HF 1608

1st Engrossment - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to the Office of the Secretary of State; regulating registrations, filings,
and dissolutions of certain entities; providing fees; regulating foreign limited
partnership name changes; regulating notaries public; amending Minnesota
Statutes 2006, sections 5.12, subdivision 1; 302A.821, subdivision 4; 308A.995,
subdivision 4; 308B.121, subdivision 4; 308B.215, subdivision 2; 317A.823,
subdivision 1; 321.0206; 336.1-110; 336.9-516; 336.9-525; 358.41; 358.42;
358.50; 359.085, subdivisions 2, 3; proposing coding for new law in Minnesota
Statutes, chapters 308B; 321; repealing Minnesota Statutes 2006, sections
69.051, subdivision 1c; 359.085, subdivision 8.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

ARTICLE 1

ENTITIES

Section 1.

Minnesota Statutes 2006, section 5.12, subdivision 1, is amended to read:

Subdivision 1.

Fees.

The secretary of state shall charge a fee of $5 for each
certificate or certification of a copy of any document filed in the Office of the Secretary
of State. The secretary of state shall charge a fee of $3 for a copy of an original filing of
a corporation, limited partnership, new text begin assumed name, or new text end trade or service mark deleted text begin , or for the
deleted text end deleted text begin complete record of a certificate of assumed name deleted text end . The secretary of state shall charge a
fee of $3 for a copy of any or all subsequent filings of a corporation, limited partnership,
new text begin assumed name, new text end or trade or service mark. The secretary of state shall charge a fee of $1 per
page for copies of other nonuniform commercial code documents filed with the secretary of
state. At the time of filing, the secretary of state may provide at the public counter, without
charge, a copy of a filing, ten or fewer pages in length, to the person making the filing.

Sec. 2.

Minnesota Statutes 2006, section 302A.821, subdivision 4, is amended to read:

Subd. 4.

Penalty; reinstatement.

(a) A corporation that has failed to file a
registration pursuant to the requirements of subdivision 2 must be dissolved by the
secretary of state as described in paragraph (b).

(b) If the corporation has not filed the registration deleted text begin for deleted text end deleted text begin two consecutive deleted text end new text begin during
any new text end calendar deleted text begin years deleted text end new text begin year new text end , the secretary of state must issue a certificate of administrative
dissolution and the certificate must be filed in the Office of the Secretary of State. deleted text begin The
secretary of state shall send notice to the corporation that the corporation has been
dissolved and that the corporation may be reinstated by filing a registration and a $25 fee.
The notice must be given by United States mail unless the company has indicated to the
secretary of state that they are willing to receive notice by electronic notification, in which
case the secretary of state may give notice by mail or the indicated means. The secretary
of state shall annually inform the attorney general and the commissioner of revenue of
the methods by which the names of corporations dissolved under this section during the
preceding year may be determined. deleted text end The secretary of state must deleted text begin also deleted text end make available in
an electronic format the names of the dissolved corporations. A corporation dissolved in
this manner is not entitled to the benefits of section 302A.781. The liability, if any, of the
shareholders of a corporation dissolved in this manner shall be determined and limited in
accordance with section 302A.557, except that the shareholders shall have no liability to
any director of the corporation under section 302A.559, subdivision 2.

(c) After administrative dissolution, filing a registration and the $25 fee with the
secretary of state:

(1) returns the corporation to good standing as of the date of the dissolution;

(2) validates contracts or other acts within the authority of the articles, and the
corporation is liable for those contracts or acts; and

(3) restores to the corporation all assets and rights of the corporation to the extent
they were held by the corporation before the dissolution occurred, except to the extent that
assets or rights were affected by acts occurring after the dissolution or sold or otherwise
distributed after that time.

Sec. 3.

Minnesota Statutes 2006, section 308A.995, subdivision 4, is amended to read:

Subd. 4.

Penalty; dissolution.

(a) A cooperative that has failed to file a registration
pursuant to the requirements of this section by December 31 of the calendar year for which
the registration was required must be dissolved by the secretary of state as described in
paragraph (b).

