AN ACT
RELATING TO CORPORATIONS; AMENDING INCORPORATION PROCEDURES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 3-29-16 NMSA 1978 (being Laws 1965,
Chapter 300, Section 14-28-16, as amended) is amended to read:
"3-29-16. CERTIFICATE OF ASSOCIATION.--
A. The members of an association shall execute a
certificate setting forth:
(1) the name of the association;
(2) the name of the incorporators;
(3) the location of the principal office of the
association in this state;
(4) the objects and purposes of the association;
(5) the address of the initial registered office
of the association and the name of the initial registered agent at that
address;
(6) the amount of capital stock and number and
denomination of the shares or, if the incorporators do not desire to issue
shares of stock, the plan and manner of acquiring membership and of providing
funds or means for the acquisition, construction, improvement and maintenance
of its work and for its necessary expenses;
(7) the period, if any, delimited for the
duration of the association; and
(8) the number and manner of electing the board
of directors of the association.
B. Pursuant to the registered agent requirement
of Paragraph (5) of Subsection A of this section, there shall be attached to
the certificate a statement executed by the registered agent in which the agent
acknowledges acceptance of the appointment by the filing association, if the
agent is an individual, or a statement executed by an authorized officer of a
corporation in which the officer acknowledges the corporation's acceptance of
the appointment by the filing association as its registered agent, if the agent
is a corporation.
C. The certificate or any amendment thereof made
as provided in Section 3-29-19 NMSA 1978 may also contain provisions not
inconsistent with the Sanitary Projects Act or other law of this state that the
incorporators may choose to insert for the regulation and conduct of the
business and affairs of the association.
There shall accompany each certificate a list of the names of all
members of the association, the list to also show the total number of members
of the association and the total number of dwelling units that can be served if
the project is completed."
Section 2. Section 53-2-1 NMSA 1978 (being Laws 1975,
Chapter 65, Section 1, as amended) is amended to read:
"53‑2‑1. FEES OF PUBLIC REGULATION COMMISSION.‑‑
A. For filing documents and issuing
certificates, the public regulation commission shall charge and collect for:
(1) filing articles of incorporation and issuing
a certificate of incorporation, a fee of one dollar ($1.00) for each one
thousand shares of the total amount of authorized shares, but in no case less
than one hundred dollars ($100) or more than one thousand dollars ($1,000);
(2) filing articles of amendment and issuing a
certificate of amendment increasing the total amount of authorized shares or
filing restated articles of incorporation and issuing a restated certificate of
incorporation increasing the total amount of authorized shares, a fee equal to
the difference between the fee computed at the rate set forth in Paragraph (1)
of this subsection upon the total amount of authorized shares, including the
proposed increase, and the fee computed at the rate set forth in Paragraph (1)
of this subsection upon the total amount of authorized shares, excluding the
proposed increase, but in no case less than one hundred dollars ($100) or more
than one thousand dollars ($1,000);
(3) filing articles of amendment and issuing a
certificate of amendment not involving an increase in the total amount of
authorized shares or filing restated articles of incorporation and issuing a
restated certificate of incorporation not involving an increase in the total
amount of authorized shares, a fee of one hundred dollars ($100);
(4) filing articles of merger, consolidation or
exchange and issuing a certificate of merger or consolidation or exchange, a
fee equal to the difference between the fee computed at the rate set forth in
Paragraph (1) of this subsection upon the total amount of authorized shares in
the articles of merger or consolidation in excess of the total amount of
authorized shares of the corporations merged or consolidated or upon the amount
of the shares exchanged, but in no case less than two hundred dollars ($200) or
more than one thousand dollars ($1,000);
(5) filing an application to reserve a corporate
name or filing a notice of transfer of a reserved corporate name, a fee of twenty‑five
dollars ($25.00);
(6) filing a statement of a change of address of
the registered office or change of the registered agent, or both, a fee of
twenty‑five dollars ($25.00);
(7) filing an agent's statement of change of
address of registered agent for each affected corporation, a fee of twenty-five
dollars ($25.00);
(8) filing a statement of the establishment of a
series of shares, a fee of one hundred dollars ($100);
(9) filing a statement of reduction of authorized
shares, a fee of one hundred dollars ($100);
(10) filing a statement of intent to dissolve, a
statement of revocation of voluntary dissolution proceedings or articles of
dissolution, a fee of fifty dollars ($50.00);
(11) filing an application of a foreign
corporation for an amended certificate of authority to transact business in
this state and issuing an amended certificate of authority, a fee of fifty
dollars ($50.00);
(12) filing a copy of articles of merger or
conversion of a foreign corporation holding a certificate of authority
to transact business in this state not increasing the total amount of
authorized shares, a fee of two hundred dollars ($200);
(13) filing an application for a certificate of
authority of a foreign corporation and issuing to it a certificate of
authority, a fee of one dollar ($1.00) for each one thousand shares of the
total number of authorized shares represented in this state, but in no case
less than two hundred dollars ($200) or more than one thousand dollars
($1,000);
(14) filing articles of merger or consolidation
increasing the total amount of authorized shares that the surviving or new
corporation is authorized to issue in excess of the aggregate number of shares
that the merging or consolidating domestic and foreign corporations authorized
to transact business in this state had authority to issue, a fee of one dollar
($1.00) for each one thousand shares of the increase in the total amount of
authorized shares represented in this state, but in no case less than two hundred
dollars ($200) or more than one thousand dollars ($1,000);
(15) filing an application for withdrawal of a
foreign corporation and issuing a certificate of withdrawal, a fee of fifty
dollars ($50.00);
(16) filing a corporate report and filing a supplemental
report, a fee of twenty‑five dollars ($25.00);
(17) filing any other statement, corrected
document or report of a domestic or foreign corporation, a fee of twenty‑five
dollars ($25.00);
(18) issuing a certificate of good standing and
compliance, a fee of fifty dollars ($50.00); and
(19) issuing a letter of reinstatement of a
domestic or foreign corporation, a fee of two hundred dollars ($200).
B. The public regulation commission shall also charge and collect for furnishing
copies of any document, instrument or paper relating to a corporation a fee of
one dollar ($1.00) per page, but in no case less than ten dollars
($10.00). In addition, a fee of twenty‑five
dollars ($25.00) shall be paid in each instance where the commission provides
the copies of the document to be certified.
C. As used in this section:
(1) "total amount of authorized shares"
means all shares of stock the corporation is authorized to issue; and
(2) "number of authorized shares represented
in this state" means the proportion of a corporation's total amount of
authorized shares that the sum of the value of its property located in this
state and the gross amount of business transacted by it or from places of
business in this state bears to the sum of the value of all of its property,
wherever located, and the gross amount of its business, wherever transacted, as
determined from information contained in its application for a certificate of
authority to transact business in this state.
D. The public regulation commission shall also
charge and collect fees, according to a fee schedule approved by the department
of finance and administration, for the provision of services requested by
persons, agencies and entities dealing with the commission.
E. The public regulation commission may adopt
rules establishing reasonable fees for the following services rendered in
connection with a service required or permitted to be rendered pursuant to a
provision of Chapter 53 NMSA 1978:
(1) an expedited service; or
(2) the handling of checks, drafts, credit or
debit cards or other means of payment upon adoption of rules authorizing their
use, for which sufficient funds are not on deposit."
Section 3. Section 53-4-5 NMSA 1978 (being Laws 1939,
Chapter 164, Section 5, as amended) 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 the secretaries, if associations,
before an officer authorized to take acknowledgments. Within the limitations set forth in the
Cooperative Association Act, 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
will 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 the association is 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 of the
association that shall be owned in order to qualify for membership;
J. the maximum amount or percentage of capital
of the association that may be owned or controlled by any member;
K. the method by which any surplus, upon
dissolution of the association, shall be distributed in conformity with the
requirements of the Cooperative Association Act for division of such surplus;
L. the address of the initial registered office
of the association and the name of the initial registered agent at that
address; and
M. a statement executed by the registered agent
in which the agent acknowledges acceptance of the appointment by the filing
association, if the agent is an individual, or a statement executed by an
authorized officer of a corporation in which the officer acknowledges the
corporation's acceptance of the appointment by the filing association as its
registered agent, if the agent is a corporation.
The articles may also contain
other provisions not inconsistent with the Cooperative Association Act."
Section 4. Section 53-4-6.2 NMSA 1978 (being Laws 2001,
Chapter 200, Section 24) is amended to read:
"53-4-6.2. CHANGE OF REGISTERED OFFICE OR REGISTERED
AGENT.--
A. An association may change its registered
office or its registered agent, or both, by filing in the office of the public
regulation commission a statement that includes:
(1) the name of the association;
(2) the address of its registered office;
(3) if the address of the association's
registered office is changed, the address to which the registered office is
changed;
(4) the name of its registered agent;
(5) if the association's registered agent is
changed:
(a) the name of its successor registered agent;
and
(b) if the successor registered agent is an
individual, a statement executed by the successor registered agent
acknowledging acceptance of the appointment by the filing association as its
registered agent; or
(c) if the successor registered agent is a corporation,
a statement executed by an authorized officer of the corporation in which the
officer acknowledges the corporation's acceptance of the appointment by the
filing association as its registered agent; and
(6) a statement that the address of the association's
registered office and the address of the office of its registered agent, as
changed, will be identical.
B. The statement made pursuant to the provisions
of Subsection A of this section shall be executed by the association by any two
members and delivered to the public regulation commission. If the commission finds that the statement
conforms to the provisions of the Sanitary Projects Act, it shall file the
statement in the office of the commission.
The change of address of the registered office, or the appointment of a
new registered agent, or both, shall become effective upon filing of the
statement required by this section.
C. A registered agent of an association may
resign as agent upon filing a written notice thereof, executed in duplicate,
with the public regulation commission.
