§ 55D-1. Applicable definitions.

The following definitions apply in this Chapter:

1. “Corporation” or “domestic corporation” is defined in G.S. 55-1-40(4).
2. “Deliver” is defined in G.S. 55-1-40(5).
3. “Entity” is defined in G.S. 55-1-40(9).
4. “Foreign corporation” is defined in G.S. 55-1-40(10).
5. “Foreign limited liability company” has the same meaning as the term “foreign LLC” in G.S. 57D-1-03 . (5a) “Foreign limited liability limited partnership” is defined in G.S. 59-102(4c).
6. “Foreign limited liability partnership” is defined in G.S. 59-32(4g).
7. “Foreign limited partnership” is defined in G.S. 59-102(5).
8. “Foreign nonprofit corporation” means a foreign corporation as defined in G.S. 55A-1-40(11).
9. “Individual” is defined in G.S. 55-1-40(13).
10. “Limited liability company” or “domestic limited liability company” has the same meaning as the term “LLC” in G.S. 57D-1-03 .
11. “Limited liability limited partnership” is defined in G.S. 59-102(6a).
12. “Limited liability partnership” or “registered limited liability partnership” means a registered limited liability partnership as defined in G.S. 59-32(7) .
13. “Limited partnership” or “domestic limited partnership” is defined in G.S. 59-102(8).
14. “Nonprofit corporation” or “domestic nonprofit corporation” means a corporation as defined in G.S. 55A-1-40(5).
15. “Person” is defined in G.S. 55-1-40(16).

History. 2001-358, s. 1; 2001-387, ss. 161, 173, 175(a); 2001-413, s. 6; 2013-157, s. 6.

§§ 55D-2 through 55D-4.

Reserved for future codification purposes.

§ 55D-5. Rule-making authority.

The Secretary of State may adopt rules to implement the Secretary of State’s responsibilities under this Chapter.

History. 2001-358, s. 1; 2001-387, s. 173; 2001-413, s. 6.

§§ 55D-6 through 55D-9.

Reserved for future codification purposes.

§ 55D-10. Filing requirements.

1. To be entitled to filing by the Secretary of State under Chapter 55, 55A, 55B, 57D, or 59 of the General Statutes, a document must satisfy the requirements of this section, and of any other section of the General Statutes that adds to or varies these requirements.
2. The document must meet all of the following requirements:
   1. The document must be one that is required or permitted by Chapter 55, 55A, 55B, 57D, or 59 of the General Statutes to be filed in the office of the Secretary of State.
   2. The document must contain the information required by Chapter 55, 55A, 55B, 57D, or 59 of the General Statutes for that document. It may contain other information as well.
   3. The document must be typewritten, printed, or in an electronic form acceptable to the Secretary of State.
   4. The document must be in the English language. A name need not be in English if written in English letters or Arabic or Roman numerals, and the certificate of existence or a document of similar import required of foreign corporations, foreign nonprofit corporations, foreign limited liability companies, and foreign limited liability partnerships need not be in English if accompanied by a reasonably authenticated English translation.
   5. A document submitted by an entity must be executed by a person authorized to execute documents (i) under G.S. 55-1-20 if the entity is a domestic or foreign corporation, (ii) under G.S. 55A-1-20 if the entity is a domestic or foreign nonprofit corporation, (iii) under G.S. 57D-1-20 if the entity is a domestic or foreign limited liability company, (iv) under G.S. 59-204 if the entity is a domestic or foreign limited partnership, or (v) under G.S. 59-35.1 if the entity is any other partnership as defined in G.S. 59-36 whether or not formed under the laws of the State.
   6. The person executing the document must sign it and state beneath or opposite the person’s signature, the person’s name, and the capacity in which the person signs. Any signature on the document may be a facsimile or an electronic signature in a form acceptable to the Secretary of State. The document may but need not contain a seal, attestation, acknowledgment, verification, or proof.
   7. If the Secretary of State has prescribed a mandatory form for the document, the document must be in or on the prescribed form.
   8. The document must be delivered to the office of the Secretary of State for filing and must be accompanied by the applicable fees.

History. 1955, c. 1371, s. 1; 1967, c. 13, s. 1; c. 823, s. 16; 1989, c. 265, s. 1; 1989 (Reg. Sess., 1990), c. 1024, s. 12.1(a); 1991, c. 645, s. 15; 1999-369, s. 1.1; 2001-358, ss. 3(a), 4; 2001-387, ss. 173, 175(a); 2001-413, s. 6; 2013-157, s. 7.

Former Official Comment to G.S. 55-1-20

Editor’s Note. — The Official Comments below were formerly located under G.S. 55-1-20 prior to its amendment in 2001. At the request of the Revisor of Statutes, the Official Comments have been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

Section 1.20 standardizes the filing requirements for all documents required or permitted by the Model Act to be filed with the secretary of state. In a few instances, other sections of the Act impose additional requirements which must also be complied with if the document in question is to be filed. Section 1.20 relates only to documents which the Model Act expressly requires or permits to be filed with the secretary of state; it does not authorize or direct the secretary of state to accept or reject for filing other documents relating to corporations and does not treat documents required or permitted to be filed under other statutes.

The purposes of the filing requirements of chapter 1 are: (1) to simplify the filing requirements by the elimination of formal or technical requirements that serve little purpose, (2) to minimize the number of pieces of paper to be processed by the secretary of state, and (3) to eliminate all possible disputes between persons seeking to file documents and the secretary of state as to the legal efficacy of documents.

The requirements of section 1.20 may be summarized as follows:

1. Form
2. Execution
3. Contents
4. Number of copies

To be eligible for filing, a document must be typed or printed and in the English language (except to the limited extent permitted by section 1.20(e)). The secretary of state is not authorized to prescribe forms (except to the extent permitted by section 1.21) and as a result may not reject documents on the basis of form (see section 1.25) if they contain the information called for by the specific statutory requirement and meet the minimal formal requirements of this section.

To be filed a document must simply be executed by a corporate officer. Section 1.21(f). No specific corporate officer is designated as the appropriate officer to sign though the signing officer must designate his office or the capacity in which he signs the document. Among the officers who are expressly authorized to sign a document is the chairman of the board of directors, a choice that may be appropriate if the corporation has a board of directors but has not appointed officers. If a corporation has not been formed or has neither officers nor a board of directors, an incorporator may execute the document.

The requirement in earlier versions of the Model Act and in many state statutes that documents must be acknowledge or verified as a condition for filing has been eliminated. These requirements serve little purpose in connection with documents filed under corporation statutes. (See in this connection section 1.29, which makes it a criminal offense for any person to sign a document for filing with knowledge that it contains false information.) On the other hand, many organizations, like lenders or title companies, may desire that specific documents include acknowledgments, verifications, or seals; section 1.21(g) therefore provides that the addition of these forms of execution does not affect the eligibility of the document for filing.

A document must be filed by the secretary of state if it contains the information required by the Model Act. The document may contain additional information or statements and their presence is not ground for the secretary of state to reject the document for filing. These documents must be accepted for filing even though the secretary of state believes that the language is illegal or unenforceable. In view of this very limited discretion granted to secretaries of state under this section, section 1.25(d) defines the secretary of state’s role as “ministerial” and provides that no inference or presumption arises from the fact that the secretary of state accepted a document for filing. See the Official Comments to sections 1.25 and 1.30.

Section 1.20(i) requires that a document filed with the secretary of state must be accompanied by “one exact or conformed copy.” The requirement in early versions of the Model Act and in many state statutes that “duplicate originals” (each being executed as an original document) be submitted has been eliminated. Under section 1.20(i) an “exact” copy is a reproduction of the executed original document by photographic or xerographic process; a “conformed” copy is a copy on which the existence of signatures is entered or noted on the copy. The substitution of exact or conformed copies for duplicate originals reflects advances in the art of office copying machines that permit the routine reproduction of exact copies of executed documents. However, a person submitting “duplicate originals” meets the requirement of this section since the secretary of state may treat the duplicate original as a “conformed copy.” The reasons for requiring an exact or conformed copy of a filed document to accompany the signed original, and the processing of these documents by the secretary of state, are discussed in the Official Comment to section 1.25.

Former North Carolina Commentary to G.S. 55-1-20

Editor’s Note. — The North Carolina Commentary below was formerly located under G.S. 55-1-20 prior to its amendment in 2001. At the request of the Revisor of Statutes, the North Carolina Commentary has been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

This section differs from prior law in three minor substantive respects. First, former G.S. 55-4(a) (2) required the signatures of two specified officers, whereas this section requires only one and permits incorporators or fiduciaries to sign in appropriate circumstances. Second, former G.S. 55-4(a) (3) required verification except where acknowledgment was otherwise required, whereas the present section permits either verification or acknowledgment but does not require either. Third, former G.S. 55-4(a) (6) required delivery of a copy of the document to the register of deeds of the county in which the corporation’s registered office was located; the new statute does not.

Because subsection (g) does not require verification or acknowledgment, G.S. 55-1-29 makes it a criminal offense for any person to sign a document for filing with knowledge that it contains false information. Other leading states, such as Delaware, do not require the acknowledgment or verification of corporate documents for filing, apparently without any problems. Finally, it does not appear that third parties can be injured by the elimination of the requirement of acknowledgment or verification. Third parties are entitled to rely on what is on file in the Secretary of State’s office and are only charged with notice of any limitations on corporate powers expressly stated in the corporation’s articles of incorporation.

This section differs from the corresponding section of the Model Act in three minor respects. First, the addition of the language “under this Act” in subsection (a) makes it clear that the subsection is referring to documents filed under this Act and not other filings such as UCC filings and securities law filings. Second, subsection (b) was rewritten for stylistic consistency. Third, subsection (i) limits the Model Act’s requirement that a document presented for filing be accompanied by any franchise tax, license fee, or penalty required by this Act or other law whether or not related to the filing. The North Carolina version limits the necessary payments to those required by the Act and thus continues the former North Carolina practice.

§ 55D-11. Expedited filings.

A person submitting a document for filing may request an expedited filing only at the time the document is submitted. The Secretary of State shall guarantee the expedited filing of the document if the document is in proper form and accompanied by all applicable fees, including the following fee:

1. Two hundred dollars ($200.00) for the filing by the end of the same business day of a document received by 12:00 noon; or
2. One hundred dollars ($100.00) for the filing of a document within 24 hours after receipt, excluding weekends and holidays.

