Statutory agent - cancellation and reinstatement of articles.

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1 REPORT OF THE CORPORATION LAW COMMITTEE To the Council of Delegates: The Corporation Law Committee respectfully requests your favorable consideration of proposed amendments to the statutory agent provisions contained throughout Title 17 of the Ohio Revised Code to expand the types of entities that are permitted to serve as statutory agents under Ohio law, which should create greater convenience for Ohio businesses and greater effectiveness for service of process on Ohio businesses. Respectfully submitted, Jack Kurant, Cleveland Chair, Corporation Law Committee Summary and Rationale for Proposal The proposed amendments to Title 17 would expand the types of entities that are permitted to serve as a statutory agent under Ohio law. The purpose of designating a statutory agent is to receive service of process or notices either required or permitted by law to be served upon a business entity. A statutory agent also makes service of process or notices easy upon those serving process, including sheriffs and other public officials. Our current law, which dates to 1955, limits statutory agents to individuals and corporations. The practice in other states has evolved to include some or all of the following additional types of entities: a nonprofit corporation, limited liability company, partnership, association, an unincorporated nonprofit association, and a business trust. The proposals would permit all of such entities to fill the role of statutory agent. The proposed amendments to the applicable Sections of Title 17 will allow for greater convenience for Ohio corporations in designating statutory agents, allow for easier service for those serving process, remove arbitrary restrictions and broaden the scope of entities that may adequately serve as statutory agents, which is consistent with the competitive market. The amendments may also decrease the burden, even if marginally, upon the Secretary of State under RC (H) (Service upon the Secretary of State) and any corresponding confusion therewith in collateral issues such as R.C (Tolling During Defendant s Absence, Concealment, or Imprisonment). Text of the Proposal Amend Paragraph (A) of Section as follows (with respect to corporations under Chapter 1701): Statutory agent - cancellation and reinstatement of articles. 17

2 (A) Every corporation shall have and maintain an agent, sometimes referred to as the statutory agent, upon whom any process, notice, or demand required or permitted by statute to be served upon a corporation may be served. The agent mayshall be (1) a natural person who is a resident of this state or may be(2) a domestic corporation or a foreign corporation holding a license as such under the laws of this state, that is authorized by its articles of incorporation to act as such agent and that, nonprofit corporation, limited liability company, partnership, limited partnership, limited liability partnership, limited partnership association, professional association, business trust or unincorporated nonprofit association that (a) has a business address in this state and (b) in the Amend Paragraph (A) of Section as follows (with respect to nonprofit corporations under Chapter 1702): Statutory agent - cancellation and reinstatement of articles. (A) Every corporation shall have and maintain an agent, sometimes referred to as the statutory agent, upon whom any process, notice, or demand required or permitted by statute to be served upon a corporation may be served. The agent mayshall be (1) a natural person who is a resident of this state, or may be(2) a domestic or foreign business corporation holding a license as such under the laws of this state that is authorized by its articles of incorporation to act as such agent, and thatcorporation, business corporation, limited liability company, partnership, limited partnership, limited liability partnership, limited partnership association, professional association, business trust or unincorporated nonprofit association that (a) has a business address in this state and (b) in the case of a foreign corporation, business corporation, limited liability company, partnership, limited partnership, limited liability partnership, limited partnership association, professional association, business trust or unincorporated nonprofit association meets the requirements to transact business or exercise its privileges in this state required of such entity under Title 17 of Amend Paragraph (A) of Section as follows (with respect to foreign corporations under Chapter 1703): Designated agent. (A) Every foreign corporation for profit that is licensed to transact business in this state, and every foreign nonprofit corporation that is licensed to exercise its corporate privileges in this state, shall have and maintain an agent, sometimes referred to as the designated agent, upon whom process against the corporation may be served within this state. The agent mayshall be (1) a natural person who is a resident of this state, or may be(2) a domestic corporation for profit or a foreign corporation for profit holding a license under the laws of this state that is authorized by its articles of incorporation to act as an agent and thator foreign corporation, nonprofit corporation, limited liability company, partnership, limited partnership, limited liability 18