The commission shall mail a copy immediately to the association in care
of an officer, who is not the resigning registered agent, at the address of the
officer as shown by the most recent annual report of the association. The appointment of the agent shall terminate
upon the expiration of thirty days after receipt of the notice by the
commission."
Section 5. 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 that the public regulation
commission adopts to implement this section, a domestic or foreign corporation
that is not exempted shall file in the office of the 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 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 the corporation's 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 address of the corporation's 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 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 public regulation commission may refuse
to file a corporate report or a supplemental report received from a corporation
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, the commission shall file
the report of the corporation upon its submission to the commission.
D. A supplemental report shall be filed with the
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 mailing address, street address, rural
route number and 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;
(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
(3) its principal place of business within or
without the state."
Section 6. Section 53-5-7 NMSA 1978 (being Laws 1959,
Chapter 181, Section 7, as amended) is amended to read:
"53-5-7. FAILURE TO FILE CORPORATE REPORTS--PENALTY.--
A. A domestic corporation required to file an
annual corporate report, as provided in the Corporate Reports Act, that fails
to submit the report within the time prescribed for a reporting period shall
incur a civil penalty of two hundred dollars ($200) in addition to the fee for
filing the report, such civil penalty to be paid upon filing the report. Sixty days after written notice of failure to
file a report has been mailed to the corporation's mailing address as shown in
the last corporate report filed with the public regulation commission, the
corporation shall have its certificate of incorporation canceled by the
commission without further proceedings, unless the report is filed and all fees
and penalties are paid within that sixty-day period.
B. A foreign corporation required to file an
annual corporate report that fails to submit the report within the time
prescribed for any reporting period shall incur a civil penalty of two hundred
dollars ($200) in addition to the fee for filing the report. The civil penalty shall be paid upon filing
the report. Sixty days after written
notice of failure to file a report has been mailed to the corporation's mailing
address as shown in the last corporate report filed with the public regulation
commission, the corporation shall have its certificate of authority to do
business in this state canceled by the commission without further proceedings,
unless the report is filed and all fees and penalties are paid within that
sixty-day period. Nothing in this section
authorizes a forfeiture of the right or privilege of engaging in interstate
commerce.
C. A domestic or foreign corporation not
exempted from filing a supplemental report, as provided in the Corporate
Reports Act, that fails to submit the required report within the time
prescribed for a reporting period shall incur a civil penalty of two hundred
dollars ($200) in addition to the fee for filing the report, such civil penalty
to be paid upon filing the report.
D. An order of the public regulation commission
may be appealed to the district court of Santa Fe county within sixty days of
the date it was issued by the commission.
E. If a report required under the Corporate
Reports Act is mailed, the public regulation commission shall allow three
additional days when considering the postmark as the date of submission when
determining if a filing is timely."
Section 7. Section 53-5-9 NMSA 1978 (being Laws 1959,
Chapter 181, Section 9, as amended) is amended to read:
"53-5-9. DORMANT CORPORATIONS--STATEMENT IN LIEU OF
CORPORATE REPORT.--
A. Whenever a corporation is no longer engaged
in active business in this state or in carrying out the purposes of its
incorporation, two of its shareholders, directors or officers may unite in
signing a statement to that effect; the statement shall be filed with the
public regulation commission in lieu of the required corporate report. Upon the filing of this statement and the
payment of all fees and penalties, the commission is authorized to strike the
name of the corporation from the list of active corporations in this state; but
this action shall not be construed in any sense as a formal dissolution of the
corporation and the corporation shall not be relieved thereby from any
outstanding obligation. A dormant
corporation may be fully revived by the resumption of active business and the
filing of a corporate report.
B. A dormant corporation may continue in dormant
status by filing a statement of renewal every five years to the effect that it
is not engaged in active business in this state and is not carrying out the
purposes of its incorporation. Sixty
days after written notice of failure to file a statement of renewal has been
mailed to its registered agent and also to the principal office of the
corporation as shown in the last corporate report filed with the commission,
the corporation shall have its certificate of incorporation or authority
canceled by the commission without further proceedings unless the statement of
renewal is filed and all fees are paid within that sixty-day period."
Section 8. Section 53-8-9 NMSA 1978 (being Laws 1975,
Chapter 217, Section 9, as amended) is amended to read:
"53-8-9. 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 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 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 be changed:
(a) the name of its successor registered agent;
and
(b) a statement executed by the successor
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 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 office of its registered agent, as changed, will be
identical.
B. The statement pursuant to the provisions of
Subsection A of this section shall be executed by the corporation by an
authorized officer of the corporation and delivered to the public regulation
commission. If the public regulation
commission finds that the statement conforms to the provisions of the Nonprofit
Corporation Act, it shall file the statement in the office of the public
regulation commission, 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, shall become effective.
C. A registered agent of a corporation may
resign as agent upon filing a written notice of resignation, including the
original and a copy, with the public regulation commission. The copy may be a photocopy of the original
after it was signed or a photocopy that is conformed to the original. The commission shall mail an endorsed copy to
the corporation in care of an officer, who is not the resigning registered
agent, at the address of the officer as shown by the most recent annual report
of the corporation. The appointment of
the agent shall terminate upon the expiration of thirty days after receipt of
the notice by the public regulation commission.
D. If the 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 fascimile, and
delivering to the public regulation commission 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."
Section 9. Section 53-8-12 NMSA 1978 (being Laws 1975,
Chapter 217, Section 12, as amended) is amended to read:
"53-8-12. BYLAWS.--
A. The initial bylaws of a corporation shall be
adopted by its board of directors. The
power to alter, amend or repeal the bylaws or adopt new bylaws shall be vested
in the board of directors unless otherwise provided in the articles of
incorporation or the bylaws. The bylaws
may contain any provisions for the regulation and management of the affairs of
a corporation not inconsistent with law or the articles of incorporation.
B. The initial bylaws and any subsequent bylaws
whether by amendment, repeal or new adoption shall be executed by two
authorized officers of the corporation.
The bylaws in effect for the corporation shall be maintained at the
corporation's principal office in New Mexico and shall be subject to inspection
and copying by the public. If the most
recently adopted bylaws are so maintained, they shall not be void,
notwithstanding any requirements of prior law.
The corporation may charge a reasonable fee for copying its bylaws, not
to exceed one dollar ($1.00) per page."
Section 10. Section 53-8-18 NMSA 1978 (being Laws 1975,
Chapter 217, Section 18, as amended) is amended to read:
"53-8-18. NUMBER AND ELECTION OF DIRECTORS.--
A. The number of directors of a corporation
shall be not less than three. Subject to
that limitation, the number of directors shall be fixed by, or determined in
the manner provided in, the articles of incorporation or the bylaws. The number of directors may be increased or
decreased from time to time by amendment to, or in the manner provided in, the
articles of incorporation or the bylaws, unless the articles of incorporation
provide that a change in the number of directors shall be made only by amendment
of the articles of incorporation. No
decrease in number shall have the effect of shortening the term of any
incumbent director. If the number of
directors is not fixed by, or determined in a manner provided in, the articles
of incorporation or the bylaws, the number shall be the same as that stated in
the articles of incorporation.
B. The directors constituting the first board of
directors shall be named in the articles of incorporation and shall hold office
until the first annual election of directors or for such other period as may be
specified in the articles of incorporation or the bylaws. Thereafter, directors shall be elected or
appointed in the manner and for the terms provided in the articles of incorporation
or the bylaws. In the absence of a
provision fixing the term of office, the term of office of a director shall be
one year.
C. Directors may be divided into classes and the
terms of office of the several classes need not be uniform. Each director shall hold office for the term
for which he is elected or appointed and until his successor is elected or
appointed and qualified.
D. A director may be removed from office
pursuant to any procedure provided in the articles of incorporation or the
bylaws."
Section 11. Section 53-8-31 NMSA 1978 (being Laws 1975,
Chapter 217, Section 31, as amended) is amended to read:
"53-8-31. ARTICLES OF INCORPORATION.--
A. The articles of incorporation shall set
forth:
(1) the name of the corporation;
(2) the period of duration, which may be
perpetual;
(3) the purpose for which the corporation is
organized;
(4) any provisions not inconsistent with law that
the incorporators elect to set forth in the articles of incorporation for the
regulation of the internal affairs of the corporation, including any provision
for distribution of assets on dissolution or final liquidation;
(5) the address of its initial registered office
and the name of its initial registered agent at such address;
(6) the names and addresses of the persons who
have consented to serve as the initial directors; and
(7) the name and address of each incorporator.
B. It is not necessary to set forth in the
articles of incorporation any of the corporate powers enumerated in the
Nonprofit Corporation Act.
C. Unless the articles of incorporation provide
that a change in the number of directors shall be made only by amendment to the
articles of incorporation, a change in the number of directors made by
amendment to the bylaws shall be controlling.
In all other cases, whenever a provision of the articles of
incorporation is inconsistent with a bylaw, the provision of the articles of
incorporation shall be controlling."
Section 12. 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.--
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. If the
commission finds that the articles of incorporation and the statement conform
to law, it 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; 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, shall be returned to the incorporators or their representative."
Section 13. Section 53-8-37 NMSA 1978 (being Laws 1975,
Chapter 217, Section 37) is amended to read:
"53-8-37. ARTICLES OF AMENDMENT.--The articles of
amendment shall be executed by the corporation by two authorized officers of
the corporation and shall set forth:
A. the name of the corporation;
B. the amendment so adopted;
C. if there are members entitled to vote
thereon:
(1) a statement setting forth the date of the
meeting of members at which the amendment was adopted, that a quorum was
present at the meeting and that the amendment received at least two-thirds of
the votes that members present at the meeting or represented by proxy were
entitled to cast; or
(2) a statement that the amendment was adopted by
a consent in writing signed by all members entitled to vote with respect
thereto; and
D. if there are no members, or no members
entitled to vote thereon, a statement of such fact, the date of the meeting of
the board of directors at which the amendment was adopted and a statement of
the fact that the amendment received the vote of a majority of the directors in
office."
