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F I S C A L I M P A C T R E P O R T





SPONSOR: Maes DATE TYPED: 03/01/01 HB
SHORT TITLE: Business Law Modernization SB 331/aSJC
ANALYST: Dotson


APPROPRIATION



Appropriation Contained
Estimated Additional Impact
Recurring

or Non-Rec

Fund

Affected

FY01 FY02 FY01 FY02
None None



(Parenthesis ( ) Indicate Expenditure Decreases)



REVENUE



Estimated Revenue
Subsequent

Years Impact

Recurring

or Non-Rec

Fund

Affected

FY01 FY02
$ 20.0 Unknown Recurring General



(Parenthesis ( ) Indicate Revenue Decreases)



SOURCES OF INFORMATION



Public Regulation Commission



SUMMARY



Synopsis of SJC Amendments



The Senate Judiciary Committee amendments provides that publically traded corporations can adopt the simple majority voting requirement by adopting a bylaw. Large publically traded companies do not have to change their articles of incorporation to adopt the simple majority voting requirement.



Significant Issues of SJC Amendments



Changing articles of incorporation for publically traded companies is difficult.





Synopsis of Original Bill



The purpose of SB 331 is: (1) To make business corporation laws in New Mexico more consistent with the practice of other states; and (2) To provide for the efficient administration of business corporations and other corporations and associations authorized under New Mexico statutes.



Significant Issues



The modernization of the laws regulating corporations follows in large part the "Model Business Corporation Act". A large majority of states follow this act in creating laws regulating corporations.



According to the Public Regulation Commission, the significant issues involving SB 331 are as follows:



FISCAL IMPLICATIONS



According to the Public Regulation Commission, SB 331 will provide approximately $20,000 from entities that file conversions at the Corporations Bureau to the General Fund. The amount of money generated from conversions in subsequent fiscal years is undetermined but will most likely increase slightly from $20,000. In addition, passage of SB 331 may result in additional revenues to the General Fund in an undetermined amount from additional incorporations in New Mexico.



ADMINISTRATIVE IMPLICATIONS



According to the Public Regulation Commission, enactment of SB 331 would make the filing procedures simpler for entities that are required to file incorporation and other documents at the Public Regulation Commission. In addition, passage of SB 331 simplifies and makes more uniform with other states the revocation procedure for corporations that are no longer active. Allowing the Corporations Bureau to strike revoked corporations from its files without further proceedings will "clean-up" the database used by the bureau which contains many corporations that are no longer active. This change will save time and money by not having to mail report forms to these dormant entities. When the changes contemplated by SB 331 are fully implemented, the Corporations Bureau of the Commission will function more efficiently.



OTHER SUBSTANTIVE ISSUES



The desire for many corporation located in New Mexico to incorporate under in other states will largely be eliminate with these revisions. Creating uniformity with the majority of other states and eliminating the need for out of state legal expertise based on out of state cooperate law.



Attached is a detailed analysis of SB 331 prepared by the Public Regulation Commission.

PD/ar









The following table is a section by section analysis of SB 331, including a list of the affected cite, the reason for the proposed change, and what the bill does:



Bill Section

Item Identification and Statutory Cite



Reason for proposed change



What the Bill Does*

*in addition to solely technical changes

Sanitary Projects Act



1-8 Filing requirements

NMSA Sections 3-29-1,

3-29-16 and 17 and new sections are added

Current statutes do not require various minor administrative reports and procedures required of other associations created under New Mexico statutes which are needed to facilitate administration by the PRC; technical changes needed Requires Sanitary Projects Act associations to maintain and identify their registered offices and agents, establishes requirements for changing their registered offices or agents, establishes method of service of process on registered agents, and requires annual and supplemental reports


Fees and Miscellaneous Corporation Law
9-13 Filing fees



NMSA Sections 53-2-1, 53-2-3, 53-2-4, 53-2-8, new sections are added

Current statutes do not contain provisions for conversions of an entity from one form to another; such conversions will be permitted by this bill and so fees need to be established; technical changes needed

Sets fees by providing for fees for filing conversion documents, for providing expedited services and handing of alternatives forms of fee payments to the PRC); also permits PRC to adopt rules permitting electronic filing and certification of documents and acceptance of electronic payment


Cooperative Association Act
14-25























Filing requirements

NMSA Sections 53-4-5 through 53-4-7, 53-4-34, 53-4-35, 53-4-37, 53-4-40, 53-4-41 and new sections are added

