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SF 1234

3rd Engrossment - 87th Legislature (2011 - 2012) Posted on 03/06/2012 03:00pm

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - 3rd Engrossment

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A bill for an act
relating to state government; regulating depositories of state funds; simplifying
certain certificates issued to business entities; modifying provisions governing
certain contracts entered into by nonprofit corporations; modifying effective date
of resignations of agents; revising notice provided to organizations; allowing
use of an alternate name; redefining business entities; eliminating issuance of
certificates to business trusts and municipal power agencies; amending Minnesota
Statutes 2010, sections 5.001, subdivision 2, by adding a subdivision; 9.031,
subdivisions 2, 5; 302A.711, subdivision 4; 302A.734, subdivision 2; 302A.751,
subdivision 1; 303.08, subdivision 2; 303.17, subdivisions 2, 3, 4; 317A.255,
subdivision 1; 317A.711, subdivision 4; 317A.733, subdivision 4; 317A.751,
subdivision 3; 318.02, subdivisions 1, 2; 321.0809; 321.0906; 322B.826,
subdivision 2; 322B.935, subdivisions 2, 3; 323A.1102; 453.53, subdivision 2;
453A.03, subdivision 2; proposing coding for new law in Minnesota Statutes,
chapter 323A; repealing Minnesota Statutes 2010, sections 302A.801; 302A.805;
308A.151; 317A.022, subdivision 1; 317A.801; 317A.805; 318.02, subdivision
5.

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

Section 1.

Minnesota Statutes 2010, section 5.001, subdivision 2, is amended to read:


Subd. 2.

Business entity.

"Business entity" means an organization that is formed
under chapter 300, 301, 302A, 303, 308, 308A, 308B, 315, 317, 317A, deleted text begin318,deleted text end 319, 319A,
321, 322A, 322B, 323, or 323A and that has filed documents with the secretary of state.

Sec. 2.

Minnesota Statutes 2010, section 5.001, is amended by adding a subdivision to
read:


new text begin Subd. 5. new text end

new text begin Attempt to provide notice. new text end

new text begin "Attempt to provide notice," "attempting to
provide notice," or "attempted to provide notice" as used in sections 303.17, subdivisions
2, 3, and 4; 321.0809; 321.0906; 322B.935, subdivision 3; and 323A.1004, means that the
secretary of state has sent notice by mail or transmitted an e-mail to the e-mail address
provided by the business entity.
new text end

Sec. 3.

Minnesota Statutes 2010, section 9.031, subdivision 2, is amended to read:


Subd. 2.

deleted text beginBonddeleted text endnew text begin Deposits exceeding applicable deposit insurance coveragenew text end.

deleted text beginExcept
as provided in subdivision 3, a depository shall furnish and file with the commissioner of
management and budget a corporate surety bond to secure state funds deposited with it.
deleted text end
new text begin To the extent that state funds on deposit at the close of a depository's banking day exceed
applicable deposit insurance coverage, the state shall require the depository to furnish and
file with the commissioner of management and budget a corporate security bond to secure
state funds deposited with it, or to deposit with the commissioner collateral security as
provided in subdivision 3.
new text endThe Executive Council shall approve the bonddeleted text begin.
deleted text end

deleted text begin The Executive Council shall not approve any depository bond untildeleted text end new text begin when the council
is
new text endfully satisfied that the bond is in proper form, the securities sufficient, the depository
prosperous and financially sound, and the capital stock claimed by it fully paid up and not
impaired. Each depository bond shall provide that during the time the bond is in force the
depository will pay all the state funds deposited with it to the commissioner of management
and budget, free of exchange, at any place in the state designated by the commissioner
of management and budget. If the deposit is a time deposit it shall be paid, together
with interest, only when due. At any time the Executive Council or the commissioner of
management and budget may require a new or additional bond from any depository.

Sec. 4.

Minnesota Statutes 2010, section 9.031, subdivision 5, is amended to read:


Subd. 5.

Maximum deposit.

