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2018 Georgia Code 14-2-1409 | Car Wreck Lawyer

Link to State of Georgia Official Statute 2018 Georgia Code Annotated (sourced from legal.resource.org)
O.C.G.A. 14-2-1409 Case Law from Google Scholar Amendments to OCGA 14-2-1409

TITLE 14 CORPORATIONS, PARTNERSHIPS, AND ASSOCIATIONS

Section 2. Business Corporations, 14-2-101 through 14-2-1703.

ARTICLE 14 DISSOLUTION

14-2-1409. Revival of corporation after dissolution by expiration of period of duration.

  1. A corporation that has been dissolved by the expiration of its period of duration but which has continued in business notwithstanding the expiration, may revive its corporate existence by amending its articles of incorporation at any time during a period of ten years immediately following the expiration date fixed by the articles of incorporation, so as to extend its period of duration.
  2. If a corporation whose period of duration has expired has failed to revive its corporate existence within ten years of the expiration date fixed by its articles of incorporation as provided in subsection (a) of this Code section, the corporation may thereafter revive its corporate existence by amending its articles of incorporation so as to extend its period of duration at any time during the period beginning ten years, and ending 20 years, immediately following the expiration date fixed by its articles of incorporation and filing with the Secretary of State an affidavit attested by one or more of its officers or directors, stating as follows:
    1. That the corporation has continued in business, notwithstanding the expiration of its period of duration, at all times since the expiration date fixed by its articles of incorporation;
    2. That the corporation has not been disqualified from making distributions for the reasons set out in subsection (c) of Code Section 14-2-640 since such expiration date; and
    3. That the revival will not injure the corporation's shareholders, creditors, or the public.
  3. As of the effective date of the amendment of articles of incorporation pursuant to subsection (a) or (b) of this Code section, the corporate existence shall be deemed to have continued without interruption from the former expiration date. If, during the period between expiration and revival, the name of the corporation has been assumed, reserved, or registered by any other person or corporation, the revived corporation shall not engage in business until it has amended its articles of incorporation to change its name.

(Code 1981, §14-2-1409, enacted by Ga. L. 1988, p. 1070, § 1; Ga. L. 1989, p. 946, § 64.)

COMMENT

Source: Former §§ 14-2-294 &14-2-295.

This section, like prior law, provides for revival of corporations that have been dissolved by reason of the expiration of their periods of duration.

Subsection (a) provides for liberal revival of corporations during the first ten years after expiration of their period of duration. The only condition is that the corporation must have continued its business in ignorance of the expiration of its period of duration. The process calls for an amendment of its articles of incorporation. Under Section 14-2-1002, this amendment may be adopted by the board of directors without shareholder action. Under Section 14-2-302, unless articles of incorporation provide otherwise, corporations have perpetual duration, so that an amendment deleting earlier provisions in the articles concerning duration will be sufficient to accomplish revival.

Subsection (b) provides for revival of corporations that have failed to revive in timely fashion under subsection (a). Beginning after the expiration of the ten years provided in subsection (a), and running for ten years, these corporations can revive their existence by filing articles of amendment to the articles of incorporation, adopted in the manner described above, accompanied by an affidavit of an officer or director, setting out that the requirements of subsection (b) have been complied with. In addition to ignorance of the expiration of its period of duration, the affidavit must show that the corporation has not suffered insolvency of the kinds described in Section 14-2-640(c), and that revival will not injure the corporation's shareholders, creditors, or the public.

Subsection (c) provides that the revival of the corporation under subsections (a) or (b) relates back to the date of expiration of the period of duration. This protects the officers, directors, and shareholders from any claims that might arise under Section 14-2-204, for purporting to act as a corporation, knowing that none was in existence, or from claims that they were liable as partners.

Cross-References Amendment of articles of incorporation, see § 14-2-1003. Amendment of articles of incorporation by board of directors to extend duration, see § 14-2-1002. Assumed corporate name, see § 14-2-1506. Corporate name: generally, see § 14-2-401; reserved, see § 14-2-402. "Distribution": defined, see § 14-2-140; limitations on, see § 14-2-640. Duration of corporations, see § 14-2-302. Effective date of dissolution, see § 14-2-1408. Effective time and date of filing, see § 14-2-123. Filing fees, see § 14-2-122. Filing requirements, see § 14-2-120.

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 22-601, are included in the annotations for this Code section.

Corporation is not entirely extinguished by expiration of its charter. West v. Flynn Realty Co., 53 Ga. App. 594, 186 S.E. 753 (1936) (decided under former Code 1933, § 22-601).

Status as de facto corporation.

- During the period within which it can be revived, the company must be treated as a de facto corporation. West v. Flynn Realty Co., 53 Ga. App. 594, 186 S.E. 753 (1936) (decided under former Code 1933, § 22-601).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 22-202, are included in the annotations for this Code section.

Dissolved corporation not revived under this Code section is not a corporation.

- A corporation which dissolved by expiration of its charter prior to April 1, 1969, effective date of former Chapter 2, and which had not been revived within ten years after expiration of its period of duration as provided in former Code 1933, § 22-1326 was not a corporation for purposes of former Code 1933, § 22-907, and could not file reinstated articles of incorporation. 1980 Op. Att'y Gen. No. 80-20 (decided under former Code 1933, § 22-202).

Paragraph (a)(2) of former Code 1933, § 22-202 did not grant perpetual duration to a de facto corporation dissolved by expiration of its charter prior to effective date of former Chapter 2. 1980 Op. Att'y Gen. No. 80-20 (decided under former Code 1933, § 22-202).

Former Code 1933,

§ 22-1326 provided for survival of expired corporation. - Former Code 1933, § 22-1326 made specific provision for survival of corporation whose period of duration had expired. To extent that provisions of former Code 1933, § 22-1326 would provide perpetual duration for such a corporation, the general language of former Code 1933, § 22-202(a)(2) conflicted with specific provisions in former Code 1933, § 22-1326. If there is a conflict between general and specific provisions in one act, the specific provision controls. Thus, to extent that former Code 1933, § 22-202(a)(2) conflicted with former Code 1933, § 22-1326, the latter controlled. 1980 Op. Att'y Gen. No. 80-20 (decided under former Code 1933, § 22-202).

RESEARCH REFERENCES

Am. Jur. 2d.

- 19 Am. Jur. 2d, Corporations, § 2478 et seq.

C.J.S.

- 19 C.J.S., Corporations, § 948 et seq.

ALR.

- Reinstatement of repealed, forfeited, expired, or suspended corporate charter as validating interim acts of corporation, 42 A.L.R.4th 392.

Liability of shareholders, directors, and officers where corporate business is continued after its dissolution, 72 A.L.R.4th 419.

No results found for Georgia Code 14-2-1409.