Section 14. Section 53-8-38 NMSA 1978 (being Laws 1975,
Chapter 217, Section 38, as amended) is amended to read:
"53-8-38. EFFECTIVENESS OF AMENDMENT.--
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. If the commission finds that
the articles of amendment conform to law, it 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 in the office of the
commission; and
(3) issue a certificate of amendment to which
shall be affixed the copy.
B. The certificate of amendment, together with
the copy of the articles of amendment affixed thereto by the commission, shall
be returned to the corporation or its representative.
C. Unless the commission disapproves pursuant to
Subsection A of Section 53-8-91 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.
D. An amendment shall not affect any existing
cause of action in favor of or against the corporation, or any pending action
to which the corporation shall be a party or the existing rights of persons
other than members; and, in the event the corporate name shall be changed by
amendment, no action brought by or against the corporation under its former name
shall abate for that reason."
Section 15. Section 53-8-39 NMSA 1978 (being Laws 1975,
Chapter 217, Section 39) is amended to read:
"53-8-39. RESTATED ARTICLES OF INCORPORATION.--
A. A domestic corporation may at any time
restate its articles of incorporation as amended.
B. Upon approval by a majority of the directors
in office, restated articles of incorporation shall be executed in duplicate by
the corporation by two authorized officers of the corporation and shall set
forth:
(1) the name of the corporation;
(2) the period of its duration;
(3) the purpose or purposes that the corporation
is authorized to pursue; and
(4) any other provisions, not inconsistent with
law, that are then set forth in the articles of incorporation as amended,
except that it shall not be necessary to set forth in the restated articles of
incorporation the registered office of the corporation, its registered agent,
its directors or its incorporators.
C. The restated articles of incorporation shall
state that they correctly set forth the provisions of the articles of
incorporation as amended, that they have been duly approved as required by law
and that they supersede the original articles of incorporation and all
amendments thereto.
D. 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 restated articles of incorporation shall be delivered
to the commission. If the commission
finds that the restated articles conform to law, it 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 in the office of the
commission; and
(3) issue a restated certificate of incorporation
to which shall be affixed the copy.
E. The restated certificate of incorporation,
together with the copy of the restated articles of incorporation affixed
thereto by the commission, shall be returned to the corporation or its
representative.
F. Upon the issuance of the restated certificate
of incorporation by the commission, the restated articles of incorporation
shall become effective and shall supersede the original articles of
incorporation and all amendments thereto."
Section 16. Section 53-8-43 NMSA 1978 (being Laws 1975,
Chapter 217, Section 43) is amended to read:
"53-8-43. ARTICLES OF MERGER OR CONSOLIDATION.--
A. Upon approval, articles of merger or articles
of consolidation shall be executed by each corporation by two authorized
officers of the corporation, and shall set forth:
(1) the plan of merger or the plan of
consolidation;
(2) if the members of any merging or
consolidating corporation are entitled to vote thereon, then as to each
corporation:
(a) a statement setting forth the date of the
meeting of members at which the plan was adopted, that a quorum was present at
the meeting and that the plan received at least two-thirds of the votes that
members present at the meeting or represented by proxy were entitled to cast;
or
(b) a statement that such amendment was adopted
by a consent in writing signed by all members entitled to vote with respect
thereto; and
(3) if any merging or consolidating corporation
has no members, or no members entitled to vote thereon, then as to each
corporation a statement of that fact, the date of the meeting of the board of
directors at which the plan was adopted and a statement of the fact that the
plan received the vote of a majority of the directors in office.
B. 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 merger or articles of consolidation shall
be delivered to the commission. If the
commission finds that the articles conform to law, it 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 in the office of the
commission; and
(3) issue a certificate of merger or a
certificate of consolidation to which shall be affixed the copy.
C. The certificate of merger or certificate of
consolidation, together with the copy of the articles of merger or articles of
consolidation affixed thereto by the commission, shall be returned to the
surviving or new corporation or its representative."
Section 17. Section 53-8-51 NMSA 1978 (being Laws 1975,
Chapter 217, Section 51) is amended to read:
"53-8-51. ARTICLES OF DISSOLUTION.--If voluntary
dissolution proceedings have not been revoked, then when all debts, liabilities
and obligations of the corporation are paid and discharged, or adequate
provision has been made therefor, and all of the remaining property and assets
of the corporation are transferred, conveyed or distributed in accordance with
the provisions of the Nonprofit Corporation Act, articles of dissolution shall
be executed by the corporation by two authorized officers of the corporation,
which statement shall set forth:
A. the name of the corporation;
B. if there are members entitled to vote
thereon:
(1) a statement setting forth the date of the
meeting of members at which the resolution to dissolve was adopted, that a
quorum was present at the meeting and that the resolution received at least
two-thirds of the votes that members present at the meeting or represented by
proxy were entitled to cast; or
(2) a statement that the resolution was adopted
by a consent in writing signed by all members entitled to vote with respect
thereto;
C. if there are no members, or no members
entitled to vote thereon, a statement of such fact, the date of the meeting of
the board of directors at which the resolution to dissolve was adopted and a
statement of the fact that the resolution received the vote of a majority of
the directors in office;
D. that all debts, obligations and liabilities
of the corporation have been paid and discharged or that adequate provision has
been made therefor;
E. a copy of the plan of distribution, if any,
as adopted by the corporation or a statement that no plan was so adopted;
F. that all the remaining property and assets of
the corporation have been transferred, conveyed or distributed in accordance
with the provisions of the Nonprofit Corporation Act; and
G. that there are no suits pending against the
corporation in any court or that adequate provision has been made for the
satisfaction of any judgment, order or decree that may be entered against it in
any pending suit."
Section 18. Section 53-8-52 NMSA 1978 (being Laws 1975,
Chapter 217, Section 52) is amended to read:
"53-8-52. FILING OF ARTICLES OF DISSOLUTION.--
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 dissolution shall be delivered to the
commission. If the commission finds that
such articles of dissolution conform to law, it 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 in the office of the
commission; and
(3) issue a certificate of dissolution to which
shall be affixed the copy.
B. The certificate of dissolution, together with
the 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 a certificate of
dissolution, the existence of the corporation shall cease, except for the
purpose of suits, other proceedings and appropriate corporate action by
members, directors and officers as provided in the Nonprofit Corporation
Act."
Section 19. Section 53-8-53 NMSA 1978 (being Laws 1975,
Chapter 217, Section 53) is amended to read:
"53-8-53. REVOCATION OF CERTIFICATE OF INCORPORATION.--
A. The certificate of incorporation of a
corporation to conduct affairs in New Mexico may be revoked by the commission
upon the conditions prescribed in this section when:
(1) the corporation has failed to file its annual
report within the time required by the Nonprofit Corporation Act or has failed
to pay any fees or penalties prescribed by that act when they have become due
and payable;
(2) the certificate of incorporation of the
corporation was procured through fraud practiced upon the state;
(3) the corporation has continued to exceed or
abuse the authority conferred upon it by the Nonprofit Corporation Act; or
(4) a misrepresentation has been made of any
material matter in any application, report, statement or other document
submitted by the corporation pursuant to the Nonprofit Corporation Act.
B. A certificate of incorporation of a
corporation shall not be revoked by the commission unless:
(1) the commission has given the corporation not
less than sixty days' notice thereof by mail addressed to the corporation's
mailing address as shown in the most recent corporate report filed with the
commission; and
(2) the corporation fails prior to revocation to
file an annual report, pay fees or penalties,
file articles of amendment or articles of merger or correct a material
misrepresentation in a document submitted by the corporation pursuant to the
Nonprofit Corporation Act."
Section 20. Section 53-8-54 NMSA 1978 (being Laws 1975,
Chapter 217, Section 54, as amended) is amended to read:
"53-8-54. ISSUANCE OF CERTIFICATE OF REVOCATION.--
A. Upon revoking a certificate of incorporation,
the commission shall:
(1) issue a certificate of revocation in
duplicate;
(2) file one of the certificates in its office;
and
(3) mail to the corporation at the corporation's
mailing address as shown in the most recent corporate report filed with the
commission a notice of the revocation accompanied by one of the certificates.
B. Upon the issuance of a certificate of
revocation, the authority of the corporation to conduct affairs in New Mexico
ceases.
C. A corporation administratively revoked under
Section 53-8-53 NMSA 1978 may apply to the commission for reinstatement within two
years after the effective date of revocation.
The application shall:
(1) recite the name of the corporation and the
effective date of its administrative revocation;
(2) state that the ground or grounds for
revocation either did not exist or have been eliminated; and
(3) state that the corporation's name satisfies
the requirements of Section 53-8-7 NMSA 1978.
D. If the commission determines that the
application contains the information required by Subsection C of this section
and that the information is correct, it shall cancel the certificate of
revocation and prepare a certificate of reinstatement that recites its
determination and the effective date of reinstatement, file the original of the
certificate and serve a copy on the corporation.
E. When the reinstatement is effective, it
relates back to and takes effect as of the effective date of the administrative
revocation and the corporation resumes carrying on its business as if the
administrative revocation had never occurred."
Section 21. Section 53-8-68 NMSA 1978 (being Laws 1975,
Chapter 217, Section 68, as amended) is amended to read:
"53-8-68. APPLICATION FOR CERTIFICATE OF AUTHORITY.--
A. A foreign corporation, in order to procure a
certificate of authority to conduct affairs in New Mexico, shall make
application 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) the date of incorporation and the period of
duration of the corporation;
(3) the address of the 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 from
the address of the registered office;
(4) the address of the proposed registered office
of the corporation in New Mexico and the name of its proposed registered agent
in this state at such address;
(5) the purpose or purposes of the corporation
that it proposes to pursue in conducting its affairs in New Mexico;
(6) the names and respective addresses of the
directors and officers of the corporation; and
(7) such additional information as may be
necessary or appropriate in order to enable the commission to determine whether
the corporation is entitled to a certificate of authority to conduct affairs in
New Mexico. B. The application shall be made on forms
prescribed by the commission, or on forms containing substantially the same
information as forms prescribed by the commission, and shall be executed by the
corporation by two authorized officers of the corporation."