The Executive Council shall prescribe the maximum
amount that may be deposited in each depository. In no case shall the amount of the
deposit new text beginin excess of applicable deposit insurance coverage new text endexceed:

(1) the penalty on the bonds;

(2) 90 percent of the market value of the bonds; or

(3) the penalty on the bonds plus 90 percent of the market value of the collateral, if
both are furnished.

Sec. 5.

Minnesota Statutes 2010, section 302A.711, subdivision 4, is amended to read:


Subd. 4.

Certificate.

The secretary of state shall issue to the dissolved corporation
or its legal representative a certificate of dissolution that contains:

(a) the name of the corporation;

(b) the date deleted text beginand timedeleted text end the articles of dissolution were filed with the secretary of
state; and

(c) a statement that the corporation is dissolved.

Sec. 6.

Minnesota Statutes 2010, section 302A.734, subdivision 2, is amended to read:


Subd. 2.

Certificate.

The secretary of state shall issue to the corporation or its legal
representative a certificate of dissolution that contains:

(1) the name of the corporation;

(2) the date deleted text beginand timedeleted text end the dissolution deleted text beginis effectivedeleted text endnew text begin was filed with the secretary of
state
new text end; and

(3) a statement that the corporation is dissolved deleted text beginat the effective date and time
of the dissolution
deleted text end.

Sec. 7.

Minnesota Statutes 2010, section 302A.751, subdivision 1, is amended to read:


Subdivision 1.

When permitted.

A court may grant any equitable relief it deems
just and reasonable in the circumstances or may dissolve a corporation and liquidate its
assets and business:

(a) In a supervised voluntary dissolution pursuant to section 302A.741;

(b) In an action by a shareholder when it is established that:

(1) the directors or the persons having the authority otherwise vested in the board are
deadlocked in the management of the corporate affairs and the shareholders are unable to
break the deadlock;

(2) the directors or those in control of the corporation have acted fraudulently or
illegally toward one or more shareholders in their capacities as shareholders or directors,
or as officers or employees of a closely held corporation;

(3) the directors or those in control of the corporation have acted in a manner
unfairly prejudicial toward one or more shareholders in their capacities as shareholders
or directors of a corporation that is not a publicly held corporation, or as officers or
employees of a closely held corporation;

(4) the shareholders of the corporation are so divided in voting power that, for a
period that includes the time when two consecutive regular meetings were held, they have
failed to elect successors to directors whose terms have expired or would have expired
upon the election and qualification of their successors;

(5) the corporate assets are being misapplied or wasted; or

(6) the period of duration as provided in the articles has expired deleted text beginand has not been
extended as provided in section 302A.801
deleted text end;

(c) In an action by a creditor when:

(1) the claim of the creditor has been reduced to judgment and an execution thereon
has been returned unsatisfied; or

(2) the corporation has admitted in writing that the claim of the creditor is due and
owing and it is established that the corporation is unable to pay its debts in the ordinary
course of business; or

(d) In an action by the attorney general to dissolve the corporation in accordance
with section 302A.757 when it is established that a decree of dissolution is appropriate.

Sec. 8.

Minnesota Statutes 2010, section 303.08, subdivision 2, is amended to read:


Subd. 2.

Contents.

The certificate of authority shall contain the name of the
corporation, the state or country of organization, deleted text beginthe address of its registered office in this
state,
deleted text end and a statement that it is authorized to transact business in this state.

Sec. 9.

Minnesota Statutes 2010, section 303.17, subdivision 2, is amended to read:


Subd. 2.

Notice to corporation.

On finding that a default has occurred under
subdivision 1, clauses (1) to (3) or (5), the secretary of state shall deleted text begingivedeleted text endnew text begin attempt to providenew text end
notice deleted text beginby maildeleted text end to the corporation, deleted text beginat its registered office in this state,deleted text end that the default
exists and that its certificate of authority will be revoked unless the default shall be cured
within 30 days after the mailing of the notice.

Sec. 10.

Minnesota Statutes 2010, section 303.17, subdivision 3, is amended to read:


Subd. 3.

Revocation.

(a) The secretary of state shall revoke the certificate of
authority of a corporation that is in default under subdivision 1, clause (4), for failure to
file an annual registration form under section 303.14.