Current statutes do not require various minor administrative reports and procedures required of other associations created under New Mexico statutes which are necessary to facilitate administration by the PRC

Requires coops to maintain and identify their registered offices and agents, establishes requirements and methods for changing registered offices or agents, establishes methods of service of process
Corporate Reports Act
26-32 Various administrative procedures

NMSA Sections 53-5-2, 53-5-3, 53-5-6, 53-5-7 through 53-5-9 and a new section is added

Various administrative procedures at the PRC need to be updated; also various technical changes are required

Permits PRC to strike from files without further proceedings domestic and foreign corporations whose certificates have been canceled; eliminates requirement to report the character of the business of the corporation or file supplemental reports if the business of the corporation changes or if the name of the corporation changes


Professional Corporation Act
33 Disqualifications, dissolutions

NMSA Section 53-6-12

Requires technical changes

Makes technical changes only
Business Development Corporation Act
34-36 Amending articles of incorporation; annual reports

NMSA Sections 53-7-35, 53-7-36, 53-7-39

Requires technical changes Makes technical changes only
Nonprofit Corporation Act
37 Number and election of directors

NMSA Section 53-8-18

Current statute requires the number of directors of nonprofits to be set forth in the bylaws, resulting in frequent filings of bylaw changes with the PRC Allows number of directors to be changed without amendment to the Bylaws, eliminating need to amend Bylaws (Sec. 37) and file Bylaw amendment with the PRC
38 Revocation and reinstatement

NMSA Section 53-8-54

No current provision for reinstatement of revoked certificates of incorporation Allows nonprofits whose certificates have been revoked to apply for reinstatement within two years
39 Annual Reports

NMSA Section 53-8-83



No need for nonprofit corporations to report changes in the character of their business; requires technical changes Eliminates requirement for corporation to amend its annual report if the character of its business changes
Business Corporation Act
40-41 Title, definitions

NMSA Section 53-11-1 and 53-11-2

Requires technical changes Makes technical changes only
42 Treasury shares

NMSA Section 53-11-5

Current statutes, unlike most states, do not allow reacquired stock to be designated as treasury stock and thereby entitled to certain privileges accorded "treasury stock" in employee benefit plan and other instances Allows corporations to treat reacquired stock as treasury stock
43 Dissolution, revocation and reinstatement of corporations

NMSA Sections 53-11-12

Current statutes require overly complex dissolution, revocation and reinstatement procedures

Streamlines process for revocation of articles of incorporation but allows reinstatement within two years

44 Changes of registered office or agent

NMSA Section 53-11-13

Current statutes require the filing of two original signed copies of most documents, often resulting in needless delays

Requires filing only one, instead of two, original notices that registered agent has resigned

45 Payment for shares

NMSA Section 53-11-19

Current statute imposes outdated restrictions on what corporation may accept in payment for stock, unnecessarily limiting, for example, the corporation's ability to put stock in the hands of key employees or to implement leveraged ESOPs Allows stock to be issued in broader range of circumstances than currently allowed, consistent with law in other states including promissory notes and future services

46 Shareholder approval of stock rights or options for directors, officers and employees

NMSA Section 53-11-20

Current statute is outdated and requires shareholder approval of stock rights or options given to directors, officers and employees Eliminates requirement of shareholder approval for stock rights or options issued to directors, officers and employees as in all but three states in U.S.
47 Default location for shareholder meetings

NMSA Section 53-11-28

Current statute requires that if the place for shareholder meetings is not specified in the Bylaws, the meetings must be held at the registered office

Provides that shareholder meetings in such circumstances will be held at the corporation's principal place of business
48 Granting and voting of proxies

NMSA Section 53-11-33

Current statute requirements do not reflect modern telecommunications capabilities

Allows granting of proxies and voting by proxy utilizing electronic means
49-50 Staggered board terms; removal of directors

NMSA Sections 53-11-37 and 53-11-39

Current statute requires that there be at least 9 directors before a corporation may stagger board terms to make takeovers more difficult; also permits immediate removal of any director, or the entire board, despite staggered terms, without cause

Broadens ability to establish staggered boards by reducing the minimum number of directors necessary to permit staggering from 9 to 2; directors of staggered boards may only be removed for cause
51 Articles of incorporation; Liability of corporate directors

NMSA Section 53-12-2

Current statute restricts ability of corporations to limit personal liability of their directors as in most other states



Allows corporations, if they choose, to limit the personal liability of their directors except where there is wrongdoing, such as receipt of improper financial benefit, intentional harm, payment of wrongful dividend or criminal act, as recommended in current Model Business Corporation Act; also specifies what articles of incorporation may include and what is required

