44th legislature - STATE OF NEW MEXICO - second session, 2000
RELATING TO THE CORPORATIONS; AMENDING FILING REQUIREMENTS FOR CORPORATIONS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 53-4-5 NMSA 1978 (being Laws 1939, Chapter 164, Section 5, as amended by Laws 1993, Chapter 311, Section 3 and also by Laws 1993, Chapter 318, Section 1) is amended to read:
"53-4-5. ARTICLES OF INCORPORATION--CONTENTS.--Articles of incorporation shall be signed by each of the incorporators and acknowledged by at least three of them, if natural persons, and by the presidents and secretaries, if associations, before an officer authorized to take acknowledgments. Within the limitations set forth in Chapter 53, Article 4 NMSA 1978, the articles shall contain:
A. a statement as to the purpose for which the association is formed;
B. the name of the association, which shall include the word "cooperative";
C. the term of existence of the association, which may be perpetual;
D. the location and address of the principal office of the association;
E. the names and addresses of the incorporators of the association;
F. the names and addresses of the directors who shall manage the affairs of the association for the first year, unless sooner changed by the members;
G. a statement of whether the association is organized with or without shares and the number of shares or memberships subscribed for;
H. if organized with shares, the amount of authorized capital, the number and types of shares and the par value thereof, which may be placed at any figure, and the rights, preferences and restrictions of each type of share;
I. the minimum number of shares that [must] shall
be owned in order to qualify for membership;
J. the maximum amount or percentage of capital
that may be owned or controlled by any member; [and]
K. the method by which any surplus, upon dissolution of the association, shall be distributed in conformity with the requirements of Section 53-4-36 NMSA 1978 for division of such surplus; and
L. the name and address of its registered agent for service of process in this state.
The articles may also contain any other provisions not inconsistent with Chapter 53, Article 4 NMSA 1978."
Section 2. Section 53-5-2 NMSA 1978 (being Laws 1978, Chapter 9, Section 1, as amended) is amended to read:
"53-5-2. CORPORATE AND SUPPLEMENTAL REPORTS.--
A. Pursuant to rules [and regulations which] that
the [state corporation commission shall adopt] public
regulation commission adopts in order to implement this
section, every domestic or foreign corporation [which] that
is not exempted shall file in the office of the [state
corporation] commission within thirty days after the date on
which its certificate of incorporation or its certificate of
authority, as the case may be, is issued by the commission,
and [biannually] biennially thereafter on or before the
fifteenth day of the third month following the end of its
taxable year, a corporate report in the form prescribed and
furnished to the corporation, not less than thirty days prior
to such reporting date, by the commission, and signed and
sworn to by the chairman of the board, president, vice
president, secretary, principal accounting officer or
authorized agent of the corporation, showing among other
information prescribed by the commission:
(1) the current status of:
(a) the name of the corporation;
(b) the mailing address and: 1) street address if within a municipality; or 2) rural route number and box number, or the geographical location, using well-known landmarks, if outside a municipality, of its registered office in this state and the name of the agent upon whom process against the corporation may be served;
(c) the names and addresses of all the directors and officers of the corporation and when the term of office of each expires;
(d) the character of its business and the address of its principal place of business within the state and, if a foreign corporation, the address of its registered office in the state or country under the laws of which it is incorporated and the principal office of the corporation, if different from the registered office; and
(e) the date for the next annual meeting of the shareholders for the election of directors; and
(2) the corporation's taxpayer identification number issued by the revenue processing division of the taxation and revenue department.
B. When the [state corporation] public regulation
commission receives a report required to be filed by a
corporation under the Corporate Reports Act, it shall
determine if the report conforms to the requirements of this
section. If the commission finds that the report conforms,
it shall be filed. If the commission finds that the report
does not conform, it shall promptly return the report to the
corporation for any necessary corrections, in which event the
penalties prescribed in the Corporate Reports Act for failure
to file the report in the time provided shall not apply if
the report is corrected and returned to the commission within
thirty days from the date on which it was mailed to the
corporation by the commission.
C. The [state corporation] public regulation
commission may refuse to file a corporate report or a
supplemental report received from a corporation [which] that
has not paid all fees, including penalties and interest due
and payable to the commission at the time of filing.
However, if the corporation and the commission are engaged in
any adversary proceeding over the assessment of any fees or
franchise taxes, the commission shall file the report of the
corporation upon its submission to the commission.
D. A supplemental report shall be filed with the
[state corporation] public regulation commission within
thirty days if, after the filing of the corporate report
required under the Corporate Reports Act, a change is made
in:
[(1) the name of the corporation;
(2)] (1) the mailing address, street
address, rural route number, box number or the geographical
location of its registered office in this state and the name
of the agent upon whom process against the corporation may be
served;
[(3)] (2) the name or address of any of the
directors or officers of the corporation or the date when the
term of office of each expires; or
[(4)] (3) the character of its business and
its principal place of business within or without the state."
