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Session Law

2004

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Chapter 178 AN ACT RELATIVE TO BUSINESS CORPORATIONS.

Whereas , The deferred operation of this act would tend to defeat its purpose, which is to make forthwith changes in certain business corporations, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.


Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:


SECTION 1. Section 39L of chapter 30 of the General Laws, as appearing in the 2002 Official Edition, is hereby amended by striking out clause (1) and inserting in place thereof the following clause:-

(1) shall not enter into a contract for the work with, and shall not approve as a subcontractor furnishing labor and materials for a part of the work, a foreign corporation which has not filed with the awarding authority a certificate of the state secretary stating that the corporation has complied with requirements of section 15.03 of subdivision A of Part 15 of chapter 156D and the date of compliance, and further has filed all annual reports required by section 16.22 of subdivision B of Part 16 of said chapter 156D.

SECTION 2. Clause Sixteenth of section 5 of chapter 59 of the General Laws, as so appearing, is hereby amended by striking out paragraph 4 and inserting in place thereof the following paragraph:-

(4) Exemption under this clause shall not extend to a corporation subject to section 15.01 of subdivision A of Part 15 of chapter 156D, if the corporation has failed to deliver the certificate required by section 15.03 of said subdivision A of said Part 15 of said chapter 156D.

SECTION 3. Clause Sixteenth of said section 5 of said chapter 59, as so appearing, is hereby amended by striking out the second paragraph and inserting in place thereof the following paragraph:-

Exemption under this clause shall not extend to an entity subject to section 48 of chapter 156C, if the entity has failed to comply with said section 48.

SECTION 4. Subsection (a) of section 83 of chapter 62C of the General Laws, as so appearing, is hereby amended by striking out the second sentence and inserting in place thereof the following sentence:- The form shall be treated as a report for the purposes of section 16.22 of subdivision B of Part 16 of chapter 156D and sections 7 and 8 of chapter 167 and as part of the annual report for purposes of section 26 of chapter 175, and the report or amended report shall be maintained by the state secretary as a public record; but, thereport or amended report shall be available for public inspection only after the state secretary has expunged the name of the taxpayer and the location, including street address, of the taxpayer's principal office as required by subsection (n).

SECTION 5. Section 16A of chapter 109 of the General Laws, as so appearing, is hereby amended by striking out subsection (a) and inserting in place thereof the following subsection:-

(a) As used in this section, other business entity shall mean a corporation to which section 17.01 of chapter 156D applies, a foreign corporation, as defined in subsection (a) of section 1.40 of said chapter 156D, a professional corporation and a foreign professional corporation, each as defined in section 2 of chapter 156A, an association or trust as defined in section 1 of chapter 182, a limited liability company, whether domestic or foreign, as defined in section 2 of chapter 156C, and a partnership, whether general, registered limited liability or limited and whether domestic or foreign as defined, respectively, in sections 2 and 6 of chapter 108A and section 1 of chapter 109, but excluding a domestic limited partnership.

SECTION 6. Subsection (e) of said section 16A of said chapter 109, as so appearing, is hereby further amended by striking out clause (7) and inserting in place thereof the following clause:-

(7) If the resulting or surviving entity is not an entity organized under the laws of the commonwealth, a statement that the resulting or surviving entity agrees that, if the entity does not continuously maintain an agent for service of process in the commonwealth, to appoint irrevocably the state secretary and his successor in office to be its true and lawful attorney upon whom all lawful process in any such action, suit or proceeding in the commonwealth may be served in the manner set forth in subsections (d), (e), and (g) of section 15.10 of Part 15 of chapter 156D relative to foreign corporations; except that the plaintiff in the action, suit or proceeding shall furnish the state secretary with the address specified in the certificate of consolidation or merger provided for in this section and the state secretary shall notify the surviving or resulting entity at that address.

