Minnesota Legislature
Office of the Revisor of Statutes
Minnesota Session Laws - 1995, Regular Session
Key: (1) language to be deleted (2) new language
CHAPTER 128-H.F.No. 399
An act relating to business organizations; clarifying
corporate authority with respect to rights to
purchase; regulating filings and related matters;
providing for service of process; amending Minnesota
Statutes 1994, sections 5.22, subdivision 1; 48.185,
subdivision 7; 79A.06, subdivision 5; 168.27,
subdivision 19a; 221.67; 302A.115, subdivision 1;
302A.121, subdivision 1; 302A.409, subdivision 3;
302A.701; 302A.901, subdivision 1; 303.03; 303.06,
subdivision 1; 303.13, subdivision 1; 303.14,
subdivision 3; 308A.121, subdivision 1; 309.56,
subdivision 1; 317A.115, subdivision 2; 317A.823,
subdivision 1; 317A.901, subdivision 1; 319A.03;
319A.06, subdivision 2; 322A.02; 322A.761; 322B.12,
subdivision 1; 322B.80, subdivision 1; 322B.876,
subdivision 1; 322B.955; 322B.960, subdivisions 1 and
3; 323.02, by adding a subdivision; 323.44,
subdivisions 2, 4, 5, and 6; 323.45, subdivisions 1
and 5; 323.46; 323.47, subdivision 1; 325F.70,
subdivision 2; 330.11, subdivision 3; 333.001; 333.01;
333.055, subdivision 4; 333.21, subdivision 1;
336.9-403; 336A.11, subdivision 2; 540.152; and
543.08; proposing coding for new law in Minnesota
Statutes, chapters 5; and 323; repealing Minnesota
Statutes 1994, sections 302A.901, subdivisions 2, 2a,
3, and 4; 303.13, subdivisions 2, 3, 4, and 5;
317A.901, subdivisions 2, 3, and 4; 322B.876,
subdivisions 2, 3, and 4; 322B.901; and 323.47,
subdivisions 2, 3, and 4.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
ARTICLE 1
Section 1. [5.25] [SERVICE OF PROCESS.]
Subdivision 1. [WHO MAY BE SERVED.] A process, notice, or
demand required or permitted by law to be served upon an entity
governed by chapter 221, 302A, 303, 317A, 322A, 322B, 323, 330,
540, or 543 may be served on: (1) the registered agent, if any;
(2) if no agent has been appointed then on an officer, manager,
or partner of the entity; or (3) if no agent, officer, manager,
or partner can be found, on the secretary of state as provided
in this section.
Subd. 2. [SERVICE ON MOTOR CARRIERS AND UNIONS, GROUPS, OR
ASSOCIATIONS.] When service of process is to be made on the
secretary of state according to section 221.67 or 540.152, the
procedure in this subdivision applies. Service must be made by
filing the process, notice, or demand with the secretary of
state along with the payment of a fee of $35. Within ten days
of the filing with the secretary of state, a copy of the
process, notice, or demand shall be sent to the defendant's last
known address by the person who caused it to be served on the
secretary of state.
Subd. 3. [SERVICE ON CERTAIN BUSINESS ENTITIES;
AUCTIONEERS.] When service of process is to be made on the
secretary of state for entities governed by chapter 302A, 317A,
322A, 322B, 323, 330, or 543, the procedure in this subdivision
applies. Service must be made by filing with the secretary of
state two copies of the process, notice, or demand along with
payment of a $35 fee.
Subd. 4. [SERVICE ON FOREIGN CORPORATION.] (a) Service of
a process, notice, or demand may be made on a foreign
corporation authorized to transact business in this state by
delivering to and leaving with the secretary of state, or with
an authorized deputy or clerk in the secretary of state's
office, two copies of it and a fee of $50 in the following
circumstances: (1) if the foreign corporation fails to appoint
or maintain in this state a registered agent upon whom service
of process may be had; (2) whenever a registered agent cannot be
found at its registered office in this state, as shown by the
return of the sheriff of the county in which the registered
office is situated, or by an affidavit of attempted service by a
person not a party; (3) whenever a corporation withdraws from
the state; or (4) whenever the certificate of authority of a
foreign corporation is revoked or canceled.
However, after a foreign corporation withdraws from the
state, according to section 303.16, service upon the corporation
may be made according to this section only when based upon a
liability or obligation of the corporation incurred within this
state or arising out of any business done in this state by the
corporation before the issuance of a certificate of withdrawal.
(b) A foreign corporation is considered to be doing
business in Minnesota if it makes a contract with a resident of
Minnesota to be performed in whole or in part by either party in
Minnesota, or if it commits a tort in whole or in part in
Minnesota against a resident of Minnesota. These acts are
considered to be equivalent to the appointment by the foreign
corporation of the secretary of state of Minnesota and
successors to be its true and lawful attorney upon whom may be
served all lawful process in actions or proceedings against the
foreign corporation arising from or growing out of the contract
or tort. Process must be served in duplicate upon the secretary
of state, together with the address to which service is to be
sent and a fee of $50. The making of the contract or the
committing of the tort is considered to be the agreement of the
foreign corporation that any process against it which is so
served upon the secretary of state has the same legal force and
effect as if served personally on it within the state of
Minnesota.
Subd. 5. [SERVICE ON DISSOLVED, WITHDRAWN, OR REVOKED
BUSINESS ENTITY.] (a) Process, notice, or demand may be served
on a dissolved, withdrawn, or revoked business entity that was
governed by chapter 302A, 303, 317A, 322A, 322B, or 323 as
provided in this subdivision. The court shall determine if
service is proper.
(b) If a business entity has voluntarily dissolved or has
withdrawn its request for authority to transact business in this
state, or a court has entered a decree of dissolution or
revocation of authority to do business, service must be made
according to subdivision 3 or 4, so long as claims are not
barred under the provisions of the chapter that governed the
business entity.
(c) If a business entity has been involuntarily dissolved
or its authority to transact business in this state has been
revoked, service must be made according to subdivision 3 or 4.
Subd. 6. [DUTIES OF SECRETARY OF STATE.] In the case of
service of process according to subdivision 3 or 4, the
secretary of state shall immediately cause one copy of a service
of process to be forwarded by certified mail addressed to the
business entity:
(1) in care of the agent of the business entity, at its
registered office in this state as it appears in the records of
the secretary of state;
(2) at the address designated in the application for
withdrawal, if the business entity has withdrawn from this state
in the manner provided by law;
(3) at the address provided by the party submitting the
document for service of process if the business entity's
authority to do business in this state has been revoked; or
(4) at the address provided by the party submitting the
document for service of process if the business entity has never
been authorized to do business in this state.
Subd. 7. [TIME TO ANSWER.] If a summons is to be served
upon the secretary of state according to subdivision 3 or 4, the
business entity so served has 30 days from the date of mailing
by the secretary of state in which to answer the complaint.
Subd. 8. [OTHER METHODS OF SERVICE.] Nothing in this
section limits the right of a person to serve any process,
notice, or demand required or permitted by law to be served upon
a business entity in another manner.
Sec. 2. Minnesota Statutes 1994, section 48.185,
subdivision 7, is amended to read:
Subd. 7. Any bank or savings bank extending credit in
compliance with the provisions of this section, which is injured
competitively by violations of this section by another bank or
savings bank, may institute a civil action in the district court
of this state against that bank or savings bank for an
injunction prohibiting any violation of this section. The
court, upon proper proof that the defendant has engaged in any
practice in violation of this section, may enjoin the future
commission of that practice. Proof of monetary damage or loss
of profits shall not be required. Costs and attorneys' fees may
be allowed to the plaintiff, unless the court directs
otherwise. The relief provided in this subdivision is in
addition to remedies otherwise available against the same
conduct under the common law or statutes of this state.
Service of process shall be as in any other civil suit,
except that if a defendant in the action is a foreign
corporation or a national banking association with its principal
place of business in another state, service of process may also
be made by personal service outside the state, or in the manner
provided by section 303.13, subdivision 1, clause (3) 5.25, or
in such manner as the court may direct, or in accordance with
section 45.028, subdivision 2. Process is valid if it satisfies
the requirements of due process of law, whether or not defendant
is doing business in Minnesota regularly or habitually.
