Bill Text: MS HB683 | 2010 | Regular Session | Comm Sub
Bill Title: Limited liability companies; require annual reports and revise fees.
Spectrum: Slight Partisan Bill (Democrat 2-1)
Status: (Passed) 2010-04-16 - Approved by Governor [HB683 Detail]
Download: Mississippi-2010-HB683-Comm_Sub.html
MISSISSIPPI LEGISLATURE
2010 Regular Session
To: Apportionment and Elections; Judiciary A
By: Representatives Reynolds, Brown, Denny
House Bill 683
(COMMITTEE SUBSTITUTE)
AN ACT TO CREATE THE "ELECTIONS SUPPORT FUND"; TO CREATE NEW SECTION 79-29-215, MISSISSIPPI CODE OF 1972, TO REQUIRE DOMESTIC AND FOREIGN LIMITED LIABILITY COMPANIES TO FILE AN ANNUAL REPORT; TO CREATE NEW SECTION 79-29-821, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR ADMINISTRATIVE DISSOLUTION OF A LIMITED LIABILITY COMPANY UNDER CERTAIN CIRCUMSTANCES; TO CREATE NEW SECTION 79-29-823, MISSISSIPPI CODE OF 1972, TO SPECIFY THE PROCEDURE FOR ADMINISTRATIVE DISSOLUTION; TO CREATE NEW SECTION 79-29-825, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR REINSTATEMENT FOLLOWING ADMINISTRATIVE DISSOLUTION; TO CREATE NEW SECTION 79-29-827, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR APPEAL FROM A DENIAL OF REINSTATEMENT; TO CREATE NEW SECTION 79-29-831, MISSISSIPPI CODE OF 1972, TO SPECIFY THE VARIOUS EFFECTS OF DISSOLUTION; TO CREATE NEW SECTION 79-29-1021, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR ADMINISTRATIVE DISSOLUTION OF A FOREIGN LIMITED LIABILITY COMPANY; TO CREATE NEW SECTION 79-29-1023, MISSISSIPPI CODE OF 1972, TO SPECIFY THE PROCEDURE FOR ADMINISTRATIVE DISSOLUTION OF A FOREIGN LIMITED LIABILITY COMPANY; TO CREATE NEW SECTION 79-29-1025, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR REINSTATEMENT OF A FOREIGN LIMITED LIABILITY COMPANY FOLLOWING ADMINISTRATIVE DISSOLUTION; TO CREATE NEW SECTION 79-29-1027, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR APPEAL FROM A DENIAL OF REINSTATEMENT OF A FOREIGN LIMITED LIABILITY COMPANY; TO AMEND SECTION 79-29-1203, MISSISSIPPI CODE OF 1972, TO REVISE THE FEES CHARGED IN REFERENCE TO CERTAIN FILINGS UNDER THE LIMITED LIABILITY COMPANY ACT; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) A special fund, to be designated the "Elections Support Fund" is created within the State Treasury. The fund shall be maintained by the State Treasurer as a separate and special fund, separate and apart from the General Fund of the state. Unexpended amounts remaining in the fund at the end of the fiscal year shall not lapse into the State General Fund, and any interest earned or investment earnings on amounts in the fund shall be disbursed as provided in subsection (2) of this section. The expenditure of monies in the fund shall be under the direction of the Secretary of State as provided by subsection (2) of this section, and such funds shall be paid by the State Treasurer upon warrants issued by the Department of Finance and Administration.
(2) (a) Monies in the fund shall be used as follows:
(i) Fifty percent (50%) of the monies in the special fund annually, shall be distributed to the counties based on the proportion that the population of a county bears to the total population in all counties of the state population, according to the most recent information from the United States Census Bureau, for the purpose of acquiring, upgrading, maintaining or repairing voting equipment, systems and supplies, hiring temporary technical support, conducting elections using such voting equipment or systems and training election officials. The remaining monies up to fifty percent (50%) of the annual balance in the fund shall be distributed based on the proportion of qualified electors casting ballots in the preceding presidential and gubernatorial elections in each county to the total number or qualified electors casting ballots in the last presidential and gubernatorial election in the state;
(ii) Fifty percent (50%) of the monies in the special fund annually shall be retained by the Secretary of State and used for maintaining, upgrading or equipping the Statewide Elections Management System; and
(iii) Any unexpended amounts remaining in the special fund at the end of the fiscal year shall be distributed to the counties in the same manner and for the same purposes authorized in this subsection.