3 unincorporated nonprofit association that (a) has a business address in this state and (b) in the Amend Paragraph (A) of Section as follows (with respect to limited liability companies under Chapter 1705): Statutory agent. (A) Each limited liability company shall maintain continuously in this state an agent for service of process on the company. The agent shall be an individual(1) a natural person who is a resident of this state, a domestic corporation, or a foreign corporation holding a license as a foreign corporation under the laws of this state or (2) a domestic or foreign corporation, nonprofit corporation, limited liability company, partnership, limited partnership, limited liability unincorporated nonprofit association that (a) has a business address in this state and (b) in the Amend Paragraph (A)(3) of Section as follows (with respect to foreign limited liability companies under Chapter 1705): Application for registration. (A) Before transacting business in this state, a foreign limited liability company shall register with the secretary of state. The company shall register by submitting to the secretary of state an application for registration as a foreign limited liability company. The application shall be on a form that is prescribed by the secretary of state, be signed by an authorized representative of the company, and set forth all of the following: (3) The name and address of an agent for service of any process, notice, or demand on the company. The appointed agent shall be an individual(1) a natural person who is a resident of this state, or (2) a domestic corporation, or a foreign corporation that has a place of business and is authorized to doforeign corporation, nonprofit corporation, limited liability company, partnership, limited partnership, limited liability partnership, limited partnership association, professional association, business trust or unincorporated nonprofit association that (a) has a business address in this state and (b) in the case of a foreign corporation, nonprofit corporation, limited liability company, partnership, limited partnership, limited liability partnership, limited partnership association, professional association, business trust or unincorporated nonprofit 19

4 association meets the requirements to transact business or exercise its privileges in this state required of such entity under Title 17 of Amend Paragraph (B)(1) of Section as follows (with respect to cooperatives under Chapter 1729): Number of incorporators - statutory agent. (B)(1) Every association shall have and maintain a statutory agent upon whom any process, notice, or demand against the association may be served. The agent mayshall be (a) a natural person who is a resident of this state or a corporation that is authorized by its articles of incorporation to act as such agent and(b) a domestic or foreign corporation, nonprofit corporation, limited liability company, partnership, limited partnership, limited liability unincorporated nonprofit association that (i) has a business address in this state and (ii) in the Amend Section as follows (with respect to credit unions under Chapter 1733): Statutory agent. Every credit union shall have and maintain a statutory agent in accordance with section of upon whom any process, notice, or demand required or permitted by statute to be served upon a credit union may be served. The agent shall be (A) a natural person who is a resident of this state or (B) a domestic or foreign corporation, nonprofit corporation, limited liability company, partnership, limited partnership, limited liability partnership, limited partnership association, professional association, business trust or unincorporated nonprofit association that (1) has a business address in this state and (2) in the case of a foreign corporation, nonprofit corporation, limited liability company, partnership, limited partnership, limited liability partnership, limited partnership association, professional association, business trust or unincorporated nonprofit association meets the requirements to transact business or exercise its privileges in this state required of such entity under Title 17 of Amend Paragraph (A) of Section as follows (with respect to unincorporated nonprofit associations under Chapter 1745): Appointment of agent to receive service of process. (A) An unincorporated nonprofit association may file in the office of the secretary of state a statement appointing an agent authorized to receive service of process. The agent mayshall be (1) a natural person who is a resident of this state or may be a for profit(2) a domestic corporation or a for profit foreign corporation holding a license as such under the laws of this state and thator foreign corporation, business corporation, limited liability 20

5 company, partnership, limited partnership, limited liability partnership, limited partnership association, professional association, business trust or unincorporated nonprofit association that (a) has a business address in this state and (b) in the case of a foreign corporation, business corporation, limited liability company, partnership, limited partnership, limited liability partnership, limited partnership association, professional association, business trust or unincorporated nonprofit association meets the requirements to transact business or exercise its privileges in this state required of such entity under Title 17 of The statement appointing an agent shall set forth the name of the unincorporated nonprofit association and the name and address in this state of the agent, including the street and number or other particular description, and shall otherwise be in the form that the secretary of state prescribes. The secretary of state shall keep a record of the names of all unincorporated nonprofit associations that have filed a statement appointing an agent authorized to receive service of process and the names and addresses of their respective agents. Amend Paragraph (A)(5) of Section as follows (with respect to business trusts under Chapter 1746): Filing with secretary of state before transacting business. (A) Except as set forth in section of the Revised Code, before transacting business in this state, a business trust shall file in the office of the secretary of state, on forms prescribed by the secretary of state, a report containing the following information: (5) The name and address within this state of a designated agent upon whom process against the business trust may be served, which agent shall be (a) a natural person who is a resident of this state or (b) a domestic or foreign corporation, nonprofit corporation, limited liability company, partnership, limited partnership, limited liability partnership, limited partnership association, professional association, business trust or unincorporated nonprofit association that (i) has a business address in this state and (ii) in the case of a foreign corporation, nonprofit corporation, limited liability company, partnership, limited partnership, limited liability partnership, limited partnership association, professional association, business trust or unincorporated nonprofit association meets the requirements to transact business or exercise its privileges in this state required of such entity under Title 17 of the Revised Code; Amend Paragraph (A)(6) of Section as follows (with respect to real estate investment trusts under Chapter 1747): Filing with secretary of state before transacting business. (A) Before transacting real estate business in this state, a real estate investment trust shall file the following report in the office of the secretary of state, on forms prescribed by the secretary of state: 21

