MISSISSIPPI LEGISLATURE
2017 Regular Session
To: Judiciary, Division A
By: Senator(s) Tindell
AN ACT TO AMEND SECTION 79-37-111, MISSISSIPPI CODE OF 1972, TO REVISE THE REQUIREMENTS FOR FILING OF DOCUMENTS; TO AMEND SECTION 79-37-114, MISSISSIPPI CODE OF 1972, TO REVISE THE TIME WITHIN WHICH A FILED DOCUMENT MAY BE CORRECTED; TO AMEND SECTION 79-37-116, MISSISSIPPI CODE OF 1972, TO REVISE THE FORUM FOR APPEAL FROM THE SECRETARY'S REFUSAL TO FILE A DOCUMENT; TO AMEND SECTION 79-37-401, MISSISSIPPI CODE OF 1972, TO CLARIFY WHEN AN ENTITY IS ENTITLED TO CONVERSION OR DOMESTICATION AND TO EXCLUDE CHARITABLE ORGANIZATIONS; TO AMEND SECTION 79-37-405, MISSISSIPPI CODE OF 1972, TO REVISE CONVERSION OF A DOMESTIC ENTITY; TO AMEND SECTION 79-37-406, MISSISSIPPI CODE OF 1972, TO REVISE HOW THE REGISTRATION TO DO BUSINESS OF A CONVERTING ENTITY THAT IS A FOREIGN ENTITY IS AMENDED; TO AMEND SECTION 79-37-505, MISSISSIPPI CODE OF 1972, TO CLARIFY THE REQUIREMENTS FOR A STATEMENT OF DOMESTICATION TO BE ACCEPTED FOR FILING; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. Section 79-37-111, Mississippi Code of 1972, is amended as follows:
79-37-111. (a) To be entitled to filing by the Secretary of State, a document must satisfy the following requirements and the requirements of any other provision of this chapter that adds to or varies these requirements:
(1) This chapter requires or permits filing the document in the Office of the Secretary of State.
(2) The document contains the information required by this chapter and may contain other information.
(3) The document is in a record.
(4) The document is in the English language, but the name of an entity need not be in English if written in English letters or Arabic or Roman numerals.
(5) The document is signed:
(A) By an officer or director of a domestic or foreign corporation;
(B) By a person authorized by a domestic or foreign entity that is not a corporation; or
(C) If the entity is in the hands of a receiver, trustee, or other court-appointed fiduciary, by that fiduciary.
(6) The document must state the name and capacity of the person that signed it.
(7) The document must be delivered to the Office of the Secretary of State for filing in the format and in the manner required by the Secretary of State.
(b) When a document is delivered to the Office of the Secretary of State for filing, the correct filing fee must be paid or provision for payment made in a manner permitted by the Secretary of State.
SECTION 2. Section 79-37-114, Mississippi Code of 1972, is amended as follows:
79-37-114. (a) A
domestic or foreign entity may correct a document filed by the Secretary of
State within * * * one
hundred twenty (120) days of the filing if:
(1) The document contains an inaccuracy;
(2) The document was defectively signed; or
(3) The electronic transmission of the document to the Secretary of State was defective.
(b) A document is corrected by filing with the Secretary of State a statement of correction that:
(1) Describes the document to be corrected and states its filing date or has attached a copy of the document;
(2) Specifies the inaccuracy or defect to be corrected; and
(3) Corrects the inaccuracy or defect.
(c) A statement of correction is effective on the effective date of the document it corrects except as to persons relying on the uncorrected document and adversely affected by the correction. As to those persons, a statement of correction is effective when filed.
SECTION 3. Section 79-37-116, Mississippi Code of 1972, is amended as follows:
79-37-116. (a) If the
Secretary of State refuses to file a document delivered for filing, the
domestic or foreign entity that submitted the document for filing may appeal
the refusal within thirty (30) days after the return of the document to * * *
the Chancery Court of the First Judicial District of Hinds County, Mississippi * * *. The appeal is commenced by petitioning the court to
compel filing the document and by attaching to the petition the document and
the explanation of the Secretary of State for the refusal to file.
(b) The court may summarily order the Secretary of State to file the document or take other action the court considers appropriate.
