Professor Andrej Thomas Starkis


§ 14.09. Enforcement of Claims Against Dissolved Corporation



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§ 14.09. Enforcement of Claims Against Dissolved Corporation
(a) A claim against a dissolved corporation described in sections 14.06, 14.07 or 14.08, and which is not barred under the applicable statute of limitations, may be enforced against the dissolved corporation to the extent of any undistributed assets, including any available assets in a reserve created under section 14.08, any available proceeds under an insurance policy, and any applicable assumption of the dissolved corporation's liabilities by a third party.

(b) The giving of notice and/or the setting aside of any reserve hereunder or otherwise by the dissolved corporation is not an admission of the existence or validity of any claim or amount.

(c) No time periods set forth in sections 14.06, 14.07 or 14.08 extend or shorten any applicable statute of limitations.

(d) No liability shall be imposed upon the dissolved corporation's shareholders or directors, or those acting in their place, under section 6.41 or otherwise with respect to any claim described in sections 14.06, 14.07 or 14.08 if the procedures described in those sections are followed.


PART B. ADMINISTRATIVE DISSOLUTION
§ 14.20. Grounds for Administrative Dissolution
The secretary of state may commence a proceeding under section 14.21 to dissolve a corporation administratively if:

(a) the corporation has failed to comply with the provisions of law requiring the filing of reports with the secretary of state or the filing of any tax returns or the payment of any taxes under chapter 62C or chapter 63 of the General Laws for 2 or more consecutive years; or

(b) the secretary of state is satisfied that the corporation has become inactive and that its dissolution would be in the public interest.
§ 14.21. Procedure for and Effect of Administrative Dissolution
(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 service of the notice is perfected under section 5.04, the secretary of state shall administratively dissolve the corporation.

(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.

(c) [Stricken.]

(d) The administrative dissolution of a corporation does not terminate the authority of its registered agent.
§ 14.22. Reinstatement Following Administrative Dissolution
(a) A corporation administratively dissolved under section 14.21 may apply to the secretary of state for reinstatement at any time. The application shall:

(1) recite the name of the corporation and the effective date of its administrative dissolution;

(2) state that the ground or grounds for dissolution either did not exist or have been eliminated;

(3) state that the corporation's name satisfies the requirements of section 4.01; and

(4) contain a certificate from the department of revenue reciting that all corporate excise taxes owed by the corporation, and any related penalties, have been paid.

(b) If the secretary of state determines that the application contains the information required by subsection (a) and that the information is correct, he shall reinstate the corporation.

(c) The secretary of state may subject the reinstatement to such terms and conditions, including the payment of reasonable fees, as in his judgment the public interest may require. He may in his discretion make the reinstatement effective for all purposes or for any specified purpose or purposes, in each case with or without limitation of time. When the reinstatement is effective, if by its terms it is effective for all purposes or if the secretary of state specifies that it shall be effective for purposes of this sentence, then the reinstatement relates back to and takes effect as of the effective date of the administrative dissolution and the corporation resumes carrying on its business as if the administrative dissolution had never occurred, with all its original powers and duties and with liability, for all contracts, acts, matters and things made, done or performed in its name and on its behalf prior to reinstatement, as if the administrative dissolution had never occurred, and with all acts and proceedings of its officers, directors and shareholders, acting or purporting to act as such, which would have been legal and valid but for such dissolution, standing ratified and confirmed, in each case except as otherwise specified by the secretary of state.

(d) The certificate of reinstatement, or other equivalent public record, filed by the secretary of state pursuant to this section shall constitute an amendment of the articles of organization of the corporation, effective when filed. Any specification in the certificate of the purpose or purposes of reinstatement, or of a limitation of the time thereof, may, by further certificate filed as aforesaid, be amended by the secretary of state for cause shown to his satisfaction.


§ 14.23. Appeal From Denial of Reinstatement
(a) If the secretary of state denies a corporation's application for reinstatement following administrative dissolution, he shall serve the corporation under section 5.04 with a written notice that explains the reason or reasons for denial.

(b) The corporation may appeal the denial of reinstatement to the superior court for Suffolk county within 30 days after service of the notice of denial is perfected. The corporation appeals by petitioning the court to set aside the dissolution and attaching to the petition copies of the secretary of state's certificate, or other public record, of dissolution, the corporation's application for reinstatement, and the secretary of state's notice of denial.

(c) The court may summarily order the secretary of state to reinstate the dissolved corporation or may take other action the court considers appropriate.