SECTION 7. Section 48 of said chapter 109, as so appearing, is hereby amended by striking out the second sentence and inserting in place thereof the following sentence:- A general partner or other agent of a foreign limited partnership shall be subject to the liabilities, and shall have the defenses, with respect to the foreign limited partnership, as officers, directors and other agents of a foreign corporation have under section 15.11 of subdivision A of Part 15 of chapter 156D.

SECTION 8. Section 49 of said chapter 109, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- A foreign limited partnership shall be considered to be doing business in the commonwealth for the purposes of this section if it would be considered to be doing business in the commonwealth for the purpose of section 15.01 of subdivision A of Part 15 of chapter 156D if it were a foreign corporation.

SECTION 9. Section 50 of said chapter 109, as so appearing, is hereby amended by striking out the last sentence and inserting in place thereof the following sentence:- The secretary of state shall keep the records and have the duties with respect to foreign limited partnerships as are provided in subsection 6 of section 15.03 of subdivision A of Part 15 of chapter 156D relative to foreign corporations.

SECTION 10. Section 55 of said chapter 109, as so appearing, is hereby amended by striking out subsection (a) and inserting in place thereof the following subsection:-

(a) A foreign limited partnership doing business in the commonwealth which fails to register with the secretary of state shall be subject to subdivision A of section 15.02 of chapter 156D relative to foreign corporations.

SECTION 11. Subsection (b) of said section 55 of said chapter 109, as so appearing, is hereby amended by striking out the last sentence and inserting in place thereof the following sentence:- Every foreign limited partnership doing business in the commonwealth without having registered as prescribed in this section and every foreign limited partnership which shall have withdrawn from the commonwealth shall be considered to have appointed the secretary of state to be its true and lawful attorney upon whom all lawful process in any action or proceeding in the commonwealth may be served in the manner set forth in subsections (d), (e), (f) and (g) of section 15.10 of Part 15 of chapter 156D relative to foreign corporations.

SECTION 12. Section 8 of chapter 155 of the General Laws, as so appearing, is hereby amended by striking out the last sentence and inserting in place thereof the following sentence:- This section shall apply to foreign corporations, as defined in subsection (a) of section 1.40 of subdivision D of Part 1 of chapter 156D, as well as to corporations included within section 1.

SECTION 13. Section 9A of said chapter 155, as so appearing, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

Any person intending to organize a corporation under the General Laws, or any corporation organized under the General Laws intending to change its name, or any foreign corporation, as defined in subsection (a) of section 1.40 of subdivision D of Part 1 of chapter 156D, intending to make application for a certificate of authority to transact business in the commonwealth, or any foreign corporation, as so defined, authorized to transact business in the commonwealth and intending to change its name, or any person intending to organize and incorporate a foreign corporation, as so defined, and intending to have the corporation make application for a certificate of authority to transact business in the commonwealth may reserve the exclusive right to the use of a corporate name.

SECTION 14. Subsection (2) of section 46A of chapter 156 of the General Laws, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- A corporation owning all the stock of a corporation which is engaged in a business similar or incidental to the business in which the owning corporation is authorized to engage or owning all the stock of a foreign corporation qualified to transact business in this commonwealth under subdivision A of Part 15 of chapter 156D and is engaged in a similar or incidental business may, if the laws of the state where the foreign corporation is incorporated permit by vote of a majority of the board of directors of the owning corporation merge with the corporation whose stock it owns.

SECTION 15. Paragraph (2) of clause (b) of section 46D of said chapter 156 of the General Laws, as so appearing, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

The consolidated corporation shall agree that it may be sued in this commonwealth for any prior obligation of any constituent domestic corporation, any prior obligations of any constituent foreign corporation qualified under subdivision A of Part 15 of chapter 156D and any obligation thereafter incurred by the consolidated corporation, including the obligation established by section 46E of this chapter, so long as any liability remains outstanding against the corporation in this commonwealth, and it shall irrevocably appoint the secretary as its agent to accept service of process in the same manner as provided in said subdivision A of said Part 15 of said chapter 156D.

