February 1, 2005, Introduced by Senator CLARKE and referred to the Committee on Commerce and Labor.
A bill to amend 1972 PA 284, entitled
"Business corporation act,"
by amending sections 217, 762, and 1060 (MCL 450.1217, 450.1762,
and 450.2060), sections 217 and 762 as amended by 1997 PA 118 and
section 1060 as amended by 2003 PA 106, and by adding section 745.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 217. (1) A domestic or foreign corporation may transact
business under any assumed name or names other than its corporate
name, if not precluded from use by section 212, by filing a
certificate stating the true name of the corporation and the
assumed
name under which the business is to be transacted. The
certificate
is effective, unless Unless
sooner terminated by
filing a certificate of termination or by the dissolution or
withdrawal of the corporation, the certificate is effective for a
period expiring on December 31 of the fifth full calendar year
following the year in which it was filed. The corporation may
extend
the certificate of assumed name may
be extended for
additional consecutive periods of 5 full calendar years each by
filing similar certificates not earlier than 90 days before the
expiration of the initial or a subsequent 5-year period. The
administrator shall notify the corporation of the impending
expiration of the certificate of assumed name not later than 90
days before the expiration of the initial or a subsequent 5-year
period. A certificate of assumed name filed under this section does
not create substantive rights to the use of a particular assumed
name.
(2)
The same name may be assumed by 2 Two or more
corporations
, or by 1 or more corporations and 1 or more
limited partnerships or other enterprises participating together in
a partnership or joint venture may use the same assumed name. Each
participant corporation shall file a certificate under this
section.
(3) A corporation participating in a merger, or any other
entity participating in a merger under section 736, may transfer to
the surviving entity the use of an assumed name for which a
certificate of assumed name is on file with the administrator prior
to the merger, if the transfer is noted in the certificate of
merger
as provided in section 707(1)(g), 712(1)(c), or 736(7)(f) ,
or other applicable statute. The use of an assumed name transferred
under this subsection may continue for the remaining effective
period of the certificate of assumed name on file prior to the
merger, and the surviving entity may terminate or extend the
certificate of assumed name in accordance with subsection (1).
(4) A corporation surviving a merger may use as an assumed
name the corporate name of a merging corporation, or the name of
any other entity participating in the merger under section 736, by
filing a certificate of assumed name under subsection (1) or by
providing for the use of the name as an assumed name in the
certificate of merger. The surviving corporation also may file a
certificate of assumed name under subsection (1) or provide in the
certificate of merger for the use as an assumed name of an assumed
name of a merging entity not transferred under subsection (3). A
provision
in the certificate of merger under this subsection shall
be
is treated as a new
certificate of assumed name.
(5) A limited liability company converting to a corporation
under section 745 may transfer to that corporation any unexpired
certificate of assumed name that the limited liability company has
filed with the administrator before the conversion by providing for
the transfer of the assumed name in the certificate of conversion
under section 745. A certificate of assumed name transferred under
this subsection continues for the remainder of the original
effective period of the certificate of assumed name. After
conversion, the corporation may terminate or extend the certificate
under subsection (1).
(6) If a limited liability company converts to a corporation
under section 745, the corporation may transact business in the
name of the limited liability company as an assumed name, or under
any assumed name of the limited liability company not transferred
under subsection (5), either by filing a new certificate of assumed
name under subsection (1) or by providing for the use of the
assumed name in the certificate of conversion. A provision in a
certificate of conversion for use of an assumed name described in
this subsection is treated as a new certificate of assumed name.
Sec. 745. (1) A domestic corporation may convert to a limited
liability company under section 708 of the Michigan limited
liability company act, 1993 PA 23, MCL 450.4708. A domestic limited
liability company may convert to a corporation under this section.
(2) A domestic limited liability company converting To a
corporation shall prepare a plan of conversion that contains all of
the following:
(a) The name of the limited liability company, the name of the
corporation to which the limited liability company is converting,
and the street address of the corporation's principal place of
business.
(b) The manner and basis of converting the membership
interests of the limited liability company into shares or
obligations of the corporation, into cash or other consideration,
or into any combination of shares, obligations, cash, or other
consideration, and any other terms and conditions of the
conversion.
(c) Any other provision that the limited liability company
considers necessary or desirable.