(d) The court's final decision may be appealed as in other civil proceedings.


PART C. JUDICIAL DISSOLUTION
§ 14.30. Grounds for Judicial Dissolution
The superior court located in the county set forth in section 14.31 may dissolve a corporation:

(1) in a proceeding by the attorney general if it is established that:

(i) the corporation obtained its articles of organization through fraud; or

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

(2) upon a petition filed by the shareholders holding not less than 40 per cent of the total combined voting power of all the shares of the corporation's stock outstanding and entitled to vote on the question of dissolution, if it is established that:

(i) the directors are deadlocked in the management of the corporate affairs, the shareholders are unable to break the deadlock, and irreparable injury to the corporation is threatened or being suffered; or

(ii) the shareholders are deadlocked in voting power and have failed, for a period that includes at least 2 consecutive annual meeting dates, to elect successors to directors whose terms have expired, or would have expired upon the election of their successors, and irreparable injury to the corporation is threatened or being suffered;

(3) in a proceeding by a creditor if it is established that:

(i) the creditor's claim has been reduced to judgment, the execution on the judgment returned unsatisfied, and the corporation is insolvent; or

(ii) the corporation has admitted in writing that the creditor's claim is due and owing and the corporation is insolvent; or

(4) in a proceeding by the corporation to have its voluntary dissolution continued under court supervision.
§ 14.31. Procedure for Judicial Dissolution
(a) Venue for a proceeding by the attorney general to dissolve a corporation lies in Suffolk county. Venue for a proceeding brought by any other party named in section 14.30 lies in the county where a corporation's principal office, or, if none in the commonwealth, its registered office, is or was last located.

(b) It is not necessary to make shareholders parties to a proceeding to dissolve a corporation unless relief is sought against them individually.

(c) A court in a proceeding brought to dissolve a corporation may issue injunctions, appoint a receiver or custodian pendente lite with all powers and duties the court directs, take other action required to preserve the corporate assets wherever located, and carry on the business of the corporation until a full hearing can be held.
§ 14.32. Receivership or Custodianship
(a) A court in a judicial proceeding brought to dissolve a corporation may appoint 1 or more receivers to wind up and liquidate, or one or more custodians to manage, the business and affairs of the corporation. The court shall hold a hearing, after notifying all parties to the proceeding and any interested persons designated by the court, before appointing a receiver or custodian. The court appointing a receiver or custodian has exclusive jurisdiction over the corporation and all of its property wherever located.

(b) The court may appoint an individual or a domestic or foreign corporation, authorized to transact business in the commonwealth, as a receiver or custodian. The court may require the receiver or custodian to post bond, with or without sureties, in an amount the court directs.

(c) The court shall describe the powers and duties of the receiver or custodian in its appointing order, which may be amended from time to time. Among other powers:

(1) the receiver (i) may dispose of all or any part of the assets of the corporation wherever located, at a public or private sale, if authorized by the court; and (ii) may sue and defend in his own name as receiver of the corporation in all courts of the commonwealth;

(2) the custodian may exercise all of the powers of the corporation, through or in place of its board of directors or officers, to the extent necessary to manage the affairs of the corporation in the best interests of its shareholders and creditors.

(d) The court during a receivership may redesignate the receiver a custodian, and during a custodianship may redesignate the custodian a receiver, if doing so is in the best interests of the corporation, its shareholders, and creditors.

(e) The court from time to time during the receivership or custodianship may order compensation paid and expense disbursements or reimbursements made to the receiver or custodian and his counsel from the assets of the corporation or proceeds from the sale of the assets.
§ 14.33. Decree of Dissolution
(a) If after a hearing the court determines that 1 or more grounds for judicial dissolution described in section 14.30 exist, 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.

(b) After entering the decree of dissolution, the court shall direct the winding up and liquidation of the corporation's business and affairs in accordance with section 14.05 and, to the extent not theretofore completed, the notification of claimants in accordance with sections 14.06 and 14.07.


§ 14.34. Reorganization Under a Statute of the United States: Effectuation
(a) Any corporation, a plan of reorganization of which, pursuant to any applicable statute of the United States relating to reorganizations of corporations, has been or shall be confirmed by the decree or order of a court of competent jurisdiction, may put into effect and carry out the plan and the decrees and orders of the court or judge relative thereto and may take any proceeding and do any act provided in the plan or directed by the decrees and orders, without further action by its directors or shareholders. The power and authority may be exercised, and the proceedings and acts may be taken, as may be directed by the decrees or orders, by the trustee or trustees of the corporation appointed in the reorganization proceedings, or a majority thereof, or if none be appointed and acting, by designated officers of the corporation, or by a master or other representative appointed by the court or judge, with like effect as if exercised and taken by unanimous action of the directors and shareholders of the corporation.