   The Secretary of State shall not collect the fees allowed in this section unless the person submitting the document for filing is informed by the Secretary of State of the fees prior to the filing of the document.

History. 1995, c. 539, s. 1; 2001-358, ss. 3(b), 4; 2001-387, ss. 173, 175(a); 2001-413, s. 6.

Effect of Amendments.

Session Laws 2001-358, ss. 3(b) and 4, effective January 1, 2002, and applicable to documents submitted for filing on or after that date, recodified G.S. 55-1-22 .1 as this section; rewrote the first paragraph; substituted “noon; or” for “noon Eastern Standard Time; and” at the end of subdivision (1); and deleted “requests an expedited filing and” preceding “is informed” in the last paragraph.

§ 55D-12. Advisory review of documents.

Upon request, the Secretary of State shall review a document prior to its submission for filing to determine whether it satisfies applicable filing requirements. Submission of a document for review shall be accompanied by a fee of two hundred dollars ($200.00) and shall be in accordance with procedures adopted by rule by the Secretary of State. The advisory review shall be completed within 24 hours after submission, excluding weekends and holidays, unless the person submitting the document is otherwise notified in accordance with procedures adopted by rule by the Secretary of State fixing priority between submissions under this section and filings under G.S. 55D-11 . Upon completion of the advisory review, the Secretary of State shall notify the person submitting the document of any deficiencies in the document that would prevent its filing.

History. 1997-485, s. 6; 2001-358, ss. 3(b), 4; 2001-387, ss. 173, 175(a); 2001-413, s. 6.

Effect of Amendments.

Session Laws 2001-358, ss. 3(b) and 4, effective January 1, 2002, and applicable to documents submitted for filing on or after that date, recodified G.S. 55-1-22 .2 as this section; in the first sentence, substituted “review” for “provide for the review of” and substituted “applicable filing requirements” for “the requirements of this Chapter”; substituted “a fee of two hundred dollars ($200.00)” for “the proper fee” in the second sentence; and substituted “G.S. 55D-11” for “G.S. 55-1-22.1” in the next to last sentence.

Legal Periodicals.

For 1997 legislative survey, see 20 Campbell L. Rev. 389.

§ 55D-13. Effective time and date of document.

1. Except as provided in subsection (b) of this section and in G.S. 55D-14 , a document accepted for filing is effective:
   1. At the time of filing on the date it is filed, as evidenced by the Secretary of State’s date and time endorsement on the filed document; or
   2. At the time specified in the document as its effective time on the date it is filed.
2. A document may specify a delayed effective time and date, and if it does so the document becomes effective at the time and date specified. If a delayed effective date but no time is specified, the document is effective at 11:59:59 P.M. on that date. A delayed effective date for a document may not be later than the 90th day after the date it is filed.
3. Except as provided in G.S. 55-2-03(b), 55A-2-03(b), and 57D-2-20(b), the fact that a document has become effective under this section does not determine its validity or invalidity or the correctness or incorrectness of the information contained in the document.

History. 1955, c. 1371, s. 1; 1967, c. 13, s. 1; c. 823, s. 16; 1989, c. 265, s. 1; 1993, c. 552, s. 1; 2001-358, ss. 3(b), 4; 2001-387, ss. 173, 175(a); 2001-413, s. 6; 2013-157, s. 8.

Official Comment to Former G.S. 55-1-23

Editor’s Note. — The Official Comments below were formerly located under G.S. 55-1-23 prior to its transfer in 2001. At the request of the Revisor of Statutes, the Official Comments have been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

Section 1.23(a) provides that documents accepted for filing become effective at the time and date of filing, or at another specified time on that date, unless a delayed effective date is selected under section 1.23(b). This section gives express statutory authority to the common practice of most secretaries of state of ignoring processing time and treating a document as effective as of the date it is submitted for filing even though it may not be reviewed and accepted for filing until several days later.

Section 1.23(a) requires secretaries of state to maintain a date and time stamp for recording the receipt of documents and provides that documents become effective at the stamped time on the date of filing. This provision should eliminate any doubt about situations involving same-day transactions in which documents, for example articles of merger, are filed on the morning of the date the merger is to become effective. Section 1.23(a) contemplates that the time of filing, as well as the date, will be routinely recorded.

Section 1.23(b) provides an alternative method of establishing the effective date of a document. The document itself may fix as its effective date any date within 90 days after the date it is filed; it may also fix the time it becomes effective on that date. If no time is specified, the document becomes effective as of the close of business on the specified date. The Model Act also allows the effective date fixed in a document to be corrected to a limited extent. See the Official Comment to section 1.24.

Section 1.23(b) does not authorize or contemplate the retroactive establishment of an effective date before the date of filing.

North Carolina Commentary to Former G.S. 55-1-23

Editor’s Note. — The North Carolina Commentary below was formerly located under G.S. 55-1-23 prior to its transfer in 2001. At the request of the Revisor of Statutes, the North Carolina Commentary has been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

This section differs from prior law in three respects. First, it increases from 20 to 90 days the maximum time by which the effective date of a filed document may be delayed. Second, it specifies a time of day (11:59:59 P.M.) for the effectiveness of documents that specify a delayed effective date but no time. Third, it deletes reference to a penalty for a failure to deliver documents to the register of deeds, since that requirement no longer exists.

This section differs in two respects from the Model Act. First, it specifies 11:59:59 P.M. (rather than the close of business) as the time of effectiveness of documents that specify a delayed effective date but no time. Second, it makes explicit in subsection (c) the limited effect of the Secretary of State’s acceptance of documents for filing. This is probably implicit under the Model Act. See North Carolina Comment to G.S. 55-1-25(d), infra.

§ 55D-14. Correcting filed document.

1. A person on whose behalf a document was filed in the Office of the Secretary of State may correct that document if it (i) contains a statement that is incorrect and was incorrect when filed or (ii) was defectively executed, attested, sealed, verified, or acknowledged.
2. A document is corrected by delivering to the Secretary of State for filing articles of correction that do all of the following:
   1. Describe the document (including its filing date) or have attached to them a copy of the document.
   2. Specify the incorrect statement and the reason it is incorrect or the nature of the defect.
   3. Correct the incorrect statement or defect.
3. Articles of correction are effective as of the effective time and date of the document they correct except as to persons relying on the uncorrected document and adversely affected by the correction. As to those persons, articles of correction are effective when filed.

History. 1989, c. 265, s. 1; 1997-485, s. 14; 2001-358, ss. 3(b), 4; 2001-387, ss. 173, 175(a); 2001-413, s. 6.

Official Comment to Former G.S. 55-1-24

Editor’s Note. — The Official Comments below were formerly located under G.S. 55-1-24 prior to its transfer in 2001. At the request of the Revisor of Statutes, the Official Comments have been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

Section 1.24 permits making corrections in filed documents without refiling the entire document or submitting formal articles of amendment. This correction procedure has two advantages: (1) filing articles of correction may be less expensive than refiling the document or filing articles of amendment, and (2) articles of correction do not alter the effective date of the underlying document being corrected. Indeed, under section 1.24(c), even the correction relates back to the original effective date of the document except as to persons relying on the original document and adversely affected by the correction. As to these persons, the effective date of articles of correction is the date the articles are filed.

A document may be corrected either because it contains an “incorrect statement” or because it was defectively executed (including defects in optional forms of execution that do not affect the eligibility of the original document for filing).

A provision in a document setting an effective date (section 1.23) may be corrected under this section, but the corrected effective date must comply with section 1.23 measured from the date of the original filing of the document being corrected, i.e. it cannot be before the date of filing of the document or more than 90 days thereafter.

North Carolina Commentary to Former G.S. 55-1-24

Editor’s Note. — The North Carolina Commentary below was formerly located under G.S. 55-1-24 prior to its transfer in 2001. At the request of the Revisor of Statutes, the North Carolina Commentary has been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

This section has no counterpart in prior law.

Effect of Amendments.

Session Laws 2001-358, ss. 3(b) and (4), effective January 1, 2002, and applicable to documents submitted for filing on or after that date, recodified G.S. 55-1-24 as this section; rewrote subsections (a) and (b); and substituted “as of the effective time and date” for “on the effective date” in subsection (c).

§ 55D-15. Filing duty of Secretary of State.

1. If a document delivered to the office of the Secretary of State for filing satisfies the requirements of this Chapter and of Chapter 55, 55A, 55B, 57D, or 59 of the General Statutes, the Secretary of State shall file it. Documents filed with the Secretary of State under this Chapter may be maintained by the Secretary either in their original form or in photographic, microfilm, optical disk media, or other reproduced form. The Secretary may make reproductions of documents filed under this Chapter, or under any predecessor law, by photographic, microfilm, optical disk media, or other means of reproduction, and may destroy the originals of those documents reproduced.
2. The Secretary of State files a document by endorsing “Filed”, together with the Secretary’s name and official title and the date and time of filing, on the document. After filing a document, the Secretary of State shall deliver a document copy to the person submitting the document for filing and as provided in G.S. 55D-32 .
3. If the Secretary of State refuses to file a document, the Secretary shall return it to the person submitting the document for filing within five days after the document was received, together with a written statement of the date of the refusal and a brief explanation of the reason for refusal. The Secretary of State may correct apparent errors and omissions on a document submitted for filing if authorized to make the corrections by the person submitting the document for filing.
4. The Secretary of State’s duty is to review and file documents that satisfy the requirements of this Chapter and of Chapter 55, 55A, 55B, 57D, or 59 of the General Statutes. The Secretary of State’s filing or refusing to file a document does not do any of the following:
   1. Except as provided in G.S. 55-2-03(b), 55A-2-03(b), or 57D-2-20(b), affect the validity or invalidity of the document in whole or part.
   2. Relate to the correctness or incorrectness of information contained in the document.
   3. Create a presumption that the document is valid or invalid or that information contained in the document is correct or incorrect.

History. 1955, c. 1371, s. 1; 1967, c. 13, s. 1; c. 823, s. 16; 1989, c. 265, s. 1; 1989 (Reg. Sess., 1990), c. 1024, s. 12.2; 1993, c. 552, s. 2; 1995, c. 539, s. 2; 2001-358, ss. 3(b), 4, 46; 2001-387, ss. 173, 175(a); 2001-413, s. 6; 2013-157, s. 9.