(3) For a conversion to occur, the members of the limited
liability company must approve the plan of conversion, in the same
manner required for a merger under section 705a(5) of the Michigan
limited liability company act, 1993 PA 23, MCL 450.4705a, unless an
operating agreement specifically provides a procedure for approval
of a conversion. If approval of the conversion of a limited
liability company is by less than unanimous vote of members
entitled to vote, a member who votes against the conversion has the
same withdrawal rights as a member who votes against a merger under
section 705a(6) of that act.
(4) If the conversion is approved, the limited liability
company shall file both of the following:
(a) Articles of incorporation that comply with section 202 or
with the professional service corporation act, 1962 PA 192, MCL
450.221 to 450.235, if the corporation will render professional
services.
(b) A certificate of conversion that contains all of the
following:
(i) The name of the limited liability company and the date it
was formed.
(ii) A statement that the plan of conversion was approved in
accordance with subsection (3).
(iii) A statement specifying each assumed name of the limited
liability company transferred to the corporation under section
217(5). The certificate may include a statement of the name or
assumed names of the limited liability company that are to be
treated as newly filed assumed names of the converted entity under
section 217(6).
(iv) The effective date of the conversion if later than the
date the certificate of conversion is filed.
(5) If a conversion under this section takes effect, the
corporation is considered the same entity that existed before the
conversion and the conversion is not a dissolution of the limited
liability company. All property and rights of the limited liability
company remain vested in the corporation. All liabilities of the
limited liability company remain as liabilities of the corporation.
An action or proceeding pending against the limited liability
company may be continued as if the conversion under this section
had not occurred.
Sec. 762. (1) A shareholder is entitled to dissent from, and
obtain payment of the fair value of his or her shares in the event
of, any of the following corporate actions:
(a) Consummation of a plan of merger to which the corporation
is a party if shareholder approval is required for the merger by
section 703a or 736(5) or the articles of incorporation and the
shareholder is entitled to vote on the merger, or the corporation
is a subsidiary that is merged with its parent under section 711.
(b) Consummation of a plan of share exchange to which the
corporation is a party as the corporation whose shares will be
acquired, if the shareholder is entitled to vote on the plan.
(c) Consummation of a sale or exchange of all, or
substantially all, of the property of the corporation other than in
the usual and regular course of business, if the shareholder is
entitled to vote on the sale or exchange, including a sale in
dissolution but not including a sale pursuant to court order.
(d) An amendment of the articles of incorporation giving rise
to
a right to dissent pursuant to under section 621.
(e)
A transaction giving rise to a right to dissent pursuant
to
under section 754.
(f) Consummation of a plan of conversion under section 708 of
the Michigan limited liability company act, 1993 PA 23, MCL
450.4708, if the shareholder is entitled to vote on the conversion
under that section.
(g)
(f) Any corporate action taken pursuant to a
shareholder vote to the extent the articles of incorporation,
bylaws, or a resolution of the board provides that voting or
nonvoting shareholders are entitled to dissent and obtain payment
for their shares.
(h) (g)
The approval of a control share
acquisition giving
rise
to a right to dissent pursuant to under section 799.
(2) Unless otherwise provided in the articles of
incorporation, bylaws, or a resolution of the board, a shareholder
may not dissent from any of the following:
(a)
Any corporate action set forth in subsection (1)(a) to
(e)
(f) as to shares that are
listed on a national securities
exchange or designated as a national market system security on an
interdealer quotation system by the national association of
securities dealers, on the record date fixed to vote on the
corporate action or on the date the resolution of the parent
corporation's board is adopted in the case of a merger under
section 711 not requiring shareholder vote under section 713.
(b) A transaction described in subsection (1)(a) in which
shareholders receive cash or shares that satisfy the requirements
of subdivision (a) on the effective date of the merger or any
combination thereof.
(c) A transaction described in subsection (1)(b) in which
shareholders receive cash or shares that satisfy the requirements
of subdivision (a) on the effective date of the share exchange or
any combination thereof.
(d) A transaction described in subsection (1)(c) that is
conducted pursuant to a plan of dissolution providing for
distribution of substantially all of the corporation's net assets
to shareholders in accordance with their respective interests
within 1 year after the date of closing of the transaction, where
the transaction is for cash or shares that satisfy the requirements
of subdivision (a) on the date of closing or any combination
thereof.
