| Printed Page 4400, Apr. 12 | Printed Page 4420, Apr. 12 |

This section is very similar to Section 33-15-103 of the South Carolina Business Corporation Act which was applicable prior to the adoption of this South Carolina Nonprofit Corporation Act. Different from the Model Act, this section requires zip codes on all addresses and requires that only the business addresses of the officers and directors be listed. As to the certificate of existence which must be filed with the application, this section, different from the Model Act, requires the certificate to be current within sixty days of filing. Different from the South Carolina Business Corporation Act, there is no requirement that a South Carolina lawyer certify that the document has been properly prepared.

Section 33-31-1504. Amended certificate of authority.

(a) A foreign corporation authorized to transact business in this State must obtain an amended certificate of authority from the Secretary of State if it changes:
(1) its corporate name;
(2) the period of its duration; or

(3) the state or country of its incorporation.

(b) The requirements of Section 33-31-1503 for obtaining an original certificate of authority apply to obtaining an amended certificate under this section.
OFFICIAL COMMENT

A foreign corporation must file an amended certificate of authority if it changes its corporate name, the period of its duration or the state or country of its incorporation. A change in registered office or registered agent requires an immediate filing pursuant to section 15.07. Changes in principal office, officers or directors only have to be reported in the annual report filed yearly with the secretary of state pursuant to section 16.22.
SOUTH CAROLINA REPORTERS' COMMENTS

This section is essentially identical to the previously applicable statute, Section 33-15-104 of the South Carolina Business Corporation Act. If the foreign corporation changes its principal office it must file a Notice of Change of Principal Office. Section 33-31-1515.

Section 33-31-1505. Effect of certificate of authority.

(a) A certificate of authority authorizes the foreign corporation to which it is issued to transact business in this State subject, however, to the right of the State to revoke the certificate as provided in this chapter.

(b) A foreign corporation with a valid certificate of authority has the same, but no greater rights, and enjoys the same, but no greater privileges, as, and except as otherwise provided by this chapter is subject

(c) This chapter does not authorize this State to regulate the organization or internal affairs of a foreign corporation authorized to transact business in this State.
OFFICIAL COMMENT

Foreign corporations that have a valid certificate of authority have the same but no greater rights, and the same but no greater privileges, as domestic corporations of a like character. Similarly qualified foreign corporations, except as otherwise provided in the Model Act, are subject to the same duties, restrictions, penalties and liabilities as domestic corporations of a like character. As the Model Act draws distinctions between public benefit, mutual benefit and religious corporations, foreign corporations should determine in which category they would fall if they were domestic corporations,. See sections 15.03(a)(8) and 17.07.

While the Model Act does not authorize a state to regulate the "organization or internal affairs" of a foreign corporation, the exact meaning of "organization and internal affairs" is left to court determination. Section 15.05, however, is not intended to preempt regulatory statutes that would otherwise be applicable to a foreign nonprofit corporation.

The common law in some sates may give a state jurisdiction over assets held in trust by a foreign nonprofit corporation. The extent of this jurisdiction, if any, is not set forth in the Model Act.
SOUTH CAROLINA REPORTERS' COMMENTS

This section is very similar to Section 33-15-105 of the South Carolina Business Corporation Act which was controlling prior to the adoption of this South Carolina Nonprofit Corporation Act. The section varies from the Model Act only by clarifying that the foreign corporation enjoys no greater rights or privileges than the domestic corporation.

Section 33-31-1506. Corporate name of foreign corporation.

(a) If the corporate name of a foreign corporation does not satisfy the requirements of Section 33-31-401, the foreign corporation, to obtain or maintain a certificate of authority to transact business in this State, may use a fictitious name to transact business in this State if its real name is unavailable and it delivers to the Secretary of State for filing a copy of the resolution of its board of directors, certified by its secretary, adopting the fictitious name.

(b) Except as authorized by subsections (c) and (d), the corporate name, including a fictitious name, of a foreign corporation must be distinguishable upon the records of the Secretary of State from the name

(c) A foreign corporation may apply to the Secretary of State for authorization to use in this State the name of another corporation, incorporated or authorized to transact business in this State, that is not distinguishable upon the records of the Secretary of State from the name applied for. The Secretary of State shall authorize use of the name applied for if:

(1) the other corporation consents to the use in writing 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 applying corporation; or

(2) the applicant delivers to the Secretary of State a certified copy of a final judgment of a court of competent jurisdiction establishing the applicant's right to use the name applied for in this State.