Section 3. Section 53-8-83 NMSA 1978 (being Laws 1975, Chapter 217, Section 83, as amended) is amended to read:
"53-8-83. FILING OF ANNUAL REPORT--INITIAL REPORT--SUPPLEMENTAL REPORT--EXTENSION OF TIME.--
A. The annual report of a domestic or foreign
corporation shall be delivered to the [corporation]
commission on or before the fifteenth day of the fifth month
following the end of its taxable year, except that the first
annual report of a domestic or foreign corporation shall be
filed within thirty days of the date on which its certificate
of incorporation or its certificate of authority [as the case
may be] was issued by the [corporation] commission.
B. A supplemental report shall be filed with the commission within thirty days if, after the filing of the annual report required under the Nonprofit Corporation Act, a change is made in:
(1) the name of the corporation;
(2) the mailing address, street address or the geographical location of its registered office in this state and the name of the agent upon whom process against the corporation may be served;
(3) the name or address of any of the directors or officers of the corporation or the date when the term of office of each expires; or
(4) [the character of its business and] its
principal place of business within or without the state.
C. Proof to the satisfaction of the commission that prior to the due date of any report required by Subsection A or B of this section the report was deposited in the United States mail in a sealed envelope, properly addressed, with postage prepaid, shall be deemed compliance with the requirements of this section. If the commission finds that the report conforms to the requirements of the Nonprofit Corporation Act, it shall file the same. If the commission finds that it does not so conform, it shall promptly return the report to the corporation for any necessary corrections, in which event the penalties prescribed for failure to file the report within the time provided shall not apply, if the report is corrected to conform to the requirements of the Nonprofit Corporation Act and returned to the commission within thirty days from the date on which it was mailed to the corporation by the commission.
D. The commission may, upon application by the nonprofit corporation and for good cause shown, extend, for no more than a total of twelve months, the date on which any return required by the provisions of the Nonprofit Corporation Act must be filed or the date on which the payment of any fee is required, but no extension shall prevent the accrual of interest as otherwise provided by law. The commission shall, when an extension of time has been granted a nonprofit corporation under the United States Internal Revenue Code of 1986 for the time in which to file a return, grant the corporation the same extension of time to file the required return and to pay the required fees, provided that a copy of the approved federal extension of time is attached to the corporation's report, and provided further that no such extension shall prevent the accrual of interest as otherwise provided by law.
E. Nothing contained in this section shall prevent the collection of any fee, penalty or interest due upon the failure of any corporation to submit the required report.
F. No annual or supplemental report required to be
filed under this section shall be deemed to have been filed
if the fees accompanying the report have been paid by check
and [which] the check is dishonored upon presentation."
Section 4. Section 53-11-2 NMSA 1978 (being Laws 1967, Chapter 81, Section 2, as amended) is amended to read:
"53-11-2. DEFINITIONS.--As used in the Business Corporation Act, unless the text otherwise requires:
A. "corporation" or "domestic corporation" means a corporation for profit subject to the provisions of the Business Corporation Act, except a foreign corporation;
B. "foreign corporation" means a corporation for profit organized under laws other than the laws of this state for a purpose for which a corporation may be organized under the Business Corporation Act;
C. "articles of incorporation" means the original or restated articles of incorporation or articles of consolidation and all amendments thereto, including articles of merger;
D. "shares" means the units into which the proprietary interests in a corporation are divided;
E. "subscriber" means one who subscribes for shares in a corporation, whether before or after incorporation;
F. "shareholder" means one who is a holder of record of shares in a corporation;
G. "authorized shares" means the shares of all
classes [which] that the corporation is authorized to issue;
H. "annual report" means the corporate report required by the Corporate Reports Act;
I. "distribution" means a direct or indirect transfer of money or other property (except its own shares) or incurrence of indebtedness, by a corporation to or for the benefit of any of its shareholders in respect of any of its shares, whether by dividend or by purchase redemption or other acquisition of its shares, or otherwise;
J. "franchise tax" means the franchise tax imposed by the Corporate Income and Franchise Tax Act;
K. "fees" means the fees imposed by Section 53-2-1 NMSA 1978;
L. "commission" means the public regulation commission or its delegate;
M. "address" means:
(1) the mailing address and the street address, if within a municipality; or
(2) the mailing address and a rural route number and box number, if any, or the geographical location, using well-known landmarks, if outside a municipality;
[N. "duplicate original" means a document that is
signed or executed in duplicate;
O.] N. "delivery" means:
(1) if personally served, the date on which the documentation is received by the corporations bureau of the commission; and
(2) if mailed, the date of the postmark plus three days, upon proof thereof by the party delivering the documentation; and
[P.] O. "person" includes individuals,
partnerships, corporations and other associations."
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 commission a statement setting forth:
(1) the name of the corporation;
(2) the address of its then 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 then registered agent;
(5) if its registered agent is to be changed:
(a) the name of its successor registered agent; and
(b) [an affidavit] a statement executed
by the successor registered agent [in which he acknowledges]
acknowledging his acceptance of the appointment by the filing
corporation as its registered agent, if the agent is an
individual, or [an affidavit] a statement executed by [the
president or vice president] an authorized officer of a
corporation [which] 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 [its president or a vice president, and
verified by him] an authorized officer and delivered to the
commission. If the commission finds that the statement
conforms to the provisions of the Business Corporation Act,
it shall file the statement in its office, 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
[51-21-5 NMSA 1953] 53-5-5 NMSA 1978.
