SENATE BILL 388
57th legislature - STATE OF NEW MEXICO - first session, 2025
INTRODUCED BY
Peter Wirth
AN ACT
RELATING TO BUSINESS; INVALIDATING THE ARTICLES OF INCORPORATION FOR COOPERATIVE ASSOCIATIONS, NONPROFIT CORPORATIONS AND FOREIGN AND INSTATE BUSINESS CORPORATIONS AND THE FILING OF UNINCORPORATED ASSOCIATIONS AND CLUBS WHEN ARTICLES OR FILINGS LIST THE NAME OR ADDRESS OF A PERSON WHO DOES NOT EXIST OR IS NOT AFFILIATED WITH THE COOPERATIVE ASSOCIATION, NONPROFIT CORPORATION, FOREIGN OR INSTATE CORPORATION OR UNINCORPORATED ASSOCIATION OR CLUB; MAKING IT A MISDEMEANOR TO FILE SUCH INVALID ARTICLES OF INCORPORATION OR AN INVALID FILING OF AN UNINCORPORATED ASSOCIATION OR CLUB; REQUIRING THE REMOVAL OF REGISTRATION OR FILING; PRESCRIBING PENALTIES; AMENDING SECTIONS OF CHAPTER 53 NMSA 1978.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 53-4-6 NMSA 1978 (being Laws 1939, Chapter 164, Section 6, as amended) is amended to read:
"53-4-6. ARTICLES OF INCORPORATION--FILING--RECORDATION--FEES--INVALID FILING--PENALTY.--
A. The articles of incorporation of the association shall be filed with the [public regulation commission] secretary of state together with a fee of fifty dollars ($50.00) and shall be recorded with the county clerk of the county where the principal office of the association is located for a fee of one dollar ($1.00).
B. Articles of incorporation that include the following are invalid:
(1) the name of a person who does not exist or who is not affiliated with the association as the name of an incorporator or a director of the association; or
(2) the address of a residence of a person who is not affiliated with the association as the principal location and address of the association.
C. Upon proof that an association's articles of incorporation are invalid pursuant to Subsection B of this section, the secretary of state shall revoke the association's registration.
D. A person who files articles of incorporation that are invalid pursuant to Subsection B of this section is guilty of a misdemeanor and shall be sentenced pursuant to Section 31-19-1 NMSA 1978."
SECTION 2. Section 53-8-32 NMSA 1978 (being Laws 1975, Chapter 217, Section 32, as amended) is amended to read:
"53-8-32. FILING OF ARTICLES OF INCORPORATION--INVALID FILING--PENALTY.--
A. An original and a copy, which may be a photocopy of the original after it was signed or a photocopy that is conformed to the original, of the articles of incorporation and a statement executed by the designated registered agent in which the agent acknowledges acceptance of the appointment by the filing corporation as its registered agent, if the agent is an individual, or a statement executed by an authorized officer of a corporation that is the designated registered agent in which the officer acknowledges the corporation's acceptance of the appointment by the filing corporation as its registered agent, if the agent is a corporation, shall be delivered to the [commission] secretary of state. If the [commission] secretary of state finds that the articles of incorporation and the statement conform to law, [it] the secretary of state shall, when all fees have been paid as prescribed in the Nonprofit Corporation Act:
(1) endorse on the original and copy the word "filed" and the month, day and year of the filing thereof;
(2) file the original and the statement in the office of the [commission] secretary of state; and
(3) issue a certificate of incorporation to which shall be affixed the copy.
B. The certificate of incorporation, together with the copy of the articles of incorporation affixed thereto by the [commission] secretary of state, shall be returned to the incorporators or their representative.
C. Articles of incorporation that include the following are invalid:
(1) the name of a person who does not exist or person who is not affiliated with the corporation as the name of an incorporator, an initial director or an initial registered agent of the corporation; or
(2) the address of a residence of a person who does not exist or is not affiliated with the corporation as the principal location and address of the corporation.
D. Upon proof that a corporation's articles of incorporation are invalid pursuant to Subsection C of this section, the secretary of state shall revoke the registration of the corporation.