(b) The corporation may, in the manner provided in subsection (a), but without limiting the generality or effect of the foregoing, alter, amend, or repeal its bylaws; constitute or reconstitute and classify or reclassify its board of directors, and name, constitute or appoint directors and officers in place of or in addition to all or some of the directors or officers then in office; amend its articles of organization, and make any change in its capital or capital stock, or any other amendment, change, or alteration, or provision, authorized by this chapter; be dissolved; sell or otherwise transfer all or part of its assets, merge or consolidate as permitted by this chapter, in any of which cases, however, no shareholder shall have any statutory right of appraisal of his shares pursuant to section 13.02; change the location of its registered office, change its registered agent, and remove or appoint any agent to receive service of process; authorize, fix the terms, manner and conditions of the issuance of, and issue bonds, debentures or other obligations, whether or not convertible into shares of any class or series, or bearing warrants or other evidences of optional rights to purchase, or subscribe for shares of any class or series; or lease its property and franchises to any corporation or other party, if permitted by law.

(c) Articles of amendment, merger, share exchange or dissolution effected by the corporation pursuant to the foregoing provisions shall be filed with the secretary of state, and shall become effective, all in accordance with this chapter. The articles shall be made, executed and acknowledged, as may be directed by the decrees or orders, by the trustee or trustees appointed in the reorganization proceedings, or a majority thereof, or, if none be appointed and acting, by the officers of the corporations, or by a master or other representative appointed by the court or judge, and shall certify that provision for the making and filing of the articles is contained in a decree or order of a court or judge having jurisdiction of a proceeding under the applicable statute of the United States for the reorganization of the corporation.

(d) This section shall cease to apply to the corporation upon the entry of a final decree in the reorganization proceedings closing the case and discharging the trustee or trustees, if any.

(e) On filing any articles or other instrument made or executed pursuant to this section, there shall be paid to the secretary of state the same fees as are payable by corporations not in reorganization upon the filing of like articles or instruments.
PART D. MISCELLANEOUS
§ 14.40. Deposit With Treasurer of the Commonwealth
Assets of a dissolved corporation that should be transferred to a creditor, claimant, or shareholder of the corporation who cannot be found or who is not competent to receive them shall be reduced to cash and deposited with the treasurer of the commonwealth or other appropriate official of the commonwealth for safekeeping. When the creditor, claimant, or shareholder furnishes satisfactory proof of entitlement to the amount deposited, the treasurer or other appropriate official of the commonwealth shall pay him or his representative that amount.

ARTICLE 15
PART A. REQUIREMENTS FOR AUTHORITY TO TRANSACT BUSINESS
§ 15.01. Authority to Transact Business Required
(a) A foreign corporation that transacts business or has a usual place of business in the commonwealth shall deliver the certificate required by section 15.03 to the secretary of state for filing.

(b) The following activities, among others, do constitute transacting business within the meaning of subsection (a):

(1) the ownership or leasing of real estate in the commonwealth;

(2) engaging in the construction, alteration or repair of any structure, railway or road; or

(3) engaging in any other activity requiring the performance of labor.

(c) The following activities, among others, without more, do not constitute transacting business within the meaning of subsection (a):

(1) maintaining, defending, or settling any proceeding;

(2) holding meetings of the board of directors or shareholders or carrying on other activities concerning internal corporate affairs;

(3) maintaining bank accounts;

(4) maintaining offices or agencies for the transfer, exchange, and registration of the corporations own securities or maintaining trustees or depositories with respect to those securities;

(5) selling through independent contractors;

(6) soliciting or obtaining orders, whether by mail or through employees or agents or otherwise, if the orders require acceptance outside the commonwealth before they become contracts;

(7) [Stricken]

(8) [Stricken]

(9) conducting an isolated transaction that is not one in the course of repeated transactions of a like nature;

(10) transacting business in interstate commerce; or

(11) performing activities subject to regulation under chapter 167 or chapter 175, if the foreign corporation has complied with the applicable chapter.

(d) The list of activities in subsections (b) and (c) is not exhaustive.


§ 15.02. Consequences of Transacting Business Without Authority
(a) A foreign corporation transacting business in the commonwealth without delivering to the secretary of state for filing the certificate required by section 15.03 shall not maintain a proceeding in any court in the commonwealth until the certificate is delivered and filed.