(e) A transaction described in subsection (1)(f) in which the
shareholders receive cash.
(3) A shareholder entitled to dissent and obtain payment for
his
or her shares pursuant to under subsection (1)(a) to (e)
(f) may not challenge the corporate action creating his or her
entitlement unless the action is unlawful or fraudulent with
respect to the shareholder or the corporation.
(4) A shareholder who exercises his or her right to dissent
and
seek payment for his or her shares pursuant to under
subsection
(1)(f) (1)(g) may not challenge the corporate action
creating his or her entitlement unless the action is unlawful or
fraudulent with respect to the shareholder or the corporation.
Sec. 1060. (1) The fees a person shall pay to the
administrator when the documents described in this subsection are
delivered to him or her for filing are as follows:
(a) Articles of a domestic corporation, $10.00.
(b) Application of a foreign corporation for a certificate of
authority to transact business in this state, $10.00.
(c) Amendment to the articles of a domestic corporation,
$10.00.
(d) Amended application for a certificate of authority to
transact business in this state, $10.00.
(e)
Certificate of merger, or share exchange, or conversion
under chapter 7, $50.00.
(f) Certificate attesting to the occurrence of a merger of a
foreign corporation under section 1021, $10.00.
(g) Certificate of dissolution, $10.00.
(h) Application for withdrawal and issuance of a certificate
of withdrawal of a foreign corporation, $10.00.
(i) Application for reservation of corporate name, $10.00.
(j) Certificate of assumed name or a certificate of
termination of assumed name, $10.00.
(k) Statement of change of registered office or resident
agent, $5.00.
(l) Restated articles of domestic corporations, $10.00.
(m) Certificate of abandonment, $10.00.
(n) Certificate of correction, $10.00.
(o) Certificate of revocation of dissolution proceedings,
$10.00.
(p) Certificate of renewal of corporate existence, $10.00.
(q) For examining a special report required by law, $2.00.
(r) Certificate of registration of corporate name of a foreign
corporation, $50.00.
(s) Certificate of renewal of registration of corporate name
of a foreign corporation, $50.00.
(t) Certificate of termination of registration of corporate
name of a foreign corporation, $10.00.
(u) Report required under section 911, $15.00 if paid before
October 1, 2003 or after September 30, 2007. After September 30,
2003 and before October 1, 2007, the fee is $25.00.
(2) The fees described in subsection (1) are in addition to
any franchise fees prescribed in this act. The administrator shall
not refund all or any part of a fee described in this section.
(3) Except as provided in subsection (9), the administrator
shall deposit all fees received and collected under this section in
the state treasury to the credit of the administrator, who may only
use the money credited pursuant to legislative appropriation and
only in carrying out those duties of the department required by
law.
(4) The fees described in this section apply to documents
filed by a domestic or foreign regulated investment company as
defined in section 1064.
(5) If any money received by the administrator from fees paid
under subsection (1)(u) is not appropriated to the department in
that fiscal year, the money remaining from those fees shall revert
to the general fund of this state.
(6) A minimum charge of $1.00 for each certificate and 50
cents per folio shall be paid to the administrator for certifying a
part of a file or record pertaining to a corporation if a fee for
that service is not described in subsection (1). The administrator
may furnish copies of documents, reports, and papers required or
permitted by law to be filed with the administrator, and shall
charge for those copies the fee established in a schedule of fees
adopted by the administrator with the approval of the state
administrative board. The administrator shall retain the revenue
collected under this subsection, and the department shall use it to
defray the costs for its copying and certifying services.
(7) If a domestic or foreign corporation pays fees or
penalties by check and the check is dishonored, the fee is unpaid
and the administrator shall rescind the filing of all related
documents.
(8) The administrator may accept a credit card in lieu of cash
or check as payment of a fee under this act. The administrator
shall determine which credit cards he or she shall accept for
payment.
(9) The administrator may charge a nonrefundable fee of up to
$50.00 for any document submitted or certificate sent by facsimile
or electronic transmission. The administrator shall retain the
revenue collected under this subsection and the department shall
use it to carry out its duties required by law.
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No. 115
of the 93rd Legislature is enacted into law.