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CALIFORNIA CORPORATE & SECURITIES LAW

Disclaiming Proper Appointment With The Secretary Of State – “All You Have To Do Is Ask”

A lot of things in life may upset you.  One these might be discovering that you have been improperly appointed as an agent for service of process, director or officer of a California corporation.  Corporations Code Section 1503(b) somewhat oddly provides:

The resignation of an agent may be effective if, on a form prescribed by the Secretary of State containing the name of the corporation, the Secretary of State’s file number for the corporation, and the name of the resigning agent for service of process, the agent disclaims having been properly appointed as the agent. Similarly, a person named as an officer or director may indicate that the person was never properly appointed as the officer or director.

This is a peculiar statute.  The legislature seems to have assumed that a person can resign from an office that he or she was never properly appointed to.  Referring to the effectiveness of the resignation suggests that the person has authority notwithstanding the improper appointment. The statement that a person “may indicate” that he she was never properly appointed as an officer or director is curiously incomplete.  The legislature fails to state what the legal consequence, if any, of making such an indication might be.

If you search the Secretary of State’s website, you won’t find a form for disclaiming proper appointment.  The Secretary of State does have a form.  In the words of Engelbert Humperdinck, “all you have to do is ask”.  The form is DSCL-100 and there is no fee for filing it.  However, the Secretary of State imposes a non-refundable $15.00 special handling fee for processing documents delivered in person (drop off) at the Sacramento office.

According to the form’s instructions, a person is generally considered to have been “never properly appointed” when “that person never agreed to serve prior to his or her appointment, and never specifically accepted appointment or acted as if he or she had accepted appointment as agent for service of process, officer or director subsequent to such appointment”.  The form should not be used when a person who has served as agent for service of process, officer or director of a corporation has resigned or been removed from office for any reason.

An agent for service of process that was properly appointed may, of course, resign.  Cal. Corp. Code § 1503.  In this case, the erstwhile agent may use Form RA-100.  This form may be used by an agent appointed by a California corporation, foreign corporation or other business entity registered with the Secretary of State.  There is no fee for the filing.  Upon filing, the agent’s authority ceases and the Secretary of State will notify the business entity of the resignation.

 

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