(b) The successor to a foreign corporation that transacted business in the commonwealth without delivering to the secretary of state for filing the certificate required by section 15.03 and the assignee of a cause of action arising out of that business shall not maintain a proceeding based on that cause of action in any court in the commonwealth until the foreign corporation or its successor delivers the certificate and it is filed.

(c) A court may stay a proceeding commenced by a foreign corporation, its successor, or assignee until it determines whether the foreign corporation or its successor is required to deliver to the secretary of state for filing the certificate required by section 15.03. If it so determines, the court may further stay the proceeding until the foreign corporation or its successor delivers the certificate and it is filed.

(d) A foreign corporation is liable to the commonwealth for the years or parts of years during which it transacted business in the commonwealth without delivering to the secretary of state for filing the certificate required by section 15.03, in an amount equal to (1) all late fees which would have been imposed by law had it duly delivered the certificate and (2) all interest and penalties imposed by law for failure to pay the fees. A foreign corporation is further liable to the commonwealth, for each month or part thereof during which it transacted business without delivering the certificate, in an amount determined by the secretary of state, which amount shall in no event exceed the amount established by the commissioner of administration under section 3B of chapter 7, except that a foreign corporation which has delivered such certificate shall not be liable for such monthly penalty for the first 10 days during which it transacted business without delivering such certificate. Such fees and penalties may be levied by the secretary of state. The attorney general may bring an action necessary to recover amounts due to the commonwealth under this subsection including an action to restrain a foreign corporation against which fees and penalties have been imposed pursuant to this subsection from transacting business in the commonwealth until the fees and penalties have been paid.

(e) Notwithstanding subsections (a) and (b), the failure of a foreign corporation to deliver to the secretary of state for filing the certificate required by section 15.03 shall not impair the validity of its corporate acts or prevent it from defending any proceeding in the commonwealth, or affect the validity of any contract entered into by the foreign corporation.
§ 15.03. Delivering Certificate by Foreign Corporation
(a) A foreign corporation shall, not later than 10 days after it commences transacting business in the commonwealth, deliver to the secretary of state for filing a certificate setting forth:

(1) the name of the foreign corporation or, if its name is unavailable for use in the commonwealth, a corporate name that satisfies the requirements of section 15.06;

(2) the name of the state or country under whose law it is incorporated;

(3) its date of incorporation and period of duration;

(4) the street address of its principal office;

(5) the address of its registered office in the commonwealth, the name of its registered agent at that office and the agents written consent, either on the certificate or attached to it, to its appointment as agent;

(6) its fiscal year;

(7) a brief description of the activities to be conducted by the foreign corporation in the commonwealth; and

(8) the names and usual business addresses of its current directors and officers.

(b) The foreign corporation shall deliver with the completed certificate a certificate of existence, or a document of similar import, duly authenticated by the secretary of state or other official having custody of corporate records in the state or country under whose law it is incorporated.

(c) The secretary of state shall examine and endorse his approval on the certificate delivered by the foreign corporation if the business of the foreign corporation is not prohibited by law to a corporation formed under the laws of the commonwealth and if the secretary of state determines that the certificate complies with this section. Upon such approval and payment of the required fee, the certificate shall be filed by the secretary of state and the foreign corporation shall be considered to be registered to transact business in the commonwealth.
§ 15.04. Amended Certificate
(a) A foreign corporation that has delivered to the secretary of state for filing the certificate required by section 15.03 shall deliver an amendment to the certificate if it changes:

(1) its corporate name;

(2) the period of its duration;

(3) the state or country of its incorporation;

(4) the street address of its principal office;

(5) its fiscal year; or

(6) the activities conducted by the foreign corporation in the commonwealth.

(b) A foreign corporation that changes its corporate name or the state or country of its incorporation shall deliver with the completed amendment a certificate evidencing the changes duly authenticated by the secretary of state or other official having custody of corporate records in the state or country under whose law it is incorporated.

(c) A foreign corporation that has delivered to the secretary of state for filing the certificate required by section 15.03 may deliver an amendment to the certificate for any other reason.

(d) The requirements of section 15.03 for delivering to the secretary of state for filing an original certificate apply to delivering any amendment thereto under this section, except that an amendment need not contain any of the information the original certificate that is not being changed and the certificate required by subsection (b) of this section need be delivered only in the circumstances set forth in said subsection (b).




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