SECTION 16. Section 4 of chapter 156A of the General Laws, as so appearing, is hereby amended by striking out subsection (a) and inserting in place thereof the following subsection:-

(a) Chapter 156D shall apply to professional corporations and which shall enjoy the powers and privileges, and be subject to the duties, restrictions and liabilities of corporations organized under said chapter, except where inconsistent with this chapter.

SECTION 17. Section 6 of said chapter 156A, as so appearing, is hereby amended by striking out subsection (a) and inserting in place thereof the following subsection:-

(a) Except as otherwise provided by law or regulation, the personal liability of a shareholder of a professional corporation organized under this chapter shall be no greater in any respect than that of a shareholder of a corporation organized under chapter 156D.

SECTION 18. The first paragraph of section 7 of said chapter 156A, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- One or more individuals, each of whom is licensed to perform a professional service, may organize a professional corporation by complying with Part 2 of chapter 156D.

SECTION 19. Subsection (a) of section 13 of said chapter 156A, as so appearing, is hereby amended by striking out clause (3) and inserting in place thereof the following clause:-

(3) the corporation shall be merged into, consolidated with or changed by articles of amendment into a corporation organized pursuant to chapter 156D in accordance with section 14.

SECTION 20. Said chapter 156A is hereby further amended by striking out section 14, as so appearing, and inserting in place thereof the following section:

Section 14. A professional corporation which has ceased to render any professional services under this chapter or which is permitted to render professional services as a business corporation organized under chapter 156D may change its status by merging into or consolidating with the business corporation or by filing articles of amendment to change its name, where necessary, and purposes to those of the business corporation.

SECTION 21. Section 15 of said chapter 156A, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- If action required by section 12 or 13 is not taken within the prescribed time period, or it shall be established that a professional corporation has failed to comply with this chapter, the state secretary may dissolve the corporation in accordance with section 14.21 of subdivision B of Part 14 of chapter 156D.

SECTION 22. Subsection (b) of section 17 of said chapter 156A, as so appearing, is hereby amended by striking out clause (1) and inserting in place thereof the following clause:-

(1) the name of the corporation meets the requirements of this chapter and section 15.06 of subdivision A of Part 15 of chapter 156D.

SECTION 23. Subsection (c) of section 17 of said chapter 156A, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- A foreign professional corporation shall register to practice in the commonwealth by filing with the state secretary the certificate and evidence of legal existence from the jurisdiction of incorporation required by section 15.03 of subdivision A of Part 15 of chapter 156D.

SECTION 24. Said section 17 of said chapter 156A, as so appearing, is hereby further amended by striking out subsection (d) and inserting in place thereof the following subsection:-

(d) Every foreign professional corporation, except as otherwise provided in this chapter, shall be subject to section 15.02, subsection (c) of 15.03, section 15.04, and section 15.06 to 15.11, inclusive of subdivision A of Part 15 of chapter 156D, and sections 15.20, 15.30, 15.31 and 15.32 of subdivision B of said Part 15 of said chapter 156D.

SECTION 25. Section 18 of said chapter 156A, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- The annual report of a professional corporation or a foreign professional corporation shall, in addition to the information required by section 16.22 of subdivision B of Part 16 of chapter 156D, shall list the names and addresses of all shareholders and shall contain a certification that the shareholders, or all of the partners of a shareholder which is a general partnership are duly licensed to render 1 or more professional services for which the corporation was organized or are professional corporations authorized to render the professional services.

SECTION 26. Section 49 of chapter 156B of the General Laws, as so appearing, is hereby amended by striking out the second sentence and inserting in place thereof the following sentence:- Such resident agent shall be either an individual who is a resident of and has a business address in the commonwealth, a corporation organized under the laws of the commonwealth or a corporation organized under the laws of any other state of the United States which has complied with section 15.03 of subdivision A of Part 15 of chapter 156D and which has an office in the commonwealth.