Sec. 3. Minnesota Statutes 1994, section 79A.06,
subdivision 5, is amended to read:
Subd. 5. [PRIVATE EMPLOYERS WHO HAVE CEASED TO BE
SELF-INSURED.] Private employers who have ceased to be private
self-insurers shall discharge their continuing obligations to
secure the payment of compensation which is accrued during the
period of self-insurance, for purposes of Laws 1988, chapter
674, sections 1 to 21, by compliance with all of the following
obligations of current certificate holders:
(1) Filing reports with the commissioner to carry out the
requirements of this chapter;
(2) Depositing and maintaining a security deposit for
accrued liability for the payment of any compensation which may
become due, pursuant to chapter 176. However, if a private
employer who has ceased to be a private self-insurer purchases
an insurance policy from an insurer authorized to transact
workers' compensation insurance in this state which provides
coverage of all claims for compensation arising out of injuries
occurring during the period the employer was self-insured,
whether or not reported during that period, the policy will
discharge the obligation of the employer to maintain a security
deposit for the payment of the claims covered under the policy.
The policy may not be issued by an insurer unless it has
previously been approved as to form and substance by the
commissioner; and
(3) Paying within 30 days all assessments of which notice
is sent by the security fund, for a period of seven years from
the last day its certificate of self-insurance was in effect.
Thereafter, the private employer who has ceased to be a private
self-insurer may either: (a) continue to pay within 30 days all
assessments of which notice is sent by the security fund until
it has no incurred liabilities for the payment of compensation
arising out of injuries during the period of self-insurance; or
(b) pay the security fund a cash payment equal to four percent
of the net present value of all remaining incurred liabilities
for the payment of compensation under sections 176.101 and
176.111 as certified by a member of the casualty actuarial
society. Assessments shall be based on the benefits paid by the
employer during the calendar year immediately preceding the
calendar year in which the employer's right to self-insure is
terminated or withdrawn.
In addition to proceedings to establish liabilities and
penalties otherwise provided, a failure to comply may be the
subject of a proceeding before the commissioner. An appeal from
the commissioner's determination may be taken pursuant to the
contested case procedures of chapter 14 within 30 days of the
commissioner's written determination.
Any current or past member of the self-insurers' security
fund is subject to service of process on any claim arising out
of chapter 176 or this chapter in the manner provided by section
303.13, subdivision 1, clause (3) 5.25, or as otherwise provided
by law. The issuance of a certificate to self-insure to the
private self-insured employer shall be deemed to be the
agreement that any process which is served in accordance with
this section shall be of the same legal force and effect as if
served personally within this state.
Sec. 4. Minnesota Statutes 1994, section 168.27,
subdivision 19a, is amended to read:
Subd. 19a. [INJUNCTION.] The commissioner or a county
attorney may institute a civil action in the name of the state
in district court for an injunction prohibiting a violation of
this section. The court, upon proper proof that the defendant
has engaged in a practice prohibited by this section, may enjoin
the future commission of that practice. It is not a defense to
an action that the state may have adequate remedies at law.
Service of process must be as in any other civil suit, except
that where a defendant in the action is a natural person or firm
residing outside the state, or is a foreign corporation, service
of process may also be made by personal service outside the
state; in the manner provided by section 303.13, subdivision 1,
paragraph (3) 5.25; or as the court may direct. Process is
valid if it satisfies the requirements of due process of law,
whether or not the defendant is doing business in Minnesota
regularly or habitually. Nothing in this subdivision limits the
rights or remedies otherwise available to persons under common
law or other statutes of this state.
Sec. 5. Minnesota Statutes 1994, section 221.67, is
amended to read:
221.67 [SERVICE OF PROCESS.]
The use of any of the public highways of this state for the
transportation of persons or property for compensation by a
motor carrier in interstate commerce shall be deemed an
irrevocable appointment by the carrier of the secretary of state
to be the carrier's true and lawful attorney upon whom may be
served all legal process in any action or proceeding brought
under this chapter against the carrier or the carrier's
executor, administrator, personal representative, heirs,
successors or assigns. This use is a signification of agreement
by the interstate motor carrier that any process in any action
against the carrier or the carrier's executor, administrator,
personal representative, heirs, successors, or assigns which is
so served shall be of the same legal force and validity as if
served upon the carrier personally. Service shall be made by
serving a copy thereof upon the secretary of state or by filing
a copy in the office of the secretary of state, together with
payment of a fee of $35, and the service shall be sufficient
service upon the absent motor carrier if notice of the service
and a copy of the process are within ten days thereafter sent by
mail by the plaintiff to the defendant at the defendant's last
known address according to section 5.25 and the plaintiff's
affidavit of compliance with the provisions of this section and
sections 221.60, 221.65, and 221.68 is must be attached to the
summons.
Sec. 6. Minnesota Statutes 1994, section 302A.901,
subdivision 1, is amended to read:
Subdivision 1. [WHO MAY BE SERVED.] A process, notice, or
demand required or permitted by law to be served upon a
corporation may be served either upon the registered agent, if
any, of the corporation named in the articles, or upon an
officer of the corporation, or upon the secretary of state as
provided in this section 5.25.
Sec. 7. Minnesota Statutes 1994, section 303.03, is
amended to read:
303.03 [FOREIGN CORPORATIONS MUST HAVE CERTIFICATE OF
AUTHORITY.]
No foreign corporation shall transact business in this
state unless it holds a certificate of authority so to do; and
no foreign corporation whose certificate of authority has been
revoked or canceled pursuant to the provisions of this chapter
shall be entitled to obtain a certificate of authority except in
accordance with the provisions of section 303.19. This section
does not establish standards for those activities that may
subject a foreign corporation to taxation under section 290.015
and to the reporting requirements of section 290.371. Without
excluding other activities which may not constitute transacting
business in this state, and subject to the provisions of
sections 303.13 5.25 and 543.19, a foreign corporation shall not
be considered to be transacting business in this state for the
purposes of this chapter solely by reason of carrying on in this
state any one or more of the following activities:
(a) Maintaining or defending any action or suit or any
administrative or arbitration proceeding, or effecting the
settlement thereof or the settlement of claims or disputes;
(b) Holding meetings of its directors or shareholders or
carrying on other activities concerning its internal affairs;
(c) Maintaining bank accounts;
(d) Maintaining offices or agencies for the transfer,
exchange, and registration of its securities, or appointing and
maintaining trustees or depositaries with relation to its
securities;
(e) Holding title to and managing real or personal
property, or any interest therein, situated in this state, as
executor of the will or administrator of the estate of any
decedent, as trustee of any trust, or as guardian or conservator
of the person or estate, or both, of any person;
(f) Making, participating in, or investing in loans or
creating, as borrower or lender, or otherwise acquiring
indebtedness or mortgages or other security interests in real or
personal property;
(g) Securing or collecting its debts or enforcing any
rights in property securing them; or
(h) Conducting an isolated transaction completed within a
period of 30 days and not in the course of a number of repeated
transactions of like nature.
Sec. 8. Minnesota Statutes 1994, section 303.06,
subdivision 1, is amended to read:
Subdivision 1. [CONTENTS.] In order to procure a
certificate of authority to transact business in this state, a
foreign corporation shall make application therefor to the
secretary of state, which application shall set forth:
(1) the name of the corporation and the state or country
under the laws of which it is organized;
(2) if the name of the corporation does not comply with
section 303.05, then the name which it agrees to use in this
state;
(3) the address of its proposed registered office in this
state and the name of its proposed registered agent in this
state;
(4) that it irrevocably consents to the service of process
upon it as set forth in section 303.13 5.25, or any amendment
thereto; and
(5) a statement that the officers executing the application
have been duly authorized so to do by the board of directors of
the corporation.
Sec. 9. Minnesota Statutes 1994, section 303.13,
subdivision 1, is amended to read:
Subdivision 1. [FOREIGN CORPORATION.] A foreign
corporation shall be subject to service of process, as follows:
(1) by service on its registered agent.; or
(2) When any foreign corporation authorized to transact
business in this state fails to appoint or maintain in this
state a registered agent upon whom service of process may be
had, or whenever any registered agent cannot be found at its
registered office in this state, as shown by the return of the
sheriff of the county in which the registered office is
situated, or by an affidavit of attempted service by any person
not a party, or whenever any corporation withdraws from the
state, or whenever the certificate of authority of any foreign
corporation is revoked or canceled, service may be made by
delivering to and leaving with the secretary of state, or with
any authorized deputy or clerk in the secretary of state's
office, two copies thereof and a fee of $50; provided, that
after a foreign corporation withdraws from the state, pursuant
to section 303.16, service upon the corporation may be made
pursuant to the provisions of this section only when based upon
a liability or obligation of the corporation incurred within
this state or arising out of any business done in this state by
the corporation prior to the issuance of a certificate of
withdrawal.