6 (6) The name and address within this state of a designated agent upon whom process against the trust may be served, which agent shall be (a) a natural person who is a resident of this state or (b) a domestic or foreign corporation, nonprofit corporation, limited liability company, partnership, association, business trust or unincorporated nonprofit association that (i) has a business address in this state and (ii) in the case of a foreign corporation, nonprofit corporation, limited liability company, partnership, limited partnership, limited liability partnership, limited partnership association, professional association, business trust or unincorporated nonprofit association meets the requirements to transact business or exercise its privileges in this state required of such entity under Title 17 of the Revised Code; Amend Paragraph (A)(21) of Section as follows (with respect to health insuring corporations under Chapter 1751): Verification of application. (A) Each application for a certificate of authority under this chapter shall be verified by an officer or authorized representative of the applicant, shall be in a format prescribed by the superintendent of insurance, and shall set forth or be accompanied by the following: (21) The name and address of the applicant s Ohio statutory agent for service of process, notice, or demand, which agent shall be (a) a natural person who is a resident of this state or (b) a domestic or foreign corporation, nonprofit corporation, limited liability company, partnership, association, business trust or unincorporated nonprofit association that (i) has a business address in this state and (ii) in the case of a foreign corporation, nonprofit corporation, limited liability company, partnership, limited partnership, limited liability partnership, limited partnership association, professional association, business trust or unincorporated nonprofit association meets the requirements to transact business or exercise its privileges in this state required of such entity under Title 17 of the Revised Code; Amend Paragraph (A) of Section as follows (with respect to partnerships and limited liability partnerships under Chapter 1776): Agent for service of process. (A) Any partnership that maintains an effective statement of partnership authority under section of the Revised Code shall maintain continuously in this state an agent for service of process on the partnership. The agent shall be an individual(1) a natural person who is a resident of this state, a domestic corporation, or a foreign corporation holding a license as a foreign corporation under the laws of this state or (2) a domestic or foreign corporation, nonprofit corporation, limited liability company, partnership, limited partnership, limited liability unincorporated nonprofit association that (a) has a business address in this state and (b) in the 22

7 Amend Paragraph (B) of Section as follows (with respect to foreign limited liability partnerships under Chapter 1776): Statement of foreign qualification. (B) The agent of a foreign limited liability partnership for service of process shall be an individual(1) a natural person who is a resident of this state or another person authorized to do(2) a domestic or foreign corporation, nonprofit corporation, limited liability company, partnership, association, business trust or unincorporated nonprofit association that (a) has a business address in this state and (b) in the case of a foreign corporation, nonprofit corporation, limited liability company, partnership, limited partnership, limited liability partnership, limited partnership association, professional association, business trust or unincorporated nonprofit association meets the requirements to transact business or exercise its privileges in this state required of such entity under Title 17 of Amend Paragraph (A) of Section as follows (with respect to limited partnerships under Chapter 1782): Statutory agent. (A) Each limited partnership shall maintain continuously in this state an agent for service of process on the limited partnership. The agent shall be (1) a natural person who is a resident of this state, or (2) a domestic corporation, or a foreign corporation holding a license as such under the laws of this stateforeign corporation, nonprofit corporation, limited liability company, partnership, limited partnership, limited liability partnership, limited partnership association, professional association, business trust or unincorporated nonprofit association that (a) has a business address in this state and (b) in the case of a foreign corporation, nonprofit corporation, limited liability company, partnership, limited partnership, limited liability partnership, limited partnership association, professional association, business trust or unincorporated nonprofit association meets the requirements to transact business or exercise its privileges in this state required of such entity under Title 17 of Amend Paragraph (C) of Section as follows (with respect to foreign limited partnerships under Chapter 1782): Application for registration of foreign limited partnership. Before transacting business in this state, a foreign limited partnership shall register with the secretary of state. In order to register, a foreign limited partnership shall submit to the secretary of state an application for registration as a foreign limited partnership. The application shall be 23

8 on a form prescribed by the secretary of state, shall be signed by a general partner, and shall set forth all of the following: (C) The name and address of anythe agent for service of process on the foreign limited partnership whom the foreign limited partnership elects toshall appoint. The agent shall be an individual(1) a natural person who is a resident of this state, or (2) a domestic corporation, or a foreign corporation having a place of business in, and authorized to doforeign corporation, nonprofit corporation, limited liability company, partnership, limited partnership, limited liability unincorporated nonprofit association that (a) has a business address in this state and (b) in the transact business or exercise its privileges in, this state required of such entity under Title 17 of A comment would follow each amended section of Title 17 in the following form: Comment: Division (A) of Section , as amended, expands the scope of entity types that may serve as a statutory agent to include nonprofit corporations, limited liability companies, partnerships, limited partnerships, limited liability partnerships, limited partnership associations, professional associations, unincorporated nonprofit associations and business trusts. 24