E. A person who files articles of incorporation that are invalid pursuant to Subsection C of this section is guilty of a misdemeanor and shall be sentenced pursuant to Section 31-19-1 NMSA 1978."
SECTION 3. Section 53-10-1 NMSA 1978 (being Laws 1937, Chapter 186, Section 1) is amended to read:
"53-10-1. PURPOSE OF ORGANIZATION--FILING ARTICLES--INVALID FILING--PENALTY.--
A. Whenever two or more persons [shall] desire to form an association for the promotion of their mutual pleasure or recreation of any hunting, fishing, camping, golf, country club or association for a similar purpose, or an association not for the individual profit of the members thereof, and without incorporating the same as a corporation, or maintaining the title of its property in trust for the interest of its several members as they may exist from time to time, the [said] persons or members desiring to form such an association or club may file in the office of the county clerk of the county in which it may maintain its headquarters and pursue its objects and purposes a statement containing the name of [such] the association, its objects and purposes, the names and residences of the persons forming [such] the association, together with a copy of its articles of association and any rules [and/or] and regulations governing the transactions of its objects and purposes, and prescribing the terms by which its members may maintain or cease their membership therein.
B. A filing of an association or a club pursuant to this section is invalid when the filing includes:
(1) the name of a person who does not exist or a person who is not affiliated with the association or club as a person who is forming the club or association; or
(2) the address of a person who does not exist or a person who is not affiliated with the association or club as the address of a person who is forming the club or association.
C. Upon proof that a filing of an association or a club in a county is invalid pursuant to Subsection B of this section, a county clerk shall remove the association's or club's filing from the county's records.
D. A person who makes a filing of an association or a club to a county clerk that is invalid pursuant to Subsection B of this section is guilty of a misdemeanor and shall be sentenced pursuant to Section 31-19-1 NMSA 1978."
SECTION 4. Section 53-11-11 NMSA 1978 (being Laws 1967, Chapter 81, Section 11) is amended to read:
"53-11-11. REGISTERED OFFICE AND REGISTERED AGENT-- INVALID REGISTRATION--PENALTY.--
A. Each corporation shall have and continuously maintain in this state:
[A.] (1) a registered office [which] that may be, but need not be, the same as its place of business; and
[B.] (2) a registered agent, which agent may be either an individual resident in this state whose business office is identical with the registered office, or a domestic corporation, or a foreign corporation authorized to transact business in this state, having a business office identical with the registered office.
B. A registration required by this section is invalid when a corporation has registered:
(1) the name of a person who does not exist or a person who is not affiliated with the corporation as the name of the registered agent of the corporation; or
(2) the address of a residence of a person who does not exist or is not affiliated with the corporation as the registered office of the corporation.
C. Upon proof that a corporation's registration is invalid pursuant to Subsection B of this section, the secretary of state shall revoke the registration of the corporation.
D. A person who registers a registration that is invalid pursuant to Subsection B of this section is guilty of a misdemeanor and shall be sentenced pursuant to Section 31-19-1 NMSA 1978."
SECTION 5. Section 53-11-13 NMSA 1978 (being Laws 1967, Chapter 81, Section 12, as amended) is amended to read:
"53-11-13. CHANGE OF REGISTERED OFFICE OR REGISTERED AGENT.--
A. A corporation may change its registered office or change its registered agent, or both, upon filing in the office of the [public regulation commission] secretary of state a statement setting forth:
(1) the name of the corporation;
(2) the address of its registered office;
(3) if the address of its registered office is to be changed, the address to which the registered office is to be changed;
(4) the name of its registered agent;
(5) if its registered agent is to be changed:
(a) the name of its successor registered agent; and
(b) a statement executed by the successor registered agent acknowledging [his] the successor's acceptance of the appointment by the filing corporation as its registered agent, if the agent is an individual, or a statement executed by an authorized officer of a corporation that is the successor registered agent in which the officer acknowledges the corporation's acceptance of the appointment by the filing corporation as its registered agent, if the agent is a corporation; and
(6) that the address of its registered office and the address of the business office of its registered agent, as changed, will be identical.