(3) If a foreign corporation makes a contract with a
resident of Minnesota to be performed in whole or in part by
either party in Minnesota, or if a foreign corporation commits a
tort in whole or in part in Minnesota against a resident of
Minnesota, such acts shall be deemed to be doing business in
Minnesota by the foreign corporation and shall be deemed
equivalent to the appointment by the foreign corporation of the
secretary of the state of Minnesota and successors to be its
true and lawful attorney upon whom may be served all lawful
process in any actions or proceedings against the foreign
corporation arising from or growing out of the contract or
tort. Process shall be served in duplicate upon the secretary
of state, together with the address to which service is to be
sent and a fee of $50 and the secretary of state shall mail one
copy thereof to the corporation at the last address listed on
the records of the secretary of state or the address provided by
the party requesting service, and the corporation shall have 30
days within which to answer from the date of the mailing,
notwithstanding any other provision of the law. The making of
the contract or the committing of the tort shall be deemed to be
the agreement of the foreign corporation that any process
against it which is so served upon the secretary of state shall
be of the same legal force and effect as if served personally on
it within the state of Minnesota as provided in section 5.25.
Sec. 10. Minnesota Statutes 1994, section 309.56,
subdivision 1, is amended to read:
Subdivision 1. Any charitable organization or professional
fund raiser which solicits contributions in this state, but does
not maintain an office within the state shall be subject to
service of process, as follows:
(a) By service thereof on its registered agent within the
state, or if there be no such registered agent, then upon the
person, if any, who has been designated in the registration
statement as having custody of books and records within this
state; where service is effected upon the person so designated
in the registration statement a copy of the process shall, in
addition, be mailed to the charitable organization or
professional fund raiser at its last known address;
(b) When a charitable organization or professional fund
raiser has solicited contributions in this state, but maintains
no office within the state, has no registered agent within the
state, and no designated person having custody of its books and
records within the state, or when a registered agent or person
having custody of its books and records within the state cannot
be found as shown by the return of the sheriff of the county in
which such registered agent or person having custody of books
and records has been represented by the charitable organization
or professional fund raiser as maintaining an office, service
may be made as in any other civil suit, or in the manner
provided by section 303.13, subdivision 1, clause (3) 5.25, or
in a manner as the court may direct.
Sec. 11. Minnesota Statutes 1994, section 317A.901,
subdivision 1, is amended to read:
Subdivision 1. [WHO MAY BE SERVED.] A process, notice, or
demand required or permitted by law to be served upon a
corporation may be served upon the registered agent, if any, of
the corporation named in the articles, upon an officer of the
corporation, or upon the secretary of state as provided in this
section 5.25.
Sec. 12. Minnesota Statutes 1994, section 322A.761, is
amended to read:
322A.761 [SERVICE OF PROCESS ON LIMITED PARTNERSHIP OR
FOREIGN LIMITED PARTNERSHIP.]
A process, notice, or demand required or permitted by law
to be served upon a limited partnership or foreign limited
partnership may be served either upon the registered agent, if
any, of the limited partnership or foreign limited partnership
named in the certificate or registration, or upon a general
partner of the limited partnership or foreign limited
partnership, or upon the secretary of state as provided in
section 302A.901 5.25.
Sec. 13. Minnesota Statutes 1994, section 322B.876,
subdivision 1, is amended to read:
Subdivision 1. [WHO MAY BE SERVED.] A process, notice, or
demand required or permitted by law to be served upon a limited
liability company may be served either upon the registered
agent, if any, of the limited liability company named in the
articles of organization, or upon a manager of the limited
liability company, or upon the secretary of state as provided in
this section 5.25.
Sec. 14. Minnesota Statutes 1994, section 322B.955, is
amended to read:
322B.955 [SERVICE OF PROCESS.]
Service of process on a foreign limited liability company
must be as provided in section 322B.876 5.25.
Sec. 15. Minnesota Statutes 1994, section 323.47,
subdivision 1, is amended to read:
Subdivision 1. [WHO MAY BE SERVED.] A process, notice, or
demand required or permitted by law to be served on a limited
liability partnership may be served either on the registered
agent of the limited liability partnership, if any, or on any
responsible person found at the registered office of the limited
liability partnership or on the secretary of state as provided
in this section 5.25.
Sec. 16. Minnesota Statutes 1994, section 325F.70,
subdivision 2, is amended to read:
Subd. 2. [SERVICE OF PROCESS.] Service of process shall be
as in any other civil suit, except that where a defendant in
such action is a natural person or firm residing outside the
state, or is a foreign corporation, service of process may also
be made by personal service outside the state, or in the manner
provided by section 303.13, subdivision 1(3) 5.25, or in such
manner as the court may direct. Process is valid if it
satisfies the requirements of due process of law, whether or not
defendant is doing business in Minnesota regularly or habitually.
Sec. 17. Minnesota Statutes 1994, section 330.11,
subdivision 3, is amended to read:
Subd. 3. Every nonresident applicant shall file an
irrevocable consent that suits and actions may be commenced
against such applicant in any court of competent jurisdiction in
this state by the service on the secretary of state of any
summons, process, or pleadings authorized by the laws of the
state of Minnesota. This consent shall stipulate that the
service of such process or pleadings on the secretary of state
shall be taken and held in all courts to be as valid and binding
as if due service had been made upon the applicant in the state
of Minnesota. In case any summons, process, or pleadings are
served upon the secretary of state, it shall be by duplicate
copies, one of which shall be retained in the office of the
secretary of state, and the other to be forwarded immediately by
certified mail to the address of the applicant, as shown by the
records of the secretary of state, against whom the summons,
process, or pleadings may be divested. A fee of $35 must be
paid to the secretary of state for each service according to
section 5.25.
Sec. 18. Minnesota Statutes 1994, section 540.152, is
amended to read:
540.152 [SERVICE OF PROCESS ON UNIONS, GROUPS, OR
ASSOCIATIONS.]
The transaction of any acts, business, or activities within
the state of Minnesota by any officer, agent, representative,
employee, or member of any union or other groups or associations
having officers, agents, members, or property without the state
on behalf of the union or other groups or associations or any of
its members or affiliated local unions shall be deemed an
appointment by the union or other groups or associations of the
secretary of state of the state of Minnesota to be the true and
lawful attorney of the union or other groups or associations,
upon whom may be served all legal processes or notices in any
action or proceeding against or involving the union or other
groups or associations growing out of any acts, business or
activities within the state of Minnesota resulting in damage or
loss to person or property or giving rise to any cause of action
under the laws of the state of Minnesota or to any matters or
proceedings arising under the Minnesota labor relations act.
Such acts, business, or activities shall be a signification of
the agreement of the union or other groups or associations and
its members that any process or notice in any action, matter, or
proceeding against or involving it, which is so served, shall be
of the same legal force and validity as if served upon the union
or other groups or associations and its members personally.
Service of process or notice shall be made by filing a copy
thereof in the office of the secretary of state, together with
payment of a fee of $35 and together with an affidavit stating
that no officer or managing agent of the union or other group or
association has been found in this state and setting forth an
address to which the service shall be forwarded according to
section 5.25. The service shall be sufficient service upon the
union or other groups or associations and its members. Notice
of service and a copy of the process or notice shall, within ten
days thereafter, be sent by mail by the person who caused it to
be served on the union or other groups or associations at its
last known address and an affidavit of compliance with the
provisions of this chapter shall be filed with the court or
other state agency or department before which the action,
matter, or proceeding is pending.
Sec. 19. Minnesota Statutes 1994, section 543.08, is
amended to read:
543.08 [SUMMONS, SERVICE UPON CERTAIN CORPORATIONS.]