Official Comment to Former G.S. 55-1-25

Editor’s Note. — The Official Comments below were formerly located under G.S. 55-1-25 prior to its transfer in 2001. At the request of the Revisor of Statutes, the Official Comments have been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

1. Filing duty in general
2. Mechanics of filing
3. Elimination of certificates of incorporation and similar documents
4. Rejection of document by secretary of state

Under section 1.25 the secretary of state is required to file a document if it “satisfies the requirements of section 1.20.” This language should be contrasted with earlier versions of the Model Act (and many state statutes) that required the secretary of state to ascertain whether the document “conformed with law” before filing it. The purpose of this change is to limit the discretion of the secretary of state to a ministerial role in reviewing the contents of documents. If the document submitted is in the form prescribed and contains the information required by section 1.20 and the applicable provision of the Model Act, the secretary of state under section 1.25 must file it even though it contains additional provisions the secretary of state may feel are irrelevant or not authorized by the Model Act or by general legal principles. Consistently with this approach, section 1.25(d) states that the filing duty of the secretary of state is ministerial and provides that filing a document with the secretary of state does not affect the validity or invalidity of any provision contained in the document and does not create any presumption with respect to any provision. Persons adversely affected by provisions in a document may test their validity in a proceeding appropriate for that purpose. Similarly, the attorney general of the state may also question the validity of provisions of documents filed with the secretary of state in an independent suit brought for that purpose; in neither case should any presumption or inference be drawn about the validity of the provision from the fact that the secretary of state accepted the document for filing.

Section 1.25(b) provides that when the secretary of state files a document, he stamps or endorses it as filed, retains the signed original document for his records, and returns the exact or conformed copy (which must accompany the document under section 1.20(i)) to the corporation or its representative with the secretary of state’s fee receipt or acknowledgement of receipt if no fee is required. This will establish that a document has been filed in the form of the copy. Consideration was given to dispensing with the document copy entirely and providing only for the return of a fee receipt or equivalent document. Several states currently follow this practice with respect to articles of incorporation and other documents. It was felt to be important, however, to continue a practice by which each corporation receives back from the secretary of state for its records a document that on its face shows that it is an exact conformed copy of the document that was filed with the secretary of state. This copy is usually placed in the minute book and is available for informal inspection without requiring a person to examine the records of the secretary of state. Of course, a person desiring a certified copy of any filed document may obtain it from the office of the secretary of state by paying the fee prescribed in section 1.22(c).

Section 1.25(b) provides that acceptance of articles of incorporation or other documents is evidenced merely by the issuance of a fee receipt or acknowledgement of receipt if no fee is required. Earlier versions of the Model Act and the statutes of many states provided that acceptance by the secretary of state is evidenced by a “certificate” (e.g., of incorporation, of merger, or of amendment). This older practice was not retained in the revised Model Act because it was felt desirable to reduce the number of pieces of paper issued by the secretary of state. Under the older practice most state offices routinely issued both fee receipts and certificates. A single document—the fee receipt or acknowledgment—should sufficiently indicate that the document has been accepted for filing, and in fact many states in recent years have dispensed with the formal certificate.

Because of the simplification of formal filing requirements and the limited discretion granted to the secretary of state by the Model Act, it is probable that rejection of documents for filing will occur only rarely. Section 1.25(c) provides that if the secretary of state does reject a document for filing he must return it to the corporation or its representative within five days together with a brief written explanation of his reason for rejection. This rejection may be the basis of judicial review under section 1.26.

North Carolina Commentary to Former G.S. 55-1-25

Editor’s Note. — The North Carolina Commentary below was formerly located under G.S. 55-1-25 prior to its transfer in 2001. At the request of the Revisor of Statutes, the North Carolina Commentary has been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

Former G.S. 55-4(a) (5) required the Secretary of State to file a document unless it did not “conform to law.” Although this section omits the filing standard of former G.S. 55-4(a) (5) — that a document shall be filed only if it “conforms to law” — the drafters rejected the Official Comment’s suggestion that there is a conflict between the Secretary of State’s ministerial filing duty under section 1.25 of the Model Act and his review of a document to determine whether it conforms to law. The drafters intend that the Secretary of State’s office continue the practice under former G.S. 55-4(a) (5) of calling attention to mistakes apparent on the face of a document presented for filing and to inconsistencies between a document presented for filing and other documents previously filed by the same corporation. For example, if a document presented for filing contains a reference (e.g., par value of authorized shares; number of outstanding shares) that, on its face, is inconsistent with the corporation’s articles of incorporation, then the Secretary of State may refuse to file it. Similarly, a document may be refused if, on its face, it shows that the action referred to therein has not been authorized in the manner prescribed by the statute (e.g. no shareholders’ vote on a matter requiring shareholder action). The drafters concluded that continuation of the practice under former G.S. 55-4(a) (5) was necessary to preserve the integrity and reliability of documents on file in the office of the Secretary of State. Accordingly, to clarify their intention, the drafters modified the Model Act in subsection (a) to provide that in order to be filed, a document must satisfy the requirements of “this Chapter.”

The Model Act was modified in subsection (b) to omit the requirement that the Secretary of State provide a filing fee receipt in all cases. However, it is intended that a filing fee receipt will be provided upon request.

The Model Act was also modified in subsection (c) by substituting “received” for “delivered.” “Deliver” is defined in G.S. 55-1-40(5) as including “mail,” which creates an ambiguity as to when the five-day period for returning a document presented for filing begins to run. The modification was made to clarify this point.

Former G.S. 55-169 provided that a certificate issued by the Secretary of State with respect to a document on file in his office constituted prima facie evidence of the facts therein stated. Subsection (d) eliminates that presumption with respect to extrinsic facts in a document on file (e.g. the number of shares issued and outstanding; the number of shares voted on a particular matter). In that respect G.S. 55-1-23(c) was added to make a clear distinction between the word “validity,” as used in subsection (d), and the word “effective” as used elsewhere in the statute. “Validity” refers to the substance and legal sufficiency of a filed document, and “effective” refers only to whether the document has been accepted and become operative under the formal filing procedures of the Act. Subsection (d) was also modified from the Model Act to describe the Secretary of State’s duty under this section instead of merely characterizing it as ministerial.

Effect of Amendments.

Session Laws 2001-358, ss. 3(b), (4), and (46), effective January 1, 2002, and applicable to documents submitted for filing on or after that date, recodified G.S. 55-1-25 as this section, and rewrote the section.

Session Laws 2013-157, s. 9, effective January 1, 2014, substituted “57D” for “57C” in the first sentence of subsections (a) and (d); and substituted “57D-2-20(b)” for “57C-2-20(b)” in subdivision (d)(1).

§ 55D-16. Appeal from Secretary of State’s refusal to file document.

1. If the Secretary of State refuses to file a document delivered to the Secretary of State’s office for filing, the person on whose behalf the document was submitted for filing may, within 30 days after the date of the refusal, appeal the refusal to the Superior Court of Wake County. The appeal is commenced by filing a petition with the court and with the Secretary of State requesting the court to compel the Secretary of State to file the document. The petition must have attached to it the document to be filed and the Secretary of State’s explanation for the refusal to file. No service of process on the Secretary of State is required except for the filing of the petition as set forth in this subsection. The appeal to the superior court is not governed by Chapter 150B of the General Statutes, the Administrative Procedure Act, and shall be determined by a judge of the superior court upon such further notice and opportunity to be heard, if any, as the court may deem appropriate under the circumstances.
2. Upon consideration of the petition and any response made by the Secretary of State, the court may, prior to entering final judgment, order the Secretary of State to file the document or take other action the court considers appropriate.
3. The court’s final decision may be appealed as in other civil proceedings.

History. 1989, c. 265, s. 1; 1989 (Reg. Sess., 1990), c. 1024, s. 12.3; 2001-358, ss. 3(b), 4; 2001-387, ss. 173, 175(a); 2001-413, s. 6.

Official Comment to Former G.S. 55-1-26

Editor’s Note. — The Official Comments below were formerly located under G.S. 55-1-26 prior to its transfer in 2001. At the request of the Revisor of Statutes, the Official Comments have been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

1. The court with jurisdiction to hear appeals from the secretary of state
2. “Summary” orders
3. Burden of proof and review standard

The identity of the specific court with jurisdiction to hear appeals from the secretary of state under section 1.26 must be supplied by each state when enacting this section. It is intended that this should be a court of general civil jurisdiction. It may either be the court located in the capital of the state or the court in the county where the corporation’s principal business office is located in the state or, if the corporation does not have a principal office in the state, the court located in the county in which its registered office is located. The annual report of the corporation must state where the principal office of the corporation (which need not be within the state) is located. See section 16.22. Other sections of the Model Act also contemplate that the court with jurisdiction over substantive corporate matters will be designated in the statute. See, for example, section 7.03, relating to the ordering of a shareholders’ meeting after the corporation fails to hold such a meeting. It is expected that jurisdiction over litigation with respect to substantive matters will normally be vested in the court in the county of the corporation’s principal or registered office. See the Official Comment to section 7.03.

In view of the limited discretion of the secretary of state under the Act, a “summary” order appears to be appropriate in section 1.26. Throughout the Model Act the term “summarily order” or similar language is used where courts are authorized to order action taken and the person charged with taking the original action has little or no discretion. The word “summary” is not used in a technical sense but to refer to a class of cases where the court might appropriately order that action be taken on the face of the pleadings or after an oral hearing but without any need to resolve disputed factual issues.

The revised Model Act, unlike earlier versions, does not address either the burden of proof or the standard for review in judicial proceedings challenging action of the secretary of state. It is contemplated that these matters will be governed by general principles of judicial review of agency action in each adopting state.

Amended North Carolina Commentary to Former G.S. 55-1-26

Editor’s Note. — The North Carolina Commentary below was formerly located under G.S. 55-1-26 prior to its transfer in 2001. At the request of the Revisor of Statutes, the North Carolina Commentary has been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

The prior law contained no explicit procedure for appeal from the Secretary of State’s refusal to file a document.

This section varies from the Model Act in that it avoids use of the word “summarily” and instead sets out a specific procedure, in the nature of a petition for a writ of mandamus, which (1) requires the appellant to file a copy of its petition with the Secretary of State, (2) makes it clear that the Administrative Procedure Act does not govern such appeal, and (3) provides that the court may give the Secretary of State further notice and an opportunity to be heard if it chooses to do so. In addition, to clarify that a refusal to file initial articles of incorporation or reservations of corporate names may be appealed pursuant to this section, this section uses the words “person tendering the document for filing” to describe the appellant where the Model Act uses the words “domestic or foreign corporation.”

