CHAPTER 316
SB 295-FN – FINAL VERSION
04May2006… 1942h
05/24/06…2380eba
2006 SESSION
03/04
SENATE BILL 295-FN
This bill makes a variety of changes to laws relating to the registration and dissolution of certain business entities and raises certain fees.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
04May2006… 1942h
05/24/06…2380eba
06-2559
03/04
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Six
AN ACT relative to registration of business entities.
Be it Enacted by the Senate and House of Representatives in General Court convened:
316:1 Special Corporations; Powers Extended; Fee Increased. Amend RSA 292:8-l to read as follows:
292:8-l Powers Extended. Any non-profit corporation heretofore organized by special act of the legislature for purposes as set forth by RSA 292:1 may:
I. Change its name, eliminate any limitation on the assets it is authorized to hold, provide for distribution of its assets upon dissolution of the said corporation, by a majority vote of such corporation, unless otherwise provided by any such special act or the bylaws of any such corporation, at a meeting duly called for that purpose, and by recording a certified copy of such vote in the office of the secretary of state. The fee for recording said certified copy in the office of the secretary of state shall be [$10] $25.
II. Change its purpose by a majority vote of said corporation. A written notice of the proposed change shall be provided to the director of charitable trusts, department of justice and the notice of proposed changes shall be published in a newspaper of general circulation by the trustees at least 30 days before the vote is taken. The proposed change shall also be submitted for review by the probate court. If legal cause exists which would prevent the proposed change in purpose, the director of charitable trusts shall have 30 days to notify the corporation of any additional requirements. A certified copy of the vote shall be filed in the office of the secretary of state. The fee for recording said certified copy in the office of the secretary of state shall be [$10] $25. Nothing in this paragraph shall be construed to supercede the intent of RSA 7:19 - RSA 7:32-a.
316:2 New Subparagraph; Business Corporations; Fees. Amend RSA 293-A:1.22, (a) by inserting after subparagraph (13) the following new subparagraph:
(14) Restatement of articles of incorporation without amendment $35
316:3 Business Corporations; Procedure for and Effect of Administrative Dissolution. Amend RSA 293-A:14.21, (a) to read as follows:
(a) If the secretary of state determines that one or more grounds exist under RSA 293-A:14.20 for dissolving a corporation, the secretary of state shall administratively dissolve the corporation by [signing and] mailing a notice of dissolution to the corporation at its principal address as listed in the records of the secretary of state. Such notice shall recite the grounds for dissolution and effective date, together with an application for reinstatement and shall at the same time give notice to the department of revenue administration, but such notice shall not constitute written or published notice to claimants otherwise required under RSA 293-A:14.06 or RSA 293-A:14.07.
316:4 Investment Trusts; Certification of Certificate of Trust. Amend RSA 293-B:13, I(a) to read as follows:
(a) Certify that the certificate of trust, the certificate of amendment, the certificate of cancellation, or the certificate of merger or consolidation has been filed in the secretary of state’s office by endorsing upon the original certificate the word “Filed,” and the date [and hour] of the filing. This endorsement is conclusive of the date [and time] of its filing in the absence of actual fraud;
316:5 Consumers’ Cooperative Associations; Application of Franchise, License, and Corporation Taxes. Amend RSA 301-A:27 to read as follows:
301-A:27 Application of Franchise, License, and Corporation Taxes. For taxation purposes, each association formed under this chapter shall pay to the secretary of state an annual fee of [$10] $25 in lieu of all franchise, license, or corporation taxes, or taxes upon reserves held by the association for its members.
316:6 Consumers’ Cooperative Associations; Revocation of Certificate of Organization. Amend RSA 301-A:32 to read as follows:
301-A:32 [Delinquent Reports;] Revocation of Certificate of Organization.
I. The certificate of organization of a foreign cooperative association may be revoked by the secretary of state if an association fails to file its annual report by the date required under RSA 301-A:31, or if such association fails to pay any fees when they become due and payable.
II. No certificate of organization shall be revoked under paragraph I by the secretary of state unless:
(a) [He] The secretary of state gives the association not less than 60 days notice of the revocation by mail addressed to its principal office; and
(b) The association fails, prior to revocation, to file the annual report or to pay the fees or penalties.
III. Upon the revocation of a certificate of organization, the secretary of state shall[:
(a) Issue a notice of revocation; and
(b)] mail to the association’s principal office the notice of the revocation.