If a private domestic corporation has no officer at the
registered office of the corporation within the state upon whom
service can be made, of which fact the return of the sheriff of
the county in which that office is located, or the affidavit of
a private person not a party, that none can be found in that
county shall be conclusive evidence, service of the summons upon
it may be made by depositing two copies, together with a fee of
$35 with the secretary of state, which shall be deemed personal
service upon the corporation. One of the copies shall be filed
by the secretary, and the other forthwith mailed by the
secretary to the corporation by certified mail, if the place of
its main office is known to the secretary or is disclosed by the
files in the office according to section 5.25.
If the defendant is a foreign insurance corporation, the
summons may be served in compliance with section 45.028,
subdivision 2.
Sec. 20. [REPEALER.]
Minnesota Statutes 1994, sections 302A.901, subdivisions 2,
2a, 3, and 4; 303.13, subdivisions 2, 3, 4, and 5; 317A.901,
subdivisions 2, 3, and 4; 322B.876, subdivisions 2, 3, and 4;
and 323.47, subdivisions 2, 3, and 4, are repealed.
ARTICLE 2
Section 1. Minnesota Statutes 1994, section 302A.115,
subdivision 1, is amended to read:
Subdivision 1. [REQUIREMENTS; PROHIBITIONS.] The corporate
name:
(a) Shall be in the English language or in any other
language expressed in English letters or characters;
(b) Shall contain the word "corporation," "incorporated,"
or "limited," or shall contain an abbreviation of one or more of
these words, or the word "company" or the abbreviation "Co." if
that word or abbreviation is not immediately preceded by the
word "and" or the character "&";
(c) Shall not contain a word or phrase that indicates or
implies that it is incorporated for a purpose other than a legal
business purpose;
(d) Shall be distinguishable upon the records in the office
of the secretary of state from the name of each domestic
corporation, limited partnership, limited liability partnership,
and limited liability company, whether profit or nonprofit, and
each foreign corporation, limited partnership, limited liability
partnership, and limited liability company authorized or
registered to do business in this state, whether profit or
nonprofit, and each name the right to which is, at the time of
incorporation, reserved as provided for in sections 302A.117,
322A.03, 322B.125, or 333.001 to 333.54, unless there is filed
with the articles one of the following:
(1) The written consent of the domestic corporation,
limited partnership, limited liability partnership, or limited
liability company, or the foreign corporation, limited
partnership, limited liability partnership, or limited liability
company authorized or registered to do business in this state or
the holder of a reserved name or a name filed by or registered
with the secretary of state under sections 333.001 to 333.54
having a name that is not distinguishable;
(2) A certified copy of a final decree of a court in this
state establishing the prior right of the applicant to the use
of the name in this state; or
(3) The applicant's affidavit that the corporation, limited
partnership, or limited liability company with the name that is
not distinguishable has been incorporated or on file in this
state for at least three years prior to the affidavit, if it is
a domestic corporation, limited partnership, or limited
liability company, or has been authorized or registered to do
business in this state for at least three years prior to the
affidavit, if it is a foreign corporation, limited partnership,
or limited liability company, or that the holder of a name filed
or registered with the secretary of state under sections 333.001
to 333.54 filed or registered that name at least three years
prior to the affidavit; that the corporation, limited
partnership, or limited liability company or holder has not
during the three-year period filed any document with the
secretary of state; that the applicant has mailed written notice
to the corporation, limited partnership, or limited liability
company or the holder of a name filed or registered with the
secretary of state under sections 333.001 to 333.54 by certified
mail, return receipt requested, properly addressed to the
registered office of the corporation or in care of the agent of
the limited partnership, or the address of the holder of a name
filed or registered with the secretary of state under sections
333.001 to 333.54, shown in the records of the secretary of
state, stating that the applicant intends to use a name that is
not distinguishable and the notice has been returned to the
applicant as undeliverable to the addressee corporation, limited
partnership, limited liability company, or holder of a name
filed or registered with the secretary of state under sections
333.001 to 333.54; that the applicant, after diligent inquiry,
has been unable to find any telephone listing for the
corporation, limited partnership, or limited liability company
with the name that is not distinguishable in the county in which
is located the registered office of the corporation, limited
partnership, or limited liability company shown in the records
of the secretary of state or has been unable to find any
telephone listing for the holder of a name filed or registered
with the secretary of state under sections 333.001 to 333.54 in
the county in which is located the address of the holder shown
in the records of the secretary of state; and that the applicant
has no knowledge that the corporation, limited partnership,
limited liability company, or holder of a name filed or
registered with the secretary of state under sections 333.001 to
333.54 is currently engaged in business in this state.
Sec. 2. Minnesota Statutes 1994, section 308A.121,
subdivision 1, is amended to read:
Subdivision 1. [NAME.] The name of a cooperative must
distinguish the cooperative upon the records in the office of
the secretary of state from the name of a domestic corporation,
whether profit or nonprofit, or a limited partnership, or a
foreign corporation or a limited partnership authorized or
registered to do business in this state, whether profit or
nonprofit, a limited liability company, whether domestic or
foreign, a limited liability partnership, whether domestic or
foreign, or a name the right to which is, at the time of
incorporation, reserved or provided for in sections 302A.117,
317A.117, 322A.03, 322B.125, or 333.001 to 333.54.
Sec. 3. Minnesota Statutes 1994, section 317A.115,
subdivision 2, is amended to read:
Subd. 2. [NAME MUST BE DISTINGUISHABLE.] (a) A corporate
name must be distinguishable upon the records in the office of
the secretary of state from the name of a domestic corporation
or limited partnership, a foreign corporation or limited
partnership authorized or registered to do business in this
state, whether profit or nonprofit, a limited liability company,
whether domestic or foreign, a limited liability partnership,
whether domestic or foreign, or a name the right to which is, at
the time of incorporation, reserved, registered, or provided for
in section 317A.117, 302A.117, 322A.03, 322B.125, or sections
333.001 to 333.54, unless one of the following is filed with the
articles:
(1) the written consent of the organization having the name
that is not distinguishable;
(2) a certified copy of a final decree of a court in this
state establishing the prior right of the applicant to use its
corporate name in this state; or
(3) an affidavit of nonuse of the kind required by section
302A.115, subdivision 1, paragraph (d), clause (3).
(b) The secretary of state shall determine whether a name
is distinguishable from another name for purposes of this
section and section 317A.117.
(c) This subdivision does not affect the right of a
corporation existing on January 1, 1991, or a foreign
corporation authorized to do business in this state on that
date, to use its corporate name.
Sec. 4. Minnesota Statutes 1994, section 322A.02, is
amended to read:
322A.02 [NAME.]
(a) The name of each limited partnership as set forth in
its certificate of limited partnership:
(1) shall contain without abbreviation the words "limited
partnership";
(2) may not contain the name of a limited partner unless
(i) it is also the name of a general partner or the corporate
name of a corporate general partner, or (ii) the business of the
limited partnership had been carried on under that name before
the admission of that limited partner;
(3) must be distinguishable from the name of a domestic
corporation or limited partnership, whether profit or nonprofit,
or a foreign corporation or limited partnership authorized or
registered to do business in this state, whether profit or
nonprofit, a limited liability company, whether domestic or
foreign, a limited liability partnership, whether domestic or
foreign, or a name the right to which is reserved or provided
for in the manner provided for in sections 302A.117, 322A.03,
322B.125, or 333.001 to 333.54, unless there is filed with the
certificate a written consent, court decree of prior right, or
affidavit of nonuse, of the kind required by section 302A.115,
subdivision 1, paragraph (d); and
(4) may not contain the following words: corporation,
incorporated.
The secretary of state shall determine whether a name is
"distinguishable" from another name for purposes of this section
and section 322A.03. This section does not abrogate or limit
the law of unfair competition or unfair practices, nor sections
333.001 to 333.54, nor the laws of the United States with
respect to the right to acquire and protect copyrights,
trademarks, service names, service marks, or any other rights to
the exclusive use of names or symbols, nor derogate the common
law or principles of equity.
(b) A person doing business in this state may contest the
subsequent registration of a name with the office of the
secretary of state as provided in section 5.22.