§ 55D-17. Evidentiary effect of copy of filed document.

A certificate attached to a copy of a document filed by the Secretary of State, bearing the Secretary of State’s signature and the seal of office (both of which may be in facsimile or in any electronic form approved by the Secretary of State) and certifying that the copy is a true copy of the document, is conclusive evidence that the original document is on file with the Secretary of State. A photographic, microfilm, optical disk media, or other reproduced copy of a document filed under this Chapter, Chapter 55, 55A, 55B, 57D, or 59 of the General Statutes, or any predecessor law, when certified by the Secretary, shall be considered an original for all purposes and is admissible in evidence in like manner as an original.

History. 1955, c. 1371, s. 1; 1989, c. 265, s. 1; 1995, c. 539, s. 3; 2001-358, ss. 3(b), 4; 2001-387, ss. 173, 175(a); 2001-413, s. 6; 2013-157, s. 10.

Official Comment to Former G.S. 55-1-27

Editor’s Note. — The Official Comments below were formerly located under G.S. 55-1-27 prior to its transfer in 2001. At the request of the Revisor of Statutes, the Official Comments have been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

The secretary of state may be requested to certify that a specific document has been filed with him upon payment of the fees specified in section 1.22(c). Section 1.27 provides that the certificate is conclusive evidence only that the original document is on file. The limited effect of the certificate is consistent with the ministerial filing obligation imposed on the secretary of state under the Model Act.

North Carolina Commentary to Former G.S. 55-1-27

Editor’s Note. — The North Carolina Commentary below was formerly located under G.S. 55-1-27 prior to its transfer in 2001. At the request of the Revisor of Statutes, the North Carolina Commentary has been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

This section makes the Secretary of State’s certificate of a document conclusive that the original is on file in his office. It differs from former G.S. 55-169, which made such certificate “prima facie” evidence of the facts stated in the certificate and in the certified document.

The section differs from the Model Act by inserting the requirement that the Secretary of State certify that the attached copy of the document is a true copy and by providing for the use of the Secretary of State’s seal rather than the State seal.

Effect of Amendments.

Session Laws 2001-358, ss. 3(b) and 4, effective January 1, 2002, and applicable to documents submitted for filing on or after that date, recodified G.S. 55-1-27 as this section; substituted “and the seal of office (both of which may be in facsimile or in any electronic form approved by the Secretary of State)” for “(which may be in facsimile) and the seal of office” in the first sentence, and substituted “under this Chapter, Chapter 55, 55A, 55B, 57C, or 59 of the General Statutes, or any predecessor law” for “pursuant to this Chapter or any predecessor act” in the final sentence.

Session Laws 2013-157, s. 10, effective January 1, 2014, substituted “57D” for “57C” in the last sentence.

§ 55D-18. Penalty for signing false document.

1. A person commits an offense if the person signs a document the person knows is false in any material respect with intent that the document be delivered to the Secretary of State for filing.
2. An offense under this section is a Class 1 misdemeanor.

History. 1989, c. 265, s. 1; 1993, c. 539, s. 439; 1994, Ex. Sess., c. 24, s. 14(c); 2001-358, ss. 3(b), 4; 2001-387, ss. 173, 175(a); 2001-413, s. 6.

Official Comment to Former G.S. 55-1-29

Editor’s Note. — The Official Comments below were formerly located under G.S. 55-1-29 prior to its transfer in 2001. At the request of the Revisor of Statutes, the Official Comments have been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

Section 1.29 makes it a criminal offense for any person to sign a document that he knows is false in any material respect with intent that the document be submitted for filing to the secretary of state.

Section 1.29(b) is keyed to the classification of offenses provided by the Model Penal Code. If a state has not adopted this classification, the dollar amount of the fine should be substituted for the misdemeanor classification.

Effect of Amendments.

Session Laws 2001-358, ss. 3(b) and 4, effective January 1, 2002, and applicable to documents submitted for filing on or after that date, recodified G.S. 55-1-29 as this section; and substituted “the person” for “he” in two places in subsection (a).

§ 55D-19.

Reserved for future codification purposes.

§ 55D-20. Name requirements.

1. In addition to the requirements of any other applicable section of the General Statutes:
   1. The name of a corporation must contain the word “corporation”, “incorporated”, “company”, or “limited”, or the abbreviation “corp.”, “inc.”, “co.”, or “ltd.”.
   2. The name of a limited liability company must contain the words “limited liability company” or the abbreviation “L.L.C.” or “LLC”, or the combination “ltd. liability co.”, “limited liability co.”, or “ltd. liability company”. Notwithstanding the prior sentence, any limited liability company whose name contained the words “low-profit limited liability company” or the abbreviation “L3C” pursuant to subdivision (6) of this subsection prior to its repeal on January 1, 2014, may continue to use that name unless the limited liability company amends its articles of organization to change its name.
   3. The name of a limited partnership that is not a limited liability limited partnership must contain the words “limited partnership”, the abbreviation “L.P.” or “LP”, or the combination “ltd. partnership”.
   4. The name of a limited liability limited partnership must contain the words “registered limited liability limited partnership” or “limited liability limited partnership” or the abbreviation “L.L.L.P.”, “R.L.L.L.P.”, “LLLP”, or “RLLLP”.
   5. A registered limited liability partnership’s name must contain the words “registered limited liability partnership” or “limited liability partnership” or the abbreviation “L.L.P.”, “R.L.L.P.”, “LLP” or “RLLP”.
   6. Repealed by Session Laws 2013-157, s. 11, effective January 1, 2014.
2. In addition to the requirements of subsection (a) of this section, the name of a limited partnership shall 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 has been carried on under that name before the admission of that limited partner.
3. The name of a corporation, nonprofit corporation, or limited liability company shall not contain language stating or implying that the entity is organized for a purpose other than that permitted by G.S. 55-3-01 , 55A-3-01, or 57D-2-01 and by its articles of incorporation or organization.
4. The use of assumed business names or fictitious names, as provided for in Chapter 66 of the General Statutes, is not affected by this Chapter or by Chapter 55, 55A, 57D, or 59 of the General Statutes.
5. The filing of any document, the reservation or registration of any name under this Chapter or under Chapter 55, 55A, 55B, 57D, or 59 of the General Statutes, or the issuance of a certificate of authority to transact business or conduct affairs or a statement of foreign registration does not authorize the use in this State of a name in violation of the rights of any third party under the federal trademark act, the trademark act of this State, or other statutory or common law, and is not a defense to an action for violation of any of those rights.

History. 1901, c. 2, s. 8; 1903, c. 453; Rev., s. 1137; 1913, c. 5, s. 1; C.S., s. 1114; 1935, cc. 166, 320; 1939, c. 222; G.S., s. 55-2; 1955, c. 1371, s. 1; 1959, c. 1316, s. 28; 1969, c. 751, ss. 4-6; 1973, c. 469, s. 45.3; 1989, c. 265, s. 1; 1989 (Reg. Sess., 1990), c. 1024, s. 12.5; 1995, c. 539, ss. 4, 5; 2001-358, ss. 14(a), 15; 2001-387, ss. 162, 173, 175(a); 2001-413, s. 6; 2010-187, s. 3; 2013-157, s. 11; 2016-100, s. 5.

Official Comment to Former G.S. 55-4-01

Editor’s Note. — The Official Comments below were formerly located under G.S. 55-4-01 prior to its transfer in 2001. At the request of the Revisor of Statutes, the Official Comments have been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

All of chapter 4, relating to corporate names, has been reviewed and revised in light of the responsibilities that should reasonably be placed on secretaries of state considering their available resources.

Section 4.01 deals with two basic name requirements: (1) the name must indicate “corporateness,” and (2) the name must be distinguishable upon the records of the secretary of state.

1. Indication of corporateness
2. Names that are “distinguishable upon the records of the secretary of state”
3. Classes of unavailable names
4. Consent to use

Section 4.01(a) permits the words indicating corporateness to include “corporation,” “incorporated,” “limited,” or “company” or an abbreviation of them. While the words “company” and “limited” are commonly used by partnerships or limited partnerships, and therefore do not uniquely indicate corporateness, their use is widespread and is continued since it creates no discernible harm. The Act also permits the use of words or abbreviations in another language that import corporateness.

The revision of the Model Act is based on the fundamental premise that its name provisions should only ensure that each corporation has a sufficiently distinctive name so that it may be distinguished from other corporations upon the records of the secretary of state. The general business corporation statute should not be a partial substitute for a general assumed name, unfair competition, or antifraud statute. As a result, the Model Act does not restrict the power of a corporation to adopt or use an assumed or fictitious name with the same freedom as an individual or impose a requirement that an “official” name not be “deceptively similar” to another corporate name (a requirement of earlier versions of the Model Act). Principles of unfair competition, not the business corporation act, provide the limits on the competitive use of similar names.

The phrase “distinguishable upon the records of the secretary of state” is drawn from section 102(a)(1) of the Delaware General Corporation Law. The principal justifications for requiring a distinguishable official name are (1) to prevent confusion within the secretary of state’s office and the tax office and (2) to permit accuracy in naming and serving corporate defendants in litigation. Thus, confusion in an absolute or linguistic sense is the appropriate test under the Model Act, not the competitive relationship between the corporations, which is the test for fraud or unfair competition. The precise scope of “distinguishable upon the records of the secretary of state” is an appropriate subject of regulation by the office of secretary of state in order to ensure uniformity of administration. Corporate names that differ only in the words used to indicate corporateness are generally not distinguishable. Thus, if ABC Corporation is in existence, the names “ABC Inc.,” “ABC Co.,” or “ABC Corp.” should not be viewed as distinguishable. Similarly, minor variations between names that are unlikely to be noticed, such as the substitution of a “.” for a “,” or the substitution of an arabic numeral for a word, such as “2” for “Two”, or the substitution of a lower case letter for a capital, such as “d” for “D,” generally should not be viewed as being distinguishable.

