GUAM CODE ANNOTATED, TITLE 18
BUSINESS STRUCTURE AND
FUNCTION
CHAPTER 7 - FOREIGN
CORPORATIONS.
1
ARTICLE 1 - FOREIGN CORPORATIONS.
1
§ 7101.
Definitions.
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§ 7102. License
and Authority to Transact Business Required.
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§ 7103.
Consequences of Transacting Business Without Authority.
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§ 7104.
Application for Certificate of Authority.
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§ 7105. Amended
Certificate of Authority.
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§ 7106. Effect
of Certificate of Authority.
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§ 7107.
Corporate Name of Foreign Corporation.
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§ 7108.
Registered Office and Registered Agent of Foreign Corporation.
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§ 7109. Change
of Registered Office or Registered Agent of Foreign Corporation.
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§ 7110.
Resignation of Registered Agent of Foreign Corporation.
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§ 7111.
Amendment to Articles of Incorporation of Foreign Corporation.
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§ 7112. Suits by
Attorney General Against Foreign Corporations.
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§ 7113. Service
of Process on Foreign Corporation.
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§ 7114.
Withdrawal of Foreign Corporation.
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§ 7115. Grounds
for Revocation of Certificate of Authority.
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§ 7116.
Procedure for and Effect of Revocation.
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§ 7117. Appeal
From Revocation.
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§ 7118.
Revocation; Application for Reinstatement.
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§ 7119. Laws
Governing Foreign Corporations.
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ARTICLE
2, FOREIGN LIMITED LIABILITY PARTNERSHIPS.
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§ 7201. Foreign
Limited Liability Partnerships Transacting Business; Registration and
Filing
Requirements; Fee; Time of Registration; Form; Penalty; Transact
Business
Definition.
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§ 7202. Amended
Registration of Foreign Limited Partnership; Notice of Termination;
Withdrawal
of Registration; Fee.
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ARTICLE
3, FOREIGN LIMITED LIABILITY COMPANIES.
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§ 7301. Law
Governing; Conflicts of law.
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§ 7302.
Registration; Application; Contents; Certificate of Good Standing;
Cancellation; Notice.
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§ 7303.
Certificate of Registration to Transact Business; Issuance; Company
Name;
Requirements.
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§ 7304. Name of
Foreign Limited Liability Company.
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§ 7305. False or
Erroneous Statements in Application for Registration; Amendment; Filing.
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§ 7306.
Activities not Constituting Transacting Business.
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§ 7307.
Certificate of Cancellation; Filing; Effect.
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§ 7308. Action,
Suit, or Proceedings in Guam; Registration Requirement; Failure to
Register;
Penalty; Liability of Members for Company Debts and Obligations; Agent
for
Service of Process.
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§ 7309. Action
to Restrain Foreign Company From Transacting Business.
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§ 7310.
Revocation of Certificate of Registration of Foreign Limited Liability
Company.
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§ 7311. Changes
and Amendments to Foreign Registration.
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§ 7312.
Certificate of Registration; Application.
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§ 7313. Effect
of Failure to Obtain Certificate of Authority.
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As
used in
this Chapter, unless the context otherwise requires:
(a)
Department shall mean the Department of Revenue and Taxation.
(b)
Director shall mean the Director of the Department of Revenue and
Taxation.
(c)
Person
shall mean any individual, firm, partnership, association, corporation,
company, syndicate, estate, trust, limited liability company, limited
partnership, limited liability partnership, business trust or
organization of
any kind, or any branch or division thereof.
(a)
A
foreign corporation shall not transact business in Guam
until it obtains both a business license and a certificate of authority
to do
so from the Director of the Department of Revenue and Taxation.
(b)
Without
excluding other activities which may not be considered to be
transacting
business, a foreign corporation shall not be considered to be
transacting
business merely because its subsidiary transacts business in Guam
, or merely because of its status as any one (1) or more of the
following:
(1)
a
shareholder of a domestic corporation;
(2)
a
shareholder of another foreign corporation transacting business;
(3)
a
limited partner of a foreign limited partnership transacting business;
(4)
a
limited partner of a domestic limited partnership;
(5)
a
member or manager of a foreign limited liability company transacting
business;
(6)
a
member or manager of a domestic limited liability company;
(7)
a
limited partner of a foreign limited liability partnership transacting
business; or
(8)
a
limited partner of a domestic limited liability partnership.
(c)
Without
excluding other activities which may not be considered to be
transacting
business in Guam , a foreign corporation shall
not be
considered to be transacting business in Guam
within the
meaning of this Subdivision solely by reason of carrying on in Guam
any one (1) or more of the following activities.
The
following activities, among others, do not constitute transacting
business
within the meaning of Subsection (1) of this Section:
(1)
maintaining, defending or settling any proceeding;
(2)
holding
meetings of the board of directors or shareholders, or carrying on
other
activities concerning internal corporate affairs;
(3)
maintaining bank accounts;
(4)
maintaining offices or agencies for the transfer, exchange and
registration of
the corporation's own securities, or maintaining trustees or
depositaries with
respect to those securities;
(5)
selling
through independent contractors;
(6)
soliciting or obtaining orders, whether by mail or through employees or
agents
or otherwise, if the orders require acceptance outside Guam
before they become contracts;
(7)
creating or acquiring indebtedness, mortgages and security interests in
real or
personal property;
(8)
securing or collecting one's own debts or enforcing mortgages and
security
interests in property securing one's own debts;
(9)
owning,
without more, real or personal property;
(10)conducting
an isolated transaction that is completed within sixty (60) days and
that is
not one in the course of repeated transactions of a like nature; or
(11)transacting
business in interstate commerce.
(d)
The
list of activities in this Section are not exhaustive.