(c) The court's final decision may be appealed as in other civil proceedings.
SECTION 4. Section 79-37-401, Mississippi Code of 1972, is amended as follows:
79-37-401. (a) A charitable organization as defined in Section 79-11-501 may not convert under this Article 4.
(b) By complying with this article, a domestic entity may become:
(1) A domestic entity that is a different type of entity; or
(2) A foreign entity that is a different type of entity, if the conversion is authorized by the law of the foreign entity's jurisdiction of formation and the domestic entity has complied with Article 5 of this Chapter.
( * * *c) By complying with the provisions of
this article applicable to foreign entities, a foreign entity may become a
domestic entity that is a different type of entity if the conversion is
authorized by the law of the foreign entity's jurisdiction of formation and
the foreign entity has first domesticated to this state under Article 5 of this
Chapter.
( * * *d) If a protected agreement contains a
provision that applies to a merger of a domestic entity but does not refer to a
conversion, the provision applies to a conversion of the entity as if the
conversion were a merger until the provision is amended after January 1, 2015.
SECTION 5. Section 79-37-405, Mississippi Code of 1972, is amended as follows:
79-37-405. (a) A statement of conversion must be signed on behalf of the converting entity and delivered to the Secretary of State for filing.
(b) A statement of conversion must contain:
(1) The name, jurisdiction of formation, and type of entity of the converting entity;
(2) The name, jurisdiction of formation, and type of entity of the converted entity;
(3) If the statement of conversion is not to be effective upon filing, the later date and time on which it will become effective, which may not be more than ninety (90) days after the date of filing;
(4) If the converting entity is a domestic entity, a statement that the plan of conversion was approved in accordance with this article or, if the converting entity is a foreign entity, a statement that the conversion was approved by the foreign entity in accordance with the law of its jurisdiction of formation; copies of the conversion documents from its jurisdiction of formation must be filed;
(5) If the converted entity is a domestic filing entity, its public organic record, as an attachment;
(6) If the converted entity is a domestic limited liability partnership, its statement of qualification, as an attachment; and
(7) If the converted entity is a foreign entity, a mailing address to which the Secretary of State may send any process served on the Secretary of State pursuant to Section 79-37-406(e).
(c) In addition to the requirements of subsection (b), a statement of conversion may contain any other provision not prohibited by law.
(d) If the converted entity is a domestic entity, its public organic record, if any, must satisfy the requirements of the law of this state, except that the public organic record does not need to be signed and may omit any provision that is not required to be included in a restatement of the public organic record.
* * *
( * * *e) A statement of conversion is
effective on the date and time of filing or the later date and time specified
in the statement of conversion.
( * * *f) If the converted entity is a
domestic entity, the conversion is effective when the statement of conversion
is effective. If the converted entity is a foreign entity, the conversion is
effective on the later of:
(1) The date and time provided by the organic law of the converted entity; or
(2) When the statement is effective.
SECTION 6. Section 79-37-406, Mississippi Code of 1972, is amended as follows:
79-37-406. (a) When a conversion becomes effective:
(1) The converted entity is:
(A) Organized under and subject to the organic law of the converted entity; and
(B) The same entity without interruption as the converting entity;
(2) All property of the converting entity continues to be vested in the converted entity without transfer, reversion, or impairment;
(3) All debts, obligations, and other liabilities of the converting entity continue as debts, obligations, and other liabilities of the converted entity;
(4) Except as otherwise provided by law or the plan of conversion, all the rights, privileges, immunities, powers, and purposes of the converting entity remain in the converted entity;
(5) The name of the converted entity may be substituted for the name of the converting entity in any pending action or proceeding;
(6) If a converted entity is a filing entity, its public organic record is effective;
(7) If the converted entity is a limited liability partnership, its statement of qualification is effective;
(8) The private organic rules of the converted entity which are to be in a record, if any, approved as part of the plan of conversion are effective; and
(9) The interests in the converting entity are converted, and the interest holders of the converting entity are entitled only to the rights provided to them under the plan of conversion and to any appraisal rights they have under Section 79-37-109 and the converting entity's organic law.
