2100. This chapter applies only to foreign corporations transacting
intrastate business, except as otherwise expressly provided.
2101. (a) Any foreign corporation (other than a foreign
association) not transacting intrastate business may register its
corporate name with the Secretary of State, provided its corporate
name would be available pursuant to Section 201 to a new corporation
organized under this division at the time of such registration.
(b) Such registration may be made by filing (1) an appliction for
registration signed by a corporate officer stating the name of the
corporation, the state or place under the laws of which it is
incorporated, the date of its incorporation, and that it desires to
register its name under this section; and (2) a certificate of an
authorized public official of the state or place in which it is
organized stating that such corporation is in good standing under
those laws. Such registration shall be effective until the close of
the calendar year in which the application for registration is filed.
(c) A corporation which has in effect a registration of its
corporate name may renew such registration from year to year by
annually filing an application for renewal setting forth the facts
required to be set forth in an original application for registration
and a certificate of good standing as required for the original
registration between the first day of October and the 31st day of
December in each year. Such renewal application shall extend the
registration for the following calendar year.
2102. A foreign corporation which has filed a designation of an
agent for the service of process, pursuant to the requirements of any
law relating to the qualification of foreign corporations in force
at the time of the filing, need not file the statement provided for
in Section 2105, but shall file an amended statement and designation
when required by Section 2107.
2103. Nothing in this chapter repeals, alters or amends the
provisions of Sections 1600 to 1607, inclusive, of the Insurance Code
or prevents any foreign insurance company from carrying out
contracts made before the surrender of its right to engage in
intrastate business or contracts made with citizens of other states
who subsequently become citizens of or residents in this state.
2104. Any foreign lending institution which has not qualified to do
business in this state and which engages in any of the activities
set forth in subdivision (d) of Section 191 shall be considered by
such activities to have appointed the Secretary of State as its agent
for service of process for any action arising out of any such
activities, and, on or before June 30th of each year, shall file a
statement showing the address to which any notice or process may be
sent in the manner and with the effect provided in Section 2111.
No foreign lending institution solely by reason of engaging in any
one or more of the activities set forth in subdivision (d) of
Section 191 shall be required to qualify to do business in this state
nor be subject to (a) any of the provisions of the Bank and
Corporation Tax Law (commencing with Section 23001) of the Revenue
and Taxation Code or (b) any of the provisions of this code or the
Financial Code or Insurance Code relating to qualifications for doing
or transacting business in this state or to requirements pertaining
thereto or to the effects or results of failure to qualify to do
business in this state.
2105. (a) A foreign corporation shall not transact intrastate
business without having first obtained from the Secretary of State a
certificate of qualification. To obtain that certificate it shall
file, on a form prescribed by the Secretary of State, a statement and
designation signed by a corporate officer stating:
(1) Its name and the state or place of its incorporation or
organization.
(2) The address of its principal executive office.
(3) The address of its principal office within this state, if any.
(4) The name of an agent upon whom process directed to the
corporation may be served within this state. The designation shall
comply with the provisions of subdivision (b) of Section 1502.
(5) (A) Its irrevocable consent to service of process directed to
it upon the agent designated and to service of process on the
Secretary of State if the agent so designated or the agent's
successor is no longer authorized to act or cannot be found at the
address given.
(B) Consent under this paragraph extends to service of process
directed to the foreign corporation's agent in California for a
search warrant issued pursuant to Section 1524.2 of the Penal Code,
or for any other validly issued and properly served search warrant,
for records or documents that are in the possession of the foreign
corporation and are located inside or outside of this state. This
subparagraph shall apply to a foreign corporation that is a party or
a nonparty to the matter for which the search warrant is sought. For
purposes of this subparagraph, "properly served" means delivered by
hand, or in a manner reasonably allowing for proof of delivery if
delivered by United States mail, overnight delivery service, or
facsimile to a person or entity listed in Section 2110 of the
Corporations Code.
(6) If it is a corporation which will be subject to the Insurance
Code as an insurer, it shall so state that fact.
(b) Annexed to that statement and designation shall be a
certificate by an authorized public official of the state or place of
incorporation of the corporation to the effect that the corporation
is an existing corporation in good standing in that state or place
or, in the case of an association, an officers' certificate stating
that it is a validly organized and existing business association
under the laws of a specified foreign jurisdiction.
(c) Before it may be designated by any foreign corporation as its
agent for service of process, any corporate agent must comply with
Section 1505.
2106. (a) Subject to the provisions of subdivision (b), upon
payment of the fees required by law the Secretary of State shall file
the statement and designation prescribed in Section 2105 and shall
issue to the corporation a certificate of qualification stating the
date of filing of said statement and designation and that the
corporation is qualified to transact intrastate business, subject,
however, to any licensing requirements otherwise imposed by the laws
of this state.
(b) No foreign corporation having a name which would not be
available pursuant to subdivision (b) of Section 201 to a new
corporation organized under this division shall transact intrastate
business in this state or qualify to do so under this chapter or file
an amended statement and designation containing such name unless
either: (1) it obtains and files an order from a court of competent
jurisdiction permanently enjoining the other corporation having a
conflicting name from doing business in this state under that name;
or (2) the Secretary of State finds, upon proof by affidavit or
otherwise as the Secretary of State may determine, that the business
to be conducted in this state by the foreign corporation is not the
same as or similar to the business being conducted by the corporation
(or to be conducted by the proposed corporation) with whose name it
may conflict and that the public is not likely to be deceived, and
the foreign corporation agrees that it will transact business in this
state under an assumed name disclosed to the Secretary of State and
that it will use such assumed name in all of its dealings with the
Secretary of State and in the conduct of its affairs in this state.
Such assumed name may be its name with the addition of some
distinguishing word or words acceptable to the Secretary of State or
a name available for the name of a domestic corporation pursuant to
subdivision (b) of Section 201. A corporation which has made such an
agreement with the Secretary of State shall not do business in this
state except under the name agreed upon, so long as the agreement
remains in effect.
This subdivision shall not apply to any corporation which is
subject to the Insurance Code as an insurer unless the insurer has
first obtained from the Insurance Commissioner a certificate
approving the assumed name.
2106.5. The Secretary of State shall not file any statement and
designation pursuant to Section 2106 or any amended statement and
designation pursuant to Section 2107, where it appears that the
business is that of an insurer subject to the Insurance Code unless a
certificate of the Insurance Commissioner approving the corporate
name is attached thereto.
2107. (a) If any foreign corporation (but not a foreign
association) qualified to transact intrastate business shall change
its name or make a change affecting an assumed name under Section
2106, it shall file, on a form prescribed by the Secretary of State,
an amended statement signed by a corporate officer setting forth the
change made. The amended statement shall set forth the name
relinquished as well as the new name assumed and there shall be
annexed to the amended statement a certificate of an authorized
public official of its state or place of incorporation that the
change of name was made in accordance with the laws of that state or
place. Upon the filing of the amended statement, the Secretary of
State shall issue a new certificate of qualification.
(b) If any foreign association qualified to transact intrastate
business shall change its name, the address of its principal office
in this state, the address of its principal executive office or its
agent for the service of process, or if the stated address of any
natural person designated as agent is changed, it shall file, on a
form prescribed by the Secretary of State, an amended statement and
designation signed by an officer setting forth the change or changes
made. In the case of a change of name, the amended statement and
designation shall set forth the name relinquished as well as the new
name assumed and there shall be annexed to the amended statement and
designation an officer's certificate stating that such change of name
was made in accordance with its declaration of trust. If the change
includes a change of name, or a change affecting an assumed name
pursuant to Section 2106, upon the filing of the amended statement,
the Secretary of State shall issue a new certificate of
qualification.
(c) If the change includes a change of name of an insurer subject
to the Insurance Code, the form shall include a statement that the
corporation is such an insurer if it does not already so appear.
(d) If a foreign corporation qualified to transact business in
this state shall change the address of its principal office in this
state, the address of its principal executive office, or its agent
for the service of process, or if the stated address of any natural
person designated as agent is changed, the filing of a statement
pursuant to Section 2117 shall supersede the statement and
designation with respect thereto.
2110. Delivery by hand of a copy of any process against a foreign
corporation (a) to any officer of the corporation or its general
manager in this state, or if the corporation is a bank to a cashier
or an assistant cashier, (b) to any natural person designated by it
as agent for the service of process, or (c), if the corporation has
designated a corporate agent, to any person named in the latest
certificate of the corporate agent filed pursuant to Section 1505
shall constitute valid service on the corporation. A copy of the
statement and designation, or a copy of the latest statement filed
pursuant to Section 2117, certified by the Secretary of State, is
sufficient evidence of the appointment of an agent for the service of
process.
2110.1. In addition to the provisions of Chapter 4 (commencing with
Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure,
process may be served upon a foreign corporation as provided in this
chapter.
2111. (a) If the agent designated for the service of process is a
natural person and cannot be found with due diligence at the address
stated in the designation or if the agent is a corporation and no
person can be found with due diligence to whom the delivery
authorized by Section 2110 may be made for the purpose of delivery to
the corporate agent, or if the agent designated is no longer
authorized to act, or if no agent has been designated and if no one
of the officers or agents of the corporation specified in Section
2110 can be found after diligent search and it is so shown by
affidavit to the satisfaction of the court, then the court may make
an order that service be made by personal delivery to the Secretary
of State or to an assistant or deputy secretary of state of two
copies of the process together with two copies of the order, except
that if the corporation to be served has not filed the statement
required to be filed by Section 2105 then only one copy of the
process and order need be delivered but the order shall include and
set forth an address to which the process shall be sent by the
Secretary of State. Service in this manner is deemed complete on the
10th day after delivery of the process to the Secretary of State.
(b) Upon receipt of the process and order and the fee therefor the
Secretary of State forthwith shall give notice to the corporation of
the service of the process by forwarding by registered or certified
mail, with request for return receipt, a copy of the process and
order to the address specified in the order if the corporation has
not filed the statement required by Section 2105 or to the two stated
addresses of the corporation set forth in the latest statement filed
pursuant to Section 2105 or 2117, or if only one address is set
forth in the latest statement, to the sole stated address of the
corporation.