C. Any registered agent of a corporation may
resign as such agent upon filing a written notice thereof
[executed in duplicate] with the commission, which shall
forthwith mail a copy thereof to the corporation at its
principal place of business as shown on the records of the
commission. The appointment of such agent shall terminate
upon the expiration of thirty days after receipt of the
notice by the commission.
D. If a registered agent changes his or its
business address to another place within the same county, he
or it may change such address and the address of the
registered office of any corporation of which he or it is the
registered agent by filing a statement as required by this
section except that it need be signed only by the registered
agent and need not be responsive to Paragraph (5) of
Subsection A of this section and [must] shall recite that a
copy of the statement has been mailed to the corporation."
Section 6. Section 53-11-28 NMSA 1978 (being Laws 1967, Chapter 81, Section 27, as amended) is amended to read:
"53-11-28. MEETINGS OF SHAREHOLDERS.--
A. Meetings of shareholders may be held at any
place within or without this state in accordance with the
bylaws. If no other place is designated in, or fixed in
accordance with, the bylaws, meetings shall be held at the
[registered office] principal place of business of the
corporation.
B. An annual meeting of the shareholders shall be held at the time designated in or fixed in accordance with the bylaws. If the annual meeting is not held within any thirteen-month period, the district court may, on the application of any shareholder, order a meeting to be held.
C. Special meetings of the shareholders may be called by the board of directors, the holders of not less than one-tenth of all the shares entitled to vote at the meeting or such other persons as may be authorized in the articles of incorporation or the bylaws."
Section 7. 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.--
A. [Duplicate originals] An original of the
articles of incorporation together with a copy, which may be
either signed, photocopied or conformed, and [an affidavit] a
statement executed by the designated registered agent [in
which he acknowledges] acknowledging his acceptance of the
appointment [by the filing corporation] as its registered
agent, if the agent is an individual, or [an affidavit] a
statement executed by [the president or vice president] an
authorized officer of a corporation [which] 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. If the
commission finds that the articles of incorporation and the
affidavit conform to law, it shall, when all fees and
franchise taxes have been paid:
(1) endorse on [each of the duplicate
originals] the original and copy the word "filed" and the
month, day and year of the filing thereof;
(2) file [one of the duplicate originals]
the original and the [affidavit] statement in its office; and
(3) issue a certificate of incorporation to
which it shall affix the [other duplicate original]
file-stamped copy.
B. The certificate of incorporation, together with
the [duplicate original] file-stamped copy of the articles of
incorporation affixed thereto by the commission, shall be
returned to the incorporators or their representative."
Section 8. Section 53-13-4 NMSA 1978 (being Laws 1967, Chapter 81, Section 58, as amended) is amended to read:
"53-13-4. ARTICLES OF AMENDMENT.--The articles of
amendment shall be executed [in duplicate] by the corporation
by [its chairman of the board, president or a vice president
and by its secretary or an assistant secretary and verified
by one of the officers signing the articles] an authorized
officer and shall set forth:
A. the name of the corporation;
B. the amendment so adopted;
C. the date of the adoption of the amendment by the shareholders or by the board of directors where no shares have been issued;
D. the number of shares outstanding and the number of shares entitled to vote thereon and, if the shares of any class are entitled to vote thereon as a class, the designation and number of outstanding shares entitled to vote thereon of each class;
E. the number of shares voted for and against the amendment, respectively, and, if the shares of any class are entitled to vote thereon as a class, the number of shares of each class voted for and against the amendment, respectively, or if no shares have been issued, a statement to that effect; and
F. if the amendment provides for an exchange, reclassification or cancellation of issued shares and if the manner in which they shall be effected is not set forth in the amendment, then a statement of the manner in which they shall be effected."
Section 9. Section 53-13-7 NMSA 1978 (being Laws 1975, Chapter 64, Section 32, as amended) is amended to read:
"53-13-7. RESTATED ARTICLES OF INCORPORATION.--
A. A domestic corporation may at any time restate its articles of incorporation, as theretofore amended, by a resolution adopted by the board of directors.
B. Upon the adoption of such resolution, restated
articles of incorporation shall be executed [in duplicate] by
the corporation by [its president or a vice president and by
its secretary or assistant secretary and verified by one of
the officers signing the articles] an authorized officer and
shall set forth all of the operative provisions of the
articles of incorporation as theretofore amended together
with a statement that the restated articles of incorporation
correctly set forth without change the corresponding
provisions of the articles of incorporation as theretofore
amended and that the restated articles of incorporation
supersede the original articles of incorporation and all
amendments thereto.
C. [Duplicate originals] The original of the
restated articles of incorporation together with a copy,
which may be signed, photocopied or conformed, shall be
delivered to the commission. If the commission finds that
the restated articles of incorporation conform to law, it
shall, when all fees have been paid:
(1) endorse on [each of the duplicate
originals] the original and copy the word "filed" and the
month, day and year of the filing;
(2) file [one of the duplicate originals]
the original in its office; and
(3) issue a restated certificate of
incorporation to which it shall affix the [other duplicate
original] filed-stamped copy.