The elimination of the “deceptively similar” requirement that appeared in earlier versions of the Model Act and the specific recognition appearing in section 4.01(e), that corporations may use artificial or fictitious names to the same extent an individual can, are based on the fact that the secretary of state does not generally police the unfair competitive use of names and, indeed, usually has no resources to do so. For example, assume that “ABC Corporation” operates a retail furniture store in Albany, New York, and another group wants to use the same name to engage in a business involving imports of textiles in New York City. An attempt to incorporate a second “ABC Corporation” (or a very close variant such as “ABC Corp.” or “ABC Inc.”) should be rejected because the names are not distinguishable upon the records of the secretary of state. If the second group uses a distinguishable official name, like “AB D Corporation,” it probably may lawfully assume the fictitious name “ABC Corporation” to import goods in New York City if it files the assumed name certificate required by New York law. In these situations, the secretary of state will usually not know in what business or in what geographical area “ABC Corporation” is active or what name AB D Corporation is actually using in its business; he simply maintains an alphabetical list of “official” corporate names as they appear from corporate records and makes his decision about whether a proposed name is distinguishable from other “official names” by comparing the proposed name with those on the list. This assumes that there is either no assumed name statute or that if there is such a statute it requires only local filing in counties or, as in New York, a central filing which does not become part of the corporate records maintained by the secretary of state’s office. These assumptions are generally if not universally correct.

Section 4.01(b)(3) lists classes of “official names” that are not available. Names in use and thus unavailable from the standpoint of the secretary of state’s uniqueness test for “official names” come from the following sources: (1) official names of profit or not-for-profit domestic corporations, (2) official names of foreign profit or not-for-profit corporations qualified to transact business, (3) reserved names, and (4) registered names. The secretary of state becomes involved with fictitious or assumed names only in the situation where a foreign corporation, planning to transact business in a state, discovers that its name is not available in that state. To qualify it must adopt an assumed or fictitious name as its “official name” in the state, see section 15.06. Such a fictitious or assumed name is thereafter an “official” name and is unavailable to the same extent as any other “official name” in use is unavailable.

Section 4.01(c)(1) authorizes the secretary of state to accept a name that is indistinguishable from the name of another corporation if that corporation files an undertaking in a form satisfactory to the secretary of state that it will thereafter change its name to a name that is distinguishable upon the records of the secretary of state. This privilege may be important in acquisition transactions where a new corporation is to take over the business of an existing corporation without a change in corporate name. The secretary of state may require the undertaking to specify the new name which the corporation will adopt and the time period within which the change will be made. The requirements imposed on the undertaking should be consistent with the limited role of the secretary of state in the administration of section 4.01.

Former Amended North Carolina Commentary to G.S. 55-4-01

Editor’s Note. — The North Carolina Commentary below was formerly located under G.S. 55-1-23 prior to its transfer in 2001. At the request of the Revisor of Statutes, the North Carolina Commentary has been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

Unlike the Model Act, former G.S. 55-12(a) did not permit a corporate name to contain “words or abbreviations of like import in another language.” The drafters concluded that a corporate name should not contain foreign words or abbreviations to indicate corporateness and that it would be confusing to the Secretary of State’s office to determine what foreign words or abbreviations are “of like import.” Therefore, consistent with the provisions of the prior law, they omitted the Model Act language “or words or abbreviations of like import in another language” from subdivision (a)(1).

The Model Act was modified in subsection (c) to clarify that any person (not just a corporation) may apply for authorization under this subsection.

Subsection 4.01(d) of the Model Act is a restatement of the trade name law and therefore was deemed unnecessary.

Subsection (e) was rewritten for clarification.

Subsection (f) was added to bring forward the provisions of former G.S. 55-12(k).

Subsection (g), which is not in the Model Act, is an entirely new section that addresses the use of a dissolved corporation’s name.

Former G.S. 55-12(b), which provided that a corporate name could not contain “any word or phrase which is likely to mislead the public or which indicates or implies that it is organized for any purpose other than one or more of the purposes contained in its charter,” was not brought forward. The provision was aimed at preventing fraudulent business practices, and the drafters decided that this should be policed by the Attorney General rather than by the Secretary of State through the corporation laws.

§ 55D-21. Entity names on the records of the Secretary of State; availability.

1. The following entities are subject to this section:
   1. Domestic corporations, nonprofit corporations, limited liability companies, limited partnerships, and registered limited liability partnerships.
   2. Foreign corporations, foreign nonprofit corporations, foreign limited liability companies, and foreign limited partnerships applying for or maintaining a certificate of authority to transact business or conduct affairs in this State.
   3. Foreign limited liability partnerships applying for or maintaining a statement of foreign registration.
2. Except as authorized by subsection (c) of this section, the name of an entity subject to this section, including a fictitious name for a foreign entity, must be distinguishable upon the records of the Secretary of State from:
   1. The name of a domestic corporation, nonprofit corporation, limited liability company, limited partnership, or registered limited liability partnership, or of a foreign corporation, foreign nonprofit corporation, foreign limited liability company, or foreign limited partnership authorized to transact business or conduct affairs in this State, or a foreign limited liability partnership maintaining a statement of foreign registration in this State;
   2. A name reserved or registered under G.S. 55D-23 or registered under G.S. 55D-24 ; and
   3. The fictitious name adopted by a foreign corporation, foreign nonprofit corporation, foreign limited liability company, or foreign limited partnership authorized to transact business or conduct affairs, or a foreign limited liability partnership maintaining a statement of foreign registration in this State because its real name is unavailable.
3. A person may apply to the Secretary of State for authorization to use a name that is not distinguishable upon the Secretary of State’s records from one or more of the names described in subsection (b) of this section. The Secretary of State shall authorize use of the name applied for if:
   1. The other person who has or uses the name or who has reserved or registered the name consents in writing to the use and submits an undertaking in form satisfactory to the Secretary of State to change its name to a name that is distinguishable upon the records of the Secretary of State from the name of the applicant; or
   2. The applicant delivers to the Secretary of State a certified copy of the final judgment of a court of competent jurisdiction establishing the applicant’s right to use the name applied for in this State.
4. Except as otherwise provided in this subsection, the name of a corporation dissolved under Article 14 of Chapter 55 of the General Statutes, of a nonprofit corporation dissolved under Article 14 of Chapter 55A of the General Statutes, of a limited liability company dissolved under Article 6 of Chapter 57D of the General Statutes, of a limited partnership dissolved under Part 8 of Article 5 of Chapter 59 of the General Statutes, or of a limited liability partnership whose registration as a limited liability partnership has been cancelled under G.S. 59-84.2 or revoked under G.S. 59-84.4 , may not be used by another entity until one of the following occurs:
   1. In the case of a nonjudicial dissolution other than an administrative dissolution or cancellation of registration as a limited liability partnership, 120 days after the effective date of the dissolution or cancellation.
   2. In the case of an administrative dissolution or revocation of registration as a limited liability partnership, the expiration of five years after the effective date of the administrative dissolution or revocation.
   3. In the case of a judicial dissolution, 120 days after the later of the date the judgment has become final or the effective date of the dissolution. The person applying for the name must certify to the Secretary of State that no appeal or other judicial review of the judgment directing dissolution is pending.
   4. The dissolved entity changes its name to a name that is distinguishable upon the records of the Secretary of State from the names of other domestic corporations, nonprofit corporations, limited liability companies, limited partnerships, or registered limited liability partnerships or foreign corporations, foreign nonprofit corporations, foreign limited liability companies, or foreign limited partnerships authorized to transact business or conduct affairs in this State, or foreign limited liability partnerships maintaining a statement of foreign registration in this State.

History. 1901, c. 2, s. 8; 1903, c. 453; Rev., s. 1137; 1913, c. 5, s. 1; C.S., s. 1114; 1935, cc. 166, 320; 1939, c. 222; G.S., s. 55-2; 1955, c. 1371, s. 1; 1959, c. 1316, s. 28; 1969, c. 751, ss. 4-6; 1973, c. 469, s. 45.3; 1989, c. 265, s. 1; 1989 (Reg. Sess., 1990), c. 1024, s. 12.5; 1995, c. 539, ss. 4, 5; 2001-358, ss. 14(a), 15; 2001-387, ss. 163, 173, 175(a); 2001-390, s. 15; 2001-413, s. 6; 2001-487, s. 62(h); 2002-159, s. 23; 2013-157, s. 12.

Former Official Comment to G.S. 55-4-01

Editor’s Note. — The Official Comments located under G.S. 55D-20 were formerly located under G.S. 55-4-01, parts of which were recodified as G.S. 55D-20 and G.S. 55D-21 in 2001. At the request of the Revisor of Statutes, the Official Comments have been transferred to G.S. 55D-20 as historical annotations pursuant to Session Laws 2001-358, s. 52. The Official Comments under that section apply to this section as well.

Former Amended North Carolina Commentary to G.S. 55-4-01

Editor’s Note. — The North Carolina Commentary located under G.S. 55D-20 was formerly located under G.S. 55-4-01, parts of which were recodified as G.S. 55D-20 and G.S. 55D-21 in 2001. At the request of the Revisor of Statutes, the North Carolina Commentary has been transferred to G.S. 55D-20 as historical annotations pursuant to Session Laws 2001-358, s. 52. The North Carolina Commentary under that section applies to this section as well.

§ 55D-22. Names of foreign entities.

1. If the name of a foreign corporation, foreign nonprofit corporation, foreign limited liability company, foreign limited partnership, or foreign limited liability partnership does not satisfy the requirements of G.S. 55D-20 and G.S. 55D-21 , then to obtain or maintain a certificate of authority to transact business or conduct affairs in this State or a statement of foreign registration in this State, the entity may:
   1. If a foreign corporation or foreign nonprofit corporation, add the word “corporation”, “incorporated”, “company”, or “limited”, or the abbreviation “corp.”, “inc.”, “co.”, or “ltd.” to its corporate name for use in this State;
   2. If a foreign limited liability company, add the words “limited liability company”, or the abbreviation “L.L.C.”, or “LLC”, or the combination “ltd. liability co.”, “limited liability co.”, or “ltd. liability company” to its name for use in this State if the addition will cause the name to satisfy the requirements of G.S. 55D-20 and G.S. 55D-21 ;
   3. If a foreign limited partnership that is not a foreign limited liability limited partnership, add the words “limited partnership” or the abbreviation “L.P.” or “LP”, or the combination “ltd. partnership”;
   4. If a foreign limited partnership that is a foreign limited liability limited partnership, add the words “registered limited liability limited partnership” or “limited liability limited partnership” or the abbreviation “L.L.L.P.”, “R.L.L.L.P.”, “LLLP”, or “RLLLP”;
   5. If a foreign limited liability partnership, add the words “registered limited liability partnership”, or “limited liability partnership” or the abbreviation “L.L.P.”, “R.L.L.P.”, “LLP”, or “RLLP”; or
   6. Use a fictitious name, which includes one or more of the words, abbreviations, or combinations in subdivisions (1) through (5) of this subsection if applicable, to transact business or conduct affairs in this State if its real name is unavailable and it delivers to the Secretary of State for filing a copy of the resolution adopting the fictitious name.
2. If a foreign corporation, foreign nonprofit corporation, foreign limited liability company, or foreign limited partnership authorized to transact business or conduct affairs in this State, or a foreign limited liability partnership maintaining a statement of foreign registration, changes its name to one that does not satisfy the requirements of this Article, it may not transact business or conduct affairs in this State under the changed name until it adopts a name satisfying the requirements of this Article and obtains an amended certificate of authority or statement of foreign registration under G.S. 55-15-04 , 55A-15-04, 57D-7-04, 59-91, or 59-905, as applicable.

