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Corporations Committee E-Bulletin: Court-Appointed Representative =
FYI ...
Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Suite 1080
Torrance, California 90503
Telephone: (310) 792-5864
Facsimile: (310) 347-4353
Email: MitnickLaw@aol.com, MitnickLaw@gmail.com
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To: mitnicklaw
Sent: Fri, Oct 6, 2017 3:17 pm
Subject: Corporations Committee E-Bulletin: Court-Appointed Representative Can Dissolve Corporation
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October 6, 2017
Court-Appointed Representative Can Dissolve Corporation
Amendments to Section 1401 of the California Corporations Code
Effective January 1, 2018
A bill to amend Section 1401 and to add Section 1401.5 of the California Corporations Code has been approved by the Governor and will become effective on January 1, 2018.
Under existing law, after a corporation files for bankruptcy, the shares of the corporation are cancelled and its board of directors is replaced with a court-appointed representative who is responsible for liquidating the corporations assets and paying creditors. Current law, however, does not expressly authorize this court-appointed representative to execute and file a certificate of dissolution with the Secretary of State. The amendments to Section 1401 aim to address this procedural gap and provide clear statutory authority for the filing of a certificate of dissolution by the court-appointed representative provided that the criteria in new Section 1401.5 of the Corporations Code are met.
Effective January 1, 2018, Section 1401 of the Corporations Code will be amended to read as follows (deleted text shown as stricken and new text shown in italics):
1401
(a) A certificate of any amendment, change or alteration or of dissolution or any agreement of merger made by such a corporation pursuant to Section 1400 and executed as provided in subdivision (b), shall be filed and shall thereupon become effective in accordance with its terms and the provisions of this chapter.
(b) Such The certificate, agreement of merger merger, or other instrument shall be signed and verified, as may be directed by such the orders of the court or judge, by the trustee or trustees appointed in the reorganization proceeding (or a majority thereof) or, if none is appointed and acting, by officers of the corporation designated or by a master or other representative appointed by the court or judge, and shall state that provision for the making of such that certificate, agreement of merger, or instrument is contained in an order, identifying the same, of a court or judge having jurisdiction of a proceeding under a statute of the United States for the reorganization of such that corporation.
(c) Notwithstanding subdivision (b), a trustee, liquidating agent, responsible officer, or other representative appointed by the court for a corporation, with respect to which a proceeding has been initiated under any applicable statute of the United States as described in subdivision (a) of Section 1401.5 may execute and file a certificate of dissolution as provided in subdivision (b) of Section 1401.5.
Effective January 1, 2018, Section 1401.5 will be added to the Corporations Code, to read:
1401.5.
(a) A trustee, liquidating agent, responsible officer, or other representative appointed by the court for a corporation subject to an order for relief entered in a case under Chapter 11 (commencing with Section 1101) of Title 11 of the United States Code may sign and verify a certificate of dissolution when the corporation has been completely wound up.
(b) The certificate of dissolution shall state the following:
(1) The name of the corporation.
(2) That an order for relief was entered in a case under Chapter 11 (commencing with Section 1101) of Title 11 of the United States Code with respect to the corporation.
(3) The identification of the court in which the order for relief was entered and the courts file number for the matter.
(4) That an order confirming a reorganization plan has been entered in that case.
(5) That the undersigned has been appointed by the court as a trustee, liquidating agent, responsible officer, or other representative of the corporation.
(6) That the shares of the corporation have been canceled pursuant to the terms of that plan.
(7) That the assets of the corporation have been distributed pursuant to the terms of that plan.
(8) That the corporation is dissolved.
No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
This e-Bulletin was prepared by Genevieve M. Kelly. Ms. Kelly was formerly the Vice President, General Counsel & Corporate Secretary for Dole Food Company, Inc. She is currently a consultant for a number of international companies in the fresh fruit industry.
Co-Chair
Evan T. Pickering
Seed Mackall LLP
epickering@seedmackall.com
Co-Chair
Jerry T. Yen
Office of California Attorney General
jerry.yen@doj.ca.gov
Vice-Chair, Publications
Katherine Blair
Manatt, Phelps & Phillips, LLP
KBlair@manatt.com
Vice-Chair, Education
Michelle Jacko
Jacko Law Group, PC
michelle.jacko@jackolg.com
Vice-Chair, Legislation
Darren L. Nunn
McCorriston Miller Mukai MacKinnon LLP
dln@m4law.com
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FYI ...
Law Office of Eric Alan Mitnick
21515 Hawthorne Boulevard, Suite 1080
Torrance, California 90503
Telephone: (310) 792-5864
Facsimile: (310) 347-4353
Email: MitnickLaw@aol.com, MitnickLaw@gmail.com
Although this email and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by the sender for any loss or damage arising in any way from its use.
The information contained in this email message and any attached files may be privileged, confidential and protected from disclosure. If you are not the intended recipient, any dissemination, distribution or copying is strictly prohibited. If you think that you have received this email message in error, please notify the sender by reply email, and delete the email message you received and all of the attached files.
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To: mitnicklaw <mitnicklaw@aol.com>
Sent: Fri, Oct 6, 2017 3:17 pm
Subject: Corporations Committee E-Bulletin: Court-Appointed Representative Can Dissolve Corporation
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