D. The restated certificate of incorporation,
together with the [duplicate original] filed-stamped copy of
the restated articles of incorporation affixed thereto by the
commission, shall be returned to the corporation or its
representative. Unless the commission disapproves pursuant
to Subsection A of Section 53-18-2 NMSA 1978, upon delivery
of the restated articles of incorporation to the commission,
the restated articles of incorporation shall become effective
and shall supersede the original articles of incorporation
and all amendments thereto."
Section 10. Section 53-13-8 NMSA 1978 (being Laws 1967, Chapter 81, Section 62, as amended) is amended to read:
"53-13-8. AMENDMENT OF ARTICLES OF INCORPORATION IN REORGANIZATION PROCEEDINGS.--
A. Whenever a plan of reorganization of a corporation has been confirmed by decree or order of a court of competent jurisdiction in proceedings for the reorganization of the corporation, pursuant to the provisions of any applicable statute of the United States relating to reorganizations of corporations, the articles of incorporation of the corporation may be amended, in the manner provided in this section, in as many respects as necessary to carry out the plan and put it into effect, so long as the articles of incorporation as amended contain only such provisions as might be lawfully contained in original articles of incorporation at the time of making the amendment. In particular and without limitation upon general power of amendment, the articles of incorporation may be amended for such purpose to:
(1) change the corporate name, period of duration or corporate purposes of the corporation;
(2) repeal, alter or amend the bylaws of the corporation;
(3) change the aggregate number of shares or
shares of any class [which] that the corporation has
authority to issue;
(4) change the preferences, limitations and relative rights in respect of all or any part of the shares of the corporation and classify, reclassify or cancel all or any part thereof, whether issued or unissued;
(5) authorize the issuance of bonds, debentures or other obligations of the corporation, whether or not convertible into shares of any class or bearing warrants or other evidences of optional rights to purchase or subscribe for shares of any class, and fix the terms and conditions thereof; and
(6) constitute or reconstitute and classify or reclassify the board of directors of the corporation and appoint directors and officers in place of, or in addition to, all or any of the directors or officers then in office.
B. Amendments to the articles of incorporation pursuant to this section shall be made in the following manner:
(1) articles of amendment approved by decree
or order of court shall be executed and verified [in
duplicate] by the person the court designates or appoints for
the purpose and shall set forth the name of the corporation,
the amendments of the articles of incorporation approved by
the court, the date of the decree or order approving the
articles of amendment, the title of the proceedings in which
the decree or order was entered and a statement that the
decree or order was entered by a court having jurisdiction of
the proceedings for the reorganization of the corporation
pursuant to the provisions of an applicable statute of the
United States;
(2) [duplicate originals] an original of the
articles of amendment together with a copy, which may be
either signed, photocopied or conformed, shall be delivered
to the commission. If the commission finds that the articles
of amendment conform to law, it shall, when all fees have
been paid:
(a) endorse on [each of the duplicate
originals] the original and copy the word "filed" and the
month, day and year of the filing;
(b) file [one of the duplicate
originals] the original in its office; and
(c) issue a certificate of amendment to
which it shall affix the [other duplicate original] file-stamped copy; and
(3) the certificate of amendment, together
with the [duplicate original] file-stamped copy of the
articles of amendment affixed thereto by the commission,
shall be returned to the corporation or its representative.
Unless the commission disapproves pursuant to Subsection A of
Section 53-18-2 NMSA 1978, the amendment shall become
effective upon delivery of the articles of amendment to the
commission or on such later date, not more than thirty days
subsequent to the delivery thereof to the commission, as
shall be provided for in the articles of amendment without
any action thereon by the directors or shareholders of the
corporation and with the same effect as if the amendments had
been adopted by unanimous action of the directors and
shareholders of the corporation."
Section 11. Section 53-14-4 NMSA 1978 (being Laws 1967, Chapter 81, Section 71, as amended) is amended to read:
"53-14-4. ARTICLES OF MERGER, CONSOLIDATION OR EXCHANGE.--
A. Upon receiving the approvals required by
Sections 53-14-1, 53-14-2 and 53-14-3 NMSA 1978, articles of
merger or articles of consolidation shall be executed [in
duplicate] by each corporation by [its chairman of the board,
president or a vice president and by its secretary or an
assistant secretary and verified by one of the officers of
each corporation signing the articles] an authorized officer
and shall set forth:
(1) the plan of merger or the plan of consolidation;
(2) as to each corporation, either:
(a) the number of shares outstanding, and, if the shares of any class are entitled to vote as a class, the designation and number of outstanding shares of each such class; or
(b) a statement that the vote of shareholders is not required by virtue of Subsection D of Section 53-14-3 NMSA 1978;
(3) as to each corporation the approval of whose shareholders is required, the number of shares voted for and against the plan, respectively, and, if the shares of any class are entitled to vote as a class, the number of shares of each such class voted for and against the plan, respectively; and
(4) as to the acquiring corporation in a plan of exchange, a statement that the adoption plan and performance of its terms were duly approved by its board of directors and such other requisite corporate action, if any, as may be required of it.