(b) The secretary of state shall revoke the certificate of authority of a corporation that
is in default under subdivision 1, clauses (1) to (3) or (5), if the default is not cured within
30 days after deleted text beginmailing thedeleted text endnew text begin attempting to providenew text end notice under subdivision 2; provided that
for good cause shown the secretary of state may extend the 30-day period from time to
time, but in no event may the aggregate of all extensions granted exceed 180 days or the
period of time of any applicable extension granted by the Department of Revenue for
filing the income tax return of the corporation, whichever is greater.

Sec. 11.

Minnesota Statutes 2010, section 303.17, subdivision 4, is amended to read:


Subd. 4.

Certificate of revocation.

(a) Upon revoking the certificate of authority
of a corporation because of a default under subdivision 1, clauses (1) to (3) or (5), the
secretary of state shall:

(1) issue a certificate of revocation; and

(2) deleted text beginmail to the corporation, at its registered office in this state, adeleted text endnew text begin attempt to providenew text end
notice of the revocationnew text begin to the corporationnew text end.

(b) Upon revoking the certificate of authority of a corporation because of a default
under subdivision 1, clause (4), the secretary of state shall issue a certificate of revocation,
and the certificate must be filed in the Office of the Secretary of State. No further notice to
the corporation is required.

(c) The secretary of state shall also make the names of the revoked corporations
available in an electronic format.

Sec. 12.

Minnesota Statutes 2010, section 317A.255, subdivision 1, is amended to read:


Subdivision 1.

Conflict; procedure when conflict arises.

(a) A contract or other
transaction between a corporation and: (1) its director or a member of the family of its
director; (2) a director of a related organization, or a member of the family of a director
of a related organization; or (3) an organization in or of which the corporation's director,
or a member of the family of its director, is a director, officer, or legal representative or
has a material financial interest; is not void or voidable because the director or the other
individual or organization are parties or because the director is present at the meeting of
the members or the board or a committee at which the contract or transaction is authorized,
approved, or ratified, if a requirement of paragraph (b) is satisfied.

(b) A contract or transaction described in paragraph (a) is not void or voidable if:

(1) the contract or transaction was, and the person asserting the validity of the
contract or transaction has the burden of establishing that the contract or transaction was,
fair and reasonable as to the corporation when it was authorized, approved, or ratified;

(2) the material facts as to the contract or transaction and as to the director's interest
are fully disclosed or known to the members and the contract or transaction is approved
in good faith by two-thirds of the members entitled to vote, not counting any vote that
the interested director might otherwise have, or the unanimous affirmative vote of all
members, whether or not entitled to vote;

(3) the material facts as to the contract or transaction and as to the director's interest
are fully disclosed or known to the board or a committee, and the board or committee
authorizes, approves, or ratifies the contract or transaction in good faith by a majority of
the directors or committee members currently holding office, provided that the interested
director or directors may not vote and are not considered present for purposes of a quorum.
If, as a result, the number of remaining directors is not sufficient to reach a quorum,
a quorum for the purpose of considering the contract or transaction is the number of
remaining directors or committee membersdeleted text begin, not counting any vote that the interested
director might otherwise have, and not counting the director in determining the presence
of a quorum
deleted text end; or

(4) the contract or transaction is a merger or consolidation described in section
317A.601.

Sec. 13.

Minnesota Statutes 2010, section 317A.711, subdivision 4, is amended to read:


Subd. 4.

Certificate.

The secretary of state shall issue to the dissolved corporation
a certificate of dissolution that contains:

(1) the name of the corporation;

(2) the date deleted text beginand timedeleted text end the articles of dissolution were filed with the secretary of
state; and

(3) a statement that the corporation is dissolved.

Sec. 14.

Minnesota Statutes 2010, section 317A.733, subdivision 4, is amended to read:


Subd. 4.

Certificate.

The secretary of state shall issue to the dissolved corporation
a certificate of dissolution that contains:

(1) the name of the corporation;

(2) the date deleted text beginand timedeleted text end the dissolution is deleted text begineffectivedeleted text endnew text begin was filed with the secretary of
state
new text end; and

(3) a statement that the corporation is dissolved at the effective date and time
of the dissolution.