B. The statement shall be executed by the corporation by an authorized officer and delivered to the [public regulation commission] secretary of state. If the [commission] secretary of state finds that the statement conforms to the provisions of the Business Corporation Act, [it] the secretary of state shall file the statement in [its] the office of the secretary of state, and, upon such filing, the change of address of the registered office or the appointment of a new registered agent, or both, as the case may be, becomes effective, and, upon filing, fulfills the requirement to file a supplemental report under Section 53-5-2 NMSA 1978.
C. Any registered agent of a corporation may resign upon filing a written notice of resignation with the [public regulation commission] secretary of state. The [commission] secretary of state shall mail a copy immediately to the corporation at its principal place of business as shown on the records of the [commission] secretary of state. The appointment of the resigning agent shall terminate upon the expiration of thirty days after receipt of the notice by the [commission] secretary of state.
D. If a registered agent changes [his] the registered agent's business address to another place within the same county, [he] the registered agent may change the address and the address of the registered office of any corporation of which [he] the registered agent is the registered agent by filing a statement as required by this section except that it need be signed only by the registered agent, need not be responsive to Paragraph (5) of Subsection A of this section and shall recite that a copy of the statement has been mailed to the corporation.
E. If a registered agent changes the street address of the registered agent's business office, the registered agent may change the street address of the registered office of any corporation for which the registered agent is the registered agent by notifying the corporation in writing of the change and signing, either manually or in facsimile, and delivering to the [public regulation commission] secretary of state for filing a statement that complies with the requirements of Subsection A of this section, and recites that the corporation has been notified of the change.
F. A registration required by this section is invalid when a corporation has registered:
(1) the name of a person who does not exist or a person who is not affiliated with the corporation as the name of the registered agent of the corporation; or
(2) the address of a residence of a person who does not exist or is not affiliated with the corporation as the registered office of the corporation.
G. Upon proof that a registration for a corporation's registered agent or registered office is invalid pursuant to Subsection F of this section, the secretary of state shall revoke the registration of the corporation.
H. A person who registers a registration that is invalid pursuant to Subsection F of this section is guilty of a misdemeanor and shall be sentenced pursuant to Section 31-19-1 NMSA 1978."
SECTION 6. Section 53-12-3 NMSA 1978 (being Laws 1967, Chapter 81, Section 51, as amended) is amended to read:
"53-12-3. FILING OF ARTICLES OF INCORPORATION--INVALID FILING--PENALTY.--
A. An original of the articles of incorporation together with a copy, which may be signed, photocopied or conformed, and a statement executed by the designated registered agent acknowledging acceptance of the appointment by the filing corporation as its registered agent, if the agent is an individual, or a statement executed by an authorized officer of a corporation that is the designated registered agent in which the officer acknowledges the corporation's acceptance of the appointment by the filing corporation as its registered agent, if the agent is a corporation, shall be delivered to the [commission] secretary of state. If the [commission] secretary of state finds that the articles of incorporation and the statement conform to law, [it] the secretary of state shall, when all fees have been paid:
(1) endorse on the original and copy the word "filed" and the month, day and year of the filing thereof;
(2) file the original and the statement in [its] the office of the secretary of state; and
(3) issue a certificate of incorporation to which [it] the secretary of state shall affix the file-stamped copy.
B. The certificate of incorporation, together with the file-stamped copy of the articles of incorporation affixed to it, shall be returned by the [commission] secretary of state to the incorporators or their representative.
C. Articles of incorporation that include the following are invalid:
(1) the name of a person who does not exist or a person who is not affiliated with the corporation as the name of an incorporator, a person who has consented to serve as a director until the first annual meeting of shareholders or their successors are elected and qualify or an initial registered agent of the corporation; or
(2) an address of a residence of a person who does not exist or who is not affiliated with the corporation as the address of an incorporator, an initial registered office or the initial registered agent at the office.
D. Upon proof that a corporation's articles of incorporation are invalid pursuant to Subsection C of this section, the secretary of state shall revoke the corporation's certificate of incorporation.