(b) If the cooperative has not filed the registration by December 31 of that calendar
year, the secretary of state must issue a certificate of involuntary dissolution, and the
certificate must be filed in the Office of the Secretary of State. deleted text begin The secretary of state must
annually inform the attorney general and the commissioner of revenue of the methods by
which the names of cooperatives dissolved under this section during the preceding year
may be determined. deleted text end The secretary of state must deleted text begin also deleted text end make available in an electronic
format the names of the dissolved cooperatives. A cooperative dissolved in this manner is
not entitled to the benefits of section 308A.981.

Sec. 4.

Minnesota Statutes 2006, section 308B.121, subdivision 4, is amended to read:

Subd. 4.

Penalty; dissolution.

(a) A cooperative that has failed to file a registration
under the requirements of this section must be dissolved by the secretary of state as
described in paragraph (b).

(b) If the cooperative has not filed the registration by December 31 of that calendar
year, the secretary of state must issue a certificate of involuntary dissolution and the
certificate must be filed in the Office of the Secretary of State. deleted text begin The secretary of state must
annually inform the attorney general and the commissioner of revenue of the methods by
which the names of cooperatives dissolved under this section during the preceding year
may be determined. The secretary of state must also make available in an electronic
format the names of the dissolved cooperatives. deleted text end A cooperative dissolved in this manner is
not entitled to the benefits of section 308B.971.

Sec. 5.

Minnesota Statutes 2006, section 308B.215, subdivision 2, is amended to read:

Subd. 2.

Filing.

The original articles and a designation of the cooperative's
registered office and agent deleted text begin , including a registration form under section 308B.121, deleted text end shall
be filed with the secretary of state. The fee for filing the articles with the secretary of
state is $60.

Sec. 6.

new text begin [308B.903] NOTICE OF INTENT TO DISSOLVE.
new text end

new text begin Before a cooperative begins dissolution, a notice of intent to dissolve must be filed
with the secretary of state. The notice must contain:
new text end

new text begin (1) the name of the cooperative;
new text end

new text begin (2) the date and place of the members' meeting at which the resolution was
approved; and
new text end

new text begin (3) a statement that the requisite vote of the members approved the proposed
dissolution.
new text end

Sec. 7.

Minnesota Statutes 2006, section 317A.823, subdivision 1, is amended to read:

Subdivision 1.

Annual registration.

(a) The secretary of state must send annually
to each corporation at the registered office of the corporation a postcard notice announcing
the need to file the annual registration and informing the corporation that the annual
registration may be filed online and that paper filings may also be made, and informing
the corporation that failing to file the annual registration will result in an administrative
dissolution of the corporation.

(b) deleted text begin Except for corporations to which paragraph (d) applies, deleted text end Each calendar year
beginning in the calendar year following the calendar year in which a corporation
incorporates, a corporation must file with the secretary of state by December 31 of each
calendar year a registration containing the information listed in paragraph (c).

(c) The registration must include:

(1) the name of the corporation;

(2) the address of its registered office;

(3) the name of its registered agent, if any; and

(4) the name and business address of the officer or other person exercising the
principal functions of president of the corporation.

deleted text begin (d) The timely filing of an annual financial report and audit or an annual financial
statement under section deleted text begin 69.051, subdivision 1 deleted text end or 1a, by a volunteer firefighter relief
association, as reflected in the notification by the state auditor under section deleted text begin 69.051,
subdivision 1c deleted text end , constitutes presentation of the corporate registration. The secretary of state
may reject the registration by the volunteer firefighter relief association. Rejection must
occur if the information provided to the state auditor does not match the information
in the records of the secretary of state. The volunteer firefighter relief association may
amend the articles of incorporation as provided in sections to so
that the information from the state auditor may be accepted for filing. The timely filing
of an annual financial report and audit or an annual financial statement under section
deleted text begin 69.051, subdivision 1 deleted text end or 1a, does not relieve the volunteer firefighter relief association
of the requirement to file amendments to the articles of incorporation directly with the
secretary of state.
deleted text end

Sec. 8.