Sec. 15.

Minnesota Statutes 2010, section 317A.751, subdivision 3, is amended to read:


Subd. 3.

Action by director or members with voting rights.

A court may grant
equitable relief in an action by a director or at least 50 members with voting rights or ten
percent of the members with voting rights, whichever is less, when it is established that:

(1) the directors or the persons having the authority otherwise vested in the board
are deadlocked in the management of the corporate affairs, the members cannot break
the deadlock, and the corporation or the parties have not provided for a procedure to
resolve the dispute;

(2) the directors or those in control of the corporation have acted fraudulently,
illegally, or in a manner unfairly prejudicial toward one or more members in their
capacities as members, directors, or officers;

(3) the members of the corporation are so divided in voting power that, for a period
that includes the time when two consecutive regular meetings were held, they have failed
to elect successors to directors whose terms have expired or would have expired upon the
election and qualification of their successors;

(4) the corporate assets are being misapplied or wasted; or

(5) the period of duration as provided in the articles has expired deleted text beginand has not been
extended as provided in section 317A.801
deleted text end.

Sec. 16.

Minnesota Statutes 2010, section 318.02, subdivision 1, is amended to read:


Subdivision 1.

Definition.

The term "declaration of trust" as used in this section
means the declaration of trust, business trust instrument, trust indenture, contract of
custodianship, or other instrument pursuant to which such association is organized. Every
such association organized after April 20, 1961, for the purpose of transacting business
in this state shall, prior to transacting any business in this state, file in the Office of the
Secretary of State a true and correct copy of the "declaration of trust" under which the
association proposes to conduct its business. The copy shall also contain a statement
that the true and correct copy of the "declaration of trust" is being filed in the Office of
the Secretary of State of the state of Minnesota pursuant to this chapter and shall also
include the full name and street address of an agent of the business trust in this state.
That agent shall be the agent for service of process which shall be made pursuant to the
provisions of section 543.08. The "declaration of trust" may provide that the duration of
such association shall be perpetual. Upon the filing of the copy of the "declaration of
trust," the deleted text beginsecretary of state shall issue to such association, or to the trustees named in the
said "declaration of trust," or to the persons or parties to the "declaration of trust," a
certificate showing that such "declaration of trust" has been duly filed; whereupon, such
deleted text end
association deleted text beginin its name shall bedeleted text endnew text begin isnew text end authorized to transact business in this state; provided
that all other applicable laws have been complied with. The "declaration of trust" may be
amended as provided in the "declaration of trust" or in any amendments thereto but a true
and correct copy of all amendments to the "declaration of trust," shall be filed in the Office
of the Secretary of State and all amendments shall become effective at the time of said
filing. When such copy of the "declaration of trust" and any amendments thereto shall
have been filed in the Office of the Secretary of State it shall constitute public notice as to
the purposes and manner of the business to be engaged in by such association.

Sec. 17.

Minnesota Statutes 2010, section 318.02, subdivision 2, is amended to read:


Subd. 2.

Type of deleted text beginlegal entitydeleted text endnew text begin associationnew text end.

Any such association heretofore or
hereafter organized shall be a business trust and a separate unincorporated deleted text beginlegal entitydeleted text endnew text begin
association
new text end, not a partnership, joint-stock association, agency, or any other relation except
a business trust. A business trust is also known as a common law trust and Massachusetts
trust for doing business.

Sec. 18.

Minnesota Statutes 2010, section 321.0809, is amended to read:


321.0809 ADMINISTRATIVE DISSOLUTION.

(a) A limited partnership that has failed to deliver for filing a registration pursuant
to the requirements of section 321.0210, or whose agent resigned pursuant to section
321.0116, subdivision 1, and the resignation has been effective for deleted text begin60deleted text endnew text begin 30new text end days without a
new agent being appointed by the limited partnership, must be dissolved by the secretary
of state as described in this section.

(b) new text beginThe secretary of state must attempt to provide notice of dissolution to the limited
partnership.
new text endIf the limited partnership has not filed the delinquent registration or appointed
a new agentnew text begin within 30 days after the secretary of state attempted to provide notice to
the limited partnership
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. The
secretary of state must also make available in an electronic format the names of the
administratively dissolved limited partnerships.