SECTION 27. Subsection (b) of section 79 of said chapter 156B, as so appearing, is hereby amended by striking out the last sentence and inserting in place thereof the following sentence:- If the resulting or surviving corporation is to be governed by the laws of another state the resulting or surviving corporation shall agree that it may be sued in this commonwealth for any prior obligation of any constituent domestic corporation, any prior obligation of any constituent foreign corporation qualified under Part 15 of chapter 156D, and any obligation thereafter incurred by the resulting or surviving corporation, including the obligation established by section 85, so long as any liability remains outstanding against the corporation in this commonwealth, and it shall irrevocably appoint the secretary as its agent to accept service of process in any action for the enforcement of any such obligation, including taxes, in the same manner as provided in subsections (d), (e), (f) and (g) of section 15.10 of subdivision A of Part 15 of chapter 156D.

SECTION 28. Subsection (b) of section 82 of said chapter 156B, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- Unless the merger is abandoned pursuant to the terms of the directors vote adopted under subsection (a), articles of merger shall be submitted to the state secretary which shall set forth the vote of the directors, shall state the effective date of the merger, and if the parent corporation is organized under the laws of another state shall contain an agreement by such corporation that it may be sued in this commonwealth for any prior obligation of the Massachusetts corporation or corporations with which it has merged and any obligation thereafter incurred by the parent corporation, including the obligation created by subsection (e), so long as any liability remains outstanding against the parent corporation in this commonwealth, and it shall irrevocably appoint the state secretary as its agent to accept service of process in any action for the enforcement of the obligation, including taxes, in the same manner set forth in subsections (d), (e), (f) and (g) of section 15 of subdivision A of Part 15 of chapter 156D.

SECTION 29. Section 47 of chapter 156C of the General Laws, as so appearing, is hereby amended by striking out the second sentence and inserting in place thereof the following sentence:- A member, manager or other agent of a foreign limited liability company shall be subject to the liabilities, and shall have the defenses, with respect to the limited liability company, as officers, directors and other agents of a foreign corporation have under section 15.11 of subdivision A of Part 15 of chapter 156D.

SECTION 30. Section 48 of said chapter 156C, as so appearing, is hereby amended by striking out the first sentence and inserting in place thereof the following sentence:- A foreign limited liability company shall be considered to be doing business in the commonwealth for the purpose of this section if it would be considered to be doing business in the commonwealth for the purpose of Part 15 of subdivision A of chapter 156D if it were a foreign corporation.

SECTION 31. Section 49 of said chapter 156C, as so appearing, is hereby amended by striking out the last sentence and inserting in place thereof the following sentence:- The state secretary shall keep the records and have the other duties with respect to foreign limited liability companies as provided in subsection (c) of section 15.03 of subdivision A of Part 15 of chapter 156D.

SECTION 32. Section 51 of said chapter 156C, as so appearing, is hereby amended by striking out the second sentence and inserting in place thereof the following sentence:- The resident agent shall be either an individual who is a resident of and has a business address in the commonwealth, a corporation organized under the laws of the commonwealth, or a corporation organized under the laws of any other state of the United States, which has complied with of section 15.03 of subdivision A of Part 15 of chapter 156D and which has an office in the commonwealth.

SECTION 33. Section 59 of said chapter 156C, as amended by section 16 of chapter 127 of the acts of 2003, is hereby further amended by striking out subsection (a) and inserting in place thereof the following subsection:-

(a) As used in sections 59 to 63, inclusive, the words "other business entity" shall mean a corporation to which section 17.01 of Part 17 of chapter 156D applies, a professional corporation and a foreign professional corporation each as defined in section 2 of chapter 156A, a foreign corporation, an association or a trust, as defined in section 1 of chapter 182, a partnership whether general or limited and whether domestic or foreign, as defined, respectively, in section 6 of chapter 108A and section 1 of chapter 109, and a foreign limited liability company as defined in this chapter.