B. [Duplicate originals] The original of the
articles of merger, consolidation or exchange together with a
copy, which may be either signed, photocopied or conformed,
shall be delivered to the commission. If the commission
finds that the articles conform to law, it shall, when all
fees have been paid:
(1) endorse on [each of the duplicate
originals] the original and copy the word "filed" and the
month, day and year of the filing;
(2) file [one of the duplicate originals]
the original in its office; and
(3) issue a certificate of merger,
consolidation or exchange to which it shall affix the [other
duplicate original] file-stamped copy.
C. The certificate of merger, consolidation or
exchange, together with the [duplicate original] file-stamped
copy of the articles affixed thereto by the commission, shall
be returned to the surviving, new or acquiring corporation,
as the case may be, or its representative."
Section 12. Section 53-14-5 NMSA 1978 (being Laws 1967, Chapter 81, Section 72, as amended) is amended to read:
"53-14-5. MERGER OF SUBSIDIARY CORPORATION.--
A. Any corporation owning at least ninety percent of the outstanding shares of each class of another corporation may merge the other corporation into itself without approval by a vote of the shareholders of either corporation. Its board of directors shall by resolution approve a plan of merger setting forth:
(1) the name of the subsidiary corporation and the name of the corporation owning at least ninety percent of its shares, which is hereinafter designated as the "surviving corporation"; and
(2) the manner and basis of converting the shares of the subsidiary corporation into shares, obligations or other securities of the surviving corporation or of any other corporation or, in whole or in part, into cash or other property.
B. A copy of the plan of merger shall be mailed to each shareholder of record of the subsidiary corporation.
C. Articles of merger shall be executed [in
duplicate] by the surviving corporation by [its president or
a vice president and by its secretary or an assistant
secretary and verified by one of its officers signing the
articles] an authorized officer and shall set forth:
(1) the plan of merger;
(2) the number of outstanding shares of each class of the subsidiary corporation and the number of such shares of each class owned by the surviving corporation; and (3) the date of the mailing to shareholders of the subsidiary corporation of a copy of the plan of merger.
D. On and after the thirtieth day after the
mailing of a copy of the plan of merger to shareholders of
the subsidiary corporation or upon the waiver thereof by the
holders of all outstanding shares, [duplicate originals] an
original of the articles of merger together with a copy,
which may be either signed, photocopied or conformed, shall
be delivered to the commission. If the commission finds that
the articles conform to law, it shall, when all fees have
been paid:
(1) endorse on [each of the duplicate
originals] the original and copy the word "filed" and the
month, day and year of the filing;
(2) file [one of the duplicate originals]
the original in its office; and
(3) issue a certificate of merger to which
it shall affix the [other duplicate original] file-stamped
copy.
E. The certificate of merger, together with the
[duplicate original] file-stamped copy of the articles of
merger affixed thereto by the commission, shall be returned
to the surviving corporation or its representative."
Section 13. Section 53-16-1 NMSA 1978 (being Laws 1967, Chapter 81, Section 79, as amended) is amended to read:
"53-16-1. VOLUNTARY DISSOLUTION BY INCORPORATORS.--A
corporation [which] that has not commenced business and
[which] that has not issued any shares may be voluntarily
dissolved by its incorporators at any time, in the following
manner:
A. articles of dissolution shall be executed [in
duplicate] by a majority of the incorporators [and verified
by them] and shall set forth:
(1) the name of the corporation;
(2) the date of issuance of its certificate of incorporation;
(3) that none of its shares has been issued;
(4) that the corporation has not commenced business;
(5) that the amount, if any, actually paid in on subscriptions for its shares, less any part thereof disbursed for necessary expenses, has been returned to those entitled thereto;
(6) that no debts of the corporation remain unpaid; and
(7) that a majority of the incorporators elect that the corporation be dissolved;
B. [duplicate originals] the original of the
articles of dissolution together with a copy, which may be
either signed, photocopied or conformed, shall be delivered
to the commission. If the commission finds that the articles
of dissolution conform to law and that the corporation has
complied with the Tax Administration Act and has paid all
contributions required by the Unemployment Compensation Law,
it shall, when all fees and franchise taxes have been paid:
(1) endorse on [each of the duplicate
originals] the original and copy the word "filed" and the
month, day and year of the filing;
(2) file [one of the duplicate originals]
the original in its office; and
(3) issue a certificate of dissolution to
which it shall affix the [other duplicate original] file-stamped copy; and
C. the certificate of dissolution, together with
the [duplicate original] file-stamped copy of the articles of
dissolution affixed thereto by the commission, shall be
returned to the incorporators or their representative. Upon
the issuance of the certificate of dissolution by the
commission, the existence of the corporation shall cease."
Section 14. Section 53-16-2 NMSA 1978 (being Laws 1967, Chapter 81, Section 80) is amended to read:
"53-16-2. VOLUNTARY DISSOLUTION BY CONSENT OF
SHAREHOLDERS.--A corporation may be voluntarily dissolved by
the written consent of all of its shareholders. Upon the
execution of such written consent, a statement of intent to
dissolve shall be executed [in duplicate] by the corporation
by [its president or a vice president and by its secretary or
an assistant secretary and verified by one of the officers
signing the statement] an authorized officer, which statement
shall set forth:
A. the name of the corporation;
B. the names and respective addresses of its officers;
C. the names and respective addresses of its directors;
D. a copy of the written consent signed by all shareholders of the corporation; and
E. a statement that [such] the written consent has
been signed by all shareholders of the corporation or signed
in their names by their attorneys in fact thereunto duly
authorized."
