SB0162

SENATE BILL 162

54th legislature - STATE OF NEW MEXICO - first session, 2019

INTRODUCED BY

Clemente Sanchez

AN ACT

RELATING TO BUSINESS ENTITIES; REQUIRING THAT CERTAIN BUSINESS ENTITIES CONFIRM THAT THE ENTITY HAS RESIGNED AS A REGISTERED AGENT OR IS NOT CURRENTLY A REGISTERED AGENT FOR ANY ENTITY REGISTERED IN NEW MEXICO IN ORDER TO BE ELIGIBLE FOR DISSOLUTION, WITHDRAWAL OR CANCELLATION OF REGISTRATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

SECTION 1. Section 53-8-51 NMSA 1978 (being Laws 1975, Chapter 217, Section 51, as amended) 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 ARTICLES OF DISSOLUTION.--If voluntary dissolution proceedings have not been revoked, then when all debts, liabilities and obligations of the corporation are paid and discharged, or adequate provision has been made therefor, and all of the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; and

H. confirmation that the corporation has resigned as a registered agent or is not currently a registered agent for any entity registered in New Mexico."

SECTION 2. Section 53-8-77 NMSA 1978 (being Laws 1975, Chapter 217, Section 77, as amended) 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] secretary of state a certificate of withdrawal. In order to procure the certificate of withdrawal, the foreign corporation shall deliver to the [commission] secretary of state 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] secretary of state may mail a copy of any process against the corporation that may be served on it; and

(6) confirmation that the corporation has resigned as a registered agent or is not currently a registered agent for any entity registered in New Mexico.

B. The application for withdrawal shall be made on forms prescribed and furnished by the [commission] secretary of state 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 3. Section 53-16-11 NMSA 1978 (being Laws 1967, Chapter 81, Section 89, as amended) is amended to read:

"53-16-11. ARTICLES OF DISSOLUTION.--If voluntary dissolution proceedings have not been revoked, then, when all debts, liabilities and obligations of the corporation have been paid and discharged or adequate provision has been made therefor and all of the remaining property and assets of the corporation have been distributed to its shareholders, articles of dissolution shall be executed by the corporation by an authorized officer, which statement shall set forth:

A. the name of the corporation;

B. that the [commission] secretary of state has previously filed a statement of intent to dissolve the corporation and the date on which the statement was filed;

C. that all debts, obligations and liabilities of the corporation have been paid and discharged or that adequate provision has been made therefor;

D. that all the remaining property and assets of the corporation have been distributed among its shareholders in accordance with their respective rights and interests; [and]

E. that there are no suits pending against the corporation in any court or that adequate provision has been made for the satisfaction of any judgment, order or decree that may be entered against it in any pending suit; and

F. confirmation that the corporation has resigned as a registered agent or is not currently a registered agent for any entity registered in New Mexico."

SECTION 4. 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] secretary of state a certificate of withdrawal. In order to procure the certificate of withdrawal, the foreign corporation shall deliver to the [commission] secretary of state 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) a statement confirming that the corporation has resigned as a registered agent or is not currently a registered agent for any entity registered in New Mexico; and

[(8)] (9) additional information as necessary or appropriate in order to enable the [commission] secretary of state 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] secretary of state or on forms containing substantially the same information as forms prescribed by the [commission] secretary of state 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 5. Section 53-19-41 NMSA 1978 (being Laws 1993, Chapter 280, Section 41) is amended to read:

"53-19-41. ARTICLES OF DISSOLUTION.--

A. On the dissolution of a limited liability company, persons with authority [under] pursuant to the provisions of Subsection A of Section [42 of the Limited Liability Company Act] 53-19-42 NMSA 1978 to wind up its business and affairs shall sign and deliver, to the office of the [commission] secretary of state for filing, articles of dissolution.

B. The articles of dissolution shall state:

(1) the name of the limited liability company;

(2) the dates of filing the articles of organization and all amendments and restatements to the articles of organization;

(3) the event causing the dissolution;

(4) the effective date, which shall be a date certain, of the articles of dissolution if the articles of dissolution are not to be effective on filing;

(5) the name and address of each person who has the authority to act for the limited liability company in connection with the winding up of its business and affairs;

(6) confirmation that the limited liability company has resigned as a registered agent or is not currently a registered agent for any entity registered in New Mexico;

[(6)] (7) whether the winding up of the business and affairs of the limited liability company is being supervised by a court pursuant to the provisions of Paragraph (2) of Subsection A of Section [42 of the Limited Liability Company Act] 53-19-42 NMSA 1978; and

[(7)] (8) any other information persons signing the articles of dissolution choose to include.

C. After the articles of dissolution have been filed, only a person named in the articles of dissolution as having authority to act for the limited liability company in connection with the winding up of its business and affairs shall have such authority, including the authority to bind the limited liability company, transact business on its behalf, act as its agent and execute any instrument for it and in its name.

D. Articles of dissolution that have been filed may be amended at [anytime] any time and from time to time or revoked at any time and, unless an amendment or revocation states otherwise, it shall be effective upon delivery to the office of the [commission] secretary of state for filing."

SECTION 6. Section 53-19-52 NMSA 1978 (being Laws 1993, Chapter 280, Section 52) is amended to read:

"53-19-52. CANCELLATION OF REGISTRATION.--

A. A foreign limited liability company authorized to transact business in New Mexico may cancel its registration by application to the [commission] secretary of state for a certificate of cancellation. The application for cancellation shall set forth:

(1) the name of the foreign limited liability company and the state or other jurisdiction under the laws of which it is organized;

(2) that the foreign limited liability company is not transacting business in New Mexico;

(3) that the foreign limited liability company surrenders its registration to transact business in New Mexico;

(4) that the foreign limited liability company confirms the authority of its registered agent for service of process in New Mexico and consents that service of process in any action, suit or proceeding based upon any cause of action arising in New Mexico during the time that the foreign limited liability company was authorized to transact business in New Mexico also may be made on [such] the foreign limited liability company by service upon the secretary of state; [and]

(5) an address to which a person may mail a copy of any process against the foreign limited liability company; and

(6) confirmation that the foreign limited liability company has resigned as a registered agent or is not currently a registered agent for any entity registered in New Mexico.

B. The application for cancellation shall be in the form specified by the [commission] secretary of state and shall be executed for the foreign limited liability company by a person with authority to do so under the laws of the state or other jurisdiction of its organization or, if the foreign limited liability company is in the hands of a receiver or trustee, by [such] the receiver or trustee on behalf of the foreign limited liability company.

C. A cancellation does not terminate the authority of the secretary of state to accept service of process on the foreign limited liability company with respect to causes of action arising out of its having done business in New Mexico."

SECTION 7. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2019.

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