SF 1346

2nd 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; regulating foreign limited partnership name
changes; regulating notaries public; amending Minnesota Statutes 2006, sections
308A.995, subdivisions 1, 4; 308B.121, subdivisions 1, 4; 308B.215, subdivision
2; 317A.823, subdivision 1; 321.0210; 323A.1003; 336.9-516; 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 308A.995, subdivision 1, is amended to
read:

Subdivision 1.

Periodic registration in certain years.

Each cooperative governed
by this chapter must file a periodic registration with the secretary of state in each
deleted text begin odd-numbered deleted text end new text begin calendar new text end year. In these years, the secretary of state must mail by first
class mail a registration form to the registered office of each cooperative as shown on the
records of the secretary of state, or if no such address is in the records, to the location of
the principal place of business shown on the records of the secretary of state. The form
must include the following notice:

"NOTICE: Failure to file this form by December 31 of this year will result in the
dissolution of this cooperative without further notice from the secretary of state, pursuant
to Minnesota Statutes, section 308A.995, subdivision 4, paragraph (b)."

Sec. 2.

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. 3.

Minnesota Statutes 2006, section 308B.121, subdivision 1, is amended to read:

Subdivision 1.

Periodic registration in certain years.

Each cooperative governed
by this chapter and each foreign cooperative registered under section 308B.151 must file a
periodic registration with the secretary of state with the initial articles and any amendment
of the articles in each deleted text begin odd-numbered deleted text end new text begin calendar new text end year. In these years, the secretary of state
must mail by first class mail a registration form to the registered office of each cooperative
and registered foreign cooperative as shown in the records of the secretary of state, or
if no such address is in the records, to the location of the principal place of business
shown in the records of the secretary of state. For a cooperative, the form must include
the following notice:

"NOTICE: Failure to file this form by December 31 of this year will result in the
dissolution of this cooperative without further notice from the secretary of state, under
Minnesota Statutes, section 308B.121, subdivision 4, paragraph (b)."

For a foreign cooperative, the form must contain the following notice:

"NOTICE: Failure to file this form by December 31 of this year will result in the
loss of good standing and the authority to do business in Minnesota."

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 321.0210, is amended to read:

321.0210 ANNUAL REPORT FOR SECRETARY OF STATE.

(a) Subject to subsection (b):

(1) in each calendar year following the calendar year in which a limited partnership
becomes subject to this chapter, the limited partnership must deliver to the secretary of
state for filing an annual registration containing the information required by subsection
(c); and

(2) in each calendar year following the calendar year in which there is first on file
with the secretary of state a certificate of authority under section 321.0904 pertaining to a
foreign limited partnership, the foreign limited partnership must deliver to the secretary of
state for filing an annual registration containing the information required by subsection (c).

(b) A limited partnership's obligation under subsection (a) ends if the limited
partnership delivers to the secretary of state for filing a statement of termination under
section 321.0203 and the statement becomes effective under section 321.0206. A foreign
limited partnership's obligation under subsection (a) ends if the secretary of state issues
and files a certificate of revocation under section 321.0906 or if the foreign limited
partnership delivers to the secretary of state for filing a notice of cancellation under
section 321.0907(a) and that notice takes effect under section 321.0206. If a foreign
limited partnership's obligations under subsection (a) end and later the secretary of state
files, pursuant to section 321.0904, a new certificate of authority pertaining to that foreign
limited partnership, subsection (a)(2), again applies to the foreign limited partnership and,
for the purposes of subsection (a)(2), the calendar year of the new filing is treated as the
calendar year in which a certificate of authority is first on file with the secretary of state.

(c) The annual registration must contain:

(1) the name of the limited partnership or foreign limited partnership;

(2) the address of its designated office and the name and street and mailing address
of its agent for service of process in Minnesota new text begin and, if the agent is not an individual, the
name, street and mailing address, and telephone number of an individual who may be
contacted for purposes other than service of process with respect to the limited partnership new text end ;

(3) in the case of a limited partnership, the street and mailing address of its principal
office; and

(4) in the case of a foreign limited partnership, the name of the state or other
jurisdiction under whose law the foreign limited partnership is formed and any alternate
name adopted under section 321.0905(a).

(d) The secretary of state shall:

(1) administratively dissolve under section 321.0809 a limited partnership that has
failed to file a registration pursuant to subsection (a); and

(2) revoke under section 321.0906 the certificate of authority of a foreign limited
partnership that has failed to file a registration pursuant to subsection (a).

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 323A.1003, is amended to read:

323A.1003 ANNUAL REGISTRATION.

(a) Each calendar year beginning in the calendar year following the calendar year
in which a partnership files a statement of qualification or in which a foreign partnership
becomes authorized to transact business in this state, the secretary of state must mail by
first class mail an annual registration form to the street address of the partnership's chief
executive office, if located in Minnesota, the office in this state, if the chief executive
office is not located in Minnesota, or address of the registered agent of the partnership
as shown on the records of the secretary of state when the chief executive office is not
located in Minnesota and no other Minnesota office exists. The form must include the
following notice:

"NOTICE: Failure to file this form by December 31 of this year will result in
the revocation of the statement of qualification of this limited liability partnership
without further notice from the secretary of state pursuant to Minnesota Statutes, section
323A.1003, subsection (d)."

(b) A limited liability partnership, and a foreign limited liability partnership
authorized to transact business in this state, shall file an annual registration in the office
of the secretary of state which contains:

(1) the name of the limited liability partnership and the state or other jurisdiction
under whose laws the foreign limited liability partnership is formed;

(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; deleted text begin and
deleted text end

(3) if the partnership does not have an office in this state, the name and street address,
including the zip code, of the partnership's current agent for service of process new text begin ; and
new text end

new text begin (4) if the agent for service of process under clause (3) is not an individual, the name,
street address, and telephone number of an individual who may be contacted for purposes
other than service of process with respect to the limited liability partnership new text end .

(c) An annual registration must be filed once each calendar year beginning in the
year following the calendar year in which a partnership files a statement of qualification or
a foreign partnership becomes authorized to transact business in this state.

(d) The secretary of state must revoke the statement of qualification of a partnership
that fails to file an annual registration when due or pay the required filing fee. The
secretary of state must issue a certificate of revocation which 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 revoked limited liability companies.

(e) A revocation under subsection (d) only affects a partnership's status as a limited
liability partnership and is not an event of dissolution of the partnership.

(f) A partnership whose statement of qualification has been revoked may apply to
the secretary of state for reinstatement within one year after the effective date of the
revocation. A partnership must file an annual registration to apply for reinstatement and
pay a reinstatement fee of $135.

(g) A reinstatement under subsection (f) relates back to and takes effect as of
the effective date of the revocation, and the partnership's status as a limited liability
partnership continues as if the revocation had never occurred.

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. 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. 13. new text begin EFFECTIVE DATES.
new text end

new text begin Sections 1 to 4 are effective January 1, 2008. Sections 8 and 10 apply to annual
reports and registrations made for calendar year 2008 and after that. 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