Section 15. Section 53-16-3 NMSA 1978 (being Laws 1967, Chapter 81, Section 81, as amended) is amended to read:
"53-16-3. VOLUNTARY DISSOLUTION BY ACT OF CORPORATION.--A corporation may be dissolved by the act of the corporation, when authorized in the following manner:
A. the board of directors shall adopt a resolution recommending that the corporation be dissolved and directing that the question of dissolution be submitted to a vote at a meeting of shareholders, which may be either an annual or a special meeting;
B. written notice shall be given to each shareholder of record entitled to vote at the meeting within the time and in the manner provided in the Business Corporation Act for the giving of notice of meetings of shareholders and, whether the meeting is an annual or special meeting, shall state that the purpose, or one of the purposes, of the meeting is to consider the advisability of dissolving the corporation;
C. at the meeting, a vote of shareholders entitled to vote shall be taken on a resolution to dissolve the corporation. The resolution shall be adopted upon receiving the affirmative vote of the holders of a majority of the shares of the corporation entitled to vote thereon, unless any class of shares is entitled to vote thereon as a class, in which event the resolution shall be adopted upon receiving the affirmative vote of the holders of a majority of the shares of each class of shares entitled to vote thereon as a class and of the total shares entitled to vote thereon; and
D. upon the adoption of the resolution, a
statement of intent to dissolve shall be executed [in
duplicate] by the corporation by [its president or a vice
president and by its secretary or an assistant secretary and
verified by one of the officers signing the statement] an
authorized officer, which statement shall set forth:
(1) the name of the corporation;
(2) the names and respective addresses of its officers;
(3) the names and respective addresses of its directors;
(4) a copy of the resolution adopted by the shareholders authorizing the dissolution of the corporation;
(5) the number of shares outstanding and, if the shares of any class are entitled to vote as a class, the designation and number of outstanding shares of each such class; and
(6) the number of shares voted for and against the resolution, respectively, and, if the shares of any class are entitled to vote as a class, the number of shares of each such class for and against the resolution, respectively."
Section 16. Section 53-16-7 NMSA 1978 (being Laws 1967, Chapter 81, Section 85) is amended to read:
"53-16-7. REVOCATION OF VOLUNTARY DISSOLUTION
PROCEEDINGS BY CONSENT OF SHAREHOLDERS.--By the written
consent of all of its shareholders, a corporation may, at any
time prior to the issuance of a certificate of dissolution by
the commission, revoke voluntary dissolution proceedings
theretofore taken, in the following manner. Upon the
execution of such written consent, a statement of revocation
of voluntary dissolution proceedings shall be executed [in
duplicate] by the corporation by [its president or a vice
president and by its secretary or an assistant secretary and
verified by one of the officers signing the statement] an
authorized officer, which statement shall set forth:
A. the name of the corporation;
B. the names and respective addresses of its officers;
C. the names and respective addresses of its directors;
D. a copy of the written consent signed by all shareholders of the corporation revoking the voluntary dissolution proceedings; and
E. that the written consent has been signed by all shareholders of the corporation or signed in their names by their attorneys thereunto duly authorized."
Section 17. Section 53-16-8 NMSA 1978 (being Laws 1967, Chapter 81, Section 86, as amended) is amended to read:
"53-16-8. REVOCATION OF VOLUNTARY DISSOLUTION PROCEEDINGS BY ACT OF CORPORATION.--By the act of the corporation, a corporation may, at any time prior to the issuance of a certificate of dissolution by the commission, revoke voluntary dissolution proceedings theretofore taken, in the following manner:
A. the board of directors shall adopt a resolution recommending that the voluntary dissolution proceedings be revoked and directing that the question of revocation be submitted to a vote at a special meeting of shareholders;
B. written notice stating that the purpose or one of the purposes of the meeting is to consider the advisability of revoking the voluntary dissolution proceedings shall be given to each shareholder of record entitled to vote at the meeting within the time and in the manner provided in the Business Corporation Act for the giving of notice of special meetings of shareholders;
C. at the meeting, a vote of the shareholders entitled to vote shall be taken on a resolution to revoke the voluntary dissolution proceedings, which shall require for its adoption the affirmative vote of the holders of a majority of the shares entitled to vote thereon; and
D. upon the adoption of the resolution, a
statement of revocation of voluntary dissolution proceedings
shall be executed [in duplicate] by the corporation by [its
president or a vice president and by its secretary or an
assistant secretary and verified by one of the officers
signing the statement] an authorized officer, which statement
shall set forth:
(1) the name of the corporation;
(2) the names and respective addresses of its officers;
(3) the names and respective addresses of its directors;
(4) a copy of the resolution adopted by the shareholders revoking the voluntary dissolution proceedings;
(5) the number of shares outstanding; and
(6) the number of shares voted for and against the resolution, respectively."