(c) A limited partnership administratively dissolved continues its existence but
may carry on only activities necessary to wind up its activities and liquidate its assets
under sections 321.0803 and 321.0812 and to notify claimants under sections 321.0806
and 321.0807.

(d) The administrative dissolution of a limited partnership does not terminate the
authority of its agent for service of process, if any.

Sec. 19.

Minnesota Statutes 2010, section 321.0906, is amended to read:


321.0906 REVOCATION OF CERTIFICATE OF AUTHORITY.

(a) A foreign limited partnership that has failed to deliver for filing a renewal
pursuant to the requirements of section 321.0210, or whose agent resigned pursuant to
section 321.0116, subdivision 1, and the resignation has been effective for deleted text begin60deleted text endnew text begin 30new text end days
without a new agent being appointed by the limited partnership, must have its certificate
of authority to transact business in Minnesota revoked as described in this section.

(b) new text beginThe secretary of state must attempt to provide notice of revocation to the
foreign limited partnership.
new text endIf the foreign limited partnership has not filed the delinquent
registrationnew text begin within 30 days after the secretary of state attempted to provide notice to the
foreign limited partnership
new text end, the secretary of state must issue a certificate of revocation
and the certificate must be filed in the Office of the Secretary of State. The secretary of
state must also make available in an electronic format the names of the foreign limited
partnerships whose certificates have been revoked.

Sec. 20.

Minnesota Statutes 2010, section 322B.826, subdivision 2, is amended to read:


Subd. 2.

Certificate.

The secretary of state shall issue to the limited liability
company or its legal representative a certificate of termination that contains:

(1) the name of the limited liability company;

(2) the date deleted text beginand timedeleted text end the termination is deleted text begineffectivedeleted text endnew text begin was filed with the secretary of
state
new text end; and

(3) a statement that the limited liability company is terminated at the effective date
deleted text begin and timedeleted text end of the termination.

Sec. 21.

Minnesota Statutes 2010, section 322B.935, subdivision 2, is amended to read:


Subd. 2.

Revocation notice.

No certificate of authority of a foreign limited liability
company shall be revoked by the secretary of state unless:

(1) the secretary has deleted text begingivendeleted text endnew text begin attempted to providenew text end the foreign limited liability company
not less than 30 days' notice deleted text beginby mail addressed to its registered office in this state or, if the
foreign limited liability company fails to appoint and maintain a registered agent in this
state, addressed to the office address in the jurisdiction of organization
deleted text end; and

(2) during the 30-day period, the foreign limited liability company has failed to file
the report of change regarding the registered agent, to file any amendment, or to correct
the misrepresentation.

Sec. 22.

Minnesota Statutes 2010, section 322B.935, subdivision 3, is amended to read:


Subd. 3.

Effective date.

Upon the expiration of 30 days after the deleted text beginmailing of thedeleted text endnew text begin
secretary of state attempts to provide
new text end notice, the authority of the foreign limited liability
company to transact business in this state ceases. The secretary of state shall issuenew text begin and
file
new text end a certificate of revocation and shall mail the certificate to the address of the principal
place of business or the office required to be maintained in the jurisdiction of organization
of the foreign limited liability company.

Sec. 23.

new text begin [323A.1004] REVOCATION FOR FAILURE TO REPLACE A
REQUIRED REGISTERED AGENT.
new text end

new text begin If a limited liability partnership is required to list an agent for service of process in
its statement of qualification pursuant to section 323A.1001, paragraph (c), clause (3),
or 323A.1102, paragraph (a), clause (3), and that agent resigns pursuant to section 5.36,
subdivision 4, and the limited liability partnership or foreign limited liability partnership
fails to amend the statement of qualification or statement of foreign qualification to
name a new agent for service of process by the time the resignation becomes effective,
the secretary of state must attempt to provide notice to the limited liability partnership
or foreign limited liability partnership that the statement of qualification or statement of
foreign qualification will be revoked if it is not amended to name a new agent for service
of process within 30 days after the attempts to provide the notice. If the statement of
qualification or statement of foreign qualification is not amended to name a new agent for
service of process within that time, the secretary of state must revoke the statement of
qualification or statement of foreign qualification.
new text end

Sec. 24.