(a)
No
foreign corporation transacting business on Guam
without
a business license and a certificate of authority shall be permitted to
maintain any action, suit or proceeding in any court on Guam
until it obtains both a business license and a certificate of authority
to
transact business on Guam .
(b)
No
successor to a foreign corporation that transacted business on Guam
without a
business license and a certificate of authority, and the assignee of a
cause of
action arising out of that business, shall maintain any action, suit or
proceeding based upon that cause of action in any court on Guam until
the
foreign corporation, or its successor or assignee obtains both a
business
license and a certificate of authority.
(c)
The
court may stay any action, suit or proceeding commenced by a foreign
corporation, its successor, or assignee until it determines whether the
foreign
corporation, or its successor, requires a business license and a
certificate of
authority. If it so determines, the court may further stay the
proceeding until
the foreign corporation, or its successor or assignee obtains the
license and
certificate.
(d)
A
foreign corporation which transacts business on Guam without a business
license
and a certificate of authority shall be liable to the government of
Guam for
the years or parts thereof during which it transacted business on Guam
without
a business license and a certificate of authority, in an amount equal
to all
fees and taxes which would have been imposed under this Chapter upon
such
corporation had it duly applied for and received a business license and
a
certificate of authority to transact business on Guam, as required by
this
Chapter, and thereafter filed all reports required by this Chapter,
plus a
penalty of Two Hundred Dollars ($200.00) for each day that unauthorized
business is transacted; and the foreign corporation, by transacting
unauthorized business, shall be deemed to consent to the jurisdiction
of the courts
of Guam in any civil action arising on Guam in which the corporation is
named a
party defendant.
The
penalty
established in this Section shall be assessed according to the number
of days
it is found that the corporation has been willfully transacting
unauthorized
business.
(e)
Notwithstanding Subsections (a) and (b) of this Section, the failure of
a
foreign corporation to obtain both a business license and a certificate
of
authority does not impair the validity of any contract, mortgage, deed
or act
of such corporation, and shall not prevent such corporation from
defending any
action, suit or proceeding in any courts of Guam
.
(a)
A
foreign corporation may apply for a certificate of authority to
transact
business on Guam by delivering an application
to the
Director of the Department of Revenue and Taxation for filing. The
application
shall set forth:
(1)
the
name of the foreign corporation or, if its name is unavailable for use
on Guam
, a corporate name that satisfies the requirements of § 7107 of
this Title;
(2)
the
name of the state or country under whose law it is incorporated;
(3)
the
date of incorporation and the period of duration of the corporation;
(4)
the
address, including street and number and mailing address, if different,
of the
principal office of the corporation in the state or country under the
laws of
which it is incorporated;
(5)
the
address, including street and number, of its registered office on Guam
and the name of its registered agent at that office;
(6)
the
purpose(s) of the corporation which it proposes to pursue in the
transaction of
business on Guam ;
(7)
the
names and usual business addresses of its current directors and
officers; and
(8)
such
additional information as may be necessary or appropriate in order to
enable
the Director of the Department of Revenue and Taxation to determine
whether
such corporation is entitled to a certificate of authority to transact
business
on Guam, and to determine and assess the fees and taxes payable as
prescribed
by the laws of Guam.
(b)
The
foreign corporation shall deliver with the completed application a
certificate
of existence, or a document of similar import, duly authenticated by
the
secretary of state, or other official having custody of corporate
records in
the state or country under whose law it is incorporated. A translation
of the
certificate, under oath of the translator, must be attached to a
certificate
which is in a language other than the English language.
(c)
The
filing fee for application of a certificate of authority shall be One
Hundred
Dollars ($100.00).
(a)
A
foreign corporation authorized to transact business on Guam
must obtain an amended certificate of authority from the Director of
the
Department of Revenue and Taxation if it changes:
(1)
its
corporate name;
(2)
the
period of its duration;
(3)
the
state or country of its incorporation; or
(4)
if any,
the purpose or purposes of the corporation which it proposes to pursue
in the
transaction of business on Guam , in addition
to those
set forth in its prior application for a certificate of authority.
(b)
Such
application shall be made within thirty (30) days after the occurrence
of any change
mentioned in Subsection (a).
(c)
The
requirements of § 7104 for obtaining an original certificate of
authority apply
to obtaining an amended certificate under this Section.
(d)
The
filing fee for application of an amended certificate of authority shall
be
Twenty-five Dollars ($25.00).
(a)
A
certificate of authority authorizes the foreign corporation to which it
is
issued to transact business on Guam; subject, however, to the right of
the
government of Guam to suspend or revoke such authority and certificate
as
provided in this Chapter and all applicable laws of Guam.
(b)
A
foreign corporation with a valid certificate of authority under this
Chapter
shall, until the certificate is revoked or withdrawn, have the same,
but no
greater rights and has the same but no greater privileges as, and
except as
otherwise provided by this Chapter, is subject to the same duties,
restrictions, penalties, and liabilities now or later imposed upon, a
domestic
corporation of like character.
(c)
This
Chapter does not authorize the government of Guam
to
regulate the organization or internal affairs of a foreign corporation
authorized to transact business on Guam .
(a)
If the
corporate name of a foreign corporation does not satisfy the
requirements of
§2110, the foreign corporation to obtain or maintain a certificate
of authority
to transact business on Guam :
(1)
may add
the word 'corporation, ''incorporated, ''company,' or 'limited,' or the
abbreviations 'corp.,' 'inc.,' 'co.,' or 'ltd.,' to its corporate name
for use
in Guam ; or
(2)
may use
a fictitious name to transact business on Guam
if its
real name is unavailable and it delivers to the Director of the
Department of
Revenue and Taxation for filing a copy of the resolution of its Board
of
Directors, certified by its secretary, adopting the fictitious name.
