North Carolina § 55D-10 - Filing requirements.

§ 55D-10. Filing requirements.

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. The document must meet all of the following requirements: 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. 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. The document must be typewritten, printed, or in an electronic form acceptable to the Secretary of State. 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. 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. 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. If the Secretary of State has prescribed a mandatory form for the document, the document must be in or on the prescribed form. 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: Form Execution Contents 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. Editor's Note. - Session Laws 2008-194, s. 2, provides: "(a) The following definitions apply in this section: "(1) Department. - The Department of the Secretary of State. "(2) Filer. - An individual, entity, or corporation that files a single notice pursuant to this section for more than 20,000 entities on file with the Department. "(3) Notice. - A bulk filing which includes the information required in G.S. 55D-31(a)(2) through (6) and a certification that the filer has complied with the entity notification requirements of G.S. 55D-31(b). For a notice intended to update information for unincorporated nonprofit associations, 'notice' shall also mean a filing which includes the information required by G.S. 59B-11(b)(4) . Any notice filed must be in an electronic form acceptable to the Department and include a written statement that the notice is filed pursuant to this section. "(b) Upon receipt and filing by the Department, a notice pursuant to this section shall be sufficient as a matter of law under G.S. 55D-31 and G.S. 59B-11 to update registered office and registered agent information for each entity on file with the Department for which the filer is listed on the records of the Department as the registered office, the registered agent, or both. "(c) The requirements of G.S. 55D-13(a) and (b), 55D-10(b)(8), 55-1-22(a), 55A-1-22(a), 57C-1-22(a) (repealed by Session Laws 2013-157, s.1), 59-35.2(a), 59-1106(a), and 59B-11(f) shall not apply to notices filed pursuant to this section. "(d) This section shall only apply to one notice for each filer. "(e) Unless otherwise specified, the change of address shall become effective on the 45th day following the Department's receipt of a notice filed pursuant to this section. A filer may specify in the notice a later effective date for the change of address, but not an earlier effective date. "(f) A notice filed pursuant to this section shall be delivered to the Department no later than one year after the effective date of this section." Effect of Amendments. - Session Laws 2001-358, ss. 3(a) and 4, effective January 1, 2002, and applicable to documents submitted for filing on or after that date, recodified G.S. 55-1-20(a) through (e) and (g) through (i) as this section; added the section head; and rewrote the section. Session Laws 2013-157, s. 7, effective January 1, 2014, substituted "57D" for "57C" in subsections (a) and (b) and subdivisions (b)(1) and (b)(2); inserted "or a document of similar import" in subdivision (b)(4); and substituted "G.S. 57D-1-20" for "G.S. 57C-1-20" in subdivision (b)(5). Legal Periodicals. - For article, "Revolving Funds: In the Vanguard of the Preservation Movement," see 11 N.C. Cent. L.J. 256 (1980). For article, "Legislative Survey: Business & Banking," see 22 Campbell L. Rev. 253 (2000).