(b) The Secretary of State shall create standard training guidelines to assist counties in training election officials with the funds authorized by this act. Any criteria established by the Secretary of State for the purposes of this act shall be used in addition to any other training or coursework prescribed by the Secretary of State to train circuit clerks, poll managers and any other election officials participating in county elections.
(c) Notwithstanding any other provision of law, no funds authorized by this act shall be used by the Secretary of State or any person associated with the Secretary of State's office to provide or otherwise support expert testimony in any manner for any hearing, trial or election contest.
SECTION 2. The following shall be codified as Section 79-29-215, Mississippi Code of 1972:
79-29-215. Annual report for Secretary of State. (1) Each domestic limited liability company, and each foreign limited liability company authorized to transact business in this state, shall deliver on such date as may be established by the Secretary of State, to the Secretary of State for filing an annual report that sets forth:
(a) The name of the limited liability company and the state or country or other foreign jurisdiction country under whose law it is organized;
(b) The name and street or physical address of its registered agent in this state;
(c) The address of its principal office;
(d) The names and business addresses of the managers if manager-managed and the name and address of at least one (1) member if member-managed;
(e) [Reserved]
(f) A statement as to whether the limited liability company has a written operating agreement; and
(g) A brief description of the nature of its business.
(2) Information in the annual report must be current as of the date the annual report is executed on behalf of the limited liability company.
(3) If an annual report does not contain the information required by this section, the Secretary of State shall notify promptly the reporting domestic or foreign limited liability company in writing and return the report to it for correction. If the report is corrected to contain the information required by this section and delivered to the Secretary of State within thirty (30) days after the effective date of notice, it is deemed to be timely filed.
SECTION 3. The following shall be codified as Section 79-29-821, Mississippi Code of 1972:
79-29-821. Grounds for administrative dissolution. The Secretary of State may commence a proceeding under Section 79-29-823 to administratively dissolve a limited liability company if:
(a) The limited liability company does not pay within sixty (60) days after they are due any fees imposed by this chapter or other law;
(b) The limited liability company does not deliver its annual report to the Secretary of State within sixty (60) days after it is due;
(c) The limited liability company is without a registered agent in this state for sixty (60) days or more;
(d) The limited liability company does not notify the Secretary of State within sixty (60) days that its registered agent has been changed or that its registered agent has resigned;
(e) The Department of Revenue notifies the Secretary of State that the limited liability company is delinquent in any payments or tax owed by the limited liability company to the State of Mississippi; or
(f) A misrepresentation has been made of any material matter in any application, report, affidavit, or other record submitted by the limited liability company to the Secretary of State pursuant to this chapter.
SECTION 4. The following shall be codified as Section 79-29-823, Mississippi Code of 1972:
79-29-823. Procedure for administrative dissolution. (1) If the Secretary of State determines that one or more grounds exist under Section 79-29-821 for administratively dissolving a limited liability company, the Secretary of State shall serve the limited liability company with written notice of the determination under Section 79-29-111, except that such determination may be served by first class mail.
(2) If the limited liability company does not correct each ground for dissolution or demonstrate to the reasonable satisfaction of the Secretary of State that each ground determined by the Secretary of State does not exist within sixty (60) days after the service of the notice, the Secretary of State shall administratively dissolve the limited liability company by signing a certification of the administrative dissolution that recites the ground or grounds for dissolution and its effective date. The Secretary of State shall file the original of the certificate of administrative dissolution and serve the limited liability company with a copy of the certificate of administrative dissolution under Section 79-29-111, except that the certificate of administrative dissolution may be served by first class mail.
SECTION 5. The following shall be codified as Section 79-29-825, Mississippi Code of 1972:
79-29-825. Reinstatement following administrative dissolution. (1) A limited liability company administratively dissolved under Section 79-29-823 may apply to the Secretary of State for reinstatement at any time after the effective date of dissolution. The application must:
(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 administrative dissolution either did not exist or have been eliminated; and
(c) State that the limited liability company's name satisfies the requirements of Section 79-29-104.
(2) If the Secretary of State determines that the application contains the information required by subsection (1) of this section and that the information is correct, the Secretary of State shall cancel the certificate of administrative dissolution and prepare a certificate of reinstatement that recites this determination and the effective date of reinstatement, file the original of the certificate of reinstatement, and serve the limited liability company with a copy of the certificate of reinstatement under Section 79-29-111, except that the certificate of reinstatement may be served by first class mail.