SECTION 34. Section 61(a) of said chapter 156C, as appearing in the 2002 Official Edition, is hereby amended by striking out clause (7) and inserting in place thereof the following clause:

(7) if the resulting or surviving entity is not an entity organized under the laws of the commonwealth, a statement that the resulting or surviving entity agrees that, if the entity does not continuously maintain an agent for service of process in the commonwealth, to appoint irrevocably the state secretary to be its true and lawful attorney upon whom all lawful process in any action or proceeding in the commonwealth may be served in the manner set forth in subsections (d), (e), (f) and (g) of section 15.10 of subdivision A of Part 15 of chapter 156D relative to foreign corporations.

SECTION 35. Section 1.25 of subdivision B of Part 1 of chapter 156D, as appearing in section 17 of chapter 127 of the acts of 2003, is hereby amended by striking out subsection (a) and inserting in place thereof the following subsection:-

(a) Upon receipt of a document for filing, except an annual report filed pursuant to section 16.22, the secretary of state shall record the date and time of receipt on or with the document and, if the person submitting the document or his representative so requests, furnish evidence of the date and time of receipt to the person or his representative in a form as the secretary of state shall determine.

SECTION 36. Said subdivision B of said Part 1 of said chapter 156D, as so apearing, is hereby further amended by striking out section 1.28 and inserting in place thereof the following section:-

Section 1.28. CERTIFICATES REGARDING CORPORATIONS. (a) Anyone may apply to the secretary of state to furnish a certificate of legal existence for a domestic corporation. A certificate of legal existence shall set forth:

(1) the name of the corporation;

(2) the date the corporation was organized under the laws of the commonwealth; and

(3) that the corporation has legal existence so far as it appears in the records of the state secretary.

(b) Anyone may apply to the secretary of state to furnish a certificate of good standing. A certificate of good standing shall set forth:

(1) the name of the corporation;

(2) the date the corporation was organized under the laws of the commonwealth;

(3) that the corporation has filed all annual reports required by section 16.22 to be filed by it and paid all fees due with respect to such reports;

(4) that no proceedings are pending under section 14.21 for the dissolution of the corporation;

(5) that no articles of dissolution have been filed by the corporation; and

(6) that the corporation appears from the records of the state secretary to be in good standing.

(c) The secretary of state shall issue, upon request, such other certificates regarding facts of record in his office concerning corporations upon payment of the fees as may be specified in regulations promulgated by the commissioner of administration including, without limitation, certificates of merger, certificates of dissolution and certificates regarding the authority of a foreign corporation to do business in the commonwealth.

(d) The certificates may be relied upon as conclusive evidence of the facts stated therein.

SECTION 37. Section 6.25 of Part 6 of said chapter 156D, as so appearing, is hereby amended by striking out subsection (d) and inserting in place thereof the following subsection:-

(d) Each share certificate shall be signed either manually or in facsimile by 2 officers designated in the by-laws or by the board of directors and may bear the corporate seal or its facsimile.

SECTION 38. Section 9.25 of subdivision A of Part 9 of said chapter 156D, as so appearing, is hereby amended by striking out subsection (c) and inserting in place thereof the following subsection:-

(c) If the domestication of a foreign business corporation into the commonwealth is abandoned in accordance with the laws of the foreign jurisdiction after articles of domestication have been filed with the secretary of state but before their effective date, a statement that the domestication has been abandoned, executed by an officer or other duly authorized representative shall be delivered to the secretary of state for filing. The statement shall take effect upon filing and the domestication shall be considered abandoned and shall not become effective.

