerships, for definitions, for rules of construction; providing, in limited partnerships, for advertisement; further providing, in limited partnerships, for assignment of partnership interest and for changes and amendments; further providing, in limited liability companies, for definitions and index of definitions; providing, in limited liability companies, for validation of prohibitions of assignments; further providing, in limited liability companies, for operating agreement, for management, for limitation on dissociation or assignment of membership interest and for dissolution; providing, in limited liability companies, for advertisement; further providing, in limited liability companies, for distribution of assets upon dissolution and for certificate of dissolution; further providing, in business trusts, for liability of trustees and beneficiaries; further providing, in names, for definitions; and further providing, in corporate and other association names, for register establishment. 

Full Text available at: http://www2.legis.state.pa.us/WU01/LI/BI/BT/2005/0/HB2852P4406.pdf

Current Bill Status: Introduced and referred to Commerce Committee on June 28, 2006.

SB1225

Amending the act of March 4, 1971 (P.L.6, No.2), entitled "An act relating to tax reform and State taxation by codifying and enumerating certain subjects of taxation and imposing taxes thereon; providing procedures for the payment, collection, administration and enforcement thereof; providing for tax credits in certain cases; conferring powers and imposing duties upon the Department of Revenue, certain employers, fiduciaries, individuals, persons, corporations and other entities; prescribing crimes, offenses and penalties," further providing, in corporate net income, for the definition of "taxable income." The General Assembly finds and declares as follows: (1) That the Commonwealth's high tech and manufacturing sectors, which generate 16.1% of the gross State product, employ 670,000 Pennsylvanians and directly add over $75 billion in value to the Commonwealth every year, are in a state of crisis that demands immediate attention. (2) Despite certain nonmanufacturing sectors of Pennsylvania's economy keeping pace with national economic growth and generating significant increased revenues for the General Fund budget, Pennsylvania's high tech and manufacturing employers have lost in excess of 200,000 high- paying, high-value manufacturing jobs since 2000, even as competitor states have continued to add manufacturing and high tech jobs. (3) After seeking and receiving the recommendations from an unprecedented coalition of Pennsylvania employers, called CompetePA, representing small and large companies competing in every sector of the State's economy and every geographic region of this Commonwealth, its support for the unified and targeted solution to the manufacturing crisis recommended by Pennsylvania employers that would reverse longstanding, Pennsylvania-specific, job-crushing State economic policies that punish investment and reinvestment in domestic manufacturing facilities. (4) In recognition that Pennsylvania employers, not policymakers, are best positioned to recommend reforms to enhance high tech and manufacturing competitiveness for the Commonwealth, its support for the unified Pennsylvania business community recommendations to all of the following: (i) Eliminate over time the current policy that restricts companies from offsetting current income with prior net operating losses. (ii) Eliminate the "penalty" that increases an employer's tax liability as that employer invests more in its employees and property. (5) Having determined that Pennsylvania's net operating loss tax policy continues to force cyclical, high tech and manufacturing companies to pay a much higher effective tax rate than their counterparts in competing neighboring states over a multiyear period and that its current tax policy to 060S1225B1841 - 2 - penalize employers based upon their relative investment in payroll and property creates a perverse incentive for manufacturers to reduce such investments in this Commonwealth, that Pennsylvania's current tax policy.

Full Text available at: http://www2.legis.state.pa.us/WU01/LI/BI/BT/2005/0/SB1225P1841.pdf

Current Bill Status: June 15, 2006 Introduced and Referred to Finance Committee.


Rhode Island

HB7910/SB2936

Conversion of Sole Proprietorship to a Limited Liability Company

Full Text available at: http://www.rilin.state.ri.us/Billtext/BillText06/SenateText06/S2936.pdf

Current Bill Status: June 13, 2006 signed by Governor as Chapter 88 with an immediate effective date.

SB2938

An Act relating to Corporations, Associations and Partnerships - Rhode Island Business Corporation Act and Rhode Island Limited Liability Company Act

Full Text available at: http://www.rilin.state.ri.us/Billtext/BillText06/SenateText06/S2938A.pdf

Current Bill Status: June 26, 2006 became effective without Governor’s signature.


Wyoming

HD35

An Act relating to business entities; providing for manual, facsimile, conformed or electronic signatures on documents and filings; providing conforming amendments; providing definitions; providing penalties; and providing for an effective date. 

Full Text available at: Not yet available

Current Bill Status: July 7, 2006, Draft text released - to be heard before Joint Corporations, Elections and Political Subdivisions Interim Committee on July 13, 2006 

HD39

An Act relating to limited partnerships and registered limited liability partnerships; providing for reinstatement within two years of administrative dissolution or lapsed registration; and providing for an effective date. 

Full Text available at: Not yet available

Current Bill Status: July 7, 2006, Draft text released - to be heard before Joint Corporations, Elections and Political Subdivisions Interim Committee on July 13, 2006




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