(3) When the reinstatement is effective:
(a) The reinstatement relates back to and takes effect as of the effective date of the administrative dissolution;
(b) Any liability incurred by the limited liability company or a member after the administrative dissolution and before the reinstatement shall be determined as if the administrative dissolution had never occurred; and
(c) The limited liability company may resume carrying on its business as if the administrative dissolution had never occurred.
SECTION 6. The following shall be codified as Section 79-29-827, Mississippi Code of 1972:
79-29-827. Appeal from denial of reinstatement. (1) If the Secretary of State denies a limited liability company's application for reinstatement following administrative dissolution, the Secretary of State shall serve the limited liability company under Section 79-29-111 with a record that explains the reason or reasons for denial, except that such record may be served by first class mail.
(2) The limited liability company may appeal the denial of reinstatement to the Chancery Court of the First Judicial District of Hinds County, Mississippi, or the chancery court where the limited liability company is domiciled within thirty (30) days after service of the notice of denial is perfected. The limited liability company appeals by petitioning the court to set aside the dissolution and attaching to the petition copies of the Secretary of State's certificate of administrative dissolution, the limited liability company's application for reinstatement, and the Secretary of State's notice of denial.
(3) The court may summarily order the Secretary of State to reinstate the dissolved limited liability company or may take other action the court considers appropriate.
(4) The court's final decision may be appealed as in other civil proceedings.
SECTION 7. The following shall be codified as Section 79-29-831, Mississippi Code of 1972:
79-29-831. Effect of dissolution. (1) The administrative dissolution of a limited liability company does not terminate the authority of the registered agent of the limited liability company.
(2) The administrative dissolution of a limited liability company shall not impair the validity on any contract, deed, mortgage, security interest, lien or act of such limited liability company or prevent the limited liability company from defending any action, suit or proceeding with any court of this state.
(3) A member or manager of a limited liability company is not liable for the debts, obligations or liabilities of the limited liability company solely by reason of the administrative dissolution of a limited liability company.
(4) A limited liability company that has been administratively dissolved may not maintain any action, suit or proceeding in any court of this state until the limited liability company is reinstated. An action, suit or proceeding may not be maintained in any court of this state by any successor or assignee of the limited liability company or foreign limited liability company on any right, claim or demand arising out of the transaction of business by the limited liability company after the administrative dissolution.
(5) A limited liability company that is dissolved pursuant to Section 79-29-801 or 79-29-802 continues its legal existence but may carry on only business necessary or appropriate to wind up and liquidate its business and affairs under Section 79-29-803 and to notify claimants under Sections 79-29-806 and 79-29-807.
SECTION 8. The following shall be codified as Section 79-29-1021, Mississippi Code of 1972:
79-29-1021. Administrative revocation of registration of foreign limited liability company. (1) The Secretary of State may commence a proceeding under Section 79-29-1023 to revoke the registration of a foreign limited liability company authorized to transact business in this state if:
(a) The foreign limited liability company does not pay within sixty (60) days after they are due any fees imposed by this chapter or other law;
(b) The foreign limited liability company does not deliver its annual report to the Secretary of State within sixty (60) days after it is due;
(c) The foreign limited liability company is without a registered agent in this state for sixty (60) days or more;
(d) The foreign limited liability company does not notify the Secretary of State within sixty (60) days that its registered agent has been changed or that its registered agent has resigned;
(e) The Secretary of State receives a duly authenticated certificate from the Secretary of State or other public official having custody of corporate records in the state or country under whose law the foreign limited liability company is organized stating that it has been dissolved or ceased to exist as the result of a merger; or
(f) A misrepresentation has been made of any material matter in any application, report, affidavit, or other record submitted by the foreign limited liability company to the Secretary of State pursuant to this chapter.
(2) The Secretary of State may not revoke a registration of a foreign limited liability company unless the Secretary of State sends the foreign limited liability company notice of the administrative revocation under Section 79-29-1023, at least sixty (60) days before its effective date, by a record addressed to its registered agent, or to the foreign limited liability company if the foreign limited liability company fails to appoint and maintain a proper agent in this state. The notice must specify the cause for the administrative revocation of the registration. The authority of the foreign limited liability company to transact business in this state ceases on the effective date of the administrative revocation unless the foreign limited liability company cures the failure before that date.