(b) Except as otherwise provided in the organic law or organic rules of the converting entity, the conversion does not give rise to any rights that an interest holder, governor, or third party would have upon a dissolution, liquidation, or winding up of the converting entity.
(c) When a conversion becomes effective, a person that did not have interest holder liability with respect to the converting entity and becomes subject to interest holder liability with respect to a domestic entity as a result of a conversion has interest holder liability only to the extent provided by the organic law of the entity and only for those debts, obligations, and other liabilities that arise after the conversion becomes effective.
(d) When a conversion becomes effective, the interest holder liability of a person that ceases to hold an interest in a domestic converting entity with respect to which the person had interest holder liability is subject to the following rules:
(1) The conversion does not discharge any interest holder liability under the organic law of a domestic converting entity to the extent the interest holder liability arose before the conversion became effective.
(2) The person does not have interest holder liability under the organic law of the domestic converting entity for any debt, obligation, or other liability that arises after the conversion becomes effective.
(3) The organic law of the domestic converting entity continues to apply to the release, collection, or discharge of any interest holder liability preserved under paragraph (1) as if the conversion had not occurred.
(4) The person has whatever rights of contribution from any other person as are provided by other law or the organic rules of the domestic converting entity with respect to any interest holder liability preserved under paragraph (1) as if the conversion had not occurred.
(e) When a conversion becomes effective, a foreign entity that is the converted entity may be served with process in this state for the collection and enforcement of any of its debts, obligations, and other liabilities in accordance with applicable law.
(f) If the converting
entity is a registered foreign entity, its registration to do business in this
state is * * *
amended to reflect its new status when the conversion becomes effective.
(g) A conversion does not require the entity to wind up its affairs and does not constitute or cause the dissolution of the entity.
SECTION 7. Section 79-37-505, Mississippi Code of 1972, is amended as follows:
79-37-505. (a) A statement of domestication must be signed by the domesticating entity and delivered to the Secretary of State for filing.
(b) A statement of domestication must contain:
(1) The name, jurisdiction of formation, and type of entity of the domesticating entity;
(2) The name and jurisdiction of formation of the domesticated entity;
(3) If the statement of domestication is not to be effective upon filing, the later date and time on which it will become effective, which may not be more than ninety (90) days after the date of filing;
(4) If the domesticating entity is a domestic entity, a statement that the plan of domestication was approved in accordance with this article or, if the domesticating entity is a foreign entity, a statement that the domestication was approved in accordance with the law of its jurisdiction of formation;
(5) If the domesticated entity is a domestic filing entity, its public organic record, as an attachment;
(6) If the
domesticated entity is a domestic limited liability partnership, its statement
of qualification, as an attachment; * * *
(7) If the
domesticated entity is a foreign entity that is not a registered foreign
entity, a mailing address to which the Secretary of State may send any process
served on the Secretary of State pursuant to Section 79-37-506(e) * * *;
(8) If the domesticated entity is a foreign entity, a copy of the filed domestication documents from the new jurisdiction as an attachment; and
(9) If the domesticated entity is a domestic entity, a certificate of good standing or certificate of existence from its jurisdiction of formation that is issued less than one hundred eighty (180) days before filing under this section.
(c) In addition to the requirements of subsection (b), a statement of domestication may contain any other provision not prohibited by law.
(d) If the domesticated entity is a domestic entity, its public organic record, if any, must satisfy the requirements of the law of this state, but the public organic record does not need to be signed and may omit any provision that is not required to be included in a restatement of the public organic record.
(e) A plan of domestication that is signed by a domesticating domestic entity and meets all of the requirements of subsection (b) may be delivered to the Secretary of State for filing instead of a statement of domestication and on filing has the same effect. If a plan of domestication is filed as provided in this subsection, references in this chapter to a statement of domestication refer to the plan of domestication filed under this subsection.
(f) A statement of domestication is effective on the date and time of filing or the later date and time specified in the statement of domestication.
(g) A domestication in which the domesticated entity is a domestic entity is effective when the statement of domestication is effective. A domestication in which the domesticated entity is a foreign entity is effective on the later of:
(1) The date and time provided by the organic law of the domesticated entity; or
(2) When the statement is effective.
SECTION 8. This act shall take effect and be in force from and after July 1, 2017.