Minnesota Statutes 2006, section 321.0206, is amended to read:

321.0206 DELIVERY TO AND FILING OF RECORDS BY SECRETARY OF
STATE; EFFECTIVE TIME AND DATE.

(a) A record authorized or required to be delivered to the secretary of state for filing
under this chapter must be captioned to describe the record's purpose, be in a medium
permitted by the secretary of state, and be delivered to the secretary of state. Unless the
secretary of state determines that a record does not comply with the filing requirements
of this chapter, and if the appropriate filing fees have been paid, the secretary of state
shall file the record and:

(1) for a statement of dissociation, send:

(A) a copy of the filed statement to the person which the statement indicates has
dissociated as a general partner; and

(B) a copy of the filed statement to the limited partnership;

(2) for a statement of withdrawal, send:

(A) a copy of the filed statement to the person on whose behalf the record was
filed; and

(B) if the statement refers to an existing limited partnership, a copy of the filed
statement to the limited partnership; and

(3) for all other records, send a copy of the filed record to the person on whose
behalf the record was filed.

(b) Upon request and payment of a fee, the secretary of state shall send to the
requester a certified copy of the requested record.

(c) Except as otherwise provided in sections 321.0116 and 321.0207, a record
delivered to the secretary of state for filing under this chapter may specify an effective
time and a delayed effective date. Except as otherwise provided in this chapter, a record
filed by the secretary of state is effective:

(1) if the record does not specify an effective time and does not specify a delayed
effective date, on the date and at the time the record is filed as evidenced by the secretary
of state's endorsement of the date and time on the record;

(2) if the record specifies an effective time but not a delayed effective date, on the
date the record is filed at the time specified in the record;

(3) if the record specifies a delayed effective date but not an effective time, at 12:01
a.m. on the earlier of:

(A) the specified date; or

(B) the 30th day after the record is filed; or

(4) if the record specifies an effective time and a delayed effective date, at the
specified time on the earlier of:

(A) the specified date; or

(B) the 30th day after the record is filed.

(d) The appropriate fees for filings under this chapter are:

(1) for filing a certificate of limited partnership, $100;

(2) for filing an amended certificate of limited partnership, $50;

(3) for filing any other record new text begin , other than the annual report required by section
321.0210, for which no fee must be charged, new text end required or permitted to be delivered for
filing, $35;

(4) for filing a certificate requesting authority to transact business in Minnesota as a
foreign limited partnership, $85;

(5) for filing an application of reinstatement, $25; deleted text begin and
deleted text end

(6) new text begin for filing a name reservation for a foreign limited partnership name, $35; and
new text end

new text begin (7) new text end for filing any other record new text begin , other than the annual report required by section
321.0210, for which no fee must be charged, new text end required or permitted to be delivered for
filing on a foreign limited partnership authorized to transact business in Minnesota, $50.

Sec. 9.

new text begin [321.0909] NAME CHANGES FILED IN HOME STATE.
new text end

new text begin A foreign limited partnership shall notify the secretary of state of any changes to the
partnership name filed with the state of formation by filing a certificate from the state of
formation certifying to the change of name.
new text end

Sec. 10.

Minnesota Statutes 2006, section 336.1-110, is amended to read:

336.1-110 UNIFORM COMMERCIAL CODE ACCOUNT.

The Uniform Commercial Code account is established as an account in the state
treasury. Fees that are not expressly set by statute but are charged by the secretary of state
to offset the costs of providing a service under this chapter must be deposited in the state
treasury and credited to the Uniform Commercial Code account.

Fees that are not expressly set by statute but are charged by the secretary of state
to offset the costs of providing information contained in the computerized records
maintained by the secretary of state must be deposited in the state treasury and credited to
the Uniform Commercial Code account.

Money in the Uniform Commercial Code account is continuously appropriated to the
secretary of state to implement and maintain the central filing system under this chapter new text begin ,
to provide, improve, and expand other online or remote lien and business entity filing,
retrieval, and payment method services provided by the secretary of state, new text end and to provide
electronic access to other computerized records maintained by the secretary of state.

Sec. 11.

Minnesota Statutes 2006, section 336.9-516, is amended to read:

336.9-516 WHAT CONSTITUTES FILING; EFFECTIVENESS OF FILING.

(a) What constitutes filing. Except as otherwise provided in subsection (b),
communication of a record to a filing office and tender of the filing fee or acceptance of
the record by the filing office constitutes filing.

