H 3795 General Bill, By Quinn
 A Bill to amend Section 33-4-101, as amended, and Section 33-4-102, Code of
 Laws of South Carolina, 1976, relating to corporate names under the Business
 Corporation Act, so as to further provide for the selection, reservation, and
 use of fictitious or assumed names.

   04/09/91  House  Introduced and read first time HJ-7
   04/09/91  House  Referred to Committee on Labor, Commerce and
                     Industry HJ-7
   03/04/92  House  Committee report: Favorable Labor, Commerce and
                     Industry HJ-8
   03/19/92  House  Read second time HJ-18
   03/19/92  House  Unanimous consent for third reading on next
                     legislative day HJ-19
   03/20/92  House  Read third time and sent to Senate HJ-3
   03/24/92  Senate Introduced and read first time SJ-11
   03/24/92  Senate Referred to Committee on Judiciary SJ-11

COMMITTEE REPORT

March 4, 1992

H. 3795

S. Printed 3/4/92--H.

Read the first time April 9, 1991.

To whom was referred a Bill (H. 3795), to amend Section 33-4-101, as amended, and Section 33-4-102, Code of Laws of South Carolina, 1976, relating to corporate names under the Business Corporation Act, etc., respectfully

That they have duly and carefully considered the same, and recommend that the same do pass:

THOMAS C. ALEXANDER, for Committee.

A BILL

TO AMEND SECTION 33-4-101, AS AMENDED, AND SECTION 33-4-102, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CORPORATE NAMES UNDER THE BUSINESS CORPORATION ACT, SO AS TO FURTHER PROVIDE FOR THE SELECTION, RESERVATION, AND USE OF FICTITIOUS OR ASSUMED NAMES.

Be it enacted by the General Assembly of the State of South Carolina:

SECTION 1. Section 33-4-101 of the 1976 Code, as amended by Act 446 of 1990, is further amended to read:

"Section 33-4-101. (a) Except as otherwise authorized by either subsection (f) or (g), a corporate name:

(1) must contain the word `corporation', `incorporated', `company', or `limited', the abbreviation `corp.', `inc.', `co.', or `ltd.', or words or abbreviations of like import in another language; and

(2) may not contain language stating or implying that the corporation is organized for a purpose other than that permitted by Section 33-3-101 and its articles of incorporation.

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

(1) the corporate name of a corporation incorporated or authorized to transact business in this State;

(2) a corporate name reserved or registered under Section 33-4-102 or 33-4-103;

(3) the a fictitious name adopted by a foreign corporation authorized to transact business in this State because its real name is unavailable;

(4) the corporate name of a not-for-profit corporation incorporated or authorized to transact business in this State;

(5) the name of a limited partnership authorized to transact business in this State.

(c) A corporation may apply to the Secretary of State for authorization to use a name that is not distinguishable upon his records from one or more of the names described in subsection (b). The Secretary of State shall authorize use of the name applied for if:

(1) the other corporation consents to the use in writing and submits an undertaking in form satisfactory to the Secretary of State to change its name to a name that is distinguishable upon the records of the Secretary of State from the name of the applying corporation; or

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

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

(1) has merged with the other corporation;

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

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

(e) Chapters 1 through 20 of this title do not control the use of fictitious names.

(f) The following corporations are exempt from subsection (a)(1):

(1) a bank, building and loan association, savings and loan association, insurance company, public utility, and railroad;

(2) a corporation which was organized before January 1, 1964, and whose charter or articles of incorporation on the effective date of this Business Corporation Act of 1988 specified a corporate name that would not meet the requirements of subsection (a) of this section, may continue to use that name as its official name;

(3) nonprofit corporation; and

(4) a professional corporation governed by Chapter 19 of this title, but the name of the professional corporation must comply with Section 33-19-150.

(g) Any corporation incorporated in South Carolina which, prior to the effective date of Chapters 1 through 20 of this Title, filed a renewable certificate with the Secretary of State adopting an "assumed name" pursuant to the provisions of Section 33-5-35 in Section 2 of Act 146 of 1981, and which filed assumed name would not meet the requirements of subsection (a) of this section, may continue to use the name as its name until December 31, 1994, at which time the name of the corporation must meet the requirements of subsections (a) and (b) of this section. If necessary to meet the requirements of subsections (a) and (b), the corporation must amend its articles of incorporation prior to December 31, 1994.

If any corporation incorporated in South Carolina prior to the effective date of Chapters 1 through 20 of this Title adopted an assumed name which complies with all of the provisions of subsections (a) and (b), that assumed name, upon filing of amended articles designating such name as the name of the corporation, is the corporation's name.

No certificate of assumed name may be renewed after the effective date of Chapters 1 through 20 of Title 33, and all such certificates, regardless of stated expiration date, automatically expire on December 31, 1994."

SECTION 2. Item (8) of the Official South Carolina Reporter's Comments to Section 33-4-101 is amended to read:

"(8) Fictitious Names

Prior to the adoption of the Model Act, domestic, as well as foreign corporations were allowed to use fictitious or assumed names. The Model Act provided that only foreign corporations could use fictitious names. In 1991, the Model Act was amended to also allow domestic corporations to use fictitious names."

SECTION 3. Section 33-4-102(a) of the 1976 Code is amended to read:

"(a) A person may reserve the exclusive use of a corporate name, including a fictitious name for a foreign corporation whose corporate name is not available, by delivering an application to the Secretary of State for filing. The application must set forth the name and address of the applicant and the name proposed to be reserved. If the Secretary of State finds that the corporate name applied for is available, he shall reserve the name for the applicant's exclusive use for a nonrenewable one hundred twenty-day period."

SECTION 4. This act takes effect upon approval by the Governor.