History. 2001-358, s. 15; 2001-387, ss. 164, 173, 175(a); 2001-413, s. 6; 2013-157, s. 13.

§ 55D-23. Reserved name.

1. A person may reserve the exclusive use of a name for an entity, including a fictitious name for a foreign corporation, foreign nonprofit corporation, foreign limited liability company, foreign limited partnership, or foreign limited liability partnership whose name is not available, by filing an application with the Secretary of State. The application must set forth the name and address of the applicant and the name proposed to be reserved. If the Secretary of State finds that the name applied for is available, the Secretary of State shall reserve the name for the applicant’s exclusive use for a nonrenewable 120-day period.
2. The owner of a reserved name may transfer the reservation to another person by filing with the Secretary of State a signed notice of the transfer that states the name and address of the transferee.
3. Any person acquiring the goodwill of a domestic corporation, nonprofit corporation, limited liability company, limited partnership, or registered limited liability partnership, or of a foreign corporation, foreign nonprofit corporation, foreign limited liability company, or foreign limited partnership authorized to transact business or conduct affairs in this State, or of a foreign limited liability partnership maintaining a statement of foreign registration in this State may, on furnishing the Secretary of State satisfactory evidence of such acquisition, reserve for 10 years the exclusive right to any name that became available as a result of the acquisition.

History. 1901, c. 2, s. 8; 1903, c. 453; Rev., s. 1137; 1913, c. 5, s. 1; C.S., s. 1114; 1935, cc. 166, 320; 1939, c. 222; G.S., s. 55-2; 1955, c. 1371, s. 1; 1959, c. 1316, s. 28; 1969, c. 751, ss. 4-6; 1973, c. 469, s. 45.3; 1989, c. 265, s. 1; 2001-358, ss. 14(b), 15; 2001-387, ss. 173, 175(a); 2001-413, s. 6.

Official Comment to Former G.S. 55-4-02

Editor’s Note. — The Official Comments below were formerly located under G.S. 55-4-02 prior to its transfer in 2001. At the request of the Revisor of Statutes, the Official Comments have been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

The “reservation” of a corporate name is basically a device to simplify the formation of a new corporation or the qualification of a foreign corporation. By reserving a name, the persons considering the formation or qualification of the corporation can order stationery, prepare documents, etc. on the assumption that the reserved name will be available. Reference to a specific intent to form a new corporation is not required by the statute, however, since a secretary of state is not equipped and should not be asked to determine whether the requisite intent actually exists. For the same reason, “any person” is permitted to reserve a corporate name without reference to specific classes of persons who might wish to reserve a corporate name for various purposes.

Under section 4.02 of the Model Act, an available corporate name may be reserved:

1. by persons considering the formation of a new domestic corporation;
2. by persons considering the formation of a corporation in another state and the immediate qualification of that new corporation in this state; and
3. by a foreign corporation planning or considering qualification in this state. The name reserved may be the foreign corporation’s “official name” (if that name is available) or another name. The foreign corporation may thereafter use the reserved name as the name of a domestic subsidiary or, if its real name is unavailable, as a fictitious “official name” for its qualification under section 15.06.

These illustrations are designed to suggest the scope and flexibility of section 4.02, and not to exhaust the possible uses to which a reserved name may be put.

(2) by persons considering the formation of a corporation in another state and the immediate qualification of that new corporation in this state; and

(3) by a foreign corporation planning or considering qualification in this state. The name reserved may be the foreign corporation’s “official name” (if that name is available) or another name. The foreign corporation may thereafter use the reserved name as the name of a domestic subsidiary or, if its real name is unavailable, as a fictitious “official name” for its qualification under section 15.06.

These illustrations are designed to suggest the scope and flexibility of section 4.02, and not to exhaust the possible uses to which a reserved name may be put.

Consideration was also given to whether reservation of a corporate name should be made renewable. The modern requirements for incorporation of a domestic corporation or the qualification of a foreign corporation are so simple that it is unlikely that more than 120 days could ever be realistically required to form or qualify a corporation. Also, it was believed to be undesirable to allow the reservation procedure to be used for other purposes, such as permanently setting aside a name by successive renewals. Therefore, only a single, one-time reservation is provided for, although after the 120-day period expires the name becomes available again and anyone, including the original reserver, may reserve the name. And nothing prevents the formation of an inactive corporation specifically to hold the desired name if a longer period of reservation is desired than the 120-day period specified by section 4.02.

North Carolina Commentary to Former G.S. 55-4-02

Editor’s Note. — The North Carolina Commentary below was formerly located under G.S. 55-4-02 prior to its transfer in 2001. At the request of the Revisor of Statutes, the North Carolina Commentary has been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

Subsection (c) was added to the Model Act’s provisions to bring forward the provisions of former G.S. 55-12(e). Other minor changes to the Model Act in this section were made for clarification.

Effect of Amendments.

Session Laws 2001-358, ss. 14(b) and 15, effective January 1, 2002, and applicable to documents submitted for filing on or after that date, recodified G.S. 55-4-02 as this section; in subsection (a), in the first sentence, substituted “exclusive use of a name for an entity” for “exclusive use of a corporate name” and inserted “foreign nonprofit corporation, foreign limited liability company, foreign limited partnership, or foreign limited liability partnership,” and in the last sentence, deleted “corporate” preceding “name applied,” and substituted “the Secretary of State” for “he”; deleted “corporate” preceding “name may” in subsection (b); and rewrote subsection (c).

§ 55D-24. Registered name.

1. A foreign corporation, foreign nonprofit corporation, foreign limited liability company, foreign limited partnership, or foreign limited liability partnership may register its name, or its name with any addition required by G.S. 55D-22 , if the name to be registered is distinguishable upon the records of the Secretary of State from the names that are not available under G.S. 55D-21(b).
2. An entity described in subsection (a) of this section registers its name, or its name with any addition required by G.S. 55D-22 , by filing with the Secretary of State an application:
   1. Setting forth its name, or its name with any addition required by G.S. 55D-22 , the state or country and date of its incorporation or formation, and a brief description of the nature of the business or activities in which it is engaged; and
   2. Accompanied by a certificate of existence (or a document of a similar import) from the state or country of incorporation or formation.
3. The name is registered for the applicant’s exclusive use upon the effective date of the application and until the end of the calendar year in which it became effective.
4. An entity whose registration is effective may renew it for successive years by filing with the Secretary of State a renewal application, which complies with the requirements of subsection (b) of this section, between October 1 and December 31 of the preceding year. The renewal application renews the registration for the following calendar year. Any renewal application filed after the expiration of the registration shall be treated as a new application for registration.
5. An entity whose registration is effective may thereafter become authorized to transact business or conduct affairs under that name or consent in writing to the use of that name by:
   1. A domestic corporation, nonprofit corporation, limited liability company, limited partnership, or registered limited liability partnership thereafter incorporated, formed, or registered in this State under that name;
   2. A domestic corporation, nonprofit corporation, limited liability company, limited partnership, or registered limited liability partnership that changes its name to that name; or
   3. Another foreign corporation, foreign nonprofit corporation, foreign limited liability company, foreign limited partnership, or foreign limited liability partnership that becomes authorized to transact business or conduct affairs in this State under that name.The registration terminates when the domestic corporation, nonprofit corporation, limited liability company, limited partnership, or registered limited liability partnership is incorporated, formed, registered, or changes its name or the foreign corporation, foreign nonprofit corporation, foreign limited liability company, foreign limited partnership, or foreign limited liability partnership qualifies or registers or consents to the qualification or registration of another entity under the registered name.

History. 1901, c. 2, s. 8; 1903, c. 453; Rev., s. 1137; 1913, c. 5, s. 1; C.S., s. 1114; 1935, cc. 166, 320; 1939, c. 222; G.S., s. 55-2; 1955, c. 1371, s. 1; 1959, c. 1316, s. 28; 1969, c. 751, ss. 4-6; 1973, c. 469, s. 45.3; 1989, c. 265, s. 1; 2001-358, ss. 14(b), 15; 2001-387, ss. 165(a), 165(b), 173, 175(a); 2001-413, s. 6.

Official Comment to Former G.S. 55-4-03

Editor’s Note. — The Official Comments below were formerly located under G.S. 55-4-03 prior to its transfer in 2001. At the request of the Revisor of Statutes, the Official Comments have been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

The “registration” of a corporate name is basically a device by which a foreign corporation, not qualified to transact business in the state, can preserve the right to use its unique “real” name if it decides later to qualify in the state. In effect, registration ensures “real” name availability in areas of potential future expansion.

It is believed desirable to limit section 4.03 to this purpose and not allow it to become an indirect device for the preservation of trademarks, trade names, or possible assumed names. For this reason, generally only “real” names of foreign corporations may be registered (with exceptions described below). A broader approach would create issues better resolved under a trademark or similar statute, or by litigation under unfair competition principles, and might impose duties on secretaries of state that they are generally not equipped to handle, or could handle only at increased cost.

Registration of a name other than the “real” name is permitted in only one situation: if the “real” name of a foreign corporation is not available solely because it does not comply with section 15.06, requiring the words “incorporated,” “corporation,” “company,” or “limited,” or an abbreviation of one of these words, the corporation may add one of these words or abbreviations and register its “real” name as so modified under section 4.03(a).

Confusion sometimes exists between “reservation” of names under section 4.02 and registration of names under section 4.03. A foreign corporation that is planning to qualify as a foreign corporation and finds that its name is available in the state may either register or reserve the name. Often a foreign corporation will have to decide whether to qualify or to create a domestic subsidiary; this well may be decided after the exclusive right to use the corporate name in the state is obtained either by reservation or by registration. If the corporation registers its name, it will be kept indefinitely; if it reserves, it will be kept for 120 days and then become available again. That is the foreign corporation’s choice. If a foreign corporation registers its name and then elects to form a domestic or foreign subsidiary, the written consent procedure of section 4.03(e) allows the secretary of state to ascertain that the domestic subsidiary is related to the foreign corporation and that use of the registered name by that subsidiary is acceptable to the foreign parent.