(b) Refusal to accept record; filing does not occur. Filing does not occur with
respect to a record that a filing office refuses to accept because:

(1) the record is not communicated by a method or medium of communication
authorized by the filing office new text begin . For purposes of filing office authorization, transmission of
records using the Extensible Markup Language (XML) format is authorized by the filing
office after the later of July 1, 2007, or the determination of the secretary of state that the
central filing system is capable of receiving and processing these records new text end ;

(2) an amount equal to or greater than the applicable filing fee is not tendered;

(3) the filing office is unable to index the record because:

(A) in the case of an initial financing statement, the record does not provide a name
for the debtor;

(B) in the case of an amendment or correction statement, the record:

(i) does not identify the initial financing statement as required by section 336.9-512
or 336.9-518, as applicable; or

(ii) identifies an initial financing statement whose effectiveness has lapsed under
section 336.9-515;

(C) in the case of an initial financing statement that provides the name of a debtor
identified as an individual or an amendment that provides a name of a debtor identified as
an individual which was not previously provided in the financing statement to which the
record relates, the record does not identify the debtor's last name; or

(D) in the case of a record filed or recorded in the filing office described in section
336.9-501(a)(1), the record does not provide a sufficient description of the real property
to which it relates;

(4) in the case of an initial financing statement or an amendment that adds a secured
party of record, the record does not provide a name and mailing address for the secured
party of record;

(5) in the case of an initial financing statement or an amendment that provides a
name of a debtor which was not previously provided in the financing statement to which
the amendment relates, the record does not:

(A) provide a mailing address for the debtor;

(B) indicate whether the debtor is an individual or an organization; or

(C) if the financing statement indicates that the debtor is an organization, provide:

(i) a type of organization for the debtor;

(ii) a jurisdiction of organization for the debtor; or

(iii) an organizational identification number for the debtor or indicate that the debtor
has none;

(6) in the case of an assignment reflected in an initial financing statement under
section 336.9-514(a) or an amendment filed under section 336.9-514(b), the record does
not provide a name and mailing address for the assignee; or

(7) in the case of a continuation statement, the record is not filed within the
six-month period prescribed by section 336.9-515(d).

(c) Rules applicable to subsection (b). For purposes of subsection (b):

(1) a record does not provide information if the filing office is unable to read or
decipher the information; and

(2) a record that does not indicate that it is an amendment or identify an initial
financing statement to which it relates, as required by section 336.9-512, 336.9-514, or
336.9-518, is an initial financing statement.

(d) Refusal to accept record; record effective as filed record. A record that is
communicated to the filing office with tender of the filing fee, but which the filing office
refuses to accept for a reason other than one set forth in subsection (b), is effective as a
filed record except as against a purchaser of the collateral which gives value in reasonable
reliance upon the absence of the record from the files.

Sec. 12.

Minnesota Statutes 2006, section 336.9-525, is amended to read:

336.9-525 FEES.

(a) Initial financing statement or other record: general rule. Except as otherwise
provided in subsection (d), the fee for filing and indexing a record under this part deleted text begin delivered
on paper deleted text end is $20 deleted text begin and for a record delivered by any electronic means is $15 deleted text end . new text begin $5 of the
fee collected for each filing made online must be deposited in the uniform commercial
code account. new text end

(b) Number of names. The number of names required to be indexed does not
affect the amount of the fee in subsection (a).

(c) Response to information request. The fee for responding to a request for
information from the filing office, including for issuing a certificate showing whether there
is on file any financing statement naming a particular debtor, deleted text begin delivered on paper deleted text end is $20
deleted text begin and for a record delivered by any electronic means is $15 deleted text end . new text begin $5 of the fee collected for each
filing made online must be deposited in the uniform commercial code account. new text end

(d) Record of mortgage. This section does not require a fee with respect to a record
of a mortgage which is effective as a financing statement filed as a fixture filing or as a
financing statement covering as-extracted collateral or timber to be cut under section
336.9-502(c). However, the recording and satisfaction fees that otherwise would be
applicable to the record of the mortgage apply.

Sec. 13. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2006, section 69.051, subdivision 1c, new text end new text begin is repealed.
new text end

Sec. 14. new text begin EFFECTIVE DATES.
new text end

new text begin Sections 8 and 12 are effective July 1, 2007. Sections 2 to 4 are effective January 1,
2008. The remaining sections in this article are effective August 1, 2007.
new text end

ARTICLE 2

NOTARIES

Section 1.