(b)
Except
as authorized by Subsections (d) and (e) of this Section, the corporate
name,
including a fictitious name, of a foreign corporation must be
distinguishable
upon the records of the Director of the Department of Revenue and
Taxation from:
(1)
the
name of any domestic and foreign corporation, partnership, limited
liability
company, limited partnership or limited liability partnership organized
under
the laws of Guam or authorized to transact
business on Guam
;
(2)
a
corporate name reserved or registered under §2110.1 and
§2110.2;
(3)
the
fictitious name of another foreign corporation authorized to transact
business
on Guam ; or
(4)
the
name of a not-for-profit corporation incorporated or authorized to
transact
business on Guam .
(c)
A
foreign corporation may apply to the Director of the Department of
Revenue and
Taxation for authorization to use on Guam a
name of
another domestic or foreign corporation incorporated or authorized to
transact
business on Guam that is not distinguishable
upon the
corporation's records from the name applied for. The Director of the
Department
of Revenue and Taxation 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 Director of the Department of Revenue and
Taxation to
change its name to a name that is distinguishable upon the records of
the
Director of the Department of Revenue and Taxation from the name of the
applying corporation; or
(2)
the
applicant delivers to the Director of the Department of Revenue and
Taxation a
certified copy of a final judgment of a court of competent jurisdiction
establishing the applicant's right to use the name applied for on Guam
.
(d)
A
foreign corporation may use on Guam a name which is the same as the
name,
including the fictitious name, of another domestic or foreign
corporation
organized under the laws of Guam, or authorized to transact business on
Guam,
if the foreign 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)
If a
foreign corporation authorized to transact business on Guam
changes its corporate name to one that does not satisfy the
requirements of
§2110, it may not transact business on Guam
under the
changed name, until it adopts a name satisfying the requirements of
§2110 and
obtains an amended certificate of authority under § 7105.
(a)
Each
foreign corporation authorized to transact business on Guam
shall continuously maintain on Guam :
(1)
a
registered office that may be the same as any of its places of
business; and
(2)
a
registered agent, who shall be:
(i)
an
individual who resides on Guam and whose
business office
is identical to the registered office;
(ii)
a
domestic corporation or nonprofit domestic corporation whose business
office is
identical with the registered office; or
(iii)
a
foreign corporation or foreign nonprofit corporation authorized to
transact
business on Guam whose business office is
identical with
the registered office.
(b)
A
registered agent appointed pursuant to this Section or a successor
registered
agent appointed pursuant to § 7109 on whom process may be served
shall each
file a statement in writing with the Department, in such form and
manner as
shall be prescribed by the Director of the Department of Revenue and
Taxation,
accepting the appointment as a registered agent simultaneously with the
registered agent being designated. Such statement of acceptance shall
state
that the registered agent is familiar with, and accepts, the
obligations of
that position.
(a)
A
foreign corporation authorized to transact business on Guam
may change its registered office or registered agent, or both, by
delivering to
the Director of the Department of Revenue and Taxation for filing a
statement
of change that sets forth:
(1)
the
name of the foreign corporation;
(2)
the
street address of its current registered office;
(3)
if the
current registered office is to be changed, the street address to which
the
registered office is to be changed;
(4)
the
name of its current registered agent;
(5)
if the current
registered agent is to be changed, the name of its new registered agent
and the
new agent's written consent, either on the statement or attached to it,
or in
the corporation's next annual report filed with the Director of the
Department
of Revenue and Taxation, to the appointment;
(6)
that
after the change or changes are made, the street addresses of its
registered
office and the business office of its registered agent will be
identical; and
(7)
that
such change was authorized by resolution duly adopted by its Board of
Directors.
(b)
If a
registered agent changes the mailing address or location of the
registered
agent's business office, the registered agent shall change the mailing
address
or location of the registered office of any foreign corporation for
which that
person is the registered agent by notifying the corporation in writing
of the
change and signing, either manually or in facsimile, and delivering to
the
Director of the Department of Revenue and Taxation for filing a
statement of
change that complies with the requirements of Subsection (a) of this
Section,
and recites that the corporation has been notified of the change.
(a)
The
registered agent of a foreign corporation may resign the registered
agent's
agency appointment upon signing and delivering to the Director of the
Department of Revenue and Taxation for filing the original and two (2)
exact or
conformed copies of a statement of resignation. The statement of
resignation
may include a statement that the registered office is also discontinued.
(b)
After
filing the statement, the Director of the Department of Revenue and
Taxation
shall attach the filing receipt to one (1) copy and mail the copy and
receipt
to the registered office if not discontinued. The Director of the
Department of
Revenue and Taxation shall mail the other copy to the foreign
corporation at
the foreign corporation's mailing address or the foreign corporation's
principal office address shown in its most recent annual report.
(c)
The
agency appointment is terminated, and the registered office
discontinued if so
provided in the signed statement under Subsection (a) of this Section,
on the
thirty-first (31st) day after the date on which the statement was filed.
(a)
Whenever the Articles of Incorporation of a foreign corporation
authorized to
transact business on Guam are amended, such foreign corporation shall,
within
thirty (30) days after such amendment becomes effective, file in the
office of
the Director of the Department of Revenue and Taxation a copy of such
amendment
duly authenticated by the proper officer of the state or country under
the laws
of which it is incorporated; provided, the filing thereof shall not of
itself
enlarge or alter the purpose or purposes which such corporation is
authorized
to pursue in the transaction of business on Guam, nor authorize such
corporation to transact business on Guam under any other name than the
name set
forth in its certificate of authority.
(b)
The
filing fee for application for amendment to Articles of Incorporation
shall be
Fifty Dollars ($50.00).