Minnesota Statutes 2010, section 323A.1102, is amended to read:


323A.1102 STATEMENT OF FOREIGN QUALIFICATION.

(a) Before transacting business in this state, a foreign limited liability partnership
must file a statement of foreign qualification. The statement must contain:

(1) the name of the foreign limited liability partnership which satisfies the
requirements of the state or other jurisdiction under whose law it is formed and ends with
"Registered Limited Liability Partnership," "Limited Liability Partnership," "R.L.L.P.,"
"L.L.P.," "RLLP," or "LLP." deleted text beginIf this name is unavailable, thedeleted text endnew text begin Anew text end foreign limited liability
partnership may use an alternate name to transact business in the state if it delivers to the
secretary of state a certified copy of the resolution of the partners adopting the alternate
name;

(2) the street address, including the zip code, of the partnership's chief executive
office and, if different, the street address, including the zip code, of an office of the
partnership in this state, if any;

(3) if there is no office of the partnership in this state, the name and street address,
including the zip code, of the partnership's agent for service of process. If an agent for
service of process is listed, the limited liability partnership shall comply with section 5.36;

(4) a deferred effective date, if any; and

(5) the name of the jurisdiction under whose law the foreign limited liability
partnership was originally registered.

(b) The agent of a foreign limited liability company for service of process must be
an individual who is a resident of this state or other person authorized to do business in
this state.

(c) The status of a partnership as a foreign limited liability partnership is effective on
the later of the filing of the statement of foreign qualification or a date specified in the
statement. The status remains effective, regardless of changes in the partnership, until it is
canceled pursuant to section 323A.0105(d) or revoked pursuant to section 323A.1003.

(d) An amendment or cancellation of a statement of foreign qualification is effective
when it is filed or on a deferred effective date specified in the amendment or cancellation.

(e) A statement of foreign qualification may include the information necessary to
make an election under section 319B.04, subdivision 2, and to update that information as
provided in section 319B.04, subdivision 3.

Sec. 25.

Minnesota Statutes 2010, section 453.53, subdivision 2, is amended to read:


Subd. 2.

Filing agreement, resolution; incorporation certificate.

The agency
agreement and a certified copy of the resolution of the governing body of each member
shall be filed for record with the secretary of state. deleted text beginIf the agency agreement conforms to
the requirements of this section, the secretary of state shall record it and issue and record a
certificate of incorporation. The certificate shall state the name of the municipal power
agency and the fact and date of incorporation.
deleted text end Upon the deleted text beginissuance of the certificate of
incorporation
deleted text endnew text begin filing of the agency agreement and a certified copy of the resolution of
the governing body of each member
new text end, the existence of the municipal power agency as a
political subdivision of the state and a municipal corporation shall begin. deleted text beginThe certificate of
incorporation shall be conclusive evidence of the fact of incorporation.
deleted text end

Sec. 26.

Minnesota Statutes 2010, section 453A.03, subdivision 2, is amended to read:


Subd. 2.

Filing agreement, resolution; certificate; incorporation.

The agency
agreement and a certified copy of the resolution of the governing body of each city shall
be filed for record with the secretary of state. deleted text beginIf the agency agreement conforms to the
requirements of this section, the secretary of state shall record it and issue and record a
certificate of incorporation. The certificate shall state the name of the municipal gas
agency and the fact and date of incorporation.
deleted text end Upon the deleted text beginissuance of the certificate of
incorporation
deleted text endnew text begin filing of the agency agreement and a certified copy of the resolution of
the governing body of each member
new text end, the existence of the municipal gas agency as a
political subdivision of the state and a municipal corporation shall begin. deleted text beginThe certificate of
incorporation shall be conclusive evidence of the fact of incorporation.
deleted text end

Sec. 27. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2010, sections 302A.801; 302A.805; 308A.151; 317A.022,
subdivision 1; 317A.801; 317A.805; and 318.02, subdivision 5,
new text end new text begin are repealed.
new text end