(d) A foreign corporation may use in this State the name, including the fictitious name, of another domestic or foreign business or nonprofit corporation that is used in this State if the other corporation is incorporated or authorized to transact business in this State and the foreign corporation:

(1) has merged with the other corporation;

(2) has been formed by reorganization of the other corporation; or

(3) has acquired all or substantially all of the assets, including the corporate name, of the other corporation.

(e) If a foreign corporation authorized to transact business in this State changes its corporate name to one that does not satisfy the requirements of Section 33-31-401, it may not transact business in this State under the changed name until it adopts a name satisfying the requirements of Section 33-31-401 and obtains an amended certificate of authority under Section 33-31-1504.
OFFICIAL COMMENT

Section 15.06 requires qualified foreign corporation to have names distinguishable from other corporate names on the records of the secretary of state. Section 15.06 requires the secretary of state to evaluate names based on the secretary of state's records. It does not require the secretary of state to decide issues relating to unfair competition. See section 4.01.

If the true corporate name of a foreign corporation is unavailable, the foreign corporation may use a fictitious name to transact business if it

This section is very similar to the formerly applicable statute, Section 33-15-106 of the South Carolina Business Corporation Act. Subsection (b) varies in form, but not in substance, from the Model Act. There is no counterpart to this section in former Chapter 31, Title 33.

Section 33-31-1507. Registered office and registered agent of foreign corporation.

Each foreign corporation authorized to transact business in this State must continuously maintain in this State:

(1) a registered office with the same address as that of its registered agent; and

(2) a registered agent, who may be:

(i) an individual who resides in this State and whose office is identical with the registered office;

(ii) a domestic business or nonprofit corporation whose office is identical with the registered office; or

(iii) a foreign business or nonprofit corporation authorized to transact business in this State whose office is identical with the registered office.
OFFICIAL COMMENT

Section 15.07 requires each foreign corporation authorized to transact business in a state to maintain continually a registered office and registered agent in the state so it will be amenable to suit within the state. Section 15.07 is based on section 5.01. See Official Comment to Section 5.01 for an explanation of the policies upon which section 15.07 is based.
SOUTH CAROLINA REPORTERS' COMMENTS

This section is identical with Section 33-31-501, the Registered Office and Agent for a South Carolina nonprofit corporation, and essentially the same as Section 33-15-107 of the South Carolina Business Corporation Act.

Section 33-31-1508 requires that the agent's actual street address must be specified.

Section 33-31-1508. Change of registered office or registered agent of foreign corporation.

(a) A foreign corporation authorized to transact business in this State may change its registered office or registered agent by delivering to the Secretary of State for filing a statement of change that sets forth:

(2) the street address of its current registered office;

(3) if the current registered office is to be changed, the street address of its new registered office;

(4) the name of its current registered agent;

(5) if the current registered agent is to be changed, the name of its new registered agent and the new agent's written consent, either on the statement or attached to it, to the appointment; and

(6) that after the change or changes are made, the street addresses of its registered office and the office of its registered agent will be identical.

(b) If the street address of a registered agent's office is changed, the registered agent may change the street address of the registered office of any corporation for which the registered agent is the registered agent by notifying the corporation in writing of the change and by signing, either manually or in facsimile, and delivering to the Secretary of State for filing a statement that complies with the requirements of subsection (a) and recites that the corporation has been notified of the change.
OFFICIAL COMMENT

Section 15.08(a) requires foreign corporations upon changing their registered office or registered agent to file a statement with the secretary of state containing the information required by section 15.08(a). If the office of the registered agent is changed, the agent may change the registered office by notifying the secretary of state and complying with the provisions of section 15.08(b) rather than section 15.08(a). Section 15.08 is based on section 5.02. See Official Comment to Section 5.02 for an explanation of the policies upon which section 15.08 is based.
SOUTH CAROLINA REPORTERS' COMMENTS

This section is identical with Section 33-31-502, Change of Office or Registered Agent, applicable to South Carolina nonprofit corporations. It is also very similar to Section 33-15-108 of the South Carolina Business Corporation Act.

Section 33-31-1509. Resignation of registered agent of foreign corporation.

(a) The registered agent of a foreign corporation may resign as agent by signing and delivering to the Secretary of State the original and two exact or conformed copies of a statement of resignation. The statement may include a statement that the registered office is also discontinued.

(b) After filing the statement, the Secretary of State shall mail one copy to the registered office, if not discontinued, and the other copy to the corporation at its principal office as shown in its application for certificate of authority or most recent notice of change of principal office.