(c) The Secretary of State shall keep a record of all process
served upon the Secretary of State and shall record therein the time
of service and the Secretary of State's action with respect thereto.
The certificate of the Secretary of State, under the Secretary of
State's official seal, certifying to the receipt of process, the
giving of notice thereof to the corporation, and the forwarding of
the process pursuant to this section, shall be competent and prima
facie evidence of the matters stated therein.
2112. (a) Subject to Section 2113, a foreign corporation which has
qualified to transact intrastate business may surrender its right to
engage in that business within this state by filing a certificate of
surrender signed by a corporate officer stating:
(1) The name of the corporation as shown on the records of the
Secretary of State, and the state or place of incorporation or
organization.
(2) That it revokes its designation of agent for service of
process.
(3) That it surrenders its authority to transact intrastate
business.
(4) That it consents that process against it in any action upon
any liability or obligation incurred within this state prior to the
filing of the certificate of withdrawal may be served upon the
Secretary of State.
(5) A post office address to which the Secretary of State may mail
a copy of any process against the corporation that is served upon
the Secretary of State, which address or the name to which the
process should be sent may be changed from time to time by filing a
statement signed by a corporate officer stating the new address or
name or both.
(6) Except in the case of a foreign association, that a final
franchise tax return, as described by Section 23332 of the Revenue
and Taxation Code, has been or will be filed with the Franchise Tax
Board, as required under Part 10.2 (commencing with Section 18401) of
Division 2 of the Revenue and Taxation Code.
(b) The Secretary of State shall notify the Franchise Tax Board of
the surrender.
2113. (a) The filing of an agreement of merger of a foreign
disappearing corporation qualified to transact intrastate business in
this state pursuant to Section 1103, or the filing pursuant to
subdivision (d) of Section 1108 of an agreement, certificate, or
other document as to a merger that includes a disappearing foreign
corporation qualified to transact intrastate business, or the filing
of a certificate of ownership as to a foreign subsidiary corporation
qualified to transact intrastate business in this state pursuant to
Section 1110, or the filing by a foreign corporation qualified to
transact intrastate business in this state of an organizational
document containing a statement of conversion pursuant to Section
15677.8, 15911.08, 16908, or 17540.8, constitutes the surrender by
the foreign corporation of its right to engage in intrastate business
within this state.
(b) With respect to corporations for which documents have not been
filed as provided in subdivision (a), a certificate of surrender as
prescribed by Section 2112 shall be filed by a foreign corporation
qualified to transact intrastate business upon its merger into
another foreign corporation.
(c) In lieu of a signature as prescribed by Section 2112, a
certificate of surrender pursuant to subdivision (b) for a merged
foreign corporation may be signed in the name of the surviving
corporation by an officer thereof. In that case, the certificate of
surrender shall be accompanied by a certificate of an authorized
public official of the state or place of incorporation of the merged
foreign corporation stating that the corporation has been merged into
another foreign corporation and setting forth the name and state or
place of incorporation of the surviving foreign corporation.
2114. (a) A foreign corporation that has transacted intrastate
business and has thereafter withdrawn from business in this state may
be served with process in the manner provided in this chapter in any
action brought in this state arising out of that business, whether
or not it has ever complied with the requirements of this chapter.
(b) A foreign corporation that has surrendered its right to
transact intrastate business pursuant to Section 2112 or 2113 may be
served with process in any action upon a liability or obligation
incurred within this state prior to that surrender by delivery of the
process to the Secretary of State, or an assistant or a deputy to
the Secretary of State pursuant to this chapter and no court order
authorizing this service shall be required. The process shall be
mailed in the manner prescribed in this chapter except that it shall
be sent to the address to which process is authorized to be sent in
the certificate of surrender or to the address of the surviving
domestic corporation in the case of a surrender under Section 2113.
(c) If a foreign corporation that is qualified to transact
intrastate business has its right to transact such business forfeited
by the Franchise Tax Board pursuant to the Bank and Corporation Tax
Law (Part 11 (commencing with Section 23001) of Division 2 of the
Revenue and Taxation Code), service of process on that corporation
may be effected in the manner set forth in Sections 2110 and 2111, as
if the right to transact intrastate business had not been forfeited.
(d) The fact that a corporation ceases to transact intrastate
business without filing a certificate of surrender does not revoke
the appointment of any agent for the service of process.
2115. (a) A foreign corporation (other than a foreign association
or foreign nonprofit corporation but including a foreign parent
corporation even though it does not itself transact intrastate
business) is subject to the requirements of subdivision (b)
commencing on the date specified in subdivision (d) and continuing
until the date specified in subdivision (e) if:
(1) The average of the property factor, the payroll factor, and
the sales factor (as defined in Sections 25129, 25132, and 25134 of
the Revenue and Taxation Code) with respect to it is more than 50
percent during its latest full income year and
(2) more than one-half of its outstanding voting securities are
held of record by persons having addresses in this state appearing on
the books of the corporation on the record date for the latest
meeting of shareholders held during its latest full income year or,
if no meeting was held during that year, on the last day of the
latest full income year. The property factor, payroll factor, and
sales factor shall be those used in computing the portion of its
income allocable to this state in its franchise tax return or, with
respect to corporations the allocation of whose income is governed by
special formulas or that are not required to file separate or any
tax returns, which would have been so used if they were governed by
this three-factor formula. The determination of these factors with
respect to any parent corporation shall be made on a consolidated
basis, including in a unitary computation (after elimination of
intercompany transactions) the property, payroll, and sales of the
parent and all of its subsidiaries in which it owns directly or
indirectly more than 50 percent of the outstanding shares entitled to
vote for the election of directors, but deducting a percentage of
the property, payroll, and sales of any subsidiary equal to the
percentage minority ownership, if any, in the subsidiary. For the
purpose of this subdivision, any securities held to the knowledge of
the issuer in the names of broker-dealers, nominees for
broker-dealers (including clearing corporations), or banks,
associations, or other entities holding securities in a nominee name
or otherwise on behalf of a beneficial owner (collectively "nominee
holders"), shall not be considered outstanding. However, if the
foreign corporation requests all nominee holders to certify, with
respect to all beneficial owners for whom securities are held, the
number of shares held for those beneficial owners having addresses
(as shown on the records of the nominee holder) in this state and
outside of this state, then all shares so certified shall be
considered outstanding and held of record by persons having addresses
either in this state or outside of this state as so certified,
provided that the certification so provided shall be retained with
the record of shareholders and made available for inspection and
copying in the same manner as is provided in Section 1600 with
respect to that record. A current list of beneficial owners of a
foreign corporation's securities provided to the corporation by one
or more nominee holders or their agent pursuant to the requirements
of Rule 14b-1(b)(3) or 14b-2(b)(3) as adopted on January 6, 1992,
promulgated under the Securities Exchange Act of 1934, shall
constitute an acceptable certification with respect to beneficial
owners for the purposes of this subdivision.
(b) Except as provided in subdivision (c), the following chapters
and sections of this division shall apply to a foreign corporation as
defined in subdivision (a) (to the exclusion of the law of the
jurisdiction in which it is incorporated):
Chapter 1 (general provisions and definitions), to the extent
applicable to the following provisions;
Section 301 (annual election of directors);
Section 303 (removal of directors without cause);
Section 304 (removal of directors by court proceedings);
Section 305, subdivision (c) (filling of director vacancies where
less than a majority in office elected by shareholders);
Section 309 (directors' standard of care);
Section 316 (excluding paragraph (3) of subdivision (a) and
paragraph (3) of subdivision (f)) (liability of directors for
unlawful distributions);
Section 317 (indemnification of directors, officers, and others);
Sections 500 to 505, inclusive (limitations on corporate
distributions in cash or property);
Section 506 (liability of shareholder who receives unlawful
distribution);
Section 600, subdivisions (b) and (c) (requirement for annual
shareholders' meeting and remedy if same not timely held);
Section 708, subdivisions (a), (b), and (c) (shareholder's right
to cumulate votes at any election of directors);
Section 710 (supermajority vote requirement);
Section 1001, subdivision (d) (limitations on sale of assets);
Section 1101 (provisions following subdivision (e)) (limitations
on mergers);
Section 1151 (first sentence only) (limitations on conversions);
Section 1152 (requirements of conversions);
Chapter 12 (commencing with Section 1200) (reorganizations);
Chapter 13 (commencing with Section 1300) (dissenters' rights);
Sections 1500 and 1501 (records and reports);
Section 1508 (action by Attorney General);
Chapter 16 (commencing with Section 1600) (rights of inspection).
(c) This section does not apply to any corporation (1) with
outstanding securities listed on the New York Stock Exchange, the
NYSE Amex, the NASDAQ Global Market, or the NASDAQ Capital Market, or
(2) if all of its voting shares (other than directors' qualifying
shares) are owned directly or indirectly by a corporation or
corporations not subject to this section.
(d) For purposes of subdivision (a), the requirements of
subdivision (b) shall become applicable to a foreign corporation only
upon the first day of the first income year of the corporation (1)
commencing on or after the 135th day of the income year immediately
following the latest income year with respect to which the tests
referred to in subdivision (a) have been met or (2) commencing on or
after the entry of a final order by a court of competent jurisdiction
declaring that those tests have been met.
(e) For purposes of subdivision (a), the requirements of
subdivision (b) shall cease to be applicable to a foreign corporation
(1) at the end of the first income year of the corporation
immediately following the latest income year with respect to which at
least one of the tests referred to in subdivision (a) is not met or
(2) at the end of the income year of the corporation during which a
final order has been entered by a court of competent jurisdiction
declaring that one of those tests is not met, provided that a
contrary order has not been entered before the end of the income
year.
(f) Any foreign corporation that is subject to the requirements of
subdivision (b) shall advise any shareholder of record, any officer,
director, employee, or other agent (within the meaning of Section
317) and any creditor of the corporation in writing, within 30 days
of receipt of written request for that information, whether or not it
is subject to subdivision (b) at the time the request is received.