E. A person who files articles of incorporation that are invalid pursuant to Subsection C of this section is guilty of a misdemeanor and shall be sentenced pursuant to Section 31-19-1 NMSA 1978."
SECTION 7. Section 53-13-5 NMSA 1978 (being Laws 1967, Chapter 81, Section 59, as amended) is amended to read:
"53-13-5. FILING OF ARTICLES OF AMENDMENT--INVALID FILING--PENALTY.--
A. An original and a copy, which may be a photocopy of the original after it was signed or a photocopy that is conformed to the original, of the articles of amendment shall be delivered to the [commission] secretary of state. If the [commission] secretary of state finds that the articles of amendment conform to law, [it] the secretary of state shall, when all fees have been paid:
(1) endorse on the original and copy the word "filed" and the month, day and year of the filing;
(2) file the original in [its] the office of the secretary of state; and
(3) issue a certificate of amendment to which [it] the secretary of state shall affix the copy.
B. The certificate of amendment, together with the duplicate original of the articles of amendment affixed thereto by the [commission] secretary of state, shall be returned to the corporation or its representative.
C. Articles of amendment that include the following are invalid:
(1) the name of a person who does not exist or a person who is not affiliated with the corporation as an incorporator, a director or a registered agent of the corporation; or
(2) an address of a residence of a person who is not affiliated with the corporation as the address of an incorporator, a registered office or a registered agent at the office.
D. Upon proof that a corporation's articles of amendment are invalid pursuant to Subsection C of this section, the secretary of state shall revoke the corporation's amended registration.
E. A person who files articles of amendment that are invalid pursuant to Subsection C of this section is guilty of a misdemeanor and shall be sentenced pursuant to Section 31-19-1 NMSA 1978."
SECTION 8. Section 53-17-6 NMSA 1978 (being Laws 1967, Chapter 81, Section 108, as amended) is amended to read:
"53-17-6. FILING OF APPLICATION FOR CERTIFICATE OF AUTHORITY--INVALID FILING--PENALTY.--
A. A corporation applying for a certificate of authority shall deliver to the [commission] secretary of state:
(1) an original of the application of the corporation for a certificate of authority together with a copy, which may be signed, photocopied or conformed;
(2) a certificate of good standing and compliance issued by the appropriate official of the state or country under the laws of which the corporation is incorporated, current within thirty days and [which] that has not expired at the time of receipt by the [commission] secretary of state; and
(3) a statement executed by the designated registered agent acknowledging [his] the agent's acceptance of the appointment by the filing corporation as its registered agent, if the agent is an individual, or a statement executed by an authorized officer of a corporation that is the designated registered agent in which the officer acknowledges the corporation's acceptance of the appointment by the filing corporation as its registered agent, if the agent is a corporation.
B. If the [commission] secretary of state finds that the application and the statement conform to law, [it] the secretary of state shall, when all fees have been paid:
(1) endorse on the original and copy the word "filed" and the month, day and year of the filing;
(2) file in [its] the office of the secretary of state the original of the application, the statement and the copy of the articles of incorporation and amendments thereto; and
(3) issue a certificate of authority to transact business in this state to which [it] the secretary of state shall affix the file-stamped copy.
C. The certificate of authority, together with the file-stamped copy of the application affixed to it, shall be returned by the [commission] secretary of state to the corporation or its representative.
D. An application for a certificate of authority that includes the following is invalid:
(1) the name of a person who does not exist or a person who is not affiliated with the corporation as the name of a director or an officer of the corporation who has consented to serve; or
(2) an address of a residence of a person who is not affiliated with the corporation as the address of the registered office of the corporation or, if different, the principal office of the corporation or its proposed registered office in this state.
E. Upon proof that a corporation's application for a certificate of authority is invalid pursuant to Subsection D of this section, the secretary of state shall revoke the corporation's certificate of authority.
F. A person who files an application for a certificate of authority that is invalid pursuant to Subsection D of this section is guilty of a misdemeanor and shall be sentenced pursuant to Section 31-19-1 NMSA 1978."
SECTION 9. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2025.