Section 15.09 permits a registered agent of a foreign corporation to resign upon fulfilling the requirements set forth in the section. See Official Comment to Section 5.03 for an explanation of the policies underling section 15.09.
SOUTH CAROLINA REPORTERS' COMMENTS

This section is identical with Section 33-31-503, Resignation of the Registered Agent of a South Carolina nonprofit corporation, and essentially identical to Section 33-15-109 of the South Carolina Business Corporation Act.

Section 33-31-1510. Service on foreign corporations.

Except as specifically provided in this chapter, service of process on a foreign nonprofit corporation must be in accord with the applicable provisions of Title 15.
OFFICIAL COMMENT

Section 15.10 sets forth nonexclusive ways of serving foreign corporations. Section 15.10(a) allows service to be made upon a registered agent of a qualified foreign corporation. Section 15.10(b) authorizes service on the secretary of the foreign corporation in the manner and at the places specified if the foreign corporation does not have a registered agent, the registered agent cannot be found at the registered office, the corporation has withdrawn from the state or the foreign corporation's certificate of authority has been revoked. Section 15.10 is based on section 5.04. See Official Comment to Section 5.04 for an explanation of the policies underlying Section 15.10.
SOUTH CAROLINA REPORTERS' COMMENTS

The service of process provisions for foreign nonprofit corporations are found in Sections 15-9-240 and 15-9-245. This section, as does Section 33-31-504, applicable to South Carolina nonprofit corporations, merely cross references the service provision found in Chapter 15. Certain additional information is available in the South Carolina Reporters' Comments to Section 33-15-110 which deals with serving foreign business corporations.

Section 33-31-1515. Notice of change of principal office.

If a foreign corporation changes the location of its principal office, then within thirty days of the date of the change the corporation shall file a notice of change of principal office with the Secretary of State. The notice of change shall set forth:

(2) the current street address, with zip code, of the corporation's principal office and the address of the former principal office.
SOUTH CAROLINA REPORTERS' COMMENTS

As discussed in detail in the South Carolina Reporters' Comments to Section 33-31-505, nonprofit corporations are not required to file an annual report. Since the annual report would advise the Secretary of State of any change in principal office, it was determined that like domestic nonprofit corporations, foreign nonprofit corporations must notify the Secretary of State as to any change of office. Each foreign nonprofit corporation therefore must file a short form with the Secretary of State, much in the nature of a notice of change of statutory agent. This filing is required to be made within thirty days of any change in the corporations principal office. This is not a Model Act provision. The Model Act requires all nonprofit corporations to file an annual report.

Section 33-31-1520. Withdrawal of foreign corporation.

(a) A foreign corporation authorized to transact business in this State may not withdraw form this State until it obtains a certificate of withdrawal from the Secretary of State.

(b) A foreign corporation authorized to transact business in this State may apply for a certificate of withdrawal by delivering an application to the Secretary of State for filing. The application must set forth:

(1) the name of the foreign corporation and the name of the state or country under whose law it is incorporated;

(2) that it is not transacting business in this State and that it surrenders its authority to transact business in this State;

(3) that it revokes the authority of its registered agent to accept service on its behalf and appoints the Secretary of State as its agent for service of process in any proceeding based on a cause of action arising during the time it was authorized to do business in this State;

(4) a mailing address to which the Secretary of State may mail a copy of any process served on him under item (3); and

(5) a commitment to notify the Secretary of State during the six years following the delivery of the certificate of withdrawal of any change in the mailing address.

(c) After the withdrawal of the corporation is effective, service of process on the Secretary of State under this section is service on the foreign corporation. Upon receipt of process, the Secretary of State shall mail a copy of the process to the foreign corporation at the post office address set forth in its application for withdrawal.

A foreign corporation authorized to transact business in a state must file an application for a certificate of withdrawal to withdraw from the state. The application must appoint the secretary of state as agent for service of process in any proceeding based on a cause of action arising during the time the corporation was authorized to transact business in the state. If the secretary of state is served as agent for the foreign corporation, the secretary of state must mail a copy of the process to the foreign corporation at the address set forth in the application for withdrawal.

Subsection 15.20(b) sets forth the information that must be contained in the application for a certificate of withdrawal. The application for withdrawal must be on the form prescribed by the secretary of state. See section 1.21. This insures that the appointment of the secretary of state as agent for service of process is unqualified and not limited in a way inconsistent with the requirements of section 15.20.
SOUTH CAROLINA REPORTERS' COMMENTS

This section is similar to Section 33-15-200 of the South Carolina Business Corporation Act which formerly was the applicable statute. The South Carolina Reporters' Comments to that section may be helpful in interpreting this section. Different from Section 33-15-200, this section only requires the withdrawing corporation to notify the South Carolina Secretary of State of any change in address for the first six years after it withdraws. Six years was selected because as of the date this section was adopted, the general tort statute of limitations was six years.