Any party who obtains a final determination by a court of competent
jurisdiction that the corporation failed to provide to the party
information required to be provided by this subdivision or provided
the party information of the kind required to be provided by this
subdivision that was incorrect, then the court, in its discretion,
shall have the power to include in its judgment recovery by the party
from the corporation of all court costs and reasonable attorneys'
fees incurred in that legal proceeding to the extent they relate to
obtaining that final determination.
2116. The directors of a foreign corporation transacting intrastate
business are liable to the corporation, its shareholders, creditors,
receiver, liquidator or trustee in bankruptcy for the making of
unauthorized dividends, purchase of shares or distribution of assets
or false certificates, reports or public notices or other violation
of official duty according to any applicable laws of the state or
place of incorporation or organization, whether committed or done in
this state or elsewhere. Such liability may be enforced in the courts
of this state.
2117. (a) Every foreign corporation (other than a foreign
association) qualified to transact intrastate business shall file,
annually during the applicable filing period, on a form prescribed by
the Secretary of State, a statement containing the following:
(1) The names and complete business or residence addresses of its
chief executive officer, secretary, and chief financial officer.
(2) The street address of its principal executive office.
(3) The mailing address of the corporation, if different from the
street address of its principal executive office.
(4) The street address of its principal business office in this
state, if any.
(5) A statement of the general type of business that constitutes
the principal business activity of the corporation (for example,
manufacturer of aircraft; wholesale liquor distributor; or retail
department store).
(b) The statement required by subdivision (a) shall also
designate, as the agent of the corporation for the purpose of service
of process, a natural person residing in this state or a corporation
that has complied with Section 1505 and whose capacity to act as the
agent has not terminated. If a natural person is designated, the
statement shall set forth the person's complete business or residence
street address. If a corporate agent is designated, no address for
it shall be set forth.
(c) The statement required by subdivision (a) shall be available
and open to the public for inspection. The Secretary of State shall
provide access to all information contained in the statement by means
of an online database.
(d) In addition to any other fees required, a foreign corporation
shall pay a five-dollar ($5) disclosure fee upon filing the statement
required by subdivision (a). One-half of the fee shall be utilized
to further the provisions of this section, including the development
and maintenance of the online database required by subdivision (d),
and one-half shall be deposited into the Victims of Corporate Fraud
Compensation Fund established in Section 1502.5.
(e) Whenever any of the information required by subdivision (a) is
changed, the corporation may file a current statement containing all
the information required by subdivisions (a) and (b). In order to
change its agent for service of process or the address of the agent,
the corporation shall file a current statement containing all the
information required by subdivisions (a) and (b). Whenever any
statement is filed pursuant to this section, it supersedes any
previously filed statement and the statement in the filing pursuant
to Section 2105.
(f) Subdivisions (c), (d), (f), and (g) of Section 1502 apply to
statements filed pursuant to this section, except that "articles"
shall mean the filing pursuant to Section 2105, and "corporation"
shall mean a foreign corporation.
2117.1. (a) In addition to the statement required pursuant to
Section 2117, every publicly traded foreign corporation shall file
annually, within 150 days after the end of its fiscal year, on a form
prescribed by the Secretary of State, a statement that includes all
of the following information:
(1) The name of the independent auditor that prepared the most
recent auditor's report on the publicly traded foreign corporation's
annual financial statements.
(2) A description of other services, if any, performed for the
publicly traded foreign corporation during its two most recent fiscal
years and the period between the end of its most recent fiscal year
and the date of the statement by the foregoing independent auditor,
by its parent corporation, or by a subsidiary or corporate affiliate
of the independent auditor or its parent corporation.
(3) The name of the independent auditor employed by the foreign
corporation on the date of the statement, if different from the
independent auditor listed pursuant to paragraph (1).
(4) The compensation for the most recent fiscal year of the
publicly traded foreign corporation paid to each member of the board
of directors and paid to each of the five most highly compensated
executive officers of the foreign corporation who are not members of
the board of directors, including the number of any shares issued,
options for shares granted, and similar equity-based compensation
granted to each of those persons. If the chief executive officer is
not among the five most highly compensated executive officers of the
corporation, the compensation paid to the chief executive officer
shall also be included.
(5) A description of any loan, including the amount and terms of
the loans, made to any member of the board of directors by the
publicly traded foreign corporation during the foreign corporation's
two most recent fiscal years at an interest rate lower than the
interest rate available from unaffiliated commercial lenders
generally to a similarly situated borrower.
(6) A statement indicating whether an order for relief has been
entered in a bankruptcy case with respect to the foreign corporation,
its executive officers, or members of the board of directors of the
foreign corporation during the 10 years preceding the date of the
statement.
(7) A statement indicating whether any member of the board of
directors or executive officer of the publicly traded foreign
corporation was convicted of fraud during the 10 years preceding the
date of the statement, which conviction has not been overturned or
expunged.
(8) A description of any material pending legal proceedings, other
than ordinary routine litigation incidental to the business, to
which the corporation or any of its subsidiaries is a party or of
which any of their property is the subject, as specified by Item 103
of Regulation S-K of the Securities Exchange Commission (Section
229.103 of Title 12 of the Code of Federal Regulations). A
description of any material legal proceeding during which the
corporation was found legally liable by entry of a final judgment or
final order that was not overturned on appeal during the five years
preceding the date of the statement.
(b) For purposes of this section, the following definitions apply:
(1) "Publicly traded foreign corporation" means a foreign
corporation, as defined in Section 171, that is an issuer as defined
in Section 3 of the Securities Exchange Act of 1934, as amended (15
U.S.C. Sec. 78c), and has at least one class of securities listed or
admitted for trading on a national securities exchange, on the OTC
Bulletin Board, or on the electronic service operated by Pink OTC
Markets Inc.
(2) "Executive officer" means the chief executive officer,
president, any vice president in charge of a principal business unit,
division, or function, any other officer of the corporation who
performs a policymaking function, or any other person who performs
similar policymaking functions for the corporation.
(3) "Compensation" as used in paragraph (4) of subdivision (a)
means all plan and nonplan compensation awarded to, earned by, or
paid to the person for all services rendered in all capacities to the
corporation and to its subsidiaries, as the compensation is
specified by Item 402 of Regulation S-K of the Securities and
Exchange Commission (Section 229.402 of Title 17 of the Code of
Federal Regulations).
(4) "Loan" as used in paragraph (5) of subdivision (a) excludes an
advance for expenses, the foreign corporation's payment of life
insurance premiums, and an advance of litigation expenses, in each
instance as permitted according to the applicable law of the state or
place of incorporation or organization of the foreign corporation.
(c) This statement shall be available and open to the public for
inspection. The Secretary of State shall provide access to all
information contained in this statement by means of an online
database.
(d) A foreign corporation shall certify that the information it
provides pursuant to this section is true and correct. No claim may
be made against the state for inaccurate information contained in
statements filed under this section with the Secretary of State.
2100. This chapter applies only to foreign corporations transacting
intrastate business, except as otherwise expressly provided.
2101. (a) Any foreign corporation (other than a foreign
association) not transacting intrastate business may register its
corporate name with the Secretary of State, provided its corporate
name would be available pursuant to Section 201 to a new corporation
organized under this division at the time of such registration.
(b) Such registration may be made by filing (1) an appliction for
registration signed by a corporate officer stating the name of the
corporation, the state or place under the laws of which it is
incorporated, the date of its incorporation, and that it desires to
register its name under this section; and (2) a certificate of an
authorized public official of the state or place in which it is
organized stating that such corporation is in good standing under
those laws. Such registration shall be effective until the close of
the calendar year in which the application for registration is filed.
(c) A corporation which has in effect a registration of its
corporate name may renew such registration from year to year by
annually filing an application for renewal setting forth the facts
required to be set forth in an original application for registration
and a certificate of good standing as required for the original
registration between the first day of October and the 31st day of
December in each year. Such renewal application shall extend the
registration for the following calendar year.
2102. A foreign corporation which has filed a designation of an
agent for the service of process, pursuant to the requirements of any
law relating to the qualification of foreign corporations in force
at the time of the filing, need not file the statement provided for
in Section 2105, but shall file an amended statement and designation
when required by Section 2107.
2103. Nothing in this chapter repeals, alters or amends the
provisions of Sections 1600 to 1607, inclusive, of the Insurance Code
or prevents any foreign insurance company from carrying out
contracts made before the surrender of its right to engage in
intrastate business or contracts made with citizens of other states
who subsequently become citizens of or residents in this state.
2104. Any foreign lending institution which has not qualified to do
business in this state and which engages in any of the activities
set forth in subdivision (d) of Section 191 shall be considered by
such activities to have appointed the Secretary of State as its agent
for service of process for any action arising out of any such
activities, and, on or before June 30th of each year, shall file a
statement showing the address to which any notice or process may be
sent in the manner and with the effect provided in Section 2111.
No foreign lending institution solely by reason of engaging in any
one or more of the activities set forth in subdivision (d) of
Section 191 shall be required to qualify to do business in this state
nor be subject to (a) any of the provisions of the Bank and
Corporation Tax Law (commencing with Section 23001) of the Revenue
and Taxation Code or (b) any of the provisions of this code or the
Financial Code or Insurance Code relating to qualifications for doing
or transacting business in this state or to requirements pertaining
thereto or to the effects or results of failure to qualify to do
business in this state.
2105. (a) A foreign corporation shall not transact intrastate
business without having first obtained from the Secretary of State a
certificate of qualification. To obtain that certificate it shall
file, on a form prescribed by the Secretary of State, a statement and
designation signed by a corporate officer stating:
(1) Its name and the state or place of its incorporation or
organization.
(2) The address of its principal executive office.
(3) The address of its principal office within this state, if any.
(4) The name of an agent upon whom process directed to the
corporation may be served within this state. The designation shall
comply with the provisions of subdivision (b) of Section 1502.
(5) (A) Its irrevocable consent to service of process directed to
it upon the agent designated and to service of process on the
Secretary of State if the agent so designated or the agent's
successor is no longer authorized to act or cannot be found at the
address given.