Section 18. Section 53-16-11 NMSA 1978 (being Laws 1967, Chapter 81, Section 89) is amended to read:
"53-16-11. ARTICLES OF DISSOLUTION.--If voluntary
dissolution proceedings have not been revoked, then, when all
debts, liabilities and obligations of the corporation have
been paid and discharged or adequate provision has been made
therefor and all of the remaining property and assets of the
corporation have been distributed to its shareholders,
articles of dissolution shall be executed [in duplicate] by
the corporation by [its president or a vice president and by
its secretary or an assistant secretary and verified by one
of the officers signing the statement] an authorized officer,
which statement shall set forth:
A. the name of the corporation;
B. that the commission has theretofore filed a statement of intent to dissolve the corporation and the date on which the statement was filed;
C. that all debts, obligations and liabilities of the corporation have been paid and discharged or that adequate provision has been made therefor;
D. that all the remaining property and assets of the corporation have been distributed among its shareholders in accordance with their respective rights and interests; and
E. that there are no suits pending against the
corporation in any court or that adequate provision has been
made for the satisfaction of any [judgement] judgment, order
or decree [which] that may be entered against it in any
pending suit."
Section 19. Section 53-16-12 NMSA 1978 (being Laws 1967, Chapter 81, Section 90) is amended to read:
"53-16-12. FILING OF ARTICLES OF DISSOLUTION.--
A. [Duplicate originals] An original of articles
of dissolution together with a copy, which may be either
signed, photocopied or conformed, shall be delivered to the
commission. If the commission finds that the articles of
dissolution conform to law and that the corporation has
complied with the Tax Administration Act and has paid all
contributions required by the Unemployment Compensation Law,
it shall, when all fees and franchise taxes have been paid:
(1) endorse on [each of] the [duplicate
originals] original and copy the word "filed" and the month,
day and year of the filing;
(2) file [one of] the [duplicate originals]
original and copy in its office; and
(3) issue a certificate of dissolution to
which it shall affix the [other duplicate original] file-stamped copy.
B. The certificate of dissolution, together with
the [duplicate original] file-stamped copy of the articles of
dissolution affixed thereto by the commission, shall be
returned to the representative of the dissolved corporation.
Upon the issuance of the certificate of dissolution, the
existence of the corporation shall cease, except for the
purpose of suits, other proceedings and appropriate corporate
action by shareholders, directors and officers as provided in
the Business Corporation Act."
Section 20. Section 53-17-5 NMSA 1978 (being Laws 1967, Chapter 81, Section 107, as amended) is amended to read:
"53-17-5. APPLICATION FOR CERTIFICATE OF AUTHORITY.--
A. A foreign corporation, in order to procure a
certificate of authority to transact business in this state,
shall make application [therefor] to the commission, which
application shall set forth:
(1) the name of the corporation and the state or country under the laws of which it is incorporated;
(2) if the name of the corporation does not contain the word "corporation", "company", "incorporated" or "limited" or does not contain an abbreviation of one of these words, the name of the corporation with the word or abbreviation which it elects to add thereto for use in this state;
(3) the date of incorporation and the period of duration of the corporation;
(4) the address of the [principal]
registered office of the corporation in the state or country
under the laws of which it is incorporated and the address of
the principal office of the corporation, if different;
(5) the address of the proposed registered office of the corporation in this state and the name of its proposed registered agent in this state at such address;
(6) the purpose of the corporation [which]
that it proposes to pursue in the transaction of business in
this state;
(7) the names and respective addresses of the directors and officers of the corporation who have consented to serve;
(8) a statement of the aggregate number of
shares [which] that the corporation has authority to issue,
itemized by classes and by series, if any, within a class;
(9) a statement of the aggregate number of issued shares, itemized by class and by series, if any, within each class;
(10) an estimate expressed in dollars of:
(a) the gross amount of business
[which] that will be transacted by it during its current
fiscal year at or from places of business located in the
state;
(b) the gross amount of business
[which] that will be transacted by it during [such] its
current fiscal year, wherever transacted;
(c) the value of all property to be
owned by it and located in the state during [such] its
current fiscal year; and
(d) the value of all property to be
owned by it during [such] its current fiscal year, wherever
located; and
(11) additional information necessary or appropriate in order to enable the commission to determine whether the corporation is entitled to a certificate of authority to transact business in this state and to determine and assess the fees and franchise taxes payable.
B. The application shall be made on forms
prescribed by the commission and shall be executed [in
duplicate] by the corporation by [its president or vice
president and by its secretary or an assistant secretary and
verified by one of the officers signing the application] an
authorized officer."
Section 21. 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.--
A. [Duplicate originals] An original of the
application of the corporation for a certificate of authority
together with a copy, which may be either signed, photocopied
or conformed; 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; and
[an affidavit] a statement executed by the designated
registered agent [in which he acknowledges] acknowledging his
acceptance of the appointment by the filing corporation as
its registered agent, if the agent is an individual, or [an
affidavit] a statement executed by [the president or vice
president] an authorized officer of a corporation [which]
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.
B. If the commission finds that the application and the affidavit conform to law, it shall, when all fees have been paid:
(1) endorse on [each of] the [documents]
original and copy the word "filed" and the month, day and
year of the filing;
(2) file in its office [one of] the
[duplicate originals of the] original application, the
[affidavit] 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 shall affix the
[other duplicate original application] file-stamped copy of
the application for a certificate of authority.