SECTION 9. The following shall be codified as Section 79-29-1023, Mississippi Code of 1972:
79-29-1023. Administrative revocation of registration, procedure and effect. (1) If the Secretary of State determines that one or more grounds exist under Section 79-29-1021 for revocation of registration, the Secretary of State shall serve the foreign limited liability company with written notice of the determination under Section 79-29-111, except that the determination may be served by first class mail.
(2) If the foreign limited liability company does not correct each ground for administrative revocation or demonstrate to the reasonable satisfaction of the Secretary of State that each ground determined by the Secretary of State does not exist within sixty (60) days after the service of the notice, the Secretary of State may revoke the foreign limited liability company's registration by signing a certificate of administrative revocation that recites the ground or grounds for administrative revocation and its effective date. The Secretary of State shall file the original of the certificate of administrative revocation and serve the foreign limited liability company with a copy of the certificate of administrative revocation under Section 79-29-111, except that the certificate of administrative revocation may be served by first class mail.
(3) The authority of a foreign limited liability company to transact business in this state ceases on the date shown on the certificate of administrative revocation.
(4) The Secretary of State's administrative revocation of a foreign limited liability company's registration appoints the Secretary of State the foreign limited liability company's agent for service of process in any proceeding based on a cause of action which arose during the time the foreign limited liability company was authorized to transact business in this state. Service of process on the Secretary of State under this subsection is service on the foreign limited liability company. Upon receipt of process and the payment of the fee specified in Section 79-29-1203, the Secretary of State shall mail a copy of the process to the foreign limited liability company at the office of its registered agent, or if the agent has resigned or cannot be located, at its principal office shown in its most recent communication received from the foreign limited liability company stating the current mailing address of its principal office, or, if none are on file, in its application for registration of foreign limited liability company.
(5) The administrative revocation of a foreign limited liability company's registration does not terminate the authority of the registered agent of the foreign limited liability company.
(6) The administrative revocation of the registration of a foreign limited liability company shall not impair the validity on any contract, deed, mortgage, security interest, lien or act of the foreign limited liability company or prevent the foreign limited liability company from defending any action, suit or proceeding with any court of this state.
(7) A member or manager of a foreign limited liability company is not liable for the debts, obligations or liabilities of the foreign limited liability company solely by reason of the administrative revocation of the registration of a foreign limited liability company.
(8) A foreign limited liability company whose registration has been administratively revoked may not maintain any action, suit or proceeding in any court of this state until the foreign limited liability company's registration has been reinstated. An action, suit or proceeding may not be maintained in any court of this state by any successor or assignee of the foreign limited liability company on any right, claim or demand arising out of the transaction of business by a foreign limited liability company after the administrative revocation.
SECTION 10. The following shall be codified as Section 79-29-1025, Mississippi Code of 1972:
79-29-1025. Administrative revocation of registration, appeal and reinstatement. (1) A foreign limited liability company whose registration is administratively revoked under Section 79-29-1021 may apply to the Secretary of State for reinstatement at any time after the effective date of such administrative revocation. The application must:
(a) Recite the name of the foreign limited liability company and the effective date of the administrative revocation;
(b) State that the ground or grounds for administrative revocation either did not exist or have been eliminated; and
(c) State that the foreign limited liability company's name satisfies the requirements of Section 79-29-1004.
(2) If the Secretary of State determines that the application contains the information required by subsection (1) of this section and that the information is correct, the Secretary of State shall reinstate the registration of the foreign limited liability company, prepare a certificate of reinstatement that recites this determination and the effective date of reinstatement, file the original of the certificate of reinstatement, and serve the foreign limited liability company with a copy of the certificate of reinstatement under Section 79-29-111, except that the certificate may be served by first class mail.
(3) When the reinstatement is effective:
(a) The reinstatement relates back to and takes effect as of the effective date of the administrative revocation;
(b) Any liability incurred by the foreign limited liability company or a member after the administrative revocation and before the reinstatement shall be determined as if the administrative revocation had never occurred; and
(c) The foreign limited liability company may resume carrying on its business as if the administrative revocation had never occurred.
SECTION 11. The following shall be codified as Section 79-29-1027, Mississippi Code of 1972:
79-29-1027. Administrative revocation of registration, denial of reinstatement; further review. (1) If the Secretary of State denies a foreign limited liability company's application for reinstatement of the registration following administrative revocation, the Secretary of State shall serve the foreign limited liability company with a record that explains the reason or reasons for denial.