(B) Consent under this paragraph extends to service of process
directed to the foreign corporation's agent in California for a
search warrant issued pursuant to Section 1524.2 of the Penal Code,
or for any other validly issued and properly served search warrant,
for records or documents that are in the possession of the foreign
corporation and are located inside or outside of this state. This
subparagraph shall apply to a foreign corporation that is a party or
a nonparty to the matter for which the search warrant is sought. For
purposes of this subparagraph, "properly served" means delivered by
hand, or in a manner reasonably allowing for proof of delivery if
delivered by United States mail, overnight delivery service, or
facsimile to a person or entity listed in Section 2110 of the
Corporations Code.
(6) If it is a corporation which will be subject to the Insurance
Code as an insurer, it shall so state that fact.
(b) Annexed to that statement and designation shall be a
certificate by an authorized public official of the state or place of
incorporation of the corporation to the effect that the corporation
is an existing corporation in good standing in that state or place
or, in the case of an association, an officers' certificate stating
that it is a validly organized and existing business association
under the laws of a specified foreign jurisdiction.
(c) Before it may be designated by any foreign corporation as its
agent for service of process, any corporate agent must comply with
Section 1505.
2106. (a) Subject to the provisions of subdivision (b), upon
payment of the fees required by law the Secretary of State shall file
the statement and designation prescribed in Section 2105 and shall
issue to the corporation a certificate of qualification stating the
date of filing of said statement and designation and that the
corporation is qualified to transact intrastate business, subject,
however, to any licensing requirements otherwise imposed by the laws
of this state.
(b) No foreign corporation having a name which would not be
available pursuant to subdivision (b) of Section 201 to a new
corporation organized under this division shall transact intrastate
business in this state or qualify to do so under this chapter or file
an amended statement and designation containing such name unless
either: (1) it obtains and files an order from a court of competent
jurisdiction permanently enjoining the other corporation having a
conflicting name from doing business in this state under that name;
or (2) the Secretary of State finds, upon proof by affidavit or
otherwise as the Secretary of State may determine, that the business
to be conducted in this state by the foreign corporation is not the
same as or similar to the business being conducted by the corporation
(or to be conducted by the proposed corporation) with whose name it
may conflict and that the public is not likely to be deceived, and
the foreign corporation agrees that it will transact business in this
state under an assumed name disclosed to the Secretary of State and
that it will use such assumed name in all of its dealings with the
Secretary of State and in the conduct of its affairs in this state.
Such assumed name may be its name with the addition of some
distinguishing word or words acceptable to the Secretary of State or
a name available for the name of a domestic corporation pursuant to
subdivision (b) of Section 201. A corporation which has made such an
agreement with the Secretary of State shall not do business in this
state except under the name agreed upon, so long as the agreement
remains in effect.
This subdivision shall not apply to any corporation which is
subject to the Insurance Code as an insurer unless the insurer has
first obtained from the Insurance Commissioner a certificate
approving the assumed name.
2106.5. The Secretary of State shall not file any statement and
designation pursuant to Section 2106 or any amended statement and
designation pursuant to Section 2107, where it appears that the
business is that of an insurer subject to the Insurance Code unless a
certificate of the Insurance Commissioner approving the corporate
name is attached thereto.
2107. (a) If any foreign corporation (but not a foreign
association) qualified to transact intrastate business shall change
its name or make a change affecting an assumed name under Section
2106, it shall file, on a form prescribed by the Secretary of State,
an amended statement signed by a corporate officer setting forth the
change made. The amended statement shall set forth the name
relinquished as well as the new name assumed and there shall be
annexed to the amended statement a certificate of an authorized
public official of its state or place of incorporation that the
change of name was made in accordance with the laws of that state or
place. Upon the filing of the amended statement, the Secretary of
State shall issue a new certificate of qualification.
(b) If any foreign association qualified to transact intrastate
business shall change its name, the address of its principal office
in this state, the address of its principal executive office or its
agent for the service of process, or if the stated address of any
natural person designated as agent is changed, it shall file, on a
form prescribed by the Secretary of State, an amended statement and
designation signed by an officer setting forth the change or changes
made. In the case of a change of name, the amended statement and
designation shall set forth the name relinquished as well as the new
name assumed and there shall be annexed to the amended statement and
designation an officer's certificate stating that such change of name
was made in accordance with its declaration of trust. If the change
includes a change of name, or a change affecting an assumed name
pursuant to Section 2106, upon the filing of the amended statement,
the Secretary of State shall issue a new certificate of
qualification.
(c) If the change includes a change of name of an insurer subject
to the Insurance Code, the form shall include a statement that the
corporation is such an insurer if it does not already so appear.
(d) If a foreign corporation qualified to transact business in
this state shall change the address of its principal office in this
state, the address of its principal executive office, or its agent
for the service of process, or if the stated address of any natural
person designated as agent is changed, the filing of a statement
pursuant to Section 2117 shall supersede the statement and
designation with respect thereto.
2110. Delivery by hand of a copy of any process against a foreign
corporation (a) to any officer of the corporation or its general
manager in this state, or if the corporation is a bank to a cashier
or an assistant cashier, (b) to any natural person designated by it
as agent for the service of process, or (c), if the corporation has
designated a corporate agent, to any person named in the latest
certificate of the corporate agent filed pursuant to Section 1505
shall constitute valid service on the corporation. A copy of the
statement and designation, or a copy of the latest statement filed
pursuant to Section 2117, certified by the Secretary of State, is
sufficient evidence of the appointment of an agent for the service of
process.
2110.1. In addition to the provisions of Chapter 4 (commencing with
Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure,
process may be served upon a foreign corporation as provided in this
chapter.
2111. (a) If the agent designated for the service of process is a
natural person and cannot be found with due diligence at the address
stated in the designation or if the agent is a corporation and no
person can be found with due diligence to whom the delivery
authorized by Section 2110 may be made for the purpose of delivery to
the corporate agent, or if the agent designated is no longer
authorized to act, or if no agent has been designated and if no one
of the officers or agents of the corporation specified in Section
2110 can be found after diligent search and it is so shown by
affidavit to the satisfaction of the court, then the court may make
an order that service be made by personal delivery to the Secretary
of State or to an assistant or deputy secretary of state of two
copies of the process together with two copies of the order, except
that if the corporation to be served has not filed the statement
required to be filed by Section 2105 then only one copy of the
process and order need be delivered but the order shall include and
set forth an address to which the process shall be sent by the
Secretary of State. Service in this manner is deemed complete on the
10th day after delivery of the process to the Secretary of State.
(b) Upon receipt of the process and order and the fee therefor the
Secretary of State forthwith shall give notice to the corporation of
the service of the process by forwarding by registered or certified
mail, with request for return receipt, a copy of the process and
order to the address specified in the order if the corporation has
not filed the statement required by Section 2105 or to the two stated
addresses of the corporation set forth in the latest statement filed
pursuant to Section 2105 or 2117, or if only one address is set
forth in the latest statement, to the sole stated address of the
corporation.
(c) The Secretary of State shall keep a record of all process
served upon the Secretary of State and shall record therein the time
of service and the Secretary of State's action with respect thereto.
The certificate of the Secretary of State, under the Secretary of
State's official seal, certifying to the receipt of process, the
giving of notice thereof to the corporation, and the forwarding of
the process pursuant to this section, shall be competent and prima
facie evidence of the matters stated therein.
2112. (a) Subject to Section 2113, a foreign corporation which has
qualified to transact intrastate business may surrender its right to
engage in that business within this state by filing a certificate of
surrender signed by a corporate officer stating:
(1) The name of the corporation as shown on the records of the
Secretary of State, and the state or place of incorporation or
organization.
(2) That it revokes its designation of agent for service of
process.
(3) That it surrenders its authority to transact intrastate
business.
(4) That it consents that process against it in any action upon
any liability or obligation incurred within this state prior to the
filing of the certificate of withdrawal may be served upon the
Secretary of State.
(5) A post office address to which the Secretary of State may mail
a copy of any process against the corporation that is served upon
the Secretary of State, which address or the name to which the
process should be sent may be changed from time to time by filing a
statement signed by a corporate officer stating the new address or
name or both.
(6) Except in the case of a foreign association, that a final
franchise tax return, as described by Section 23332 of the Revenue
and Taxation Code, has been or will be filed with the Franchise Tax
Board, as required under Part 10.2 (commencing with Section 18401) of
Division 2 of the Revenue and Taxation Code.
(b) The Secretary of State shall notify the Franchise Tax Board of
the surrender.
2113. (a) The filing of an agreement of merger of a foreign
disappearing corporation qualified to transact intrastate business in
this state pursuant to Section 1103, or the filing pursuant to
subdivision (d) of Section 1108 of an agreement, certificate, or
other document as to a merger that includes a disappearing foreign
corporation qualified to transact intrastate business, or the filing
of a certificate of ownership as to a foreign subsidiary corporation
qualified to transact intrastate business in this state pursuant to
Section 1110, or the filing by a foreign corporation qualified to
transact intrastate business in this state of an organizational
document containing a statement of conversion pursuant to Section
15677.8, 15911.08, 16908, or 17540.8, constitutes the surrender by
the foreign corporation of its right to engage in intrastate business
within this state.
(b) With respect to corporations for which documents have not been
filed as provided in subdivision (a), a certificate of surrender as
prescribed by Section 2112 shall be filed by a foreign corporation
qualified to transact intrastate business upon its merger into
another foreign corporation.
(c) In lieu of a signature as prescribed by Section 2112, a
certificate of surrender pursuant to subdivision (b) for a merged
foreign corporation may be signed in the name of the surviving
corporation by an officer thereof. In that case, the certificate of
surrender shall be accompanied by a certificate of an authorized
public official of the state or place of incorporation of the merged
foreign corporation stating that the corporation has been merged into
another foreign corporation and setting forth the name and state or
place of incorporation of the surviving foreign corporation.
2114. (a) A foreign corporation that has transacted intrastate
business and has thereafter withdrawn from business in this state may
be served with process in the manner provided in this chapter in any
action brought in this state arising out of that business, whether
or not it has ever complied with the requirements of this chapter.