The
Attorney General may bring an action to restrain a foreign corporation
from
transacting business on Guam without authority any business for which
authority
is required by this Chapter; any business which it is not authorized to
do in
its jurisdiction of incorporation, or which it is not authorized to do
under
this Chapter, or which it is transacting without securing any license
or other
authority required under the laws of Guam; any business, authority for
which
was obtained through fraud, misrepresentation or concealment of a
material
fact. A certified copy of any order or judgment restraining or
enjoining any
such corporation from doing business, or a particular business, on Guam
shall
be filed with the Director of the Department of Revenue and Taxation.
(a)
The
registered agent of a foreign corporation authorized to transact
business on Guam
is the corporation's agent for service of process, notice or demand
required or
permitted by law to be served on the foreign corporation.
(b)
A
foreign corporation may be served by registered or certified mail,
return
receipt requested, addressed to the secretary of the foreign
corporation at its
principal office shown in its application for a certificate of
authority or the
correspondence address indicated in its most recent annual report if
the
foreign corporation:
(1)
has no
registered agent, or its registered agent cannot with reasonable
diligence be
served;
(2)
has
withdrawn from transacting business on Guam
under § 7114
of this Title; or
(3)
has had
its certificate of authority revoked under § 7116 of this Title.
(c)
Service
is perfected under Subsection (b) of this Section at the earliest of:
(1)
the
date the foreign corporation receives the mail;
(2)
the
date shown on the return receipt, if signed on behalf of the foreign
corporation; or
(3)
five
(5) days after its deposit in the United
States mail, as evidenced by the
postmark, if mailed postpaid and
correctly addressed.
(d)
In
addition to Subsection (b), whenever a foreign corporation authorized
to
transact business on Guam shall fail to appoint or maintain a
registered agent
on Guam, or whenever any such registered agent cannot with reasonable
diligence
be found at the registered office, or whenever the certificate of
authority of
a foreign corporation shall be suspended or revoked, then the Director
of
Revenue and Taxation may be an agent of such corporation upon whom any
such
process notice, or demand may be served. The fee for service of process
shall
be Forty Dollars ($40.00).
(e)
Every
foreign corporation which transacts business on Guam without having
been
authorized to transact business on Guam thereby submits itself to the
jurisdiction of the courts of Guam, and also thereby designates the
Director of
Revenue and Taxation as its agent upon whom any process, notice or
demand upon
it may be served in any action or proceeding arising out of or in
connection
with the transaction of business on Guam. The fee for service of
process shall
be Forty Dollars ($40.00).
(f)
This
Section does not prescribe the only means, or necessarily the required
means,
of serving a foreign corporation.
Source:
Subsections (d) and (e) amended by P.L. 29-002:V:I:59 (
May 18, 2007 ).
(a)
A
foreign corporation authorized to transact business on Guam
may not withdraw from Guam until it obtains a
certificate of withdrawal from the Director of the Department of
Revenue and
Taxation.
(1)
A
foreign corporation authorized to transact business on Guam
may apply for a certificate of withdrawal by delivering an application
to the
Director of the Department of Revenue and Taxation for filing. The
application
must set forth:
(i)
the
name of the foreign corporation and the name of the state or country
under
whose law it is incorporated;
(ii)
that
the corporation is not transacting business on Guam
and
that it surrenders its authority to transact business on Guam
;
(iii)
that
the corporation revokes the authority of its registered agent to accept
service
of process on its behalf, and consents that service of process in any
action,
suit or proceeding based upon any cause of action during the time it
was
authorized to transact business on Guam may thereafter be made on such
corporation by service upon the Director of the Department of Revenue
and
Taxation;
(iv)
appoints the Director of the Department of Revenue and Taxation as its
agent
for a mailing address at which the service may be made under Paragraph
(iii) of
this Subsection;
(v)
a
commitment to notify the Director of the Department of Revenue and
Taxation in
the future of any change in its mailing address; and
(vi)
such
additional information as may be necessary or appropriate in order to
enable
the Director of the Department of Revenue and Taxation to determine and
assess
any unpaid fees or taxes payable by such foreign corporation.
(b)
Such
application may be made on forms prescribed and furnished by the
Director, of
the Department of Revenue and Taxation and shall be executed in
duplicate by
the corporation by its president, a vice-president and by its secretary
or an
assistant secretary, and verified by one (1) of the officers signing
such
application.
(c)
After the
withdrawal of the corporation is effective, service of process on the
Director
of the Department of Revenue and Taxation under this Section is service
upon
the foreign corporation. Upon receipt of process, the Director of the
Department of Revenue and Taxation shall mail a copy of the process to
the
foreign corporation at the mailing address set forth under Subsection
(b).
(d)
The
filing fee for application for a certificate of withdrawal shall be
Twenty-five
Dollars ($25.00).
The
Director of the Department of Revenue and Taxation may commence a
proceeding
under § 7116 of this Title to revoke the certificate of authority
of a foreign
corporation authorized to transact business on Guam
if:
(a)
the
foreign corporation does not deliver its annual report to the Director
of the
Department of Revenue and Taxation within sixty (60) days after it is
due;
(b)
the
foreign corporation does not pay within sixty (60) days after they are
due any
fees or penalties imposed under this Chapter or other law;
(c)
the
foreign corporation is without a registered agent or registered office
on Guam
for sixty (60) days or more;
(d)
the
Director of the Department of Revenue and Taxation has credible
information
that the foreign corporation has failed to notify the Director of the
Department of Revenue and Taxation within sixty (60) days of the
occurrence
that its registered agent or registered office has changed, that its
registered
agent has resigned or that its registered office has been discontinued;
(e)
the
Director of the Department of Revenue and Taxation has credible
information
that an incorporator, director, officer or agent of the foreign
corporation
signed a document that that person knew was false in any material
respect, with
intent that the document be delivered to the Director of the Department
of
Revenue and Taxation for filing; or
(f)
the
Director of the Department of Revenue and Taxation receives a duly
authenticated certificate from the official having custody of corporate
records
in the state or country under whose law the foreign corporation is
incorporated, stating that it has been dissolved or disappeared as a
result of
a merger.