Minnesota Statutes 2006, section 358.41, is amended to read:

358.41 DEFINITIONS.

As used in sections 358.41 to 358.49:

(1) "Notarial act" means any act that a notary public of this state is authorized to
perform, and includes taking an acknowledgment, administering an oath or affirmation,
taking a verification upon oath or affirmation, witnessing or attesting a signature, certifying
or attesting a copy, and noting a protest of a negotiable instrument. A notary public may
perform a notarial act by electronic means.

(2) "Acknowledgment" means a declaration by a person that the person has executed
an instrument or electronic record for the purposes stated therein and, if the instrument
or electronic record is executed in a representative capacity, that the person signed
the instrument with proper authority and executed it as the act of the person or entity
represented and identified therein.

(3) "Verification upon oath or affirmation" means a declaration that a statement is
true made by a person upon oath or affirmation.

(4) "In a representative capacity" means:

(i) for and on behalf of a corporation, partnership, new text begin limited liability company, new text end trust, or
other entity, as an authorized officer, agent, partner, trustee, or other representative;

(ii) as a public officer, personal representative, guardian, or other representative,
in the capacity recited in the instrument;

(iii) as an attorney in fact for a principal; or

(iv) in any other capacity as an authorized representative of another.

(5) "Notarial officer" means a notary public or other officer authorized to perform
notarial acts.

(6) "Electronic signature" means an electronic sound, symbol, or process attached
to or logically associated with a record and executed or adopted by a person with the
intent to sign the record.

(7) "Electronic record" means a record created, generated, sent, communicated,
received, or stored by electronic means.

Sec. 2.

Minnesota Statutes 2006, section 358.42, is amended to read:

358.42 NOTARIAL ACTS.

(a) In taking an acknowledgment, the notarial officer must determine, either from
personal knowledge or from satisfactory evidence, that the person appearing before the
officer and making the acknowledgment is the person whose true signature is on the
instrument or electronic record.

(b) In taking a verification upon oath or affirmation, the notarial officer must
determine, either from personal knowledge or from satisfactory evidence, that the person
appearing before the officer and making the verification is the person whose true signature
is new text begin made in the presence of the officer new text end on the statement verified.

(c) In witnessing or attesting a signature the notarial officer must determine, either
from personal knowledge or from satisfactory evidence, that the signature is that of the
person appearing before the officer and named therein. new text begin When witnessing or attesting a
signature, the officer must be present when the signature is made.
new text end

(d) In certifying or attesting a copy of a document, electronic record, or other item,
the notarial officer must determine that the proffered copy is a full, true, and accurate
transcription or reproduction of that which was copied.

(e) In making or noting a protest of a negotiable instrument or electronic record the
notarial officer must determine the matters set forth in section 336.3-505.

(f) A notarial officer has satisfactory evidence that a person is the person whose true
signature is on a document or electronic record if that person (i) is personally known to
the notarial officer, (ii) is identified upon the oath or affirmation of a credible witness
personally known to the notarial officer, or (iii) is identified on the basis of identification
documents.

Sec. 3.

Minnesota Statutes 2006, section 358.50, is amended to read:

358.50 EFFECT OF ACKNOWLEDGMENT.

An acknowledgment made in a representative capacity for and on behalf of a
corporation, partnership, new text begin limited liability company, new text end trust, or other entity and certified
substantially in the form prescribed in this chapter is prima facie evidence that the
instrument or electronic record was executed and delivered with proper authority.

Sec. 4.

Minnesota Statutes 2006, section 359.085, subdivision 2, is amended to read:

Subd. 2.

Verifications.

In taking a verification upon oath or affirmation, the notarial
officer must determine, either from personal knowledge or from satisfactory evidence, that
the person appearing before the officer and making the verification is the person whose
true signature is new text begin made in the presence of the officer new text end on the statement verified.

Sec. 5.

Minnesota Statutes 2006, section 359.085, subdivision 3, is amended to read:

Subd. 3.

Witnessing or attesting signatures.

In witnessing or attesting a signature,
the notarial officer must determine, either from personal knowledge or from satisfactory
evidence, that the signature is that of the person appearing before the officer and named in
the document or electronic record. new text begin When witnessing or attesting a signature, the officer
must be present when the signature is made.
new text end

Sec. 6. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2006, section 359.085, subdivision 8, new text end new text begin is repealed.
new text end

Sec. 7. new text begin EFFECTIVE DATE.
new text end

new text begin Sections 1 to 6 are effective August 1, 2007.
new text end