52 Filing articles of incorporation and signatures required



NMSA Section 53-12-3

Requirement to file two original copies is obsolete, especially with authority to file electronically; also requiring signature only by chairman or president is unnecessary, others should be permitted to sign

Eliminates requirement that duplicate original articles of incorporation be filed and permits signature by any authorized officer

53 Class voting on amendments to articles of incorporation

NMSA Section 53-13-3

Current statute requires a class vote on certain matters where not ordinarily required Eliminates requirement for class voting on proposals to change the aggregate number of authorized shares of a specified class of stock
54-69, 71-72 Number of original documents to be filed with PRC, signatures required (various documents)

NMSA Sections 53-13-4, 53-13-7, 53-13-8, 53-14-4, 53-14-5, 53-16-1 through 53-16-3, 53-16-7 through 53-16-9, 53-16-11, 53-16-12, 53-17-5, 53-17-6, 53-17-10, 53-17-15, 53-17-16

Requirement to file two original copies of each document is obsolete, especially with new authority to file electronically; similarly, requirements that only the Chairman or President may sign also should be changed to permit others authorized to do so

Eliminates requirement that duplicate original documents of various types be filed with the PRC, and permits signature by any authorized officer, in the case of

--articles of amendment (Sec 54)

--restated articles of amendment (Sec 55)

--articles of amendment in reorganization (Sec 56)

--articles of merger (Sec 57)

--articles of merger of subsidiary corporations (Sec 58)

--articles of dissolution by incorporators (Sec 59)

--statement of intent to dissolve (Secs 60-61)

--statement of revocation of dissolution (Secs 62-63)

--statement of revocation of dissolution (Sec 64)

--articles of dissolution by corporation (Secs 65-66)

--application for certificate of authority (Secs 67-68)

--change of registered agent or office of foreign corp (Sec 69)

--withdrawal by foreign (out-of-state) corp (Secs 71-72)

70 Conversions of foreign (out-of-state) corporations from one type of entity to another

NMSA Section 53-17-13

Because conversions to LLCs or other types of entities by corporations are now common, statutes should be updated to recognize foreign corporations that do so Allows recognition of conversions of foreign corporations and requires appropriate filings of notice
73 Dissolution, revocation and reinstatement procedures for certificates of authority (out-of-state corporations)

NMSA Section 53-17-18







Present procedures for revocation cumbersome; reinstatement now permitted Simplifies procedures for revocation of certificates of authority and permits reinstatement within two years
Limited Liability Company Act
74-75 Revocation and reinstatement procedures for LLCs

NMSA Section: new sections are added

Presently no authority to revoke LLCs if no registered agent is appointed and maintained Permits revocation if LLC fails to appoint and maintain registered agent; provides process for reinstatement within two years

76 Certificates of good standing filed by foreign (out-of-state) LLCs

NMSA Section

53-19-48

Current statute allows limited liability companies to file certificates of good standing in their state of incorporation that are not current

Requires foreign LLCs to provide current certificates of good standing when registering
77 Foreign (out-of-state) limited liability company registrations



NMSA Section 53-19-51

Current statute contains confusing requirements for amending certificates of registration of foreign (out-of-state) limited liability companies Clarifies requirements regarding filing of amendments to certificates of registration of out-of-state LLCs
78-80 Conversions from one type of business entity to another

NMSA Section 53-19-60, new section 53-19-60.1 and 53-19-61

Limited Liability Company Act currently does not authorize conversion of corporations to LLCs or LLCs to convert to other types of business organizations Allows corporations to convert to LLCs and allows LLCs to convert to corporations, partnerships or limited partnerships; conforms Sec. 80
81 Fees charged LLCs by PRC

NMSA Section 53-19-63

With conversions now authorized, fees need to be established for filing conversion documents Establishes same fee for conversions as now exists for mergers and consolidations of LLCs


Water Users' Associations
82 Filing requirements

NMSA Section 73-5-2







Current statutes do not require various minor administrative reports and procedures required of other associations created under New Mexico statutes Requires reporting of initial registered office and registered agent

Foreign Business Trusts
83-99 Requirements regarding foreign (out-of-state) business trusts

NMSA Sections - new sections are added

Current statutes do not regulate how foreign business trusts created under the laws of other states may do business in New Mexico Adopts the "Foreign Business Trust Registration Act, enabling foreign trusts to do business in New Mexico and requiring them to register with and report to the PRC in a similar manner as other out-of-state business entities