Section 33-31-1530. Grounds for revoking a foreign corporation's authority to transact business in this State.

(a) The Secretary of State may commence a proceeding under Section 33-31-1531(a) to revoke the certificate of authority of a foreign corporation authorized to transact business in this State if:

(1) the foreign corporation does not deliver a notice of change of principal office when due;

(2) the foreign corporation is without a registered agent or registered office in this State;

(3) the foreign corporation does not inform the Secretary of State that its registered agent or registered office has been changed, that its registered agent has resigned, or that its registered office has been discontinued;

(4) the corporation's period of duration, if any, stated in its articles of incorporation expires;

(5) the Secretary of State receives a duly authenticated certificate from the Secretary of State or other official having custody of corporate

(6) that the corporation has been adjudicated bankrupt pursuant to Chapter 7 of the United States Bankruptcy Code.

(b) The Richland County Court of Common Pleas under Section 33-31-1531(b) may revoke the certificate of authority of a foreign corporation authorized to transact business in this State in a proceeding by the Attorney General if it is established that:

(1) the corporation obtained its articles of incorporation through fraud;

(2) the corporation has continued to exceed or abuse the authority conferred upon it by law;

(3) the corporation is a public benefit corporation and the assets are being misapplied or wasted;

(4) the corporation is a public benefit corporation and it is no longer able to carry out its purposes.

(5) the corporation has improperly solicited money or has fraudulently used the money solicited; or,

(6) the corporation has carried on, conducted, or transacted its business or affairs in a persistently fraudulent or illegal manner.

The enumeration of the grounds in items (1) through (6) revoking the authority shall not exclude actions or special proceedings by the Attorney Gen- eral or other state official for revoking the authority of a foreign nonprofit corporation for other causes as provided in this chapter or in any other statute of this State.
OFFICIAL COMMENT

Section 15.30 authorizes the secretary of state or attorney general to commence an administrative proceeding under section 15.31 to revoke a foreign corporation's certificate of authority. This revocation may take place for the reasons specified in section 15.30 pursuant to the procedures set forth in section 15.31. See Official Comment to Section 14.20 for an explanation of the policies underlying section 15.30.
SOUTH CAROLINA REPORTERS' COMMENTS

This section is similar in part to Section 33-15-300 of the South Carolina Business Corporation Act and thus does not represent any significant change in the law. Likewise, it is very similar to the grounds for dissolving a domestic South Carolina nonprofit corporation. Subsection (a) is essentially identical with Section 33-31-1420(a), and subsection (c) is essentially identical with Section 33-31-1420(b). Subsection (b) of this section is essentially identical with Section

See also nonmodel act section 33-31-174 which grants to the Attorney General the authority to cause the foreign nonprofit corporation to "forfeit" its right to operate in South Carolina.

Section 33-31-1531. Procedure and effect of revocation.

(a) Upon determining that one or more grounds exist under Section 33-31-1530(a) to revoke a certificate of authority of a foreign nonprofit corporation, the Secretary of State may serve the foreign corporation with written notice of that determination pursuant to Section 33-31-1510.

If the foreign corporation does not correct each ground for revocation or demonstrate to the reasonable satisfaction of the Secretary of State that each ground for revocation determined by the Secretary of State does not exist within sixty days after service of the notice is perfected under Section 33-31-1510, the Secretary of State shall revoke the foreign corporation's certificate of authority by signing a certificate of revocation that recites the ground or grounds for revocation and its effective date. The Secretary of State shall file the original of the certificate and serve a copy on the foreign corporation under Section 33-31-1510 and, in the case of a public benefit corporation, shall notify the Attorney General in writing.
(b) If the court of Common Pleas of Richland County determines that one or more grounds for revoking the foreign nonprofit's authority to transact business as described in Section 33-31-1530(b) exists, it may enter a decree dissolving the corporation and specifying the effective date of the dissolution, and the clerk of the court shall deliver a certified copy of the decree to the Secretary of State, who shall file it without charging any fee.

Before revoking the foreign nonprofit corporation's authority to transact business in this State, the court shall consider whether:

(1) there are reasonable alternatives to revoking the authority;

(2) revoking the authority is in the public interest, if the corporation is a public benefit corporation; and,

| Printed Page 4400, Apr. 12 | Printed Page 4420, Apr. 12 |