(b) A foreign corporation that has surrendered its right to
transact intrastate business pursuant to Section 2112 or 2113 may be
served with process in any action upon a liability or obligation
incurred within this state prior to that surrender by delivery of the
process to the Secretary of State, or an assistant or a deputy to
the Secretary of State pursuant to this chapter and no court order
authorizing this service shall be required. The process shall be
mailed in the manner prescribed in this chapter except that it shall
be sent to the address to which process is authorized to be sent in
the certificate of surrender or to the address of the surviving
domestic corporation in the case of a surrender under Section 2113.
(c) If a foreign corporation that is qualified to transact
intrastate business has its right to transact such business forfeited
by the Franchise Tax Board pursuant to the Bank and Corporation Tax
Law (Part 11 (commencing with Section 23001) of Division 2 of the
Revenue and Taxation Code), service of process on that corporation
may be effected in the manner set forth in Sections 2110 and 2111, as
if the right to transact intrastate business had not been forfeited.
(d) The fact that a corporation ceases to transact intrastate
business without filing a certificate of surrender does not revoke
the appointment of any agent for the service of process.
2115. (a) A foreign corporation (other than a foreign association
or foreign nonprofit corporation but including a foreign parent
corporation even though it does not itself transact intrastate
business) is subject to the requirements of subdivision (b)
commencing on the date specified in subdivision (d) and continuing
until the date specified in subdivision (e) if:
(1) The average of the property factor, the payroll factor, and
the sales factor (as defined in Sections 25129, 25132, and 25134 of
the Revenue and Taxation Code) with respect to it is more than 50
percent during its latest full income year and
(2) more than one-half of its outstanding voting securities are
held of record by persons having addresses in this state appearing on
the books of the corporation on the record date for the latest
meeting of shareholders held during its latest full income year or,
if no meeting was held during that year, on the last day of the
latest full income year. The property factor, payroll factor, and
sales factor shall be those used in computing the portion of its
income allocable to this state in its franchise tax return or, with
respect to corporations the allocation of whose income is governed by
special formulas or that are not required to file separate or any
tax returns, which would have been so used if they were governed by
this three-factor formula. The determination of these factors with
respect to any parent corporation shall be made on a consolidated
basis, including in a unitary computation (after elimination of
intercompany transactions) the property, payroll, and sales of the
parent and all of its subsidiaries in which it owns directly or
indirectly more than 50 percent of the outstanding shares entitled to
vote for the election of directors, but deducting a percentage of
the property, payroll, and sales of any subsidiary equal to the
percentage minority ownership, if any, in the subsidiary. For the
purpose of this subdivision, any securities held to the knowledge of
the issuer in the names of broker-dealers, nominees for
broker-dealers (including clearing corporations), or banks,
associations, or other entities holding securities in a nominee name
or otherwise on behalf of a beneficial owner (collectively "nominee
holders"), shall not be considered outstanding. However, if the
foreign corporation requests all nominee holders to certify, with
respect to all beneficial owners for whom securities are held, the
number of shares held for those beneficial owners having addresses
(as shown on the records of the nominee holder) in this state and
outside of this state, then all shares so certified shall be
considered outstanding and held of record by persons having addresses
either in this state or outside of this state as so certified,
provided that the certification so provided shall be retained with
the record of shareholders and made available for inspection and
copying in the same manner as is provided in Section 1600 with
respect to that record. A current list of beneficial owners of a
foreign corporation's securities provided to the corporation by one
or more nominee holders or their agent pursuant to the requirements
of Rule 14b-1(b)(3) or 14b-2(b)(3) as adopted on January 6, 1992,
promulgated under the Securities Exchange Act of 1934, shall
constitute an acceptable certification with respect to beneficial
owners for the purposes of this subdivision.
(b) Except as provided in subdivision (c), the following chapters
and sections of this division shall apply to a foreign corporation as
defined in subdivision (a) (to the exclusion of the law of the
jurisdiction in which it is incorporated):
Chapter 1 (general provisions and definitions), to the extent
applicable to the following provisions;
Section 301 (annual election of directors);
Section 303 (removal of directors without cause);
Section 304 (removal of directors by court proceedings);
Section 305, subdivision (c) (filling of director vacancies where
less than a majority in office elected by shareholders);
Section 309 (directors' standard of care);
Section 316 (excluding paragraph (3) of subdivision (a) and
paragraph (3) of subdivision (f)) (liability of directors for
unlawful distributions);
Section 317 (indemnification of directors, officers, and others);
Sections 500 to 505, inclusive (limitations on corporate
distributions in cash or property);
Section 506 (liability of shareholder who receives unlawful
distribution);
Section 600, subdivisions (b) and (c) (requirement for annual
shareholders' meeting and remedy if same not timely held);
Section 708, subdivisions (a), (b), and (c) (shareholder's right
to cumulate votes at any election of directors);
Section 710 (supermajority vote requirement);
Section 1001, subdivision (d) (limitations on sale of assets);
Section 1101 (provisions following subdivision (e)) (limitations
on mergers);
Section 1151 (first sentence only) (limitations on conversions);
Section 1152 (requirements of conversions);
Chapter 12 (commencing with Section 1200) (reorganizations);
Chapter 13 (commencing with Section 1300) (dissenters' rights);
Sections 1500 and 1501 (records and reports);
Section 1508 (action by Attorney General);
Chapter 16 (commencing with Section 1600) (rights of inspection).
(c) This section does not apply to any corporation (1) with
outstanding securities listed on the New York Stock Exchange, the
NYSE Amex, the NASDAQ Global Market, or the NASDAQ Capital Market, or
(2) if all of its voting shares (other than directors' qualifying
shares) are owned directly or indirectly by a corporation or
corporations not subject to this section.
(d) For purposes of subdivision (a), the requirements of
subdivision (b) shall become applicable to a foreign corporation only
upon the first day of the first income year of the corporation (1)
commencing on or after the 135th day of the income year immediately
following the latest income year with respect to which the tests
referred to in subdivision (a) have been met or (2) commencing on or
after the entry of a final order by a court of competent jurisdiction
declaring that those tests have been met.
(e) For purposes of subdivision (a), the requirements of
subdivision (b) shall cease to be applicable to a foreign corporation
(1) at the end of the first income year of the corporation
immediately following the latest income year with respect to which at
least one of the tests referred to in subdivision (a) is not met or
(2) at the end of the income year of the corporation during which a
final order has been entered by a court of competent jurisdiction
declaring that one of those tests is not met, provided that a
contrary order has not been entered before the end of the income
year.
(f) Any foreign corporation that is subject to the requirements of
subdivision (b) shall advise any shareholder of record, any officer,
director, employee, or other agent (within the meaning of Section
317) and any creditor of the corporation in writing, within 30 days
of receipt of written request for that information, whether or not it
is subject to subdivision (b) at the time the request is received.
Any party who obtains a final determination by a court of competent
jurisdiction that the corporation failed to provide to the party
information required to be provided by this subdivision or provided
the party information of the kind required to be provided by this
subdivision that was incorrect, then the court, in its discretion,
shall have the power to include in its judgment recovery by the party
from the corporation of all court costs and reasonable attorneys'
fees incurred in that legal proceeding to the extent they relate to
obtaining that final determination.
2116. The directors of a foreign corporation transacting intrastate
business are liable to the corporation, its shareholders, creditors,
receiver, liquidator or trustee in bankruptcy for the making of
unauthorized dividends, purchase of shares or distribution of assets
or false certificates, reports or public notices or other violation
of official duty according to any applicable laws of the state or
place of incorporation or organization, whether committed or done in
this state or elsewhere. Such liability may be enforced in the courts
of this state.
2117. (a) Every foreign corporation (other than a foreign
association) qualified to transact intrastate business shall file,
annually during the applicable filing period, on a form prescribed by
the Secretary of State, a statement containing the following:
(1) The names and complete business or residence addresses of its
chief executive officer, secretary, and chief financial officer.
(2) The street address of its principal executive office.
(3) The mailing address of the corporation, if different from the
street address of its principal executive office.
(4) The street address of its principal business office in this
state, if any.
(5) A statement of the general type of business that constitutes
the principal business activity of the corporation (for example,
manufacturer of aircraft; wholesale liquor distributor; or retail
department store).
(b) The statement required by subdivision (a) shall also
designate, as the agent of the corporation for the purpose of service
of process, a natural person residing in this state or a corporation
that has complied with Section 1505 and whose capacity to act as the
agent has not terminated. If a natural person is designated, the
statement shall set forth the person's complete business or residence
street address. If a corporate agent is designated, no address for
it shall be set forth.
(c) The statement required by subdivision (a) shall be available
and open to the public for inspection. The Secretary of State shall
provide access to all information contained in the statement by means
of an online database.
(d) In addition to any other fees required, a foreign corporation
shall pay a five-dollar ($5) disclosure fee upon filing the statement
required by subdivision (a). One-half of the fee shall be utilized
to further the provisions of this section, including the development
and maintenance of the online database required by subdivision (d),
and one-half shall be deposited into the Victims of Corporate Fraud
Compensation Fund established in Section 1502.5.
(e) Whenever any of the information required by subdivision (a) is
changed, the corporation may file a current statement containing all
the information required by subdivisions (a) and (b). In order to
change its agent for service of process or the address of the agent,
the corporation shall file a current statement containing all the
information required by subdivisions (a) and (b). Whenever any
statement is filed pursuant to this section, it supersedes any
previously filed statement and the statement in the filing pursuant
to Section 2105.
(f) Subdivisions (c), (d), (f), and (g) of Section 1502 apply to
statements filed pursuant to this section, except that "articles"
shall mean the filing pursuant to Section 2105, and "corporation"
shall mean a foreign corporation.
2117.1. (a) In addition to the statement required pursuant to
Section 2117, every publicly traded foreign corporation shall file
annually, within 150 days after the end of its fiscal year, on a form
prescribed by the Secretary of State, a statement that includes all
of the following information:
(1) The name of the independent auditor that prepared the most
recent auditor's report on the publicly traded foreign corporation's
annual financial statements.
(2) A description of other services, if any, performed for the
publicly traded foreign corporation during its two most recent fiscal
years and the period between the end of its most recent fiscal year
and the date of the statement by the foregoing independent auditor,
by its parent corporation, or by a subsidiary or corporate affiliate
of the independent auditor or its parent corporation.
