S 185 Session 110 (1993-1994)
S 0185 General Bill, By Wilson and Russell
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 selection, reservation, and use
of fictitious or assumed names.
01/13/93 Senate Introduced and read first time SJ-6
01/13/93 Senate Referred to Committee on Judiciary SJ-6
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 last 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.
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