Sec. 5. Minnesota Statutes 1994, section 322B.12,
subdivision 1, is amended to read:
Subdivision 1. [REQUIREMENTS AND PROHIBITIONS.] The
limited liability company name must:
(1) be in the English language or in any other language
expressed in English letters or characters;
(2) contain the words "limited liability company," or must
contain the abbreviation "LLC" or, in the case of an
organization formed pursuant to section 319A.03, must contain
the words "professional limited liability company," or the
abbreviation "PLC";
(3) not contain the word corporation or incorporated and
must not contain the abbreviation of either or both of these
words;
(4) not contain a word or phrase that indicates or implies
that it is organized for a purpose other than a legal business
purpose; and
(5) be distinguishable upon the records in the office of
the secretary of state from the name of a domestic limited
liability company, limited liability partnership, corporation,
or limited partnership, whether profit or nonprofit, or a
foreign limited liability company, limited liability
partnership, corporation, or limited partnership authorized or
registered to do business in this state, whether profit or
nonprofit, or a name the right to which is, at the time of
organization, reserved or provided for in sections 302A.117,
317A.117, 322A.03, 322B.125, or 333.001 to 333.54, unless there
is filed with the articles of organization one of the following:
(i) the written consent of the domestic limited liability
company, limited liability partnership, corporation, or limited
partnership or foreign limited liability company, limited
liability partnership, corporation, or limited partnership
authorized or registered to do business in this state or the
holder of a reserved name or a name filed by or registered with
the secretary of state under sections 333.001 to 333.54 having a
name that is not distinguishable;
(ii) a certified copy of a final decree of a court in this
state establishing the prior right of the applicant to the use
of the name in this state; or
(iii) the applicant's affidavit that the limited liability
company, corporation, or limited partnership with the name that
is not distinguishable has been organized, incorporated, or on
file in this state for at least three years prior to the
affidavit, if it is a domestic limited liability company,
corporation, or limited partnership, or has been authorized or
registered to do business in this state for at least three years
prior to the affidavit, if it is a foreign limited liability
company, corporation, or limited partnership, or that the holder
of a name filed or registered with the secretary of state under
sections 333.001 to 333.54 filed or registered that name at
least three years prior to the affidavit, and has not during the
three-year period filed any document with the secretary of
state; that the applicant has mailed written notice to the
limited liability company, corporation, or limited partnership
or the holder of a name filed or registered with the secretary
of state under sections 333.001 to 333.54 by certified mail,
return receipt requested, properly addressed to the registered
office of the limited liability company or corporation or in
care of the agent of the limited partnership, or the address of
the holder of a name filed or registered with the secretary of
state under sections 333.001 to 333.54, shown in the records of
the secretary of state, that the applicant intends to use a name
that is not distinguishable and the notice has been returned to
the applicant as undeliverable to the addressee limited
liability company, corporation, or limited partnership or holder
of a name filed or registered with the secretary of state under
sections 333.001 to 333.54; that the applicant, after diligent
inquiry, has been unable to find any telephone listing for the
limited liability company, corporation, or limited partnership
with the name that is not distinguishable in the county in which
is located the registered office of the limited liability
company or corporation shown in the records of the secretary of
state or has been unable to find any telephone listing for the
holder of a name filed or registered with the secretary of state
under sections 333.001 to 333.54 in the county in which is
located the address of the holder shown in the records of the
secretary of state; and that the applicant has no knowledge that
the limited liability company, corporation, or limited
partnership or holder of a name filed or registered with the
secretary of state under sections 333.001 to 333.54 is currently
engaged in business in this state.
ARTICLE 3
Section 1. Minnesota Statutes 1994, section 5.22,
subdivision 1, is amended to read:
Subdivision 1. [NOTICE OF CONTEST; DEPOSIT.] A person
doing business in this state may contest the subsequent
registration of a name with the office of the secretary of state
by filing an acknowledged notice of contest with the secretary
of state and sending a copy of the notice of contest to the
person who subsequently registered the contested name. However,
the secretary will not accept a contest between persons
registered under sections 333.001 to 333.06. The notice to the
secretary of state must be accompanied by a $100 deposit, which
the secretary of state shall award to the prevailing party in
the contest.
Sec. 2. Minnesota Statutes 1994, section 302A.121,
subdivision 1, is amended to read:
Subdivision 1. [REGISTERED OFFICE.] A corporation shall
continuously maintain a registered office in this state. A
registered office need not be the same as the principal place of
business or the principal executive office of the
corporation. If the current registered office address listed in
the records of the secretary of state is not in compliance with
section 302A.011, subdivision 3, the corporation must provide a
new registered office address that is in compliance. A fee may
not be charged if the registered office address is being changed
only to bring the address into compliance. The new registered
office address must have been approved by the board of directors.
Sec. 3. Minnesota Statutes 1994, section 302A.701, is
amended to read:
302A.701 [METHODS OF DISSOLUTION.]
A corporation may be dissolved:
(a) By the incorporators pursuant to section 302A.711;
(b) By the shareholders pursuant to sections 302A.721 to
302A.7291; or
(c) By order of a court pursuant to sections 302A.741 to
302A.765; or
(d) By the secretary of state according to section 302A.821.
Sec. 4. Minnesota Statutes 1994, section 303.14,
subdivision 3, is amended to read:
Subd. 3. [FORMS.] The annual report shall be made on forms
prescribed by the secretary of state, one part setting forth the
facts required by subdivision 1, clauses (1) to (3), and the
other part the facts required by subdivision 1, clauses (4),
(5), and (6). The report shall be executed by the president,
vice-president, treasurer, an assistant treasurer, secretary, or
assistant secretary of the corporation. If the corporation is
in the hands of a receiver or trustee, the report shall be
executed on behalf of the corporation and verified by the
receiver or trustee.
Sec. 5. Minnesota Statutes 1994, section 317A.823,
subdivision 1, is amended to read:
Subdivision 1. [NOTICE FROM SECRETARY OF STATE;
REGISTRATION REQUIRED.] (a) Except for corporations to which
paragraph (c) applies, before July 1 of each year, the secretary
of state shall mail a corporate registration form to each
corporation that incorporated or filed a corporate registration
during either of the previous two calendar years at its last
registered office address listed on the records of the secretary
of state. The form must include the exact legal corporate name
and registered office address currently on file with the
secretary of state along with the name of the person who
performs the functions of the president. The secretary of state
may also give notice of the requirement to file the annual
registration by any other means the secretary of state considers
appropriate.
(b) A corporation shall file a corporate registration with
the secretary of state once each calendar year. The
registration must be signed by an authorized person. If the
corporation has changed its registered office address to an
address other than that listed on the records of the secretary
of state, the corporation shall file the new registered office
address on the registration form. If the registration shows a
change of registered office address, the registration must be
signed by an authorized person. A fee of $35 must be paid for
filing the registered office address change. The new address
must comply with section 317A.011, subdivision 2, and must have
been approved by the board.
(c) The timely filing of an annual financial report and
audit or an annual financial statement under section 69.051,
subdivision 1 or 1a, by a volunteer firefighter relief
association, as reflected in the notification by the state
auditor under section 69.051, subdivision 1c, 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 317A.131 to 317A.151 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 69.051,
subdivision 1 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.
Sec. 6. Minnesota Statutes 1994, section 319A.03, is
amended to read:
319A.03 [FORMATION.]
One or more natural professional persons may form a
corporation pursuant to chapter 302A, or 317A and one or more
natural professional persons may, organize a limited liability
company pursuant to chapter 322B, or register a limited
liability partnership according to chapter 323 for the purposes
hereinafter set forth. In addition to providing the information
required by the chapter under which the entity is formed,
organized, or registered, the following information is also
required in the forming, organizing, or registration document:
(1) the name of the corporation, limited liability company,
or limited liability partnership, which must comply with section
319A.07;
(2) the purpose of the corporation, limited liability
company, or limited liability partnership, which must comply
with section 319A.04;
(3) that the shareholders of the corporation, members of
the limited liability company, or partners in a limited
liability partnership may only be professional persons licensed
to render the kind of professional services that fit the purpose
of the corporation, limited liability company, or limited
liability partnership; and
(4) that the officers and directors of a corporation, the
governors and managers of a limited liability company, and the
partners of a limited liability partnership, other than the
secretary and treasurer and their assistants, must be
professional persons licensed to render the kind of professional
services that fit the purpose of the corporation, limited
liability company, or limited liability partnership.