(a)
If the
Director of the Department of Revenue and Taxation determines that one
(1) or
more grounds exist under § 7115 of this Chapter, for revocation of
a
certificate of authority, the Director of the Department of Revenue and
Taxation shall serve the foreign corporation with written notice of
such
determination under § 7113.
(b)
If the
foreign corporation does not correct each ground for revocation or
demonstrate
to the reasonable satisfaction of the Director of the Department of
Revenue and
Taxation that each ground determined by the Director of the Department
of
Revenue and Taxation does not exist within sixty (60) days after
issuance of
notice is perfected under § 7113, the Director of the Department
of Revenue and
Taxation shall revoke the foreign corporation's certificate of
authority by
signing a certificate of revocation that recites the ground(s) for
revocation
and its effective date.
(c)
The
authority of a foreign corporation to transact business on Guam
ceases on the date shown on the notice of revocation of its certificate
of
authority.
(d)
Service
of process on a foreign corporation whose certificate of authority has
been
revoked may be made upon its registered agent, if any, or pursuant to
§ 7113.
(e)
Revocation of a foreign corporation's certificate of authority does not
terminate the authority of the registered agent of the corporation.
(a)
A
foreign corporation may appeal the Director's revocation of its
certificate of
authority to the Superior Court of Guam within thirty (30) days after
service
of the notice of revocation is perfected under § 7113. The foreign
corporation
appeals by petitioning the Court to set aside the revocation and
attaching to
the petition copies of its certificate of authority and the notice of
revocation
from the Director of the Department of Revenue and Taxation.
(b)
The
Court may summarily order the Director of the Department of Revenue and
Taxation to reinstate the certificate of authority, or may take any
other
action the Court considers appropriate.
(c)
The
Court's final decision may be appealed as in other civil proceedings.
(a)
A
foreign corporation whose certificate of authority has been revoked
pursuant to
§ 7116 may apply to the Director of the Department of Revenue and
Taxation for
reinstatement at any time after the effective date of revocation of
authority.
The application must:
(1)
recite
the name of the foreign corporation and the effective date of its
revocation of
authority;
(2)
state
that the ground or grounds for revocation of authority either did not
exist, or
have been eliminated and that no further grounds currently exist for
revocation
of authority;
(3)
state
that the foreign corporation's name satisfies the requirements of
§ 7107; and
(4)
state
that all fees owed by the corporation and computed at the rate provided
by law
at the time the foreign corporation applies for reinstatement have been
paid; or
(b)
As an
alternative, the foreign corporation may submit a current annual
report, signed
by the registered agent and an officer or director, which substantially
complies with the requirements of Subsection (a).
(c)
If the
Director of the Department of Revenue and Taxation determines that the
application contains the information required by Subsections (a) and
(b), and
that the information is correct, it shall cancel the certificate of
revocation
of authority and prepare a certificate of reinstatement that recites
its
determination and prepare a certificate of reinstatement, file the
original of
the certificate, and serve a copy upon the corporation.
(d)
When
the reinstatement is effective, it relates back to and takes effect as
of the
effective date of the revocation of authority, and the foreign
corporation
resumes carrying on its business as if the revocation of authority had
never
occurred.
(e)
The
name of the foreign corporation whose certificate of authority has been
revoked
is not available for assumption or use by another corporation until one
(1)
year after the effective date of revocation of authority, unless the
corporation provides the Director of the Department of Revenue and
Taxation
with an affidavit permitting the immediate assumption or use of the
name by
another corporation.
(f)
If the
name of the foreign corporation has been lawfully assumed on Guam by
another
corporation, the Director of the Department of Revenue and Taxation
shall
require the foreign corporation to comply with § 7107 before
accepting its
application for reinstatement.
Any
foreign
corporation not formed, organized or existing under the laws of Guam
shall be
bound by all laws, rules and regulations applicable to domestic
corporations of
the same class, save and except such only as provided for the creation,
formation, organization, or dissolution of corporations or such as fix
the
qualifications, relations, liabilities, responsibilities, or duties of
members,
stockholders, directors, or officers of the corporation to each other
or to the
corporation; provided, however, that nothing in this Section shall be
construed
to exempt any foreign corporation from compliance with the Business
License
Law, Division 3, Title 11 of the Guam Code, Annotated.
(a)
(1)
Before
transacting business in Guam , a foreign
limited
liability partnership shall comply with all statutory and
administrative
registration or filing requirements of the rules and regulations
governing a
particular profession in which the partnership proposes to be engaged.
A
foreign limited liability partnership that transacts business in Guam
shall
within thirty (30) days after the effective date of the Act enacting
this
Section or the date on which the foreign limited liability partnership
first
transacts business in Guam, whichever is later, register with the
Department of
Revenue and Taxation by submitting to the Department of Revenue and
Taxation an
application for registration as a foreign limited liability
partnership, signed
by a person with authority to do so under the laws of the jurisdiction
of
formation of the foreign limited liability partnership, stating the
name of the
partnership, the address of its principal office, the name and address
of its
agent for service of process in Guam, a brief statement of the business
in
which the partnership engages, and any other matters that the
partnership
determines to include, on a form prescribed by the Department of
Revenue and
Taxation.
(2)
Annexed
to the application for registration shall be a certificate from an
authorized
public official of the foreign limited liability partnership's
jurisdiction of
organization to the effect that the foreign limited liability
partnership is in
good standing in that jurisdiction, if the laws of that jurisdiction
permit the
issuance of those certificates, or, in the alternative, a statement by
the
foreign limited liability partnership that the laws of its jurisdiction
of
organization do not permit the issuance of those certificates.