(3) The name of the independent auditor employed by the foreign
corporation on the date of the statement, if different from the
independent auditor listed pursuant to paragraph (1).
(4) The compensation for the most recent fiscal year of the
publicly traded foreign corporation paid to each member of the board
of directors and paid to each of the five most highly compensated
executive officers of the foreign corporation who are not members of
the board of directors, including the number of any shares issued,
options for shares granted, and similar equity-based compensation
granted to each of those persons. If the chief executive officer is
not among the five most highly compensated executive officers of the
corporation, the compensation paid to the chief executive officer
shall also be included.
(5) A description of any loan, including the amount and terms of
the loans, made to any member of the board of directors by the
publicly traded foreign corporation during the foreign corporation's
two most recent fiscal years at an interest rate lower than the
interest rate available from unaffiliated commercial lenders
generally to a similarly situated borrower.
(6) A statement indicating whether an order for relief has been
entered in a bankruptcy case with respect to the foreign corporation,
its executive officers, or members of the board of directors of the
foreign corporation during the 10 years preceding the date of the
statement.
(7) A statement indicating whether any member of the board of
directors or executive officer of the publicly traded foreign
corporation was convicted of fraud during the 10 years preceding the
date of the statement, which conviction has not been overturned or
expunged.
(8) A description of any material pending legal proceedings, other
than ordinary routine litigation incidental to the business, to
which the corporation or any of its subsidiaries is a party or of
which any of their property is the subject, as specified by Item 103
of Regulation S-K of the Securities Exchange Commission (Section
229.103 of Title 12 of the Code of Federal Regulations). A
description of any material legal proceeding during which the
corporation was found legally liable by entry of a final judgment or
final order that was not overturned on appeal during the five years
preceding the date of the statement.
(b) For purposes of this section, the following definitions apply:
(1) "Publicly traded foreign corporation" means a foreign
corporation, as defined in Section 171, that is an issuer as defined
in Section 3 of the Securities Exchange Act of 1934, as amended (15
U.S.C. Sec. 78c), and has at least one class of securities listed or
admitted for trading on a national securities exchange, on the OTC
Bulletin Board, or on the electronic service operated by Pink OTC
Markets Inc.
(2) "Executive officer" means the chief executive officer,
president, any vice president in charge of a principal business unit,
division, or function, any other officer of the corporation who
performs a policymaking function, or any other person who performs
similar policymaking functions for the corporation.
(3) "Compensation" as used in paragraph (4) of subdivision (a)
means all plan and nonplan compensation awarded to, earned by, or
paid to the person for all services rendered in all capacities to the
corporation and to its subsidiaries, as the compensation is
specified by Item 402 of Regulation S-K of the Securities and
Exchange Commission (Section 229.402 of Title 17 of the Code of
Federal Regulations).
(4) "Loan" as used in paragraph (5) of subdivision (a) excludes an
advance for expenses, the foreign corporation's payment of life
insurance premiums, and an advance of litigation expenses, in each
instance as permitted according to the applicable law of the state or
place of incorporation or organization of the foreign corporation.
(c) This statement shall be available and open to the public for
inspection. The Secretary of State shall provide access to all
information contained in this statement by means of an online
database.
(d) A foreign corporation shall certify that the information it
provides pursuant to this section is true and correct. No claim may
be made against the state for inaccurate information contained in
statements filed under this section with the Secretary of State.
2100. This chapter applies only to foreign corporations transacting
intrastate business, except as otherwise expressly provided.
2101. (a) Any foreign corporation (other than a foreign
association) not transacting intrastate business may register its
corporate name with the Secretary of State, provided its corporate
name would be available pursuant to Section 201 to a new corporation
organized under this division at the time of such registration.
(b) Such registration may be made by filing (1) an appliction for
registration signed by a corporate officer stating the name of the
corporation, the state or place under the laws of which it is
incorporated, the date of its incorporation, and that it desires to
register its name under this section; and (2) a certificate of an
authorized public official of the state or place in which it is
organized stating that such corporation is in good standing under
those laws. Such registration shall be effective until the close of
the calendar year in which the application for registration is filed.
(c) A corporation which has in effect a registration of its
corporate name may renew such registration from year to year by
annually filing an application for renewal setting forth the facts
required to be set forth in an original application for registration
and a certificate of good standing as required for the original
registration between the first day of October and the 31st day of
December in each year. Such renewal application shall extend the
registration for the following calendar year.
2102. A foreign corporation which has filed a designation of an
agent for the service of process, pursuant to the requirements of any
law relating to the qualification of foreign corporations in force
at the time of the filing, need not file the statement provided for
in Section 2105, but shall file an amended statement and designation
when required by Section 2107.
2103. Nothing in this chapter repeals, alters or amends the
provisions of Sections 1600 to 1607, inclusive, of the Insurance Code
or prevents any foreign insurance company from carrying out
contracts made before the surrender of its right to engage in
intrastate business or contracts made with citizens of other states
who subsequently become citizens of or residents in this state.
2104. Any foreign lending institution which has not qualified to do
business in this state and which engages in any of the activities
set forth in subdivision (d) of Section 191 shall be considered by
such activities to have appointed the Secretary of State as its agent
for service of process for any action arising out of any such
activities, and, on or before June 30th of each year, shall file a
statement showing the address to which any notice or process may be
sent in the manner and with the effect provided in Section 2111.
No foreign lending institution solely by reason of engaging in any
one or more of the activities set forth in subdivision (d) of
Section 191 shall be required to qualify to do business in this state
nor be subject to (a) any of the provisions of the Bank and
Corporation Tax Law (commencing with Section 23001) of the Revenue
and Taxation Code or (b) any of the provisions of this code or the
Financial Code or Insurance Code relating to qualifications for doing
or transacting business in this state or to requirements pertaining
thereto or to the effects or results of failure to qualify to do
business in this state.
2105. (a) A foreign corporation shall not transact intrastate
business without having first obtained from the Secretary of State a
certificate of qualification. To obtain that certificate it shall
file, on a form prescribed by the Secretary of State, a statement and
designation signed by a corporate officer stating:
(1) Its name and the state or place of its incorporation or
organization.
(2) The address of its principal executive office.
(3) The address of its principal office within this state, if any.
(4) The name of an agent upon whom process directed to the
corporation may be served within this state. The designation shall
comply with the provisions of subdivision (b) of Section 1502.
(5) (A) Its irrevocable consent to service of process directed to
it upon the agent designated and to service of process on the
Secretary of State if the agent so designated or the agent's
successor is no longer authorized to act or cannot be found at the
address given.
(B) Consent under this paragraph extends to service of process
directed to the foreign corporation's agent in California for a
search warrant issued pursuant to Section 1524.2 of the Penal Code,
or for any other validly issued and properly served search warrant,
for records or documents that are in the possession of the foreign
corporation and are located inside or outside of this state. This
subparagraph shall apply to a foreign corporation that is a party or
a nonparty to the matter for which the search warrant is sought. For
purposes of this subparagraph, "properly served" means delivered by
hand, or in a manner reasonably allowing for proof of delivery if
delivered by United States mail, overnight delivery service, or
facsimile to a person or entity listed in Section 2110 of the
Corporations Code.
(6) If it is a corporation which will be subject to the Insurance
Code as an insurer, it shall so state that fact.
(b) Annexed to that statement and designation shall be a
certificate by an authorized public official of the state or place of
incorporation of the corporation to the effect that the corporation
is an existing corporation in good standing in that state or place
or, in the case of an association, an officers' certificate stating
that it is a validly organized and existing business association
under the laws of a specified foreign jurisdiction.
(c) Before it may be designated by any foreign corporation as its
agent for service of process, any corporate agent must comply with
Section 1505.
2106. (a) Subject to the provisions of subdivision (b), upon
payment of the fees required by law the Secretary of State shall file
the statement and designation prescribed in Section 2105 and shall
issue to the corporation a certificate of qualification stating the
date of filing of said statement and designation and that the
corporation is qualified to transact intrastate business, subject,
however, to any licensing requirements otherwise imposed by the laws
of this state.
(b) No foreign corporation having a name which would not be
available pursuant to subdivision (b) of Section 201 to a new
corporation organized under this division shall transact intrastate
business in this state or qualify to do so under this chapter or file
an amended statement and designation containing such name unless
either: (1) it obtains and files an order from a court of competent
jurisdiction permanently enjoining the other corporation having a
conflicting name from doing business in this state under that name;
or (2) the Secretary of State finds, upon proof by affidavit or
otherwise as the Secretary of State may determine, that the business
to be conducted in this state by the foreign corporation is not the
same as or similar to the business being conducted by the corporation
(or to be conducted by the proposed corporation) with whose name it
may conflict and that the public is not likely to be deceived, and
the foreign corporation agrees that it will transact business in this
state under an assumed name disclosed to the Secretary of State and
that it will use such assumed name in all of its dealings with the
Secretary of State and in the conduct of its affairs in this state.
Such assumed name may be its name with the addition of some
distinguishing word or words acceptable to the Secretary of State or
a name available for the name of a domestic corporation pursuant to
subdivision (b) of Section 201. A corporation which has made such an
agreement with the Secretary of State shall not do business in this
state except under the name agreed upon, so long as the agreement
remains in effect.
This subdivision shall not apply to any corporation which is
subject to the Insurance Code as an insurer unless the insurer has
first obtained from the Insurance Commissioner a certificate
approving the assumed name.
2106.5. The Secretary of State shall not file any statement and
designation pursuant to Section 2106 or any amended statement and
designation pursuant to Section 2107, where it appears that the
business is that of an insurer subject to the Insurance Code unless a
certificate of the Insurance Commissioner approving the corporate
name is attached thereto.
2107. (a) If any foreign corporation (but not a foreign
association) qualified to transact intrastate business shall change
its name or make a change affecting an assumed name under Section
2106, it shall file, on a form prescribed by the Secretary of State,
an amended statement signed by a corporate officer setting forth the
change made. The amended statement shall set forth the name
relinquished as well as the new name assumed and there shall be
annexed to the amended statement a certificate of an authorized
public official of its state or place of incorporation that the
change of name was made in accordance with the laws of that state or
place. Upon the filing of the amended statement, the Secretary of
State shall issue a new certificate of qualification.