Sec. 7. Minnesota Statutes 1994, section 319A.06,
subdivision 2, is amended to read:
Subd. 2. A foreign professional corporation may provide
professional service in this state only upon compliance with
sections 303.01 to 303.24, or 322B.90 to 322B.955, or 323.44 to
323.49, regulating foreign corporations, foreign limited
liability companies, and foreign limited liability partnerships,
respectively. The secretary of state shall promulgate forms for
such purpose. The provisions of sections 319A.01 to 319A.22
relating to the rendering of professional service by a
professional corporation apply to a foreign professional
corporation. Sections 319A.01 to 319A.22 shall not be construed
to prohibit the rendering of professional service in this state
by a person who is a shareholder, director, officer, employee,
or agent of a foreign professional corporation, if the person
could lawfully render professional service in this state in the
absence of any relationship to the foreign professional
corporation, irrespective of whether the foreign professional
corporation is authorized to provide professional service in
this state.
Sec. 8. Minnesota Statutes 1994, section 322B.80,
subdivision 1, is amended to read:
Subdivision 1. [DISSOLUTION EVENTS.] A limited liability
company dissolves upon the occurrence of any of the following
events:
(1) when the period fixed in the articles of organization
for the duration of the limited liability company expires;
(2) by order of a court pursuant to sections 322B.833 and
322B.843;
(3) by action of the organizers pursuant to section
322B.803;
(4) by action of the members pursuant to section 322B.806;
or
(5) upon the occurrence of an event that terminates the
continued membership of a member in the limited liability
company, including:
(i) death of any member;
(ii) retirement of any member;
(iii) resignation of any member;
(iv) redemption of a member's complete membership interest;
(v) assignment of a member's governance rights under
section 322B.313 which leaves the assignor with no governance
rights;
(vi) a buy-out of a member's membership interest under
section 322B.833 that leaves that member with no governance
rights;
(vii) expulsion of any member;
(viii) bankruptcy of any member;
(ix) dissolution of any member;
(x) a merger in which the limited liability company is not
the surviving organization;
(xi) an exchange in which the limited liability company is
not the acquiring organization; or
(xii) the occurrence of any other event that terminates the
continued membership of a member in the limited liability
company,
but the limited liability company is not dissolved and is not
required to be wound up by reason of any event that terminates
the continued membership of a member if (A) either there are at
least two remaining members or a new member is admitted as
provided in section 322B.11, and (B) the existence and business
of the limited liability company is continued either by the
consent of all the remaining members under a right to consent
stated in the articles of organization and the consent is
obtained no later than 90 days after the termination of the
continued membership or under a separate right to continue
stated in the articles of organization; or
(6) when terminated by the secretary of state according to
section 322B.960.
Sec. 9. Minnesota Statutes 1994, section 322B.960,
subdivision 1, is amended to read:
Subdivision 1. [INFORMATION REQUIRED.] Starting January 1,
1995, a limited liability company, whether domestic or foreign,
shall once every other year file with the secretary of state a
registration containing:
(a) the name of the limited liability company;
(b) the alternate name, if any, a foreign limited liability
company has adopted for use in this state;
(c) the address of its registered office;
(d) the name of its registered agent, if any;
(e) the jurisdiction of organization; and
(f) the name and business address of the manager or other
person exercising the principal functions of the chief manager
of the limited liability company; and
(g) the signature of a person authorized to sign the
registration on behalf of the limited liability company.
Sec. 10. Minnesota Statutes 1994, section 322B.960,
subdivision 3, is amended to read:
Subd. 3. [AMENDMENTS ON REGISTRATION FORM.] A domestic
limited liability company which needs to amend its name,
registered office address, or registered agent may make these
amendments on the biennial registration form. If an amendment
is made on the biennial registration form, it must be signed by
an authorized person. The fee listed in section 322B.175
applies to these amendments.
Sec. 11. Minnesota Statutes 1994, section 323.02, is
amended by adding a subdivision to read:
Subd. 9. [FOREIGN LIMITED LIABILITY PARTNERSHIP.] "Foreign
limited liability partnership" means a general partnership
organized under laws other than the laws of this state with
status as a limited partnership in its home jurisdiction.
Sec. 12. Minnesota Statutes 1994, section 323.44,
subdivision 2, is amended to read:
Subd. 2. [CONTENTS OF REGISTRATION.] A general
partnership's registration to obtain or renew the status of a
limited liability partnership must contain:
(1) the name of the partnership;
(2) a statement that the partnership applies to obtain
status as a limited liability partnership or to renew that
status;
(3) an acknowledgment that the status of limited liability
partnership will automatically expire, unless the partnership
files a proper renewal registration;
(4) the street address of the partnership's principal place
of business; and
(5) if the partnership's principal place of business is not
located in this state, the name and street address of a person
located in this state that the partnership authorizes to act as
the partnership's agent for service of process; and
(6) the signature of a partner.
Sec. 13. Minnesota Statutes 1994, section 323.44,
subdivision 4, is amended to read:
Subd. 4. [AUTHORITY TO FILE.] A domestic general
partnership's decision to file a registration is an ordinary
matter under section 323.17, clause (8). The decision to
withdraw or not renew a registration is treated as an act in
contravention of an agreement between the partners under section
323.17, clause (8).
Sec. 14. Minnesota Statutes 1994, section 323.44,
subdivision 5, is amended to read:
Subd. 5. [CHANGES IN REGISTRATION INFORMATION.] If the
information contained in a registration becomes inaccurate after
the registration is filed, the general partnership is not
required to amend or correct the registration and the inaccuracy
has no effect on the partnership's status as a limited liability
partnership. The partnership must provide accurate information
in any subsequently filed renewal registration. The inaccuracy
has no effect on the partnership's status as a limited liability
partnership.
Sec. 15. Minnesota Statutes 1994, section 323.44,
subdivision 6, is amended to read:
Subd. 6. [VOLUNTARY WITHDRAWAL OF STATUS.] A partnership
may end its status as a limited liability partnership at any
time by filing with the secretary of state a withdrawal
statement that names the partnership, states that the
partnership is withdrawing its current registration, and
acknowledges that the withdrawal ends the partnership's status
as a limited liability partnership. The withdrawal
statement must be signed by a partner and may state a delayed
effective date, if that date is before the expiration date of
the partnership's current registration. If the withdrawal
statement does not state an effective date, the statement is
effective when filed.
Sec. 16. Minnesota Statutes 1994, section 323.45,
subdivision 1, is amended to read:
Subdivision 1. [REQUIREMENTS; PROHIBITIONS.] The name of a
limited liability partnership must meet all of the requirements
of section 302A.115, subdivision 1, except that the acceptable
words required by section 302A.115, subdivision 2 1, paragraph
(b), are "limited liability partnership" or the abbreviation
"L.L.P."
Sec. 17. Minnesota Statutes 1994, section 323.45,
subdivision 5, is amended to read:
Subd. 5. [FAILURE TO USE REQUIRED NAME.] If a person
purports to enter into a contract or other undertaking on behalf
of a general partnership that is a domestic or foreign limited
liability partnership and does not disclose to the other party
that part of the limited liability partnership's name that
complies with subdivision 1, then that person is personally
liable on the contract or undertaking, unless that person can
show that in making the contract or accepting the undertaking
the other party did not rely on the partnership being an
ordinary general partnership. Any partner of a domestic or
foreign limited liability partnership who consents to a person
not making the disclosure described in this subdivision is also
personally liable on the contract or undertaking, unless that
partner can make the showing described in this subdivision.
Sec. 18. Minnesota Statutes 1994, section 323.46, is
amended to read:
323.46 [APPLICABILITY TO FOREIGN AND INTERSTATE COMMERCE.]
Subdivision 1. [CONDUCTING BUSINESS.] A domestic
partnership, including a domestic limited liability partnership,
formed and existing under this chapter, may conduct its
business, carry on its operations, and have and exercise the
powers granted by this chapter in any state, territory,
district, or possession of the United States or in any foreign
country.
Subd. 2. [GOVERNING LAW.] It is the policy of this state
that the internal affairs of domestic partnerships, including
domestic limited liability partnerships, existing under this
chapter, including the liability of partners for debts and
obligations of partnerships, are subject to and governed by the
laws of this state.
Sec. 19. [323.48] [GOVERNING LAW.]