Section 22. Section 53-8-69 NMSA 1978 (being Laws 1975,
Chapter 217, Section 69, as amended) is amended to read:
"53-8-69. FILING OF APPLICATION FOR CERTIFICATE OF
AUTHORITY.--
A. The following documents shall be delivered to
the commission:
(1) an original of the application of the
corporation for a certificate of authority and 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;
(2) 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; and
(3) a copy of whichever statement is filed
pursuant to Paragraph (2) of this subsection, which may be a photocopy of the
original after it was signed or a photocopy that is conformed to the original.
B. If the commission finds that the application
and the affidavit conform to law, it 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 in the office of the commission the
original of the application and the statement; and
(3) issue a certificate of authority to conduct
affairs in New Mexico to which shall be affixed the application copy.
C. The certificate of authority, together with
the application affixed thereto by the commission, shall be returned to the
corporation or its representative."
Section 23. Section 53-8-72 NMSA 1978 (being Laws 1975,
Chapter 217, Section 72, as amended) is amended to read:
"53-8-72. CHANGE OF REGISTERED OFFICE OR REGISTERED
AGENT OF FOREIGN CORPORATION.--
A. A foreign corporation authorized to conduct
affairs in New Mexico 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 registered agent;
(5) if its registered agent is changed:
(a) the name of its successor registered agent;
and
(b) a statement executed by the successor
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 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 office of its registered agent, as changed, will be
identical.
B. Such statement shall be executed by the
corporation by an authorized officer of the corporation and delivered to the
commission. If the commission finds that
such statement conforms to the provisions of the Nonprofit 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, shall become effective.
C. A registered agent in New Mexico appointed by
a foreign corporation may resign as agent upon filing an originally executed
notice and a copy, which may be a photocopy of the original after it was signed
or a photocopy that is conformed to the original, with the commission, which
shall mail a copy to the foreign corporation at its principal office in the
state or country under the laws of which it is incorporated as shown by its
most recent annual report. The appointment
of an agent shall terminate upon the expiration of thirty days after receipt of
such notice by the commission.
D. If a registered agent changes its business
address to another place within the same county, it may change such address and
the address of the registered office of any corporations of which it is the
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 the
provisions of Paragraphs (5) and (7) of Subsection A of this section and must recite
that a copy of the statement has been mailed to each such corporation."
Section 24. Section 53-8-76 NMSA 1978 (being Laws 1975,
Chapter 217, Section 76) is amended to read:
"53-8-76. AMENDED CERTIFICATE OF AUTHORITY.--
A. A foreign corporation authorized to conduct
affairs in New Mexico shall procure an amended certificate of authority in the
event it changes its corporate name or desires to pursue in New Mexico other or
additional purposes than those set forth in its prior application for a certificate
of authority by making application therefor to the commission.
B. The requirements in respect to the form and
contents of the application, the manner of its execution, the filing of 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, with the commission,
the issuance of an amended certificate of authority and the effect thereof
shall be the same as in the case of an original application for a certificate
of authority."
Section 25. Section 53-8-77 NMSA 1978 (being Laws 1975,
Chapter 217, Section 77) is amended to read:
"53-8-77. WITHDRAWAL OF FOREIGN CORPORATION.--
A. A foreign corporation authorized to conduct
affairs in New Mexico 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 conducting
affairs in New Mexico;
(3) that the corporation surrenders its authority
to conduct affairs in New Mexico;
(4) that the corporation revokes the authority of
its registered agent in New Mexico 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 conduct affairs in this state may thereafter be made on the corporation by
service thereof on the secretary of state; and
(5) a post office address to which the commission
may mail a copy of any process against the corporation that may be served on
it.
B. The application for withdrawal shall be made
on forms prescribed and furnished by the commission and shall be executed by
the corporation by two authorized officers of the corporation 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."
Section 26. Section 53-8-78 NMSA 1978 (being Laws 1975,
Chapter 217, Section 78) is amended to read:
"53-8-78. FILING OF APPLICATION FOR WITHDRAWAL.-- 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 application for withdrawal shall be delivered to the
commission. If the commission finds that
the application conforms to the provisions of the Nonprofit Corporation Act, it
shall, when all fees have been paid as prescribed in that 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 in the office of the
commission; and
(3) issue a certificate of withdrawal to which
shall be affixed the copy.
B. The certificate of withdrawal, together with
the 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 conduct affairs in New Mexico
shall cease."
Section 27. Section 53-8-79 NMSA 1978 (being Laws 1975,
Chapter 217, Section 79, as amended) is amended to read:
"53-8-79. REVOCATION OF CERTIFICATE OF AUTHORITY.--
A. The certificate of authority of a foreign
corporation to conduct affairs in New Mexico may be revoked by the commission
upon the conditions prescribed in this section when:
(1) the corporation has failed to file its annual
report within the time required by the Nonprofit Corporation Act or has failed
to pay any fees or penalties prescribed by that act when they have become due and
payable;
(2) the corporation has failed to appoint and
maintain a registered agent in New Mexico as required by the Nonprofit
Corporation Act;
(3) the corporation has failed, after change of
its registered agent, to file in the office of the commission a statement of
such change as required by the Nonprofit Corporation Act;
(4) the corporation has failed to file in the
office of the commission any amendment to its articles of incorporation or any
articles of merger within the time prescribed by the Nonprofit Corporation Act;
(5) the certificate of authority of the
corporation was procured through fraud practiced upon the state;
(6) the corporation has continued to exceed or
abuse the authority conferred upon it by the Nonprofit Corporation Act; or
(7) a misrepresentation has been made of any
material matter in an application, report, affidavit or other document
submitted by the corporation pursuant to the Nonprofit Corporation Act.
B. A certificate of authority of a foreign
corporation shall not be revoked by the commission unless:
(1) the commission has given the corporation not
less than sixty days' notice thereof by mail addressed to the corporation's
mailing address shown in the most recent annual report filed with the
commission; and
(2) the corporation fails prior to revocation to
file an annual report, or pay fees or penalties, or file the required statement
of change of registered agent, or file articles of amendment or articles of
merger, or correct such misrepresentation pursuant to the Nonprofit Corporation
Act."
Section 28. Section 53-8-80 NMSA 1978 (being Laws 1975,
Chapter 217, Section 80, as amended) is amended to read:
"53-8-80. ISSUANCE OF CERTIFICATE OF REVOCATION.--
A. Upon revoking a certificate of authority, the
commission shall:
(1) issue a certificate of revocation in
duplicate;
(2) file one of the certificates in its office;
and
(3) mail to the corporation at the corporation's
mailing address as shown in the most recent annual report filed with the
commission, a notice of the revocation accompanied by one of the certificates.
B. Upon the issuance of a certificate of
revocation, the authority of the corporation to conduct affairs in New Mexico
ceases."
Section 29. Section 53-8-85 NMSA 1978 (being Laws 1975,
Chapter 217, Section 85, as amended) is amended to read:
"53-8-85. FEES FOR FILING DOCUMENTS AND ISSUING
CERTIFICATES.--The public regulation commission shall charge and collect for:
A. filing articles of incorporation and issuing
a certificate of incorporation, twenty-five dollars ($25.00);
B. filing articles of amendment and issuing a
certificate of amendment, twenty dollars ($20.00);
C. filing restated articles of incorporation and
issuing a restated certificate of incorporation, twenty dollars ($20.00);
D. filing articles of merger or consolidation
and issuing a certificate of merger or consolidation, twenty dollars ($20.00);
E. filing a statement of change of address of
registered office or change of registered agent, or both, ten dollars ($10.00);
F. filing an agent's statement of change of
address of registered agent for each affected corporation, ten dollars
($10.00);
G. filing articles of dissolution, ten dollars
($10.00);
H. filing an application of a foreign
corporation for a certificate of authority to conduct affairs in New Mexico and
issuing a certificate of authority, twenty-five dollars ($25.00);
I. filing an application of a foreign
corporation for an amended certificate of authority to conduct affairs in New
Mexico and issuing an amended certificate of authority, twenty dollars
($20.00);
J. filing an application to reserve a
corporation name or filing a notice to transfer of a reserved corporate name,
ten dollars ($10.00);
K. filing a copy of articles of merger of a
foreign corporation holding a certificate of authority to conduct affairs in
New Mexico, twenty-five dollars ($25.00);
L. filing an application for withdrawal of a
foreign corporation and issuing a certificate of withdrawal, ten dollars
($10.00);
M. filing any other statement or report,
including an annual report, of a domestic or foreign corporation, ten dollars
($10.00);
N. issuing a certificate of good standing and
compliance, ten dollars ($10.00); and
O. issuing a letter or reinstatement of a
domestic or foreign corporation, a fee of twenty-five dollars ($25.00)."
Section 30. Section 53-11-12 NMSA 1978 (being Laws 1967,
Chapter 252, Section 3, as amended) is amended to read:
"53-11-12. FAILURE TO APPOINT AND MAINTAIN REGISTERED
AGENT--PENALTY--REINSTATEMENT.--
A. If a corporation fails for a period of thirty
days to file the corporate reports required pursuant to Section 53-5-2 NMSA
1978 or to appoint and maintain a registered agent in this state or has failed
for thirty days after change of its registered office or registered agent to
file in the office of the commission a statement of the change, the commission
shall notify the corporation of its delinquency by letter to the corporation's
principal office. If the delinquency is
not corrected within sixty days from the date the letter is mailed, the
commission shall issue a certificate of revocation that recites the grounds for
revocation and its effective date.