(b) If any foreign association qualified to transact intrastate
business shall change its name, the address of its principal office
in this state, the address of its principal executive office or its
agent for the service of process, or if the stated address of any
natural person designated as agent is changed, it shall file, on a
form prescribed by the Secretary of State, an amended statement and
designation signed by an officer setting forth the change or changes
made. In the case of a change of name, the amended statement and
designation shall set forth the name relinquished as well as the new
name assumed and there shall be annexed to the amended statement and
designation an officer's certificate stating that such change of name
was made in accordance with its declaration of trust. If the change
includes a change of name, or a change affecting an assumed name
pursuant to Section 2106, upon the filing of the amended statement,
the Secretary of State shall issue a new certificate of
qualification.
(c) If the change includes a change of name of an insurer subject
to the Insurance Code, the form shall include a statement that the
corporation is such an insurer if it does not already so appear.
(d) If a foreign corporation qualified to transact business in
this state shall change the address of its principal office in this
state, the address of its principal executive office, or its agent
for the service of process, or if the stated address of any natural
person designated as agent is changed, the filing of a statement
pursuant to Section 2117 shall supersede the statement and
designation with respect thereto.
2110. Delivery by hand of a copy of any process against a foreign
corporation (a) to any officer of the corporation or its general
manager in this state, or if the corporation is a bank to a cashier
or an assistant cashier, (b) to any natural person designated by it
as agent for the service of process, or (c), if the corporation has
designated a corporate agent, to any person named in the latest
certificate of the corporate agent filed pursuant to Section 1505
shall constitute valid service on the corporation. A copy of the
statement and designation, or a copy of the latest statement filed
pursuant to Section 2117, certified by the Secretary of State, is
sufficient evidence of the appointment of an agent for the service of
process.
2110.1. In addition to the provisions of Chapter 4 (commencing with
Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure,
process may be served upon a foreign corporation as provided in this
chapter.
2111. (a) If the agent designated for the service of process is a
natural person and cannot be found with due diligence at the address
stated in the designation or if the agent is a corporation and no
person can be found with due diligence to whom the delivery
authorized by Section 2110 may be made for the purpose of delivery to
the corporate agent, or if the agent designated is no longer
authorized to act, or if no agent has been designated and if no one
of the officers or agents of the corporation specified in Section
2110 can be found after diligent search and it is so shown by
affidavit to the satisfaction of the court, then the court may make
an order that service be made by personal delivery to the Secretary
of State or to an assistant or deputy secretary of state of two
copies of the process together with two copies of the order, except
that if the corporation to be served has not filed the statement
required to be filed by Section 2105 then only one copy of the
process and order need be delivered but the order shall include and
set forth an address to which the process shall be sent by the
Secretary of State. Service in this manner is deemed complete on the
10th day after delivery of the process to the Secretary of State.
(b) Upon receipt of the process and order and the fee therefor the
Secretary of State forthwith shall give notice to the corporation of
the service of the process by forwarding by registered or certified
mail, with request for return receipt, a copy of the process and
order to the address specified in the order if the corporation has
not filed the statement required by Section 2105 or to the two stated
addresses of the corporation set forth in the latest statement filed
pursuant to Section 2105 or 2117, or if only one address is set
forth in the latest statement, to the sole stated address of the
corporation.
(c) The Secretary of State shall keep a record of all process
served upon the Secretary of State and shall record therein the time
of service and the Secretary of State's action with respect thereto.
The certificate of the Secretary of State, under the Secretary of
State's official seal, certifying to the receipt of process, the
giving of notice thereof to the corporation, and the forwarding of
the process pursuant to this section, shall be competent and prima
facie evidence of the matters stated therein.
2112. (a) Subject to Section 2113, a foreign corporation which has
qualified to transact intrastate business may surrender its right to
engage in that business within this state by filing a certificate of
surrender signed by a corporate officer stating:
(1) The name of the corporation as shown on the records of the
Secretary of State, and the state or place of incorporation or
organization.
(2) That it revokes its designation of agent for service of
process.
(3) That it surrenders its authority to transact intrastate
business.
(4) That it consents that process against it in any action upon
any liability or obligation incurred within this state prior to the
filing of the certificate of withdrawal may be served upon the
Secretary of State.
(5) A post office address to which the Secretary of State may mail
a copy of any process against the corporation that is served upon
the Secretary of State, which address or the name to which the
process should be sent may be changed from time to time by filing a
statement signed by a corporate officer stating the new address or
name or both.
(6) Except in the case of a foreign association, that a final
franchise tax return, as described by Section 23332 of the Revenue
and Taxation Code, has been or will be filed with the Franchise Tax
Board, as required under Part 10.2 (commencing with Section 18401) of
Division 2 of the Revenue and Taxation Code.
(b) The Secretary of State shall notify the Franchise Tax Board of
the surrender.
2113. (a) The filing of an agreement of merger of a foreign
disappearing corporation qualified to transact intrastate business in
this state pursuant to Section 1103, or the filing pursuant to
subdivision (d) of Section 1108 of an agreement, certificate, or
other document as to a merger that includes a disappearing foreign
corporation qualified to transact intrastate business, or the filing
of a certificate of ownership as to a foreign subsidiary corporation
qualified to transact intrastate business in this state pursuant to
Section 1110, or the filing by a foreign corporation qualified to
transact intrastate business in this state of an organizational
document containing a statement of conversion pursuant to Section
15677.8, 15911.08, 16908, or 17540.8, constitutes the surrender by
the foreign corporation of its right to engage in intrastate business
within this state.
(b) With respect to corporations for which documents have not been
filed as provided in subdivision (a), a certificate of surrender as
prescribed by Section 2112 shall be filed by a foreign corporation
qualified to transact intrastate business upon its merger into
another foreign corporation.
(c) In lieu of a signature as prescribed by Section 2112, a
certificate of surrender pursuant to subdivision (b) for a merged
foreign corporation may be signed in the name of the surviving
corporation by an officer thereof. In that case, the certificate of
surrender shall be accompanied by a certificate of an authorized
public official of the state or place of incorporation of the merged
foreign corporation stating that the corporation has been merged into
another foreign corporation and setting forth the name and state or
place of incorporation of the surviving foreign corporation.
2114. (a) A foreign corporation that has transacted intrastate
business and has thereafter withdrawn from business in this state may
be served with process in the manner provided in this chapter in any
action brought in this state arising out of that business, whether
or not it has ever complied with the requirements of this chapter.
(b) A foreign corporation that has surrendered its right to
transact intrastate business pursuant to Section 2112 or 2113 may be
served with process in any action upon a liability or obligation
incurred within this state prior to that surrender by delivery of the
process to the Secretary of State, or an assistant or a deputy to
the Secretary of State pursuant to this chapter and no court order
authorizing this service shall be required. The process shall be
mailed in the manner prescribed in this chapter except that it shall
be sent to the address to which process is authorized to be sent in
the certificate of surrender or to the address of the surviving
domestic corporation in the case of a surrender under Section 2113.
(c) If a foreign corporation that is qualified to transact
intrastate business has its right to transact such business forfeited
by the Franchise Tax Board pursuant to the Bank and Corporation Tax
Law (Part 11 (commencing with Section 23001) of Division 2 of the
Revenue and Taxation Code), service of process on that corporation
may be effected in the manner set forth in Sections 2110 and 2111, as
if the right to transact intrastate business had not been forfeited.
(d) The fact that a corporation ceases to transact intrastate
business without filing a certificate of surrender does not revoke
the appointment of any agent for the service of process.
2115. (a) A foreign corporation (other than a foreign association
or foreign nonprofit corporation but including a foreign parent
corporation even though it does not itself transact intrastate
business) is subject to the requirements of subdivision (b)
commencing on the date specified in subdivision (d) and continuing
until the date specified in subdivision (e) if:
(1) The average of the property factor, the payroll factor, and
the sales factor (as defined in Sections 25129, 25132, and 25134 of
the Revenue and Taxation Code) with respect to it is more than 50
percent during its latest full income year and
(2) more than one-half of its outstanding voting securities are
held of record by persons having addresses in this state appearing on
the books of the corporation on the record date for the latest
meeting of shareholders held during its latest full income year or,
if no meeting was held during that year, on the last day of the
latest full income year. The property factor, payroll factor, and
sales factor shall be those used in computing the portion of its
income allocable to this state in its franchise tax return or, with
respect to corporations the allocation of whose income is governed by
special formulas or that are not required to file separate or any
tax returns, which would have been so used if they were governed by
this three-factor formula. The determination of these factors with
respect to any parent corporation shall be made on a consolidated
basis, including in a unitary computation (after elimination of
intercompany transactions) the property, payroll, and sales of the
parent and all of its subsidiaries in which it owns directly or
indirectly more than 50 percent of the outstanding shares entitled to
vote for the election of directors, but deducting a percentage of
the property, payroll, and sales of any subsidiary equal to the
percentage minority ownership, if any, in the subsidiary. For the
purpose of this subdivision, any securities held to the knowledge of
the issuer in the names of broker-dealers, nominees for
broker-dealers (including clearing corporations), or banks,
associations, or other entities holding securities in a nominee name
or otherwise on behalf of a beneficial owner (collectively "nominee
holders"), shall not be considered outstanding. However, if the
foreign corporation requests all nominee holders to certify, with
respect to all beneficial owners for whom securities are held, the
number of shares held for those beneficial owners having addresses
(as shown on the records of the nominee holder) in this state and
outside of this state, then all shares so certified shall be
considered outstanding and held of record by persons having addresses
either in this state or outside of this state as so certified,
provided that the certification so provided shall be retained with
the record of shareholders and made available for inspection and
copying in the same manner as is provided in Section 1600 with
respect to that record. A current list of beneficial owners of a
foreign corporation's securities provided to the corporation by one
or more nominee holders or their agent pursuant to the requirements
of Rule 14b-1(b)(3) or 14b-2(b)(3) as adopted on January 6, 1992,
promulgated under the Securities Exchange Act of 1934, shall
constitute an acceptable certification with respect to beneficial
owners for the purposes of this subdivision.