If a foreign corporation’s “real” name is unavailable, a foreign corporation may reserve any name — including one that is assumed or fictitious when compared with the corporation’s “real” name — for 120 days. But it may not register this type of name in light of the policy against allowing the name provisions of the Model Act to be used for purposes broader than the “unique name” issue. Nevertheless, a foreign corporation that wishes to be certain that a particular fictitious or assumed name will be available in the future may create an inactive domestic subsidiary with the desired name to preserve its future availability. See also the Official Comment to section 15.06.

Section 4.03(e) provides that the protection of the name provided by this section terminates when the name is used pursuant to this section by the foreign corporation or its domestic or foreign subsidiary.

North Carolina Commentary to Former G.S. 55-4-03

Editor’s Note. — The North Carolina Commentary below was formerly located under G.S. 55-4-03 prior to its transfer in 2001. At the request of the Revisor of Statutes, the North Carolina Commentary has been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

Subsection (c) differs from the Model Act in providing that registration of a corporate name remains effective “until the end of the calendar year in which it became effective.”

The last sentence of subsection (d) was added from former G.S. 55-12(h). Former G.S. 55-12(h) permitted renewals on a year-to-year basis for ten years, whereas this Act does not contain this limitation.

Other minor changes to the Model Act in this section were made for clarification.

§ 55D-25. Reserved and registered names; powers of the Secretary of State.

The Secretary of State may revoke any reservation or registration of a name if the Secretary of State:

1. Gives written notice by registered or certified mail, return receipt requested, to the person who made the reservation or registration of the date and time of a hearing;
2. Conducts a hearing not less that 15 days after receipt of the notice as shown by the return receipt; and
3. Finds that the application therefor or any transfer thereof was not made in good faith or that any statement contained in the application for reservation or registration was false when such application was filed or has thereafter become false.

History. 1901, c. 2, s. 8; 1903, c. 453; Rev., s. 1137; 1913, c. 5, s. 1; C.S., s. 1114; 1935, cc. 166, 320; 1939, c. 222; G.S., s. 55-2; 1955, c. 1371, s. 1; 1959, c. 1316, s. 28; 1969, c. 751, ss. 4-6; 1973, c. 469, s. 45.3; 1989, c. 265, s. 1; 1993, c. 552, s. 7; 2001-358, ss. 14(b), 15; 2001-387, ss. 173, 175(a); 2001-413, s. 6.

North Carolina Commentary to Former G.S. 55-4-04

Editor’s Note. — The North Carolina Commentary below was formerly located under G.S. 55-4-04 prior to its transfer in 2001. At the request of the Revisor of Statutes, the North Carolina Commentary has been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

This section, which is not part of the Model Act, was added to bring forward the provisions of former G.S. 55-12(i), relating to the power of the Secretary of State to revoke any reservation or registration of a corporate name, and the provisions of former G.S. 55-12(j), relating to enjoining the use by a corporation of a name in violation of Article 4. The drafters concluded that such powers should be explicit.

Effect of Amendments.

Session Laws 2001-358, ss. 14(b) and 15, effective January 1, 2002, and applicable to documents submitted for filing on or after that date, recodified G.S. 55-4-04 as this section; and rewrote the section.

§ 55D-26. Real property records.

1. A certificate issued by the Secretary of State as described in subsection (b) of this section must be recorded when:
   1. The name of any domestic corporation, nonprofit corporation, limited liability company, limited partnership, or registered limited liability partnership or foreign corporation, foreign nonprofit corporation, foreign limited liability company, foreign limited partnership, or foreign limited liability partnership that holds title to real property in this State is changed upon amendment to its articles of incorporation or organization, its certificate of limited partnership, or its registration as a limited liability partnership or foreign limited liability partnership; or
   2. Title to real property in this State held by any entity listed in subdivision (1) of this subsection is vested by operation of law in another entity upon merger, consolidation, or conversion of the entity.The certificate must recite the name change, merger, consolidation, or conversion and must be recorded in the office of the register of deeds of the county where the property lies or, if the property is located in more than one county in each county where any portion of the property lies.
2. The Secretary of State shall issue uniform certificates for recordation in accordance with this section. In the case of a foreign corporation, foreign nonprofit corporation, foreign limited liability company, foreign limited partnership, or foreign limited liability partnership, a similar certificate by any competent authority of the jurisdiction of incorporation may be recorded in accordance with this section.
3. The certificate required by this section must be recorded by the register of deeds in the same manner as deeds, and for the same fees, but no formalities as to acknowledgement, probate, or approval by any other officer shall be required. The former name of the entity holding title to the real property before the name change, merger, consolidation, or conversion shall appear in the “Grantor” index, and the new name of the corporation or the name of the other entity holding title to the real property by virtue of the merger, consolidation, or conversion shall appear in the “Grantee” index.

History. 1989, c. 265, s. 1; 1991, c. 645, s. 2(a); 1999-369, s. 1.4; 2001-358, ss. 14(b), 15; 2001-387, ss. 166, 173, 175(a); 2001-413, s. 6.

North Carolina Commentary to Former G.S. 55-4-05

Editor’s Note. — The North Carolina Commentary below was formerly located under G.S. 55-4-05 prior to its transfer in 2001. At the request of the Revisor of Statutes, the North Carolina Commentary has been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

This section, which is not part of the Model Act, relates to updating real property records when the name of a corporation is changed or when title to real property is transferred by operation of law in a merger. It is a blend of section 13.1-633 of the Virginia act and G.S. 47-18.1 .

§§ 55D-27 through 55D-29.

Reserved for future codification purposes.

§ 55D-30. Registered office and registered agent required.

1. Each domestic corporation, nonprofit corporation, limited liability company, limited partnership, and limited liability partnership, each foreign limited liability partnership maintaining a statement of foreign registration, and each foreign corporation, nonprofit corporation, limited liability company, and limited partnership authorized to transact business or conduct affairs in this State must continuously maintain in this State:
   1. A registered office that may be the same as any of its places of business or any place where it conducts affairs; and
   2. A registered agent, who must be:
      1. An individual who resides in this State and whose business office is identical with the registered office;
      2. A domestic corporation, nonprofit corporation, or limited liability company whose business office is identical with the registered office; or
      3. A foreign corporation, foreign nonprofit corporation, or foreign limited liability company authorized to transact business or conduct affairs in this State whose business office is identical with the registered office.
2. The sole duty of the registered agent to the entity is to forward to the entity at its last known address any notice, process, or demand that is served on the registered agent.

History. 1901, c. 5; Rev., s. 1243; C.S., s. 1137; 1937, c. 133, ss. 1-3; G.S., ss. 55-38, 55-39; 1955, c. 1371, s. 1; 1957, c. 979, s. 17; 1989, c. 265, s. 1; 2000-140, s. 101(a); 2001-358, ss. 44, 45; 2001-387, ss. 173, 175(a); 2001-413, s. 6.

Former Official Comment to G.S. 55-5-01

Editor’s Note. — The Official Comments below were formerly located under G.S. 55-5-01 prior to its amendment in 2001. At the request of the Revisor of Statutes, the Official Comments have been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

The requirements that a corporation continuously maintain a registered office and a registered agent at that office are based on the premises that at all times a corporation should have an office where it may be found and a person at that office on whom any notice or process required or permitted by law may be served. This covers not only service of process in connection with litigation but also tax notices and communications from the secretary of state and other governmental offices. The street address of the registered office must appear in the public records maintained by the secretary of state. A mailing address, such as a post office box, is not sufficient since the registered office is the designated location for service of process.

The Model Act assumes that formal communications to the corporation will normally be addressed to the registered agent at the registered office. If the communication itself deals with the registered office or registered agent, however, copies must be sent to the principal office of the corporation. Moreover, the Act authorizes corporations to retain records at, or to provide information to shareholders through, offices other than the registered office. The Model Act consistently recognizes that the registered office may be a “legal” rather than a “business” office.

Many corporations designate their registered office to be a business office of the corporation and a corporate officer at that office to be the registered agent. Since most of the communication to the registered agent at the registered office deals with legal matters, however, corporations often designate their regular legal counsel or his nominee as their registered agent and the counsel’s office as the registered office of the corporation. This practice may also encourage regular communication between the corporation and its legal counsel.

The registered agent need not be an individual. Corporation service companies often provide, as a commercial service, registered offices and registered agents at the office of the corporation service company.

The voluntary dissolution of the corporation does not of itself terminate the authority of the registered agent to accept service of process or other communications on behalf of the dissolved corporation. See section 14.05.

Former North Carolina Commentary to G.S. 55-5-01

Editor’s Note. — The North Carolina Commentary below was formerly located under G.S. 55-5-01 prior to its amendment in 2001. At the request of the Revisor of Statutes, the North Carolina Commentary has been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

Subsection (a) is the same as section 5.01 of the Model Act, except that “nonprofit” has been substituted for “not-for-profit” and “shall” has been substituted for “may” in subdivision (2). Subsection (b) was added to define precisely and exclusively what a registered agent is obligated to do.

§ 55D-31. Change of registered office or registered agent.

1. An entity required to maintain a registered office and registered agent under G.S. 55D-30 may change its registered office or registered agent by delivering to the Secretary of State for filing a statement of change that sets forth all of the following:
   1. The name of the entity.
   2. The street address, and the mailing address if different from the street address, of its current registered office, and the county in which it is located.
   3. If the address of the entity’s registered office is to be changed, the street address, and the mailing address if different from the street address, of the new registered office, and the county in which it is located.
   4. The name of its current registered agent.
   5. If the current registered agent is to be changed, the name of the new registered agent and the new agent’s written consent (either on the statement or attached to it) to the appointment.
   6. That after the change or changes are made, the addresses of its registered office and the business office of its registered agent will be identical.
2. If a registered agent changes the address of the agent’s business office, the agent may change the address of the registered office of any entity for which the agent is the registered agent in this State by notifying the entity in writing of the change and signing and delivering to the Secretary of State for filing a statement that complies with the requirements of subsection (a) of this section and recites that the entity has been notified of the change.
3. A domestic corporation, limited liability company, limited liability limited partnership, registered limited liability partnership, foreign corporation, foreign limited liability company, or foreign limited liability partnership may change its registered office or registered agent by including in its annual report required by G.S. 55-16-22 , 57D-2-24, 59-84.4, or 59-210 the information and any written consent required by subsection (a) of this section.