B. A corporation administratively revoked
pursuant to this section may apply to the commission for reinstatement within
two years after the effective date of revocation. The application shall:
(1) recite the name of the corporation and the
effective date of its administrative revocation;
(2) state that the ground or grounds for
revocation either did not exist or have been eliminated; and
(3) state that the corporation's name satisfies
the requirements of Section 53-11-7 NMSA 1978.
C. If the commission determines that the
application contains the information required by Subsection B of this section
and that the information is correct, it shall cancel the certificate of
revocation and prepare a certificate of reinstatement that recites its
determination and the effective date of reinstatement, file the original of the
certificate and serve a copy on the corporation.
D. When the reinstatement is effective, it
relates back to and takes effect as of the effective date of the administrative
revocation and the corporation resumes carrying on its business as if the
administrative revocation had never occurred."
Section 31. 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 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 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. 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 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. The commission shall mail a
copy immediately to the corporation at its principal place of business as shown
on the records of the commission. The
appointment of the resigning agent shall terminate upon the expiration of
thirty days after receipt of the notice by the commission.
D. If a registered agent changes his business
address to another place within the same county, he may change the address and
the address of the registered office of any corporation of which he 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 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."
Section 32. Section 53-11-16 NMSA 1978 (being Laws 1967,
Chapter 81, Section 15, as amended) is amended to read:
"53-11-16. ISSUANCE OF SHARES OF PREFERRED OR SPECIAL
CLASSES IN SERIES.--
A. If the articles of incorporation so provide,
the shares of any preferred or special class may be divided into and issued in
series. If the shares of any such class
are to be issued in series, then each series shall be so designated as to
distinguish the shares thereof from the shares of all other series and
classes. Any or all of the series of any
such class and the variations in the relative rights and preferences as between
different series may be fixed and determined by the articles of incorporation,
but all shares of the same class shall be identical except as to the following
relative rights and preferences, as to which there may be variations between
different series:
(1) the rate of dividend;
(2) whether shares may be redeemed and, if so,
the redemption price and the terms and conditions of redemption;
(3) the amount payable upon shares in event of
voluntary and involuntary liquidation;
(4) sinking fund provisions, if any, for the
redemption or purchase of shares;
(5) the terms and conditions, if any, on which
shares may be converted; and
(6) voting rights, if any.
B. If the articles of incorporation expressly
vest authority in the board of directors, then to the extent that the articles
of incorporation have not established series and fixed and determined the
variations in the relative rights and preferences as between series, the board
of directors may divide any or all of such classes into series and, within the
limitations set forth in this section and in the articles of incorporation, fix
and determine the relative rights and preferences of the shares of any series
so established.
C. In order for the board of directors to
establish a series, where authority to do so is contained in the articles of
incorporation, the board of directors shall adopt a resolution setting forth
the designation of the series and fixing and determining the relative rights
and preferences thereof, or so much thereof as are not fixed and determined by
the articles of incorporation.
D. Prior to the issue of any shares of a series
established by resolution adopted by the board of directors, the corporation
shall file in the office of the commission a statement setting forth:
(1) the name of the corporation;
(2) a copy of the resolution establishing and
designating the series, and fixing and determining the relative rights and
preferences thereof;
(3) the date of adoption of the resolution; and
(4) that the resolution was duly adopted by the
board of directors.
E. An original of the statement and a copy,
which may be a photocopy of the original after it was signed or a photocopy
that is conformed to the original, shall be executed by an authorized officer
of the corporation and shall be delivered to the commission. If the commission finds that the statement
conforms to law, it 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 in its office; and
(3) return the copy to the corporation or its
representative.
F. Upon the filing of such statement by the
commission, the resolution establishing and designating the series and fixing
and determining the relative rights and preferences thereof shall become
effective and constitute an amendment of the articles of incorporation."
Section 33. Section 53-11-36 NMSA 1978 (being Laws 1967,
Chapter 81, Section 35, as amended) is amended to read:
"53-11-36. NUMBER AND ELECTION OF DIRECTORS.--The number
of directors of a corporation shall consist of one or more members. The number of directors shall be fixed by, or
in the manner provided in, the articles of incorporation or the bylaws. The number of directors may be increased or
decreased from time to time by amendment to, or in the manner provided in, the
articles of incorporation or the bylaws, but no decrease shall have the effect
of shortening the term of any incumbent director. If the number of directors is not fixed by,
or in the manner provided in, the bylaws or the articles of incorporation, the
number shall be the same as the number of directors constituting the initial
board of directors. The names and
addresses of the members of the first board of directors shall be stated in the
articles of incorporation. Such persons
shall hold office until the first annual meeting of shareholders and until
their successors have been elected and qualified. At the first annual meeting of shareholders
and at each annual meeting thereafter, the shareholders shall elect directors
to hold office until the next succeeding annual meeting, except in case of the
classification of directors as permitted by the Business Corporation Act. Each director shall hold office for the term
for which the director is elected and until a successor has been elected and
qualified."
Section 34. Section 53-12-1 NMSA 1978 (being Laws 1967,
Chapter 81, Section 49) is amended to read:
"53-12-1. INCORPORATORS.--One or more persons or a
domestic or foreign corporation may act as incorporator of a corporation by
signing and delivering 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,
to the commission of articles of incorporation for the corporation."
Section 35. Section 53-12-2 NMSA 1978 (being Laws 1967,
Chapter 81, Section 50, as amended) is amended to read:
"53-12-2. ARTICLES OF INCORPORATION.--
A. The articles of incorporation shall set
forth:
(1) the name of the corporation;
(2) the period of duration, if other than
perpetual;
(3) the purpose for which the corporation is
organized, which may include the transaction of any lawful business for which
corporations may be incorporated under the Business Corporation Act;
(4) the aggregate number of shares that the
corporation has authority to issue and, if the shares are to be divided into
classes, the number of shares of each class;
(5) if the shares are to be divided into classes,
the designation of each class and a statement of the preferences, limitations
and relative rights in respect of the shares of each class;
(6) if the corporation is to issue the shares of
any preferred or special class in series, the designation of each series and a
statement of the variations in the relative rights and preferences as between
series, insofar as they are to be fixed in the articles of incorporation and a
statement of any authority to be vested in the board of directors to establish
series and fix and determine the variations in the relative rights and
preferences as between series;
(7) any provision limiting or denying to shareholders
the preemptive right to acquire unissued shares or securities convertible into
such shares or carrying a right to subscribe to or acquire shares;
(8) the address of its initial registered office
and the name of its initial registered agent at the address;
(9) the names and addresses of the persons who
have consented to serve as directors until the first annual meeting of
shareholders or until their successors are elected and qualify; and
(10) the name and address of each incorporator.
B. In addition to provisions required therein,
the articles of incorporation may also contain provisions not inconsistent with
law regarding:
(1) the direction of the management of the
business and the regulation of the affairs of the corporation;
(2) the definition, limitation and regulation of
the powers of the corporation, the directors and the shareholders, or any class
of the shareholders, including restrictions on the transfer of shares;
(3) the minimum consideration for any authorized
shares or class of shares; and
(4) any provision that, under the Business
Corporation Act, is required or permitted to be set forth in the bylaws.
C. It is not necessary to set forth in the
articles of incorporation any of the corporate powers enumerated in the
Business Corporation Act.
D. The articles of incorporation may set forth
any provision that the incorporators elect to set forth for the regulation of
the internal affairs of the corporation.
E. The articles of incorporation may provide
that a director shall not be personally liable to the corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director
unless:
(1) the director has breached or failed to
perform the duties of the director's office in compliance with Subsection B of
Section 53-11-35 NMSA 1978; and
(2) the breach or failure to perform constitutes:
(a) negligence, willful misconduct or
recklessness in the case of a director who has either an ownership interest in
the corporation or receives as a director or as an employee of the corporation
compensation of more than two thousand dollars ($2,000) from the corporation in
any calendar year; or
(b) willful misconduct or recklessness in the
case of a director who does not have an ownership interest in the corporation
and does not receive as director or as an employee of the corporation
compensation of more than two thousand dollars ($2,000) from the corporation in
any calendar year.
Such a provision in the
articles of incorporation shall, however, only eliminate the liability of a
director for action taken as a director or any failure to take action as a
director at meetings of the board of directors or of a committee of the board
of directors or by virtue of action of the directors without a meeting pursuant
to Section 53-11-43 NMSA 1978, on or after the date when such provision in the
articles of incorporation becomes effective."
Section 36. 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. 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. If the commission finds
that the articles of incorporation and the statement conform to law, it 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
office; and
(3) issue a certificate of incorporation to which
it 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 to the incorporators or their
representative."
Section 37. 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.--
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. If the commission finds that
the articles of amendment conform to law, it 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 office; and
(3) issue a certificate of amendment to which it
shall affix the copy.
B. The certificate of amendment, together with
the duplicate original of the articles of amendment affixed thereto by the
commission, shall be returned to the corporation or its representative."
Section 38. 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 that has or has not commenced business and has not issued any
shares may be voluntarily dissolved by its incorporators in the following
manner:
A. articles of dissolution shall be executed by
a majority of the incorporators 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 or 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. the original of the articles of dissolution
together with a copy, which may be 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 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 office; and
(3) issue a certificate of dissolution to which
it shall affix the file-stamped copy; and
C. the certificate of dissolution, together with
the file-stamped copy of the articles of dissolution affixed to it, shall be
returned by the commission 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 39. Section 53-16-4 NMSA 1978 (being Laws 1967,
Chapter 81, Section 82, as amended) is amended to read:
"53-16-4. FILING STATEMENT OF INTENT TO DISSOLVE.--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 statement of
intent to dissolve, whether by consent of shareholders or by act of the
corporation, shall be delivered to the commission. If the commission finds that the statement
conforms to law, it shall:
A. endorse on the original and copy the word
"filed" and the month, day and year of the filing;
B. file the original in its office; and
C. return the copy to the corporation or its
representative."