316:7 New Sections; Consumers’ Cooperative Associations; Administrative Dissolution. Amend RSA 301-A by inserting after section 32 the following new sections:
301-A:32-a Grounds for Administrative Dissolution. The secretary of state may administratively dissolve a domestic association under RSA 301-A:32-b if:
I. The association for 2 consecutive years does not pay within 60 days after they are due any franchise fees or penalties imposed by this chapter or other law; or
II. The association for 2 consecutive years does not deliver its annual report to the secretary of state within 60 days after it is due.
301-A:32-b Procedure for Administrative Dissolution. The secretary of state shall administratively dissolve the association by mailing a notice of dissolution to the association at its principal address as listed in the records of the secretary of state. Such notice shall recite the grounds for dissolution and effective date, together with an application for reinstatement. The secretary of state shall not permit any other individual, corporation, or other business entity to assume the same name or a similar name, of an association administratively dissolved under this section, or any trade name registered by such association pursuant to RSA 349, for a period of 120 days following the notice of administrative dissolution without the written consent of such association.
316:8 Registered Limited Liability Partnerships; Reinstatement. Amend RSA 304-A:44, VII to read as follows:
VII. A limited liability partnership withdrawn under RSA 304-A:44, IV(a)(2) may apply to the secretary of state for [reregistration] reinstatement by [filing a new registration with the secretary of state under RSA 304-A:44] completion of a reinstatement form together with payment of any fees in arrears at the time of withdrawal [and]. Beyond 120 days a reinstatement must be accompanied by, in addition to the above, annual fees for the years since the withdrawal and a certificate from the New Hampshire department of revenue administration indicating there are no taxes due that department.
316:9 Foreign Registered Limited Liability Partnerships; Reinstatement. Amend RSA 304-A:50, X to read as follows:
X. A foreign registered limited liability partnership withdrawn under RSA 304-A:50, VIII(a)(2) may apply to the secretary of state for [reregistration] reinstatement by [filing a new registration with the secretary of state under RSA 304-A:50] completion of a reinstatement form together with payment of fees in arrears at the time of withdrawal[, and]. Beyond 120 days a reinstatement must be accompanied by, in addition to the above, annual fees for the years since the withdrawal, if the foreign limited liability partnership was doing business in this state during those years, and a certificate from the New Hampshire department of revenue administration indicating there are no taxes due that department.
316:10 Amendment to Certificate of Limited Partnership. Amend RSA 304-B:9, II(b)-(c) to read as follows:
(b) The withdrawal of a general partner; [or]
(c) The continuation of the business under RSA 304-B:44 after an event of withdrawal of a general partner; or
(d) The resignation of the registered agent.
316:11 New Section; Limited Partnerships; Resignation of Registered Agent. Amend RSA 304-B by inserting after section 9 the following new section:
304-B:9-a Resignation of Registered Agent.
I. The registered agent of a limited partnership formed in this state or a foreign limited partnership authorized to do business in this state may resign his or her agency appointment by signing and delivering to the secretary of state for filing the original and one exact or conformed copy of a statement of resignation. The statement of resignation may include a statement that the registered office is also discontinued.
II. The secretary of state shall mail the copy to the limited partnership at its principal office address of record.
III. The agency appointment is terminated, and the registered office discontinued if so provided, on the thirty-first day after the date on which the statement was filed.
316:12 Certificate of Limited Partnership; Filing in Office of Secretary of State. Amend RSA 304-B:13, I to read as follows:
I. [Two signed copies] One original and one exact or conformed copy of the certificate of limited partnership and of any certificates of amendment or cancellation (or of any judicial decree of amendment or cancellation) and of any certificate of merger or certificate of conversion shall be delivered to the secretary of state. Documents filed electronically need not be filed in duplicate. A person who executes a certificate as an agent or fiduciary need not exhibit evidence of authority as a prerequisite to filing. Unless the secretary of state finds that any certificate does not conform to law, upon receipt of all filing fees required by law the secretary of state shall:
(a) Endorse on each [duplicate original] copy the word “filed” and the day, month, and year of the filing thereof;
(b) File [one duplicate] the original in the secretary of state’s office; and
(c) Return the [other duplicate original] exact or conformed copy to the person who filed it or the person’s representative.
316:13 New Section; Limited Liability Companies; Dissolution; Late Reinstatement Hearing. Amend RSA 304-C by inserting after section 54 the following new section:
304-C:54-a Late Reinstatement Hearing; Notice; Requirements.