SECTION 39. Section 14.21 of subdivision B of Part 14 of said chapter 156D, as so appearing, is hereby amended by striking out subsections (a) and (c) and inserting in place thereof the following 2 subsections:-

(a) If the secretary of state determines that one or more grounds exist under section 14.20 for dissolving a corporation, he shall notify the corporation's registered agent of his determination. The notice shall be in writing and mailed postage prepaid to the corporation's registered office, or if the registered agent consents, sent by electronic mail to an electronic mail address furnished by the agent for the purpose.

(b) If the corporation does not correct each ground for dissolution or demonstrate to the reasonable satisfaction of the secretary of state that each ground determined by the secretary of state does not exist within 90 days after notice is given, the secretary of state shall administratively dissolve the corporation.

SECTION 40. Subsection (c) of section 15.01 of subdivision A of Part 15 of said chapter 156D, as so appearing, is hereby amended by striking out clauses (7) and (8).

SECTION 41. Section 15.31 of subdivision C of Part 15 of said chapter 156D, as so appearing, is hereby amended by striking out subsection (a) and inserting in place thereof the following subsection:-

(a) If the secretary of state determines that 1 or more grounds exist under section 15.30 for revocation of authority of a foreign corporation to transact business in the commonwealth, he shall notify the corporation's registered agent of his determination. The notice shall be in writing and mailed postage prepaid to the corporation's registered office or if the registered agent consents, sent by electronic mail to an electronic address furnished by the agent for the purpose.

SECTION 42. Subsection (a) of section 16.22 of subdivision B of Part 16 of said chapter 156D, as so appearing, is hereby amended by striking out clause (5) and inserting in place thereof the following clause:-

(5) A brief description of its activities in the commonwealth.

SECTION 43. Said said subsection (a) of said section 16.22 of subdivision B of said Part 16 of chapter 156D, as so appearing, is hereby further amended by striking out clause (8) and inserting in place thereof the following clause:-

(8) the fiscal year of the corporation.

SECTION 44. Said section 16.22 of said subdivision B of said Part 16 of said chapter 156D, as so appearing is hereby further amended by striking out subsection (d).

SECTION 45. Subsection (b) of section 10A of chapter 180 of the General Laws, as appearing in 2002 Official Edition, is hereby amended by striking out paragraph (2) and inserting in place thereof the following paragraph:-

(2) If the resulting or surviving corporation is to be governed by the laws of a state other than the commonwealth, the agreement of consolidation or merger shall comply with the applicable laws of the state, and the resulting or surviving corporation shall agree in the articles of consolidation or merger that it may be sued in this commonwealth for any prior obligations of any constituent domestic corporation, any prior obligation of any constituent foreign corporation qualified under subdivision A of Part 15 of chapter 156D, or any other obligation thereafter incurred by the resulting or surviving corporation, so long as any liability remains outstanding against the corporation in this commonwealth, and it shall irrevocably appoint the state secretary as its agent to accept service of process in any action for the enforcement of the obligation, including taxes, in the manner as provided in subsections (d), (e), (f) and (g) of subdivision A of Part 15 of said chapter 156D.

SECTION 46. Chapter 223 of the General Laws, as so appearing, is hereby amended by striking out section 38 and inserting in place thereof the following section:-

Section 38. In an action against a foreign corporation, except an insurance company, which has a usual place of business in the commonwealth, or with or without such usual place of business, is engaged in or soliciting business in the commonwealth, permanently or temporarily, service may be made in accordance with the preceding section relative to service on domestic corporations in general, instead of upon the state secretary under section 15.10 of subdivision A of Part 15 of chapter 156D.

SECTION 47. Chapter 127 of the acts of 2003 is hereby amended by striking out section 23.

SECTION 48. Said chapter 127 is hereby further amended by striking out section 24 and inserting in place thereof the following section:-

Section 24. This act shall take effect on July 1, 2004, except that paragraph 6 of subsection (b) of section 4.01 of Part 4 of chapter 156D of the General Laws, inserted by section 17 shall take effect on September 1, 2004.

SECTION 49. This act shall take effect as of July 1, 2004.

Approved July 15, 2004.

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