Subdivision 1. [STATE OF ORGANIZATION.] Subject to the
constitution of this state, the laws of the jurisdiction under
which a foreign limited liability partnership is organized
govern its organization and internal affairs and the liability
of its members. A foreign limited liability partnership may not
be denied a registration in this state by reason of a difference
between those laws and the laws of this state.
Subd. 2. [LIMITATIONS.] A foreign limited liability
partnership registered in this state has no greater rights and
privileges than a domestic limited liability partnership. The
registration does not authorize the foreign limited liability
partnership to exercise any of its powers or purposes that a
domestic limited liability partnership is forbidden by law to
exercise in this state.
Sec. 20. [323.49] [FOREIGN LIMITED LIABILITY
PARTNERSHIPS.]
Subdivision 1. [STATEMENT OF QUALIFICATION.] Before
transacting business in this state, a foreign limited liability
partnership must file a statement of qualification as provided
in subdivision 3 with the secretary of state. The statement is
effective for one year from the date of filing and may be
renewed for successive one-year periods as provided in
subdivision 2. At the end of the one-year period, the statement
automatically expires unless a renewal statement is properly
filed. Section 322B.945 applies to determine whether a foreign
limited liability partnership is transacting business.
Subd. 2. [RENEWAL.] The foreign limited liability
partnership may file a renewal statement that complies with this
section no earlier than 60 days before the expiration of the
one-year period under subdivision 1. A proper renewal extends
the partnership's status as a foreign limited liability
partnership for another one-year period, measured from the end
of the previous one-year period. At the end of any renewal
period, the renewal statement automatically expires. A foreign
limited liability partnership's statement may be renewed for an
unlimited number of one-year periods.
Subd. 3. [CONTENTS OF STATEMENT OF QUALIFICATION.] A
foreign limited liability partnership's statement of
qualification and any renewal statement must contain:
(1) the name of the partnership, including the limited
liability partnership designation used in the home jurisdiction;
(2) the address of the partnership's principal place of
business;
(3) the name and street address of a person located in this
state that the partnership has authorized to act as the
partnership's agent for service of process;
(4) the jurisdiction of organization; and
(5) the signature of a partner.
The statement or renewal must be accompanied by a
certificate of status from the filing officer in the home
jurisdiction and a fee of $135.
Subd. 4. [NAME OF FOREIGN LIMITED LIABILITY
PARTNERSHIP.] The name of the foreign limited liability
partnership must meet the requirements of section 323.45.
Subd. 5. [CHANGES IN REGISTRATION INFORMATION.] If the
information in a statement becomes inaccurate after it is filed,
the general partnership must provide accurate information in any
subsequently filed renewal statement. The inaccuracy has no
effect on the status of the partnership as a foreign limited
liability partnership in Minnesota.
Subd. 6. [VOLUNTARY WITHDRAWAL OF STATUS.] A partnership
may, at any time, withdraw its statement of qualification by
filing with the secretary of state a withdrawal statement that
contains the following:
(1) the name of the partnership;
(2) a statement that the partnership is withdrawing its
current statement of qualification;
(3) an acknowledgment that the withdrawal ends the
partnership's qualification as a foreign limited liability
partnership in Minnesota; and
(4) the signature of a partner.
The withdrawal statement may state a delayed effective
date, if that date is before the expiration date of the
partnership's current statement of qualification. If the
withdrawal statement does not state an effective date, the
statement is effective when filed.
Subd. 7. [TRANSACTION OF BUSINESS WITHOUT
QUALIFICATION.] (a) A foreign limited liability partnership
transacting business in this state may not maintain any action,
suit, or proceeding in any court of this state until it has
filed a statement of qualification.
(b) The failure of a foreign limited liability partnership
to file a statement of qualification does not impair the
validity of any contract or act of the foreign limited liability
partnership or prevent the foreign limited liability partnership
from defending any action, suit, or proceeding in any court of
this state.
(c) A foreign limited liability partnership, by transacting
business in this state without a statement of qualification,
appoints the secretary of state as its agent on whom any notice,
process, or demand may be served.
(d) A partner of a foreign limited liability partnership is
not liable for the debts and obligations of the foreign limited
liability partnership solely by reason of the foreign limited
liability partnership's having transacted business in this state
without a valid statement of qualification.
Subd. 8. [TRANSITION.] Any foreign limited liability
partnership which received a certificate of authority under
chapter 322B prior to the effective date of this act shall be
deemed to be in compliance with this section until December 29,
1995. After that date, a certificate of authority issued under
chapter 322B and received by a foreign limited liability
partnership shall have no further effect.
Sec. 21. Minnesota Statutes 1994, section 333.001, is
amended to read:
333.001 [DEFINITIONS.]
Subdivision 1. As used in sections 333.001 to 333.06, the
following terms shall have the meanings given, unless the
context clearly indicates that a different meaning is intended.
Subd. 2. [PERSON.] "Person" means one or more natural
persons; a limited liability company, whether domestic or
foreign; a registered limited liability partnership, whether
domestic or foreign; a partnership; a limited partnership; a
corporation, including a foreign, domestic, or nonprofit
corporation; a trust; or any other business organization.
Subd. 3. [TRUE NAME.] "True name" means the true full name
of the natural person, if a proprietorship; the true full name
of each partner, if a partnership; the full corporate name as
stated in its articles, if a corporation; the full name of the
limited liability company as stated in its articles of
organization or certificate of authority; the full name of the
limited partnership, if a limited partnership; the full name of
the registered limited liability partnership; the true full name
of at least one trustee, if a trust; or the true full name of at
least one beneficial owner, if any other form of business
organization.
Subd. 4. [ADDRESS.] "Address" means the full residential
address of each natural person, trustee or beneficial owner,
limited liability company, whether domestic or
foreign, registered limited liability partnership, whether
domestic or foreign, or corporation, included in subdivision 3,
and the address of the principal place in Minnesota where the
business is conducted or transacted.
Subd. 5. [EXECUTED.] "Executed" means executed by one
natural person, if a proprietorship; by a general partner if a
general or limited partnership or limited liability partnership;
by a manager, if a limited liability company; by an officer, if
a corporation; by a trustee, if a trust; or by a beneficial
owner or managing agent, if some other form of business
organization.
Sec. 22. Minnesota Statutes 1994, section 333.01, is
amended to read:
333.01 [COMMERCIAL ASSUMED NAMES; CERTIFICATE.]
No person shall hereafter carry on or conduct or transact a
commercial business in this state under any designation, name,
or style, which does not set forth the true name of every person
interested in such business unless such person shall file in the
office of the secretary of state, a certificate setting forth
the name and business address under which the business is
conducted or transacted, or is to be conducted or transacted,
and the true name of each person conducting or transacting the
same, with the address of such person. The name of the business
must not include any of the following phrases or their
abbreviations: corporation, incorporated, limited, chartered,
professional cooperative, association, limited partnership,
limited liability company, professional limited liability
company, limited liability partnership, or professional limited
liability partnership, except to the extent that an entity
filing a certificate would be authorized to use the phrase or
abbreviation. The certificate shall be executed by one of the
persons conducting, or intending to conduct, the business. The
certificate shall be published after it has been filed with the
secretary of state in a qualified newspaper in the county in
which the person has a principal or registered office for two
successive issues.
Sec. 23. Minnesota Statutes 1994, section 333.055,
subdivision 4, is amended to read:
Subd. 4. The secretary of state shall accept for filing
all certificates and renewals thereof which comply with the
provisions of sections 333.001 to 333.06 and which are
accompanied by the prescribed fees, notwithstanding the fact
that the assumed name disclosed therein may not be
distinguishable from one or more other assumed names already
filed with the secretary of state. In the event of duplication
or similarity, the secretary of state shall, within 20 days
after the filing, notify in writing each previously filed
business holding a certificate for the assumed name or a similar
assumed name, of the duplication or similarity, including in the
notice the name and last known address of the person so filing.
The secretary of state shall not accept for filing a certificate
that discloses an assumed name that is not distinguishable from
a corporate, limited liability company, limited liability
partnership, cooperative, or limited partnership name in use or
reserved in this state by another or a trade or service mark
registered with the secretary of state, unless there is filed
with the certificate a written consent, court decree of prior
right, or affidavit of nonuser of the kind required by section
302A.115, subdivision 1, clause (d). The secretary of state
shall determine whether a name is distinguishable from another
name for purposes of this subdivision.