I. A limited liability company administratively dissolved under RSA 304-C:53 may apply to the secretary of state for late reinstatement if more than 3 years have expired since the effective date of dissolution. The application shall:
(a) Recite the name of the limited liability company and the effective date of its administrative dissolution;
(b) State that the ground or grounds for dissolution either did not exist or have been eliminated;
(c) State that the limited liability company’s name or proposed name satisfies the requirements of RSA 304-C:3;
(d) Contain a certificate from the New Hampshire department of revenue administration in accordance with RSA 77-A:18, III, and RSA 77-E:12, III;
(e) Contain a statement asserting that no lawsuits are pending against the limited liability company;
(f) Contain a statement explaining the reason that reinstatement is being requested;
(g) Include all of the annual report fees, for each year since the date of dissolution; and
(h) Contain a statement from the commissioner of the department of employment security showing that to the best of the commissioner’s knowledge, as of the date of the statement, such limited liability company has paid all of its contributions or that it was not liable for any contributions, or that it has made adequate provisions, with such surety as shall be satisfactory to the future payment of any contributions.
II. If the secretary of state determines that the application contains the information required by paragraph I, and that the limited liability company name is available for registration, and that it is accompanied by the fee required in RSA 304-C:81, I(d), the secretary of state shall schedule a public hearing on the late reinstatement. The public hearing shall be held before the secretary of state, or designee and the attorney general, or designee. Any interested party shall have the right to testify at a late reinstatement hearing. Late reinstatement hearings shall be conducted twice a year, on April 1 and September 1. If any such date falls upon a Saturday, Sunday, or legal holiday, the hearing shall be held on the first business day after each date. An application for late reinstatement must be received at least one month prior to a hearing date in order to be scheduled for that date.
III. Notice of the late reinstatement hearing shall be published one time in a newspaper of general circulation in the county where the dissolved limited liability company’s principal office, or, if none in this state, its registered office, is or was last located. The notice shall:
(a) Clearly state the reason for the hearing.
(b) State the date, time, location of the hearing.
(c) Indicate that all interested parties are encouraged to attend or submit written comments within one week of the hearing.
(d) Include the mailing address of the secretary of state.
IV. If, after the public hearing, the secretary of state, in conjunction with the attorney general, determines that the information submitted in the application for late reinstatement is correct and that the limited liability company should be reinstated, the secretary of state shall cancel the notice of dissolution and prepare a notice of reinstatement that recites the determination and the effective date of reinstatement and mail said notice to the limited liability company.
V. If the application for reinstatement included a change of name of the limited liability company, the notice shall set forth the change of name of the limited liability company and the fee required pursuant to RSA 304-C:81, I(c), and the notice shall constitute an amendment to the certificate of formation. If the application for reinstatement included a change of the registered agent, the notice shall set forth the name of the new registered agent and the fee required pursuant to RSA 304-C:81, I(b).
VI. When the reinstatement is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the limited liability company resumes carrying on its business as if the administrative dissolution had never occurred.
VII. Except for provisions and requirements set forth in this section, late reinstatement hearings shall be subject to RSA 421-B:26-a.
316:14 Limited Liability Companies; Late Reinstatement Fee. Amend RSA 304-C:81, I(d) to read as follows:
(d) Upon receipt for filing of an annual report under RSA 304-C:80, a fee in the amount of $100; for failure or refusal to file an annual report or pay the filing fee on or before April 1 of any year, an additional late filing fee in the amount of $50; [and] upon receipt for filing of an application for reinstatement pursuant to RSA 304-C:54, a fee of $135; and upon receipt for filing of an application for late reinstatement pursuant to RSA 304-C:54-a, a fee of $500.
316:15 New Section; Registration of Foreign Partnerships; Resignation of Registered Agent. Amend RSA 305-A by inserting after section 2-e the following new section:
305-A:2-f Resignation of Registered Agent.
I. The registered agent of a foreign partnership authorized to do business in this state may resign his or her agency appointment by signing and delivering to the secretary of state for filing the original and one exact or conformed copy of a statement of resignation. The statement of resignation may include a statement that the registered office is also discontinued.
II. The secretary of state shall mail the copy to the foreign partnership at its principal office address of record.
III. The agency appointment is terminated, and the registered office discontinued if so provided, on the thirty-first day after the date on which the statement was filed.
316:16 Effective Date. This act shall take effect July 1, 2006.
Approved: June 19, 2006
Effective: July 1, 2006