Section 40. Section 53-16-9 NMSA 1978 (being Laws 1967,
Chapter 81, Section 87, as amended) is amended to read:
"53-16-9. FILING STATEMENT OF REVOCATION OF VOLUNTARY
DISSOLUTION PROCEEDINGS.--An original of the statement of revocation of
voluntary dissolution proceedings, whether by consent of shareholders or by act
of the corporation, together with a copy, which may be signed, photocopied or
conformed, shall be delivered to the commission. If the commission finds that the statement
conforms to law, it shall, when all fees have been paid:
A. endorse on the original and copy the word
"filed" and the month, day and year of the filing;
B. file the original in its office; and
C. return the file-stamped copy to the
corporation or its representative."
Section 41. Section 53-16-12 NMSA 1978 (being Laws 1967,
Chapter 81, Section 90, as amended) is amended to read:
"53-16-12. FILING OF ARTICLES OF DISSOLUTION.--
A. An original of articles of dissolution
together with a copy, which may be 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 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 office; and
(3) issue a certificate of dissolution to which
it shall affix the file-stamped copy.
B. The certificate of dissolution, together with
the file-stamped copy of the articles of dissolution
affixed to it, shall be returned by the commission 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 42. 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 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 that 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 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 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
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 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 that will be
transacted by it during its current fiscal year, wherever transacted;
(c) the value of all property to be owned by it
and located in the state during its current fiscal year; and
(d) the value of all property to be owned by it
during 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 payable.
B. The application shall be made on forms prescribed
by the commission or on forms containing substantially the same information as
forms prescribed by the commission and shall be executed by the corporation by
an authorized officer of the corporation."
Section 43. 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 public regulation
commission 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
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 changed:
(a) the name of its successor registered agent;
and
(b) a statement executed by the successor
registered agent acknowledging his 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. 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, shall become effective.
C. A registered agent of a foreign corporation
may resign as agent upon filing a written notice of resignation with the public regulation commission, which shall mail
immediately a copy of it 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 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 for filing a statement that
complies with the requirements of this section but need not be responsive to
Paragraph (5) of Subsection A of this section and recites that the corporation
has been notified of the change."
Section 44. Section 53-17-14 NMSA 1978 (being Laws 1967,
Chapter 81, Section 115) is amended to read:
"53-17-14. AMENDED CERTIFICATE OF AUTHORITY.--A foreign
corporation authorized to transact business in this state shall procure an
amended certificate of authority in the event it changes its corporate name or
desires to pursue in this state other or additional purposes than those set
forth in its prior application for a certificate of authority by making
application therefor to the commission.
The requirements in respect to the form and contents of the application,
the manner of its execution, the filing of 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, with the commission, the issuance of an amended
certificate of authority and the effect thereof shall be the same as in the
case of an original application for a certificate of authority."
Section 45. 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) a statement that the corporation is not
transacting business in this state;
(3) a statement that the corporation surrenders
its authority to transact business in this state;
(4) a statement 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 an action, suit or proceeding
based upon a 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 a process against the corporation that may be served on it;
(6) a statement of the aggregate number of shares
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 payable by the foreign corporation.
B. The application for withdrawal shall be made
on forms prescribed by the commission or on forms containing substantially the
same information as forms prescribed by the commission and shall be executed by
the corporation by an authorized officer of the corporation 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."
Section 46. Section 53-17-16 NMSA 1978 (being Laws 1967,
Chapter 81, Section 117, as amended) is amended to read:
"53-17-16. FILING OF APPLICATION FOR WITHDRAWAL.--
A. An original of an application for
withdrawal together with a copy, which may be 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 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 office; and
(3) issue a certificate of withdrawal to which it
shall affix the file-stamped copy.
B. The certificate of withdrawal, together with
the file-stamped copy of the application for
withdrawal affixed to it, shall be returned by the commission 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."
Section 47. Section 53-17-17 NMSA 1978 (being Laws 1967,
Chapter 81, Section 118, as amended) is amended to read:
"53-17-17. REVOCATION OF CERTIFICATE OF AUTHORITY.--
A. The certificate of authority of a foreign
corporation to transact business in this state may be revoked by the commission
upon the conditions prescribed in this section when:
(1) the corporation has failed to file its annual
report timely or has failed to pay any fees or penalties thereon when they
became due;
(2) the corporation has failed to appoint and
maintain a registered agent in this state as required by the Business
Corporation Act;
(3) the corporation has failed, after change of
its registered office or registered agent, to file in the office of the commission
a statement of the change as required by the Business Corporation Act;
(4) the corporation has failed to file in the
office of the commission any amendment to its articles of incorporation or any
articles of merger within the time prescribed by the Business Corporation Act;
or
(5) a misrepresentation has been made of any
material matter in an application, report, affidavit or other document
submitted by the corporation pursuant to the Business Corporation Act.
B. A certificate of authority of a foreign
corporation shall not be revoked by the commission unless:
(1) it has given the corporation not less than
sixty days' notice thereof by mail addressed to the corporation's mailing
address as shown in the most recent annual report filed with the commission;
and
(2) the corporation fails, prior to revocation,
to file the annual report or pay the fees or penalties or file the required
statement of change of registered agent or registered office or file the
articles of amendment or articles of merger or correct the
misrepresentation."
Section 48. Section 53-17-18 NMSA 1978 (being Laws 1967,
Chapter 81, Section 119, as amended) is amended to read:
"53-17-18. ISSUANCE OF CERTIFICATE OF
REVOCATION--REINSTATEMENT.--
A. Upon revoking a certificate of authority, the
commission shall:
(1) issue a certificate of revocation in
duplicate;
(2) file one of the certificates in its office;
and
(3) mail a notice of revocation accompanied by
one of the certificates to the corporation at the corporation's mailing address
as shown in the most recent annual report filed with the commission.
B. Upon the issuance of the certificate of
revocation, the authority of the corporation to transact business in this state
shall cease.
C. A corporation administratively revoked under
Section 53-17-17 NMSA 1978 may apply to the commission for reinstatement within
two years after the effective date of revocation. The application shall:
(1) recite the name of the corporation and the
effective date of its administrative revocation;
(2) state that the ground or grounds for
revocation either did not exist or have been eliminated; and
(3) state that the corporation name satisfies the
requirements of Section 53-17-3 NMSA 1978.
D. If the commission determines that the
application contains the information required by Subsection C of this section
and that the information is correct, it shall cancel the certificate of
revocation and prepare a certificate of reinstatement that recites its
determination and the effective date of reinstatement, file the original of the
certificate and serve a copy on the corporation.
E. When the reinstatement is effective, it
relates back to and takes effect as of the effective date of the administrative
revocation and the corporation resumes carrying on its business as if the
administrative revocation had never occurred."
Section 49. Section 53-19-4 NMSA 1978 (being Laws 1993,
Chapter 280, Section 4) is amended to read:
"53-19-4. RESERVATION OF NAME.--
A. The exclusive right to use a name may be
reserved by:
(1) a person intending to organize a limited
liability company and to adopt that name;
(2) a limited liability company or a foreign
limited liability company registered in New Mexico that intends to adopt that
name;
(3) a foreign limited liability company intending
to register in New Mexico and to adopt that name; or
(4) a person intending to organize a foreign
limited liability company and to have it registered in New Mexico and to adopt
that name.
B. The reservation shall be made by filing with
the commission an application executed by the applicant to reserve a specified
name. If the commission finds that the
name is available for use by a domestic or foreign limited liability company,
it shall reserve the name for the exclusive use of the applicant for a period
of one hundred twenty days after the date the application is filed with the
commission.
C. The right to the exclusive use of a reserved
name may be transferred to another person by filing with the commission a notice
of the transfer executed by the applicant for whom the name was reserved and
specifying the name to be transferred and the name and address of the
transferee. The transfer shall not
extend the term during which the name is reserved."
Section 50. Section 53-19-5 NMSA 1978 (being Laws 1993,
Chapter 280, Section 5) is amended to read:
"53-19-5. REGISTERED OFFICE AND REGISTERED
AGENT--CHANGE OF PRINCIPAL PLACE OF BUSINESS.--
A. A limited liability company shall maintain in
New Mexico:
(1) a registered office that may be the same as
the limited liability company's principal place of business; and
(2) a registered agent for service of process on
the limited liability company that is either:
(a) an individual resident of New Mexico;
(b) a domestic corporation, limited liability
company or partnership having a place of business in New Mexico that is the
same as the registered office; or
(c) a foreign corporation, limited liability
company or partnership authorized to transact business in New Mexico having a
place of business that is the same as the registered office.
B. A limited liability company may change its
registered office or registered agent by delivering to the commission a
statement setting forth:
(1) the name of the limited liability company;
(2) the name of its current registered agent;
(3) the street address of its current registered
office; and
(4) if its current registered agent is to be
changed:
(a) the name of its successor registered agent;
(b) the street address of the successor
registered agent's place of business;
(c) a statement that such address is the same as
the current address of the limited liability company's current registered
office or, if there is a concurrent change in the address of the registered
office, as the new address of the registered office; and
(d) the statement of the successor registered
agent that the agent accepts the appointment;
(5) if the current address of the place of
business of its current registered agent is to be changed, the new street
address of the place of business of the current registered agent and a
statement that the new street address is the same as the address of the limited
liability company's registered office or, if there is a concurrent change in
the address of the registered office, as the new street address of the registered
office; or
(6) if the address of its current registered
office is to be changed, the new street address to which the current registered
office is to be changed and a statement that the new address is the same as the
street address of the place of business of the current or, if there is a
concurrent change of the current registered agent, of the successor registered
agent of the limited liability company.
C. 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 limited liability
company corporation for which the registered agent is the registered agent by
notifying the limited liability company in writing of the change and signing,
either manually or in facsimile, and delivering to the public regulation
commission for filing a statement that complies with the requirements of this
section but need not be responsive to Paragraph (4) of Subsection B of this
section and recites that the corporation has been notified of the change.