(b) Except as provided in subdivision (c), the following chapters
and sections of this division shall apply to a foreign corporation as
defined in subdivision (a) (to the exclusion of the law of the
jurisdiction in which it is incorporated):
Chapter 1 (general provisions and definitions), to the extent
applicable to the following provisions;
Section 301 (annual election of directors);
Section 303 (removal of directors without cause);
Section 304 (removal of directors by court proceedings);
Section 305, subdivision (c) (filling of director vacancies where
less than a majority in office elected by shareholders);
Section 309 (directors' standard of care);
Section 316 (excluding paragraph (3) of subdivision (a) and
paragraph (3) of subdivision (f)) (liability of directors for
unlawful distributions);
Section 317 (indemnification of directors, officers, and others);
Sections 500 to 505, inclusive (limitations on corporate
distributions in cash or property);
Section 506 (liability of shareholder who receives unlawful
distribution);
Section 600, subdivisions (b) and (c) (requirement for annual
shareholders' meeting and remedy if same not timely held);
Section 708, subdivisions (a), (b), and (c) (shareholder's right
to cumulate votes at any election of directors);
Section 710 (supermajority vote requirement);
Section 1001, subdivision (d) (limitations on sale of assets);
Section 1101 (provisions following subdivision (e)) (limitations
on mergers);
Section 1151 (first sentence only) (limitations on conversions);
Section 1152 (requirements of conversions);
Chapter 12 (commencing with Section 1200) (reorganizations);
Chapter 13 (commencing with Section 1300) (dissenters' rights);
Sections 1500 and 1501 (records and reports);
Section 1508 (action by Attorney General);
Chapter 16 (commencing with Section 1600) (rights of inspection).
(c) This section does not apply to any corporation (1) with
outstanding securities listed on the New York Stock Exchange, the
NYSE Amex, the NASDAQ Global Market, or the NASDAQ Capital Market, or
(2) if all of its voting shares (other than directors' qualifying
shares) are owned directly or indirectly by a corporation or
corporations not subject to this section.
(d) For purposes of subdivision (a), the requirements of
subdivision (b) shall become applicable to a foreign corporation only
upon the first day of the first income year of the corporation (1)
commencing on or after the 135th day of the income year immediately
following the latest income year with respect to which the tests
referred to in subdivision (a) have been met or (2) commencing on or
after the entry of a final order by a court of competent jurisdiction
declaring that those tests have been met.
(e) For purposes of subdivision (a), the requirements of
subdivision (b) shall cease to be applicable to a foreign corporation
(1) at the end of the first income year of the corporation
immediately following the latest income year with respect to which at
least one of the tests referred to in subdivision (a) is not met or
(2) at the end of the income year of the corporation during which a
final order has been entered by a court of competent jurisdiction
declaring that one of those tests is not met, provided that a
contrary order has not been entered before the end of the income
year.
(f) Any foreign corporation that is subject to the requirements of
subdivision (b) shall advise any shareholder of record, any officer,
director, employee, or other agent (within the meaning of Section
317) and any creditor of the corporation in writing, within 30 days
of receipt of written request for that information, whether or not it
is subject to subdivision (b) at the time the request is received.
Any party who obtains a final determination by a court of competent
jurisdiction that the corporation failed to provide to the party
information required to be provided by this subdivision or provided
the party information of the kind required to be provided by this
subdivision that was incorrect, then the court, in its discretion,
shall have the power to include in its judgment recovery by the party
from the corporation of all court costs and reasonable attorneys'
fees incurred in that legal proceeding to the extent they relate to
obtaining that final determination.
2116. The directors of a foreign corporation transacting intrastate
business are liable to the corporation, its shareholders, creditors,
receiver, liquidator or trustee in bankruptcy for the making of
unauthorized dividends, purchase of shares or distribution of assets
or false certificates, reports or public notices or other violation
of official duty according to any applicable laws of the state or
place of incorporation or organization, whether committed or done in
this state or elsewhere. Such liability may be enforced in the courts
of this state.
2117. (a) Every foreign corporation (other than a foreign
association) qualified to transact intrastate business shall file,
annually during the applicable filing period, on a form prescribed by
the Secretary of State, a statement containing the following:
(1) The names and complete business or residence addresses of its
chief executive officer, secretary, and chief financial officer.
(2) The street address of its principal executive office.
(3) The mailing address of the corporation, if different from the
street address of its principal executive office.
(4) The street address of its principal business office in this
state, if any.
(5) A statement of the general type of business that constitutes
the principal business activity of the corporation (for example,
manufacturer of aircraft; wholesale liquor distributor; or retail
department store).
(b) The statement required by subdivision (a) shall also
designate, as the agent of the corporation for the purpose of service
of process, a natural person residing in this state or a corporation
that has complied with Section 1505 and whose capacity to act as the
agent has not terminated. If a natural person is designated, the
statement shall set forth the person's complete business or residence
street address. If a corporate agent is designated, no address for
it shall be set forth.
(c) The statement required by subdivision (a) shall be available
and open to the public for inspection. The Secretary of State shall
provide access to all information contained in the statement by means
of an online database.
(d) In addition to any other fees required, a foreign corporation
shall pay a five-dollar ($5) disclosure fee upon filing the statement
required by subdivision (a). One-half of the fee shall be utilized
to further the provisions of this section, including the development
and maintenance of the online database required by subdivision (d),
and one-half shall be deposited into the Victims of Corporate Fraud
Compensation Fund established in Section 1502.5.
(e) Whenever any of the information required by subdivision (a) is
changed, the corporation may file a current statement containing all
the information required by subdivisions (a) and (b). In order to
change its agent for service of process or the address of the agent,
the corporation shall file a current statement containing all the
information required by subdivisions (a) and (b). Whenever any
statement is filed pursuant to this section, it supersedes any
previously filed statement and the statement in the filing pursuant
to Section 2105.
(f) Subdivisions (c), (d), (f), and (g) of Section 1502 apply to
statements filed pursuant to this section, except that "articles"
shall mean the filing pursuant to Section 2105, and "corporation"
shall mean a foreign corporation.
2117.1. (a) In addition to the statement required pursuant to
Section 2117, every publicly traded foreign corporation shall file
annually, within 150 days after the end of its fiscal year, on a form
prescribed by the Secretary of State, a statement that includes all
of the following information:
(1) The name of the independent auditor that prepared the most
recent auditor's report on the publicly traded foreign corporation's
annual financial statements.
(2) A description of other services, if any, performed for the
publicly traded foreign corporation during its two most recent fiscal
years and the period between the end of its most recent fiscal year
and the date of the statement by the foregoing independent auditor,
by its parent corporation, or by a subsidiary or corporate affiliate
of the independent auditor or its parent corporation.
(3) The name of the independent auditor employed by the foreign
corporation on the date of the statement, if different from the
independent auditor listed pursuant to paragraph (1).
(4) The compensation for the most recent fiscal year of the
publicly traded foreign corporation paid to each member of the board
of directors and paid to each of the five most highly compensated
executive officers of the foreign corporation who are not members of
the board of directors, including the number of any shares issued,
options for shares granted, and similar equity-based compensation
granted to each of those persons. If the chief executive officer is
not among the five most highly compensated executive officers of the
corporation, the compensation paid to the chief executive officer
shall also be included.
(5) A description of any loan, including the amount and terms of
the loans, made to any member of the board of directors by the
publicly traded foreign corporation during the foreign corporation's
two most recent fiscal years at an interest rate lower than the
interest rate available from unaffiliated commercial lenders
generally to a similarly situated borrower.
(6) A statement indicating whether an order for relief has been
entered in a bankruptcy case with respect to the foreign corporation,
its executive officers, or members of the board of directors of the
foreign corporation during the 10 years preceding the date of the
statement.
(7) A statement indicating whether any member of the board of
directors or executive officer of the publicly traded foreign
corporation was convicted of fraud during the 10 years preceding the
date of the statement, which conviction has not been overturned or
expunged.
(8) A description of any material pending legal proceedings, other
than ordinary routine litigation incidental to the business, to
which the corporation or any of its subsidiaries is a party or of
which any of their property is the subject, as specified by Item 103
of Regulation S-K of the Securities Exchange Commission (Section
229.103 of Title 12 of the Code of Federal Regulations). A
description of any material legal proceeding during which the
corporation was found legally liable by entry of a final judgment or
final order that was not overturned on appeal during the five years
preceding the date of the statement.
(b) For purposes of this section, the following definitions apply:
(1) "Publicly traded foreign corporation" means a foreign
corporation, as defined in Section 171, that is an issuer as defined
in Section 3 of the Securities Exchange Act of 1934, as amended (15
U.S.C. Sec. 78c), and has at least one class of securities listed or
admitted for trading on a national securities exchange, on the OTC
Bulletin Board, or on the electronic service operated by Pink OTC
Markets Inc.
(2) "Executive officer" means the chief executive officer,
president, any vice president in charge of a principal business unit,
division, or function, any other officer of the corporation who
performs a policymaking function, or any other person who performs
similar policymaking functions for the corporation.
(3) "Compensation" as used in paragraph (4) of subdivision (a)
means all plan and nonplan compensation awarded to, earned by, or
paid to the person for all services rendered in all capacities to the
corporation and to its subsidiaries, as the compensation is
specified by Item 402 of Regulation S-K of the Securities and
Exchange Commission (Section 229.402 of Title 17 of the Code of
Federal Regulations).
(4) "Loan" as used in paragraph (5) of subdivision (a) excludes an
advance for expenses, the foreign corporation's payment of life
insurance premiums, and an advance of litigation expenses, in each
instance as permitted according to the applicable law of the state or
place of incorporation or organization of the foreign corporation.
(c) This statement shall be available and open to the public for
inspection. The Secretary of State shall provide access to all
information contained in this statement by means of an online
database.
(d) A foreign corporation shall certify that the information it
provides pursuant to this section is true and correct. No claim may
be made against the state for inaccurate information contained in
statements filed under this section with the Secretary of State.