(b)
The
registration shall be accompanied by a fee as set by the Department of
Revenue
and Taxation pursuant to the Administrative Adjudication Law.
(c)
The
Department of Revenue and Taxation shall register as a foreign limited
liability partnership any partnership that submits a completed
application for
registration with the required fee.
(d)
The
Department of Revenue and Taxation may cancel the filing of the
registration if
a check or other remittance accepted in payment of the filing fee is
not paid
upon presentation. Upon receiving written notification that the item
presented
for payment has not been honored for payment, the Department of Revenue
and
Taxation shall give a first written notice of the applicability of this
Section
to the agent for service of process, or to the person submitting the
instrument.
Thereafter, if the amount has not been paid by cashier's check or
equivalent,
the Department of Revenue and Taxation shall give a second written
notice of
cancellation and the cancellation shall thereupon be effective. The
second
notice shall be given twenty (20) days or more after the first notice
and
ninety (90) days or less after the original filing.
(e)
A
partnership becomes registered as a foreign limited liability
partnership at
the time of the filing of the initial registration with the Department
of
Revenue and Taxation, or at any later date or time specified in the
registration and the payment of the fee required by Subsection (b). A
partnership continues to be registered as a foreign limited liability
partnership until a notice that it is no longer so registered as a
limited
liability partnership has been filed pursuant to § 7202 or, if
applicable, once
it has been dissolved and finally wound up. The status of a partnership
registered as a foreign limited liability partnership and liability of
a
partner of that foreign limited liability partnership shall not be
adversely
affected by errors or subsequent changes in the information stated in
an
application for registration under Subsection (a), or an amended
registration
or notice under § 7202.
(f)
The
fact that a registration, or amended registration pursuant to §
7202 is on file
with the Department of Revenue and Taxation is notice that the
partnership is a
foreign limited liability partnership and of those other facts
contained herein
that are required to be set forth in the registration or amended
registration.
(g)
A
foreign limited liability partnership transacting business in Guam
shall not maintain any action, suit, or proceeding in any court of Guam
until
it has registered in Guam pursuant to this
Section.
(h)
Any
foreign limited liability partnership that transacts business in Guam
without registration is subject to a penalty of Twenty Dollars ($20.00)
for
each day that unauthorized business is transacted, up to a maximum of
Ten
Thousand Dollars ($10,000.00).
(i)
A
foreign limited liability partnership, transacting business in Guam
without registration, appoints the Department of Revenue and Taxation
as its
agent for service of process with respect to causes of action arising
out of
the transaction of business in Guam .
(j)
Without
excluding other activities that may not be considered to be transacting
business, a foreign limited liability partnership shall not be
considered to be
transacting business merely because of its subsidiary or affiliate
transacts
business, or merely business because of its status as any one (1) or
more of
the following:
(1)
A
shareholder of a domestic corporation.
(2)
A
shareholder of a foreign corporation transacting business.
(3)
A
limited partner of a foreign limited partnership transacting business.
(4)
A
limited partner of a domestic limited partnership.
(5)
A
member or manager of a foreign limited liability company transacting
business.
(6)
A
member or manager of a domestic limited liability company.
(k)
Without
excluding other activities that may not be considered to be transacting
business, a foreign limited liability partnership shall not be
considered to be
transacting business within the meaning of this subdivision solely by
reason of
carrying on in Guam any one (1) or more of the
following
activities:
(1)
Maintaining or defending any action or suit or any administrative or
arbitration proceeding, or effecting the settlement thereof or the
settlement
of claims or disputes.
(2)
Holding
meetings of its partners or carrying on any other activities concerning
its
internal affairs.
(3)
Maintaining bank accounts.
(4)
Maintaining offices or agencies for the transfer, exchange, and
registration of
the foreign limited liability partnership's securities or maintaining
trustees
or depositories with respect to those securities.
(5)
Effecting sales through independent contractors.
(6)
Soliciting or procuring orders, whether by mail or through employees or
agents
otherwise, where those orders require acceptance without this state
before
becoming binding contracts.
(7)
Creating or acquiring evidences of debt or mortgages, liens, or
security
interest in real or personal property.
(8)
Securing or collecting debts or enforcing mortgages and security
interests in
property securing the debts.
(9)
Conducting an isolated transaction that is completed within thirty (30)
days
and not in the course of a number of repeated transactions of a like
nature.
(l)
A
person shall not be deemed to be transacting business in Guam
merely because of its status as a partner of a registered limited
liability
partnership or a foreign limited liability company whether or not
registered to
transact business in Guam .
(m)
The
Attorney General may bring an action to restrain a foreign limited
liability
partnership from transacting business in Guam
in
violation of this Chapter.
(a)
The
registration of a foreign limited partnership may be amended by an
amended
registration executed by one or more partners authorized to execute an
amended
registration and filed with the Department of Revenue and Taxation, as
soon as
reasonably practical after any information set forth in the
registration or
previously filed amended registration becomes inaccurate, to add
information to
the registration or amended registration or to withdraw its
registration as a
foreign limited liability partnership.
(b)
If a
foreign limited partnership ceases to be a limited liability
partnership, it
shall file with the Department of Revenue and Taxation a notice,
executed by
one or more partners authorized to execute the notice, that it is no
longer a
foreign limited liability partnership.
(c)
A
foreign limited liability partnership that is, but is no longer
required to be,
registered under § 7201 may withdraw its registration by filing a
notice with
the Department of Revenue and Taxation, executed by one (1) or more
partners
authorized to execute the notice.