D. If the public regulation commission finds
that the statement conforms to the provisions of this section, it shall file
the statement in its office and, upon such filing, the change of registered
agent, change of address of the registered office or change of the registered
agent's place of business shall become effective and fulfill any requirement
that such change be reported to the commission.
E. A registered agent of a limited liability
company may resign as registered agent by delivering a written notice, executed
in duplicate, to the public regulation commission, which shall mail a copy of
the notice to the limited liability company at its principal place of business
as shown on the records of the commission.
The resigning registered agent's appointment terminates thirty days
after receipt of the notice by the commission or on the effective date of the
appointment of a successor registered agent, whichever occurs first.
F. A limited liability company shall notify the
public regulation commission of a change in the street address of its principal
place of business by delivering a written statement to the commission setting
forth such change."
Section 51. Section 53-19-8 NMSA 1978 (being Laws 1993,
Chapter 280, Section 8, as amended) is amended to read:
"53-19-8. ARTICLES OF ORGANIZATION.--The articles of
organization shall set forth:
A. a name for the limited liability company that
satisfies the requirements of Section 53-19-3 NMSA 1978;
B. the street address of the initial registered
office and the name of the initial registered agent at that address and the
street address of the limited liability company's current principal place of
business, if different from the address of its registered office;
C. the period of duration, if other than
perpetual;
D. if management of the limited liability
company is vested to any extent in a manager, a statement to that effect;
E. if the limited liability company may carry on
its business and affairs as a single member limited liability company, a
statement to that effect; and
F. any other provision that the persons signing
the articles choose to include in the articles, including provisions for the
regulation of the internal affairs of the limited liability company."
Section 52. Section 53-19-9 NMSA 1978 (being Laws 1993,
Chapter 280, Section 9, as amended) is amended to read:
"53-19-9. FILING.--
A. The organizer or organizers of a limited
liability company shall file with the commission:
(1) the signed original of the articles of
organization, together with a duplicate copy, which may be either signed,
photocopied or conformed;
(2) the statement of the person appointed
registered agent, accepting appointment as registered agent; and
(3) any other documents required to be filed
pursuant to the Limited Liability Company Act.
B. The commission may accept a facsimile
transmission for filing.
C. If the commission determines that the
documents delivered for filing conform with the provisions of the Limited
Liability Company Act, it shall, when all required filing fees have been paid:
(1) endorse on each signed original and duplicate
copy the word "filed" and the date of its acceptance for filing;
(2) retain a signed original in the files of the
commission; and
(3) return each duplicate copy to the person who
delivered it to the commission or to that person's representative."
Section 53. Section 53-19-39 NMSA 1978 (being Laws 1993,
Chapter 280, Section 39, as amended) is amended to read:
"53-19-39. DISSOLUTION.--
A. A limited liability company is dissolved upon
the happening of any of the following events:
(1) an event specified in the articles of
organization or an operating agreement;
(2) except as otherwise provided in the articles
of organization or an operating agreement, upon the written consent of members
having a majority share of the voting power of all members; or
(3) entry of a decree of judicial dissolution
pursuant to Section 53-19-40 NMSA 1978.
B. On the dissolution of the limited liability
company, the limited liability company shall cease to carry on its business and
affairs, except insofar as necessary for winding up the company's business and
affairs, but its legal existence shall continue until all its business and
affairs are wound up."
Section 54. Section 53-19-48 NMSA 1978 (being Laws 1993,
Chapter 280, Section 48, as amended) is amended to read:
"53-19-48. REGISTRATION.--Before transacting business in
New Mexico, a foreign limited liability company shall register with the
commission by submitting an original signed application for registration as a
foreign limited liability company, together with a copy, which may be a
photocopy of the original after it was signed or a photocopy that is conformed
to the original, executed by a person with authority to do so under the laws of
the state or other jurisdiction of its organization and a certificate of good
standing and compliance issued by the appropriate official of the state or
jurisdiction under the laws of which the organization is organized, current
within thirty days and that has not expired at time of receipt by the
commission. The application shall set
forth:
A. the name of the foreign limited liability
company and, if different, the name under which it proposes to transact
business in New Mexico;
B. the state or other jurisdiction where the
foreign limited liability company was organized and the date of its organization;
C. the name and address of a registered agent
for service of process, which agent meets the requirements of Section 53-19-5
NMSA 1978, whose original, signed statement, together with a copy, which may be
a photocopy of the original after it was signed or a photocopy that is
conformed to the original, to the effect that such person accepts designation
as the registered agent of the foreign limited liability company, shall be
submitted with the application;
D. a statement that the secretary of state is
appointed the agent of the foreign limited liability company for service of
process if no agent has been appointed upon resignation of an already appointed
registered agent or, if appointed, the agent's authority has been revoked or
the agent cannot be found or served in the exercise of reasonable diligence;
E. the address of the office required to be
maintained in the state or other jurisdiction of its organization by the laws
of that state or jurisdiction or, if not so required, of the principal office
of the foreign limited liability company;
F. a statement that the foreign limited
liability company is a foreign limited liability company as defined in Section
53-19-2 NMSA 1978; and
G. the identity of persons in whom management of
the foreign limited liability company is vested."
Section 55. Section 53-19-49 NMSA 1978 (being Laws 1993,
Chapter 280, Section 49) is amended to read:
"53-19-49. ISSUANCE OF REGISTRATION.--If the commission
determines that the application for registration from a foreign limited
liability company conforms to the provisions of the Limited Liability Company
Act and all requisite fees have been paid, the commission shall:
A. endorse on the signed original and each copy
the word "filed" and the date of its acceptance for filing;
B. retain a signed original in the files of the
commission; and
C. return each copy to the person who delivered
it to the commission or to that person's representative."
Section 56. Section 53-19-60 NMSA 1978 (being Laws 1995,
Chapter 213, Section 8, as amended) is amended to read:
"53-19-60. CONVERSIONS AND MERGERS--CONVERSION OF
CORPORATION, PARTNERSHIP OR LIMITED PARTNERSHIP TO LIMITED LIABILITY COMPANY.--
A. A corporation, partnership or limited
partnership may be converted to a limited liability company pursuant to this
section.
B. The terms and conditions of a conversion of a
corporation, partnership or limited partnership to a limited liability company
shall be approved in the manner specifically provided for by the document,
instrument, agreement or other writing governing the internal affairs of the
corporation, partnership or limited partnership concerning conversions or, in
the absence of such a provision, by all of the shareholders or partners, as the
case may be.
C. An agreement of conversion shall set forth
the terms and conditions of the conversion of the owners' interests in the
converting entity into interests in the converted entity or the cash or other
consideration to be paid or delivered as a result of the conversion of the
owners' interests or a combination of these.
D. After a conversion is approved pursuant to
Subsection B of this section, the corporation, partnership or limited
partnership being converted shall file articles of organization with the
commission that satisfy the requirements of Section 53-19-8 NMSA 1978 and a
statement containing the items set forth below:
(1) a statement that the corporation or
partnership was converted to a limited liability company from a corporation,
partnership or limited partnership;
(2) its former name;
(3) a statement of the number of votes cast by
the shareholders or partners entitled to vote for and against the conversion
and, if the vote is less than unanimous, the number or percentage required to
approve the conversion pursuant to Subsection B of this section; and
(4) in the case of a corporation or a limited
partnership, a statement that the certificate of incorporation or certificate
of limited partnership is to be canceled as of the date the conversion takes
effect.
E. In the case of a corporation or a limited
partnership, the filing of articles of organization pursuant to Subsection D of
this section cancels its certificate of incorporation or certificate of limited
partnership as of the date the conversion took effect.
F. A conversion takes effect when articles of
organization are filed with the commission or at any later date specified in
the articles of organization.
G. A general partner who becomes a member of a
limited liability company as a result of a conversion remains liable as a partner
for an obligation incurred by the partnership or limited partnership before the
conversion takes effect.
H. A general partner's liability for all
obligations of the limited liability company incurred after the conversion
takes effect is that of a member of the company. A limited partner who becomes a member as a
result of a conversion remains liable only to the extent the limited partner
was liable for an obligation incurred by the limited partnership before the
conversion took effect."
Section 57. Section 53-19-60.1 NMSA 1978 (being Laws
2001, Chapter 200, Section 79) is amended to read:
"53-19-60.1. CONVERSIONS AND MERGERS--CONVERSION OF
LIMITED LIABILITY COMPANY TO CORPORATION, PARTNERSHIP OR LIMITED PARTNERSHIP.--
A. A limited liability company may be converted
to a corporation, partnership or limited partnership pursuant to this section.
B. The terms and conditions of a conversion of a
limited liability company to a corporation, partnership or limited partnership
shall be approved by the number or percentage of the members or managers
specifically required for conversion in the operating agreement or, in absence
of such a provision in the operating agreement, by all the members.
C. An agreement of conversion shall set forth
the terms and conditions of the conversion of the members' interests in the
limited liability company into interests in the corporation, partnership or
limited partnership or the cash or other consideration to be paid or delivered
as a result of the conversion of the members' interests, or a combination of
these.
D. After a conversion is approved under
Subsection B of this section, the limited liability company shall file with the
commission, if the converted entity is a partnership, a statement containing
the items set forth below, if the converted entity is a corporation, articles
of incorporation and a statement containing the items set forth below and, if
the converted entity is a limited partnership, a certificate of limited
partnership and a statement containing the items set forth below:
(1) a statement that the corporation, partnership
or limited partnership was converted from a limited liability company;
(2) the former name of the limited liability
company;
(3) a statement of the number of votes cast by
the members or managers entitled to vote for and against the conversion and, if
the vote is other than a unanimous vote of the members, the number or
percentage of members or managers required to approve the conversion under
Subsection B of this section; and
(4) a statement that the articles of organization
of the limited liability company are to be canceled as of the date the
conversion takes effect.