Sec. 24. Minnesota Statutes 1994, section 333.21,
subdivision 1, is amended to read:
Subdivision 1. Upon a finding by the secretary of state
that the mark and application for registration comply with the
requirements of sections 333.18 to 333.31, and that the class
indicated, if any, in which the mark is to be registered is not
clearly incorrect, the secretary of state shall cause a
certificate of registration to be issued and delivered to the
applicant. The certificate of registration shall be issued
under the signature of the secretary of state and the seal of
the state, and shall show the registrant's name and business
address and, if a corporation or a limited liability company,
the state of incorporation or organization, the date claimed for
the first use of the mark in this state, the class of goods or
services, and a description of the goods or services in
connection with which the mark is used, a reproduction of the
mark, the registration date and the term of the registration.
Sec. 25. Minnesota Statutes 1994, section 336.9-403, is
amended to read:
336.9-403 [WHAT CONSTITUTES FILING; DURATION OF FILING;
EFFECT OF LAPSED FILING; DUTIES OF FILING OFFICER.]
(1) Presentation for filing of a financing statement and
tender of the filing fee or acceptance of the statement by the
filing officer constitutes filing under this article.
(2) Except as provided in subsection (6) a filed financing
statement is effective for a period of five years from the date
of filing. The effectiveness of a filed financing statement
lapses on the expiration of the five-year period unless a
continuation statement is filed prior to the lapse. If a
security interest perfected by filing exists at the time
insolvency proceedings are commenced by or against the debtor,
the security interest remains perfected until termination of the
insolvency proceedings and thereafter for a period of 60 days or
until expiration of the five-year period, whichever occurs later
regardless of whether the financing statement filed as to that
security interest is destroyed by the filing officer pursuant to
subsection (3). Upon lapse the security interest becomes
unperfected, unless it is perfected without filing. If the
security interest becomes unperfected upon lapse, it is deemed
to have been unperfected as against a person who became a
purchaser or lien creditor before lapse.
(3) A continuation statement may be filed by the secured
party within six months prior to the expiration of the five-year
period specified in subsection (2). Any such continuation
statement must be signed by the secured party, set forth the
name, social security number or other tax identification number
of the debtor, and address of the debtor and secured party as
those items appear on the original financing statement or the
most recently filed amendment, identify the original statement
by file number and filing date, and state that the original
statement is still effective. A continuation statement signed
by a person other than the secured party of record must be
accompanied by a separate written statement of assignment signed
by the secured party of record and complying with subsection (2)
of section 336.9-405, including payment of the required fee.
Upon timely filing of the continuation statement, the
effectiveness of the original statement is continued for five
years after the last date to which the filing was effective
whereupon it lapses in the same manner as provided in subsection
(2) unless another continuation statement is filed prior to such
lapse. Succeeding continuation statements may be filed in the
same manner to continue the effectiveness of the original
statement. Unless a statute on disposition of public records
provides otherwise, the filing officer may remove a lapsed
statement from the files and destroy it immediately if the
officer has retained a microfilm or other photographic record,
or in other cases after one year after the lapse. The filing
officer shall so arrange matters by physical annexation of
financing statements to continuation statements or other related
filings, or by other means, that if the officer physically
destroys the financing statements of a period more than five
years past, those which have been continued by a continuation
statement or which are still effective under subsection (6)
shall be retained. If insolvency proceedings are commenced by
or against the debtor, the secured party shall notify the filing
officer both upon commencement and termination of the
proceedings, and the filing officer shall not destroy any
financing statements filed with respect to the debtor until
termination of the insolvency proceedings. The security
interest remains perfected until termination of the insolvency
proceedings and thereafter for a period of 60 days or until
expiration of the five-year period, whichever occurs later.
(4) Except as provided in subsection (7) a filing officer
shall mark each statement with a file number and with the date
and hour of filing and shall hold the statement or a microfilm
or other photographic copy thereof for public inspection. In
addition the filing officer shall index the statements according
to the name of the debtor and shall note in the index the file
number, the address of the debtor given in the statement, and
the social security number or other tax identification number of
the debtor given in the statement.
(5) The secretary of state shall prescribe uniform forms
for statements and samples thereof shall be furnished to all
filing officers in the state. The uniform fee for filing and
indexing and for stamping a copy furnished by the secured party
to show the date and place of filing:
(a) for an original financing statement or statement of
continuation on a standard form prescribed by the secretary of
state, is $15 for up to two debtor names and $15 for each
additional name thereafter;
(b) for an original financing statement or statement of
continuation that is not on a standard form prescribed by the
secretary of state, is $20 for up to two debtor names and $20
for each additional name thereafter;
(c) for an amendment on a standard form prescribed by the
secretary of state that does not add debtor names, is $15;
(d) for an amendment that is not on a standard form
prescribed by the secretary of state and that does not add
debtor names, is $20;
(e) for an amendment on a standard form prescribed by the
secretary of state that does add debtor names adds more than one
debtor name, is $15 per debtor name; and
(f) for an amendment that is not on a standard form
prescribed by the secretary of state that does add debtor names
adds more than one debtor name, is $20 per debtor name.
In no case will a filing officer accept more than four
additional pages per financing statement for filing in the
uniform commercial code records.
The secretary of state shall adopt rules for filing,
amendment, continuation, termination, removal, and destruction
of financing statements.
(6) If the debtor is a transmitting utility (subsection (5)
of section 336.9-401) and a filed financing statement so states,
it is effective until a termination statement is filed. A real
estate mortgage which is effective as a fixture filing under
subsection (6) of section 336.9-402 remains effective as a
fixture filing until the mortgage is released or satisfied of
record or its effectiveness otherwise terminates as to the real
estate.
(7) When a financing statement covers timber to be cut or
covers minerals or the like (including oil and gas) or accounts
subject to subsection (5) of section 336.9-103, or is filed as a
fixture filing, it shall be filed for record and the filing
officer shall index it under the names of the debtor and any
owner of record shown on the financing statement in the same
fashion as if they were the mortgagors in a mortgage of the real
estate described, and, to the extent that the law of this state
provides for indexing of mortgages under the name of the
mortgagee, under the name of the secured party as if the secured
party were the mortgagee thereunder, or, for filing offices
other than the secretary of state, where indexing is by
description in the same fashion as if the financing statement
were a mortgage of the real estate described.
(8) The fees provided for in this article shall supersede
the fees for similar services otherwise provided for by law
except in the case of security interests filed in connection
with a certificate of title on a motor vehicle.
Sec. 26. Minnesota Statutes 1994, section 336A.11,
subdivision 2, is amended to read:
Subd. 2. [REGISTRATION FORMS.] The secretary of state
shall make registration forms available to farm product
dealers. The secretary of state must also make registration
forms information available to the commissioner of agriculture
for distribution to applicants for licensure under section
17A.04 or 223.17. The registration form must include provisions
for the name and address of the farm product dealer, a request
for the master or partial master lists, and the medium on which
the farm product dealer desires to receive the master list.
Sec. 27. [REPEALER.]
Minnesota Statutes 1994, section 322B.901, is repealed.
Sec. 28. [EFFECTIVE DATE.]
Sections 11 to 20 and 27 are effective the day following
final enactment.
ARTICLE 4
Section 1. Minnesota Statutes 1994, section 302A.409,
subdivision 3, is amended to read:
Subd. 3. [ISSUANCE PERMITTED.] A corporation may issue
rights to purchase after the terms, provisions, and conditions
of the rights to purchase to be issued, including the conversion
basis or the price at which securities may be purchased or
subscribed for, are fixed by the board, subject to any
restrictions in the articles. Notwithstanding any provision of
this chapter, a corporation may issue rights to purchase or
amend the instrument or agreement fixing the terms, provisions,
and conditions of the rights to purchase to include terms and
conditions that prevent the holder of a specified percentage of
the outstanding shares of the corporation, including subsequent
transferees of the holder, from exercising those rights to
purchase.
Sec. 2. [APPLICATION.]
Section 1 applies to issuances made before, on, or after
the effective date.
Presented to the governor May 4, 1995
Signed by the governor May 5, 1995, 9:10 a.m.
Official Publication of the State of Minnesota
Revisor of Statutes