History. 1901, c. 2, s. 31; Rev., s. 1176; C.S., s. 1133; G.S., s. 55-34; 1955, c. 1371, s. 1; 1957, c. 979, ss. 6, 7; 1965, c. 298, s. 1; 1967, c. 823, s. 17; 1973, c. 262; c. 469, s. 3; 1989, c. 265, s. 1; 1991, c. 645, s. 3; 2001-358, ss. 44, 45; 2001-387, ss. 167, 173, 175(a); 2001-413, s. 6; 2013-157, s. 14.

Official Comment to Former G.S. 55-5-02

Editor’s Note. — The Official Comments below were formerly located under G.S. 55-5-02 prior to its transfer in 2001. At the request of the Revisor of Statutes, the Official Comments have been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

Changes of registered office or registered agent are usually routine matters which do not affect the rights of shareholders. The purpose of this section is to permit these changes without a formal amendment of the articles of incorporation, without approval of the shareholders, and, indeed, even without formal approval of the board of directors.

Changes of registered office or registered agent are often of particular concern to corporation service companies which routinely serve as registered agent and routinely provide a registered office for literally thousands of corporations within many states.

Experience with the change of registered agent and registered office provisions in earlier versions of the Model Act and the statutes of many states revealed several minor problems with these largely formal provisions that are addressed in the revised Model Act.

1. Changes of registered office or registered agent need not be authorized by the board of directors. Many changes (such as the name of a specific registered agent at a registered office) are so routine that they should not require action by the board of directors, particularly in publicly held corporations.
2. In the case of a change of registered agent, the written consent of the new registered agent is required. This is designed to prevent naming persons as registered agents without their knowledge.
3. The procedure by which a registered agent may change the street address of the registered office applies to any location within the state and the agent is expressly required to notify the corporation of the change. But a facsimile signature of the agent is acceptable since a corporation service company changing its street address may be required to file a form for each of the thousands of corporations for which it serves as registered agent and to notify each corporation of the change.

Resignation of the registered agent is separately treated in section 5.03.

North Carolina Commentary to Former G.S. 55-5-02

Editor’s Note. — The North Carolina Commentary below was formerly located under G.S. 55-5-02 prior to its transfer in 2001. At the request of the Revisor of Statutes, the North Carolina Commentary has been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

The provisions requiring a mailing address (if different from the street address) and the name of the county were added to the Model Act’s provisions.

§ 55D-32. Resignation of registered agent.

1. The registered agent of an entity may resign by signing and filing with the Secretary of State a statement of resignation which may include a statement that the registered office is also discontinued. The statement must include or be accompanied by a certification from the registered agent that the agent has mailed or delivered to the entity at its last known address written notice of this resignation. This certification shall include the name and title of the individual notified, if any, and the address to which the notice was mailed or delivered.
2. After filing the statement the Secretary of State shall mail a copy to the registered office (if not discontinued) and a copy to the entity at its principal office address on file with the Secretary of State or, if none is on file, at the address contained in the certification included in or accompanying the statement of resignation.
3. The agency appointment is terminated, and, if applicable, the registered office discontinued on the 31st day after the date on which the statement was filed.

History. 1901, c. 2, s. 31; Rev., s. 1176; C.S., s. 1133; G.S., s. 55-34; 1955, c. 1371, s. 1; 1957, c. 979, ss. 6, 7; 1965, c. 298, s. 1; 1967, c. 823, s. 17; 1973, c. 262; c. 469, s. 3; 1989, c. 265, s. 1; 1989 (Reg. Sess., 1990), c. 1024, s. 12.6; 2001-358, ss. 44, 45; 2001-387, ss. 168, 173, 175(a); 2001-413, s. 6.

Official Comment to Former G.S. 55-5-03

Editor’s Note. — The Official Comments below were formerly located under G.S. 55-5-03 prior to its transfer in 2001. At the request of the Revisor of Statutes, the Official Comments have been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

The resignation of registered agents in states with statutes similar to earlier versions of the Model Act created special problems. Most of these problems arose in connection with corporation service companies who serve as registered agent for an annual fee. If the fee was not paid, the corporation service company obviously desired to terminate the representation promptly. Often the agent did not have a current business address for the corporation and was uncertain whether the corporation was still actively engaged in business. The earlier Model Act provision required the agent to submit his statement of resignation in duplicate and the secretary of state was directed to mail one copy “forthwith . . . to the corporation at its registered office.” This resulted in a circularity in notice: the duplicate was mailed back to the resigned agent who originally filed the copy. The probability that the corporation would receive a copy of the resignation under these circumstances was obviously low.

Section 5.03 resolves the circularity problem by requiring the resigning agent to submit two copies of its statement of resignation, one to be sent to the corporation at its registered office and the other to the corporation “at its principal office.” Mailing to this second address appears to be the only option regularly available to “break the circle” of the corporation “receiving” the notice through an agent whose resignation is being communicated.

This section also permits the discontinuance of the registered office as well as the resignation of the agent. Corporation service companies desiring to resign their agency for nonpayment of fees will normally wish to discontinue the registered office as well as the registered agent.

Amended North Carolina Commentary to Former G.S. 55-5-03

Editor’s Note. — The North Carolina Commentary below was formerly located under G.S. 55-5-03 prior to its transfer in 2001. At the request of the Revisor of Statutes, the North Carolina Commentary has been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

The Model Act was modified in subsection (a) to require that the statement of resignation include or be accompanied by a certification that written notice of the resignation was mailed or delivered to the corporation. The certification must include the name and title of the officer notified (if any) and the address to which the notice of resignation was mailed or delivered.

§ 55D-33. Service on entities.

1. Service of process, notice or demand required or permitted by law to be served on an entity may be served on the registered agent required by G.S. 55D-30 .
2. When an entity required to maintain a registered office and registered agent under G.S. 55D-30 fails to appoint or maintain a registered agent in this State, or when its registered agent cannot with due diligence be found at the registered office, or when the Secretary of State revokes a certificate of authority or a statement of foreign registration of a foreign entity authorized to transact business or conduct affairs in this State, the Secretary of State becomes an agent of the entity upon whom any such process, notice or demand may be served. Service on the Secretary of State of any such process, notice or demand is made by delivering to and leaving with the Secretary of State or any clerk authorized by the Secretary of State to accept service of process, duplicate copies of the process, notice or demand and the applicable fee. In the event any such process, notice or demand is served on the Secretary of State in the manner provided by this subsection, the Secretary of State shall immediately mail one of the copies thereof, by registered or certified mail, return receipt requested, to the entity at its principal office or, if there is no mailing address for the principal office on file, to the entity at its registered office. Service on an entity under this subsection is effective for all purposes from and after the date of the service on the Secretary of State.
3. The Secretary of State shall keep a record of all processes, notices and demands served upon the Secretary of State under this section and shall record therein the date of service and the Secretary of State’s action with reference thereto.
4. Nothing in this section affects the right to serve any process, notice or demand required or permitted by law to be served upon an entity in any other manner now or hereafter permitted by law.

History. 1937, c. 133, ss. 1-3; G.S., s. 55-39; 1955, c. 1371, s. 1; 1977, 2nd Sess., c. 1219, s. 33; 1989, c. 265, s. 1; 2000-140, s. 43; 2001-358, ss. 44, 45; 2001-387, ss. 173, 175(a); 2001-413, s. 6.

Official Comment to Former G.S. 55-5-04

Editor’s Note. — The Official Comments below were formerly located under G.S. 55-5-04 prior to its transfer in 2001. At the request of the Revisor of Statutes, the Official Comments have been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

Somewhat the same circularity problem that arose in connection with the resignation of registered agents (see the Official Comment to section 5.03) also sometimes arose in connection with service of process under statutes based on the former Model Act provision. Under that provision, if service could not be made on the registered agent at its registered office, a duplicate of the process was forwarded to the secretary of state who served it at the registered office (where the agent previously could not be found). It is unlikely that this arrangement resulted in the copy being forwarded routinely to the corporation. Instead of providing for service on the secretary of state if service cannot be perfected on the registered agent, therefore, section 5.04 provides for service by registered or certified mail addressed to the secretary of the corporation at its principal office shown in its most recent annual report.

If service is not perfected on the corporation at its registered office, section 5.04(b) provides that service is deemed perfected at the earliest of:

1. the date the corporation receives the mail;
2. the date shown on the return receipt if the receipt is signed on behalf of the corporation;
3. five days after the certified or registered mail is delivered to the post office or deposited in the mail by the person seeking to serve the corporation, if the return receipt was not returned or not signed on behalf of the corporation.

Section 5.04 also simplifies the recordkeeping requirements of the secretary of state, who is no longer required to keep records of service of process on domestic corporations.

(2) the date shown on the return receipt if the receipt is signed on behalf of the corporation;

(3) five days after the certified or registered mail is delivered to the post office or deposited in the mail by the person seeking to serve the corporation, if the return receipt was not returned or not signed on behalf of the corporation.

Section 5.04 also simplifies the recordkeeping requirements of the secretary of state, who is no longer required to keep records of service of process on domestic corporations.

Section 5.04(c) provides that this section does not prescribe the only, or necessarily the required, means of serving a corporation. Service may also be perfected under civil practice statutes, under rules of civil procedure, or under statutes that provide special service requirements applicable to certain types of corporations.

North Carolina Commentary to Former G.S. 55-5-04

Editor’s Note. — The North Carolina Commentary below was formerly located under G.S. 55-5-04 prior to its transfer in 2001. At the request of the Revisor of Statutes, the North Carolina Commentary has been transferred to this section as historical annotations pursuant to Session Laws 2001-358, s. 52.

Subsection (a) follows the Model Act except for specifying that the registered agent is “an” agent rather than “the” agent for service on the corporation. Subsections (b), (c) and (d) bring forward former G.S. 55-15(b), (c) and (d), with minor conforming changes in subsection (b). Service on the Secretary of State under the circumstances permitted by former G.S. 55-15(b) has been retained as an alternative.

Effect of Amendments.

Session Laws 2001-358, ss. 44 and 45, effective January 1, 2002, and applicable to documents submitted for filing on or after that date, recodified G.S. 55-5-04 as this section; and rewrote the section.