E. The filing of articles of incorporation for a
corporation, a statement for a partnership or a certificate of limited
partnership for a limited partnership resulting from a conversion pursuant to
this section, cancels the articles of organization of the limited liability
company as of the date the conversion takes effect.
F. A conversion takes effect when articles of
incorporation, a certificate of limited partnership or statement required if
the converted entity is a partnership, are filed with the commission or at any
later date specified in the filed document."
Section 58. Section 53-19-62 NMSA 1978 (being Laws 1995,
Chapter 213, Section 10) is amended to read:
"53-19-62. CONVERSIONS AND MERGER OF ENTITIES.--
A. Pursuant to a plan of merger approved under
Subsection C of this section, a limited liability company may be merged with or
into one or more limited liability companies, foreign limited liability
companies, corporations, foreign corporations, partnerships, foreign
partnerships, limited partnerships, foreign limited partnerships or other
domestic or foreign entities.
B. A plan of merger shall set forth:
(1) the name of each entity that is a party to
the merger;
(2) the name of the surviving entity into which
the other entities will merge;
(3) the type of organization of the surviving
entity;
(4) the terms and conditions of the merger;
(5) the manner and basis for converting the
interests of each party to the merger into interests or obligations of the
surviving entity or into money or other property in whole or in part; and
(6) the street address of the surviving entity's
principal place of business.
C. A plan of merger shall be approved:
(1) in the case of a limited liability company
that is a party to the merger, by the members representing the percentage of
voting power of all members specified in the operating agreement for approval
of mergers, but not fewer than the members holding a majority of the voting
power of all members or, if provision is not made in the operating agreement,
by all the members;
(2) in the case of a foreign limited liability
company that is a party to the merger, by the vote required for approval of a
merger by the law of the state or foreign jurisdiction in which the foreign
limited liability company is organized;
(3) in the case of a partnership or domestic
limited partnership that is a party to the merger, by the vote required for
approval of a conversion under Subsection B of Section 53-19-60 NMSA 1978; and
(4) in the case of any other entities that are
parties to the merger, by the vote required for approval of a merger by the law
of this state or of the other state or foreign jurisdiction in which the entity
is organized and, in the absence of such a requirement, by all the owners of
interests in the entity.
D. After a plan of merger is approved and before
the merger takes effect, the plan may be amended or abandoned as provided in
the plan.
E. The merger is effective upon the filing of
the articles of merger with the commission or at such later date as the
articles may provide."
Section 59. Section 53-19-63 NMSA 1978 (being Laws 1993,
Chapter 280, Section 63, as amended) is amended to read:
"53-19-63. FILING, SERVICE AND COPYING FEES.--The public
regulation commission shall charge and collect:
A. for filing the original articles of
organization and issuing a certificate of organization, a fee of fifty dollars
($50.00);
B. for filing amended or restated articles of
merger and issuing a certificate of amended or restated articles, a fee of
fifty dollars ($50.00);
C. for filing articles of merger, conversion or
consolidation and issuing a certificate of consolidation, a fee of one hundred
dollars ($100);
D. for filing articles of dissolution or
revocation of dissolution, a fee of twenty-five dollars ($25.00);
E. for issuing a certificate for any purpose not
otherwise specified, a fee of twenty-five dollars ($25.00);
F. for furnishing written information on any
limited liability company, a fee of twenty-five dollars ($25.00);
G. for providing from the commission's records
any document or instrument, a fee of one dollar ($1.00) per page, but in one
case less than ten dollars ($10.00), and a fee of twenty-five dollars ($25.00)
for certification of documents or instruments;
H. for accepting an application for reservation
of a name or for filing a notice of the transfer of any name reservation, a fee
of twenty dollars ($20.00);
I. for filing a statement of change of address
of registered office or registered agent, or both, a fee of twenty dollars
($20.00);
J. for filing an agent's statement of change of
address of registered agent for each affected limited liability company, twenty
dollars ($20.00);
K. for issuing a registration to a foreign
limited liability company, a fee of one hundred dollars ($100);
L. for filing an amendment of the registration
of a foreign limited liability company, a fee of fifty dollars ($50.00); and
M. for filing an application for cancellation of
registration of a foreign limited liability company and issuing a certificate
of cancellation, a fee of twenty-five dollars ($25.00)."
Section 60. Section 53-20-6 NMSA 1978 (being Laws 2001,
Chapter 200, Section 88) is amended to read:
"53-20-6. APPLICATION FOR CERTIFICATE OF AUTHORITY.--
A. A foreign business trust, in order to obtain
a certificate of authority to transact business in this state, shall make
application to the public regulation commission. The application shall set forth:
(1) the name of the foreign business trust and,
if different, the name under which it proposes to transact business in this
state;
(2) the date of declaration of trust;
(3) the address of the principal office of the
foreign business trust in the state or country under the laws of which it is
organized;
(4) the address of the registered office of the
foreign business trust in this state, the name of its registered agent in this
state at that address and an acceptance of the appointment signed by the agent
appointed; and
(5) the purposes of the foreign business trust
that it proposes to pursue in the transaction of business in this state.
B. The application shall be made on forms
prescribed and furnished by the public regulation commission or on forms
containing substantially the same information as forms prescribed by the
commission and shall be executed by a person with authority to do so under the
laws of the state or jurisdiction of its formation.
C. A foreign business trust shall deliver with
the completed application a certificate of existence, or a document of similar
import, duly authenticated by the secretary of state or other official having
custody of trust records in the state or jurisdiction under whose law it is
created."
Section 61. Section 53-20-10 NMSA 1978 (being Laws 2001,
Chapter 200, Section 92) is amended to read:
"53-20-10. REGISTERED OFFICE AND REGISTERED
AGENT--CHANGE--RESIGNATION OF REGISTERED AGENT.--
A. A foreign business trust authorized to
transact business in this state may change its registered office or change its
registered agent, or both, upon filing with the public regulation commission a
statement setting forth:
(1) the name of the foreign business trust;
(2) the address of its registered office;
(3) if the address of its registered office is
changed, the address to which it is to be changed;
(4) the name of the foreign business trust's
registered agent;
(5) if its registered agent is changed, the name
of the successor registered agent;
(6) a statement that the address of its
registered office and the address of the business office of its registered
agent, as changed, will be identical; and
(7) that the change was authorized by resolution
duly adopted by its trustees.
B. The statement shall be executed by the
foreign business trust by an authorized person and delivered to the public
regulation commission. If the commission
finds that the statement meets the requirements of this section, it shall file
the statement, and, when filed, the change of address of the registered office
or the appointment of the new registered agent, or both, shall become
effective. A registered agent of a
foreign business trust may resign as registered agent by filing a written
notice of resignation with the commission, and the commission shall mail
immediately a copy of the notice to the foreign business trust at its principal
office in the state or country under the laws of which it is organized. The appointment of the agent terminates upon
the expiration of thirty days after receipt of the notice by the commission.
C. 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 foreign business
trust for which the registered agent is the registered agent by notifying the
foreign business trust in writing of the change and signing, either manually or
in facsimile, and delivering to the public regulation commission for filing a statement
that complies with the requirements of this section but need not be responsive
to Paragraph (5) of Subsection A of this section and recites that the foreign
business trust has been notified of the change."
Section 62. Section 53-20-12 NMSA 1978 (being Laws 2001,
Chapter 200, Section 94) is amended to read:
"53-20-12. CERTIFICATE OF WITHDRAWAL--APPLICATION AND
FILING.--
A. A foreign business trust authorized to
transact business in this state may withdraw from this state upon obtaining
from the public regulation commission a certificate of withdrawal. To obtain the certificate, the foreign
business trust shall deliver to the commission an application for
withdrawal. The application shall set
forth:
(1) the name of the foreign business and the
state or country under the laws of which it is organized;
(2) that the foreign business trust is not
transacting business in this state;
(3) that the foreign business trust surrenders
its authority to transact business in this state;
(4) that the foreign business trust revokes the
authority of its registered agent in this state to accept service of process
and consents that service of process in an action, suit or proceeding based on
a cause of action arising in this state during the time the foreign business
trust was authorized to transact business in this state may thereafter be made
on the foreign business trust by service on the secretary of state;
(5) an address to which the secretary of state
may mail a copy of any process against the foreign business trust served on the
secretary of state;
(6) a commitment to notify the commission in the
future of any change in its mailing address; and
(7) additional information necessary or
appropriate to enable the commission to determine and assess any unpaid fees or
taxes payable by the foreign business trust.
B. The application for withdrawal shall be made
on forms prescribed and furnished by the public regulation commission or on
forms containing substantially the same information as forms prescribed by the
commission and shall be executed by the trust by an authorized person, or if
the foreign business trust is in the hands of a receiver or trustee, by the
receiver or trustee."
Section 63. Section 53-20-17 NMSA 1978 (being Laws 2001,
Chapter 200, Section 99) is amended to read:
"53-20-17. FEES.--The public regulation commission shall
charge and collect from a foreign business trust for:
A. filing a statement of change of address of
registered office or change of registered agent, or both, twenty-five dollars
($25.00);
B. filing an application of a foreign business
trust for a certificate of authority to transact business in this state and
issuing a certificate of authority, two hundred fifty dollars ($250);
C. filing an agent's statement of change of
address of registered agent for each affected corporation, twenty-five dollars
($25.00);
D. filing a certificate of correction or
amendment of a foreign business trust authorized to transact business in this
state, fifty dollars ($50.00);
E. filing an application for withdrawal of a
foreign business trust and issuing a certificate of withdrawal, twenty-five
dollars ($25.00);
F. filing any other statement of a foreign
business trust, twenty-five dollars ($25.00); and
G. for furnishing a certified copy of any
document, instrument or paper relating to a foreign business trust, one dollar
($1.00) per page and ten dollars ($10.00) for the certificate and affixing the
seal thereto."
Section 64. EFFECTIVE DATE.--The effective date of the
provisions of this act is July 1, 2003.