C. The certificate of authority, together with the
[duplicate original] file-stamped copy of the application
affixed thereto by the commission, shall be returned to the
corporation or its representative."
Section 22. Section 53-17-10 NMSA 1978 (being Laws 1967, Chapter 81, Section 111, as amended) is amended to read:
"53-17-10. CHANGE OF REGISTERED OFFICE OR REGISTERED AGENT OF FOREIGN CORPORATION.--
A. A foreign corporation authorized to transact business in this state may change its registered office or change its registered agent, or both, upon filing in the office of the commission a statement setting forth:
(1) the name of the corporation;
(2) the address of its then-registered office;
(3) if the address of its registered office is changed, the address to which the registered office is to be changed;
(4) the name of its then-registered agent;
(5) if its registered agent is changed:
(a) the name of its successor registered agent; and
(b) [an affidavit] a statement executed
by the successor registered agent [in which he asknowledges]
acknowledging his acceptance of the appointment by the filing
corporation as its registered agent, if the agent is an
individual, or [an affidavit] a statement executed by [the
president or vice president] an authorized officer of a
corporation [which] 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 [its president or a vice president and
verified by him] an authorized officer and delivered to the
commission. If the commission finds that the statement
conforms to the provisions of the Business Corporation Act,
it shall file the statement in its office, and upon the
filing, the change of address of the registered office or the
appointment of a new registered agent, or both, as the case
may be, shall become effective.
C. Any registered agent of a foreign corporation
may resign as agent upon filing a written notice thereof
[executed in duplicate] with the commission, which shall
forthwith mail a copy thereof to the corporation at its
principal office in the state or country under the laws of
which it is incorporated. The appointment of the agent shall
terminate upon the expiration of thirty days after receipt of
the notice by the commission.
D. If a registered agent changes his [or its]
business address to another place within the same county, he
[or it] may change the address and the address of the
registered office of any corporations of which he [or it] is
registered agent by filing a statement as required above,
except that it need be signed only by the registered agent
and need not be responsive to Paragraph (5) of Subsection A
of this section and must recite that a copy of the statement
has been mailed to each corporation."
Section 23. Section 53-17-15 NMSA 1978 (being Laws 1967, Chapter 81, Section 116, as amended) is amended to read:
"53-17-15. WITHDRAWAL OF FOREIGN CORPORATION.--
A. A foreign corporation authorized to transact business in this state may withdraw from this state upon procuring from the commission a certificate of withdrawal. In order to procure the certificate of withdrawal, the foreign corporation shall deliver to the commission an application for withdrawal, which shall set forth:
(1) the name of the corporation and the state or country under the laws of which it is incorporated;
(2) that the corporation is not transacting business in this state;
(3) that the corporation surrenders its authority to transact business in this state;
(4) that the corporation revokes the authority of its registered agent in this state to accept service of process and consents that service of process in any action, suit or proceeding based upon any cause of action arising in this state during the time the corporation was authorized to transact business in this state may thereafter be made on the corporation by service thereof on the secretary of state;
(5) an address to which the secretary of state may mail a copy of any process against the corporation that may be served on it;
(6) a statement of the aggregate number of
shares [which] that the corporation has authority to issue,
itemized by class and by series, if any, within each class,
as of the date of the application;
(7) a statement of the aggregate number of issued shares, itemized by class and by series, if any, within each class, as of the date of the application; and
(8) additional information as necessary or appropriate in order to enable the commission to determine and assess any unpaid fees or franchise taxes payable by the foreign corporation.
B. The application for withdrawal shall be made on
forms prescribed by the commission and shall be executed by
the corporation by [its president or a vice president and by
its secretary or an assistant secretary and verified by one
of the officers signing the application] an authorized
officer or, if the corporation is in the hands of a receiver
or trustee, shall be executed on behalf of the corporation by
the receiver or trustee [and verified by him]."
Section 24. Section 53-17-16 NMSA 1978 (being Laws 1967, Chapter 81, Section 117) is amended to read:
"53-17-16. FILING OF APPLICATION FOR WITHDRAWAL.--
A. [Duplicate originals] An original of an
application for withdrawal together with a copy, which may be
either signed, photocopied or conformed, shall be delivered
to the commission. If the commission finds that the
application conforms to the provisions of the Business
Corporation Act and that the corporation has complied with
the Tax Administration Act and has paid all contributions
required by the Unemployment Compensation Law, it shall, when
all fees and franchise taxes have been paid:
(1) endorse on [each of the duplicate
originals] the original and copy the word "filed" and the
month, day and year of the filing;
(2) file [one of the duplicate originals]
the original in its office; and
(3) issue a certificate of withdrawal to
which it shall affix the [other duplicate original] file-stamped copy.
B. The certificate of withdrawal, together with
the [duplicate original] file-stamped copy of the application
for withdrawal affixed thereto by the commission, shall be
returned to the corporation or its representative. Upon the
issuance of the certificate of withdrawal, the authority of
the corporation to transact business in this state shall
cease."