(2) The foreign limited liability company may appeal the denial of reinstatement to the Chancery Court of the First Judicial District of Hinds County or the chancery court of the county where the foreign limited liability company is domiciled within thirty (30) days after service of the notice of denial is perfected. The foreign limited liability company appeals by petitioning the court to set aside the administrative revocation and attaching to the petition copies of the Secretary of State's certificate of administrative revocation, the foreign limited liability company's application for reinstatement and the Secretary of State's notice of denial.
(3) The court may summarily order the Secretary of State to reinstate the certificate of authority of the foreign limited liability company or may take other action the court considers appropriate.
(4) The court's final decision may be appealed as in other civil proceedings.
SECTION 12. Section 79-29-1203, Mississippi Code of 1972, is amended as follows:
79-29-1203. (1) No document required to be filed under this chapter shall be effective until the applicable fee required by this section is paid.
(a) Filing of Reservation of Limited Liability Company Name, Twenty-Five Dollars ($25.00).
(b) Filing of Change of Address of Registered Agent, Twenty-Five Dollars ($25.00).
(c) Filing of Resignation of Registered Agent, Five Dollars ($5.00).
(d) Filing of Certificate of Formation, Fifty Dollars ($50.00).
(e) Filing of Amendment to Certificate of Formation, Fifty Dollars ($50.00).
(f) Filing of Certificate of Dissolution, Twenty-Five Dollars ($25.00).
(g) Filing of Certificate of Cancellation, Twenty-Five Dollars ($25.00).
(h) Filing of Restated Certificate of Formation or Amended and Restated Certificate of Formation, Twenty-Five Dollars ($25.00).
(i) Filing of Certificate of Withdrawal, Twenty-Five Dollars ($25.00).
(j) Filing of Application for Registration of Foreign Limited Liability Company, Two Hundred Fifty Dollars ($250.00) and Ten Dollars ($10.00) for each day, not to exceed a total of One Thousand Dollars ($1,000.00), for each year the foreign limited liability company transacts business in this state without registration as a foreign limited liability company.
(k) Filing of Certificate of Correction, Fifty Dollars ($50.00).
(l) Filing of Certificate of Cancellation of Registration of Foreign Limited Liability Company, Fifty Dollars ($50.00).
(m) Filing of Annual Report of Domestic Limited Liability Company, Twenty-five Dollars ($25.00).
(n) Filing of Annual Report of Foreign Limited Liability Company, One Hundred Dollars ($100.00).
(o) Certificate of Administrative Dissolution, (no fee).
(p) Filing of Application for Reinstatement Following Administrative Dissolution, Fifty Dollars ($50.00).
(q) Certificate of Administrative Revocation of Authority to Transact Business, (no fee).
(r) Filing of Application for Reinstatement Following Administrative Revocation, One Hundred Dollars ($100.00).
(s) Certificate of Reinstatement Following Administrative Dissolution, (no fee).
(t) Certificate of Reinstatement Following Administrative Revocation of Authority to Transact Business, (no fee).
(u) Filing of Certificate of Revocation of Dissolution, Twenty-five Dollars ($25.00).
(v) Application for Certificate of Existence or Authorization, Twenty-five Dollars ($25.00).
(w) Any other document required or permitted to be filed under this chapter, Twenty-five Dollars ($25.00).
(2) The Secretary of State shall collect a fee of Twenty-five Dollars ($25.00) each time process is served on the Secretary of State under Section 79-29-101 et seq.
(3) The Secretary of State shall collect the following fees for copying and certifying the copy of any filed document relating to a domestic or foreign limited liability company:
(a) One Dollar ($1.00) a page for copying; and
(b) Ten Dollars ($10.00) for the certificate.
(4) The Secretary of State may promulgate rules to:
(a) Reduce the filing fees set forth in this section or provide for discounts of fees as set forth in this section to encourage online filing of documents or for other reasons as determined by the secretary; and
(b) Provide for documents to be filed and accepted on an expedited basis upon the request of the applicant. The secretary may promulgate rules to provide for an additional reasonable filing fee to be paid by the applicant and collected by the secretary for such expedited filing services.
SECTION 13. This act shall take effect and be in force from and after July 1, 2010.