(d)
The
filing of amended registration forms pursuant to subdivision (a) and a
notice
pursuant to subdivision (b) or (c) shall each be accompanied by a fee
as set
forth by the Department of Revenue and Taxation pursuant to the
Administrative
Adjudication Law.
(a)
The
laws of the state or foreign country under which a foreign limited
liability
company is organized shall govern its organization and internal affairs
and the
liability and authority of its managers and members.
(b)
A
foreign limited liability company may not be denied registration by
reason of
any difference between those laws and the laws of Guam
.
(a)
Before
transacting business in Guam, a foreign
limited
liability company shall register with the Department of Revenue and
Taxation.
In order to register, a foreign limited liability company shall submit
to the
Department of Revenue and Taxation an application for registration as a
foreign
limited liability company, signed by a person with authority to do so
under the
laws of the state of its organization, on a form prescribed by the
Department
of Revenue and Taxation and setting forth:
(1)
The
name of the foreign limited liability company and, if different, the
name under
which it proposes to transact business in Guam .
(2)
The
state and date of its organization and a statement that the foreign
limited
liability company is authorized to exercise its powers and privileges
in that
state.
(3)
The
name and address of an agent for service of process on the foreign
limited
liability company.
(4)
A
statement that the Department of Revenue and Taxation is appointed the
agent of
the foreign limited liability company for service of process if the
agent has
resigned and has not been replaced or if the agent cannot be found or
served
with the exercise of reasonable diligence.
(5)
The
address of the principal executive office of the foreign limited
liability
company and of its principal office in Guam ,
if any.
(b)
Annexed
to the application for registration shall be a certificate from an
authorized
public official of the foreign limited liability company's jurisdiction
of
organization to the effect that the foreign limited liability company
is in
good standing in that jurisdiction, if the laws of that jurisdiction
permit the
issuance of those certificates; or, in the alternative, a statement by
the
foreign limited liability company that the laws of its jurisdiction of
organization do not permit the issuance of those certificates.
(c)
The
Department of Revenue and Taxation may cancel the application and
certificate
of registration of a foreign limited liability company if a check or
other
remittance accepted in payment of the filing fee is not paid upon
presentation.
Upon receiving written notification that the item presented for payment
has not
been honored for payment, the Department of Revenue and Taxation shall
give a
first written notice of the applicability of this Section to the agent
for
service of process, or to the person submitting the instrument.
Thereafter, if
the amount has not been paid by cashier's check or equivalent, the
Department
of Revenue and Taxation shall give a second written notice of
cancellation and
the cancellation shall thereupon be effective. The second notice shall
be given
twenty (20) days or more after the first notice and ninety (90) days or
less
after the original filing.
(a)
If the
Department of Revenue and Taxation fmds that an application for
registration
conforms to law and all requisite fees have been paid, the Department
of
Revenue and Taxation shall issue a certificate of registration to
transact
business in Guam, subject, however, to any licensing requirements
imposed by
the laws of Guam.
(b)
A
foreign limited liability company may register with the Department of
Revenue
and Taxation under any name, whether or not it is the name under which
it is
registered in its state of organization, that includes the words
"limited
liability company" or "limited company" or their abbreviations
"L.L.C.", "L.C.", "LLC" or "LC", in
uppercase or lowercase letters, or if required or permitted by the
jurisdiction
in which it was formed the words "professional limited liability
company" or the abbreviations "P.L.L.C.", "P.L.C.",
"PLLC" or "PLC", in uppercase or lowercase letters, and
that could be registered by a domestic limited liability company.
(a)
A
foreign limited liability company must use a fictitious name to
transact
business in Guam if its real name is unavailable and it delivers to the
Department of Revenue and Taxation for filing a copy of the resolution
of its
managers, in the case of a manager-managed company, or of its members,
in the
case of a member-managed company, adopting the fictitious name.
(b)
Except
as authorized by Subsections (c) and (d), the name, including a
fictitious name
to be used to transact business in Guam, of a foreign limited liability
company
must be distinguishable upon the records of the Department of Revenue
and
Taxation from:
(1)
the
name of any corporation, limited partnership, or company incorporated,
organized, or authorized to transact business in Guam
;
(2)
a name
reserved or registered; and
(3)
the
fictitious name of another foreign limited liability company authorized
to
transact business in Guam .
(c)
A
foreign limited liability company may apply to the Department of
Revenue and
Taxation for authority to use in Guam a name
that is not
distinguishable upon the records of the Department of Revenue and
Taxation from
a name described in Subsection (b). The Department of Revenue and
Taxation
shall authorize use of the name applied for, if:
(1)
the
present user, registrant, or owner of a reserved name consents to the
use in a
record and submits an undertaking in form satisfactory to the
Department of
Revenue and Taxation to change its name to a name that is
distinguishable upon
the records of the Department of Revenue and Taxation from the name of
the
foreign applying limited liability company; or
(2)
the
applicant delivers to the Department of Revenue and Taxation a
certified copy
of a final judgment of a court establishing the applicant's right to
use the
name applied for in Guam .
(d)
A
foreign limited liability company may use in Guam
the
name, including the fictitious name, of another domestic or foreign
entity that
is used in Guam , if the other entity is
incorporated,
organized, or authorized to transact business in Guam
and the foreign limited liability company:
(1)
has
merged with the other entity;
(2)
has
been formed by reorganization of the other entity; or
(3)
has
acquired all or substantially all of the assets, including the name, of
the
other entity.
If
any statement
in the application for registration of a foreign limited liability
company was
false when made or any statements made have become erroneous, the
foreign
limited liability company shall promptly file in the Department of
Revenue and
Taxation an amendment to the application for registration, signed by a
person
with authority to do so under the laws of the state of its
organization,
amending the statement.
(a)
Activities of a foreign limited liability company that do not
constitute
transacting business in Guam within the meaning
of this
Article to include:
(1)
maintaining, defending, or settling an action or proceeding;
(2)
holding
meetings of its members or managers or carrying on any other activity
concerning its internal affairs;
(3)
maintaining bank accounts;
(4)
maintaining offices or agencies for the transfer, exchange, and
registration of
the foreign company's own securities or maintaining trustees or
depositories
with respect to those securities;
(5)
selling
through independent contractors;
(6)
soliciting or obtaining orders, whether by mail or through employees or
agents
or otherwise, if the orders require acceptance outside Guam
before they become contracts;
(7)
creating or acquiring indebtedness, mortgages, or security interests in
real or
personal property;
(8)
securing or collecting one's own debts or enforcing mortgages or other
security
interests in property securing one's own debts, and holding,
protecting, and
maintaining property so acquired;
(9)
conducting an isolated transaction that is completed within thirty (30)
days
and is not one (1) in the course of similar transactions of a like
manner; and
(10)
transacting business in interstate commerce.
(b)
For
purposes of this Article, the ownership in this Guam
of
income-producing real property or tangible personal property, other
than
property excluded under Subsection (a), constitutes transacting
business in Guam
.
(c)
This
Section does not apply in determining the contacts or activities that
may
subject a foreign limited liability company to service of process,
taxation, or
regulation under any other law of Guam .
A
foreign
limited liability company may cancel its registration by filing with
the
Department of Revenue and Taxation a certificate of cancellation signed
by a
person with authority to do so under the laws of the state of its
organization.
A cancellation does not terminate the authority of the Department of
Revenue
and Taxation to accept service of process on the foreign limited
liability
company with respect to causes of action arising out of the transaction
of
business in Guam .
(a)
A
foreign limited liability company transacting business in Guam
shall not maintain any action, suit, or proceeding in any court of Guam
until
it has registered in Guam .
(b)
Any
foreign limited liability company that transacts business in Guam
without registration is subject to a penalty of Twenty Dollars ($20.00)
for
each day that unauthorized business is transacted, up to a maximum of
Ten
Thousand Dollars ($10,000.00).
(c)
A
member of a foreign limited liability company is not liable for the
debts and
obligations of the foreign limited liability company solely by reason
of its
having transacted business in Guam without
registration.
(d)
A
foreign limited liability company, transacting business in Guam
without registration, appoints the Department of Revenue and Taxation
as its
agent for service of process with respect to causes of action arising
out of
the transaction of business in Guam .
The
Attorney General may bring an action to restrain a foreign limited
liability
company from transacting business in Guam in
violation
of this Chapter.
The
certificate of registration of a foreign limited liability company to
transact
business in Guam may be revoked by the
Department of
Revenue and Taxation, if any of the following events occur:
(1)
The
foreign limited liability company fails to:
(a)
Pay any
fees or penalties prescribed by this Chapter.
(b)
Appoint
and maintain a statutory agent as required by this Chapter.
(c)
File a
report on a change in the name or business address of the statutory
agent.
(d)
File
with the Department of Revenue and Taxation any amendment to its
application
for a certificate of registration as specified in § 7311.
(2)
A
misrepresentation has been made of any material matter in any
application,
report, affidavit, or other document submitted by the foreign limited
liability
company pursuant to this Chapter.
If
a
statement in the application for registration of a foreign limited
liability
company was false when made, or any arrangements, or other facts
described have
changed, making the application inaccurate in any respect, a foreign
limited
liability company shall promptly file with the Department of Revenue
and
Taxation, in duplicate, a certificate correcting the statement that is
signed
and acknowledged on its behalf by a member.
Before
transacting business in Guam, a foreign
limited liability
company shall obtain a certificate of registration. An applicant for a
certificate of registration shall pay the required filing fee and shall
submit
to the Department of Revenue and Taxation an application for
registration as a
foreign limited liability company that is signed and acknowledged on
its behalf
by any manager, member, or other authorized agent and that states:
(1)
The
name of the foreign limited liability company and, if different, the
name under
which it proposes to register and transact business in Guam
.
(2)
The
state and date of its formation.
(3)
The
purpose of the foreign limited liability company or the general
character of
the business it proposes to transact in state.
(4)
The
name and address of the proposed agent for service of process on the
foreign
limited liability company.
(5)
That
the Department of Revenue and Taxation is appointed the agent of the
foreign
limited liability company for service of process, if either of the
following
occurs:
(a)
An
agent has not been appointed under paragraph 4, or if appointed, the
agent's
authority has been revoked.
(b)
The
agent cannot be found or served with the exercise of reasonable
diligence.
(6)
The
address of the office required to be maintained in the state of its
organization
by the laws of that state or, if not so required, of the principal
office of
the foreign limited liability company.
(7)
A
foreign limited liability company shall deliver with the completed
application
a certificate of existence or a record of similar import authenticated
by the
Secretary of State or other official having custody of company records
in the
State or country under whose law it is organized.
(8)
Whether
the company is manager-managed, and, if so, the name and address of
each
initial manager.
(9)
The
address of its initial designated office in Guam
.
(a)
A
foreign limited liability company transacting business in Guam
may not maintain an action, or proceeding in Guam
,
unless it has a certificate of authority to transact business in Guam
.
(b)
The
failure of a foreign limited liability company to have a certificate of
authority to transact business in Guam does not impair the validity of
a
contract, or act of the company, or prevent the foreign limited
liability
company from defending an action; or proceeding in Guam.
(c)
Limitations on personal liability of managers, members, and their
transferees
are not waived solely by transacting business in Guam
without a certificate of authority.
(d)
If a
foreign limited liability company transacts business in Guam
without a certificate of authority, it appoints the Department of
Revenue and
Taxation as its agent for service of process for claims of relief
arising out
of the transaction of business in Guam .
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