2006 New York Code - Application For Authority.

 
    §  802.  Application  for authority. (a) Before doing business in this
  state, a foreign limited liability company shall apply for authority  to
  do business in this state by submitting to the department of state (i) a
  certificate  of  existence  or,  if no such certificate is issued by the
  jurisdiction  of  formation,  a  certified  copy  of  the  articles   of
  organization  of  the  limited  liability  company  and  all  subsequent
  amendments thereto or, if no articles of organization have been filed, a
  certified copy of the certificate filed as its organizational basis  and
  all  amendments  thereto  (if such certificate or certified copy is in a
  foreign language, a translation in English thereof  under  oath  of  the
  translator  shall  be  attached  thereto)  and  (ii)  an application for
  authority as a foreign limited liability company  entitled  "Application
  for  authority  of...  (name of foreign limited liability company) under
  section eight hundred two of the Limited Liability Company Law,"  signed
  and setting forth:
    (1)  the  name  of  the  foreign  limited  liability company and, if a
  foreign liability company's name is  not  acceptable  for  authorization
  pursuant  to  section  two  hundred four of this chapter, the fictitious
  name under which it proposes to apply for authority and do  business  in
  this  state,  which name shall be in compliance with section two hundred
  four of this chapter and shall be used by the foreign limited  liability
  company  in  all  its  dealings  with the department of state and in the
  conduct of its business in this state. The  provisions  of  section  one
  hundred  thirty  of  the  general  business  law  shall not apply to any
  fictitious name filed by a foreign limited liability company pursuant to
  this section, and a filing under  section  one  hundred  thirty  of  the
  general  business  law shall not constitute the adoption of a fictitious
  name;
    (2) the jurisdiction and date of its organization;
    (3) the county within this state in which the office  of  the  foreign
  limited  liability  company  is  to be located or if the foreign limited
  liability company shall maintain more than one office in this state, the
  county within the state in which the principal  office  of  the  foreign
  limited liability company is to be located;
    (4)  a  designation  of  the secretary of state as its agent upon whom
  process against it may be served and the post office address  within  or
  without  this state to which the secretary of state shall mail a copy of
  any process against it served upon him or her;
    (5) if it is to have a registered agent, his or her name  and  address
  within  the state and a statement that the registered agent is to be its
  agent upon whom process may be served;
    (6) the address of  the  office  required  to  be  maintained  in  the
  jurisdiction  of  its  formation by the laws of that jurisdiction or, if
  not so  required,  of  the  principal  office  of  the  foreign  limited
  liability company;
    (7)  a  statement  that  the  foreign  limited liability company is in
  existence in the jurisdiction of its formation at the time of the filing
  of such application; and
    (8) the name and address of the authorized officer in the jurisdiction
  of its formation where a copy of its articles of organization  is  filed
  or,  if  no public filing of its articles of organization is required by
  the law of the jurisdiction of formation, a statement that  the  foreign
  limited liability company shall provide, on request, a copy thereof with
  all  amendments  thereto (if such documents are in a foreign language, a
  translation in English thereof under oath of  the  translator  shall  be
  attached  thereto),  and  the name and post office address of the person
  responsible for providing such copies.
    * (b)  Within  one  hundred  twenty  days  after  the  filing  of  the
  application  for  authority  with the department of state, a copy of the
  same or a notice containing the substance  thereof  shall  be  published
  once  in  each  week  for six successive weeks, in two newspapers of the
  county  within  this  state  in  which the office of the foreign limited
  liability company is located, to be designated by the county clerk,  one
  of  which  newspapers shall be a newspaper published in the city or town
  in which the office is  intended  to  be  located,  if  a  newspaper  be
  published  therein;  or,  if  no  newspaper is published therein, in the
  newspaper  nearest  thereto,  and  proof  of  such  publication  by  the
  affidavit of the printer or publisher of each of such newspapers must be
  filed  with  the  department of state. The notice shall include: (l) the
  name of the foreign limited liability company; (2) the date of filing of
  the application for authority with  the  secretary  of  state;  (3)  the
  jurisdiction  and  date  of its organization; (4) the county within this
  state, in which the office of the foreign limited liability  company  is
  to  be  located;  (5)  a  statement that the secretary of state has been
  designated as agent of the foreign limited liability company  upon  whom
  process  against  it may be served and the post office address within or
  without this state to which the secretary of state shall mail a copy  of
  any  process  against  it  served  upon  him  or her; (6) if the foreign
  limited liability company is to have a registered agent, his or her name
  and address within this state and a statement that the registered  agent
  is  to  be  the agent of the foreign limited liability company upon whom
  process against it may be served; (7) the address of the office required
  to be maintained in the jurisdiction of its organization by the laws  of
  that jurisdiction or, if not so required, of the principal office of the
  foreign  limited  liability  company;  (8)  the  name and address of the
  authorized officer in its jurisdiction of organization where a  copy  of
  its  certificate of organization is filed or, if no public filing of its
  certificate of organization is required by the law of  its  jurisdiction
  of  organization, a statement that the foreign limited liability company
  shall provide, on request, a copy thereof with  all  amendments  thereto
  (if  such  documents  are  in  a foreign language, a translation thereof
  under oath of the translator shall be attached thereto),  and  the  name
  and  post  office  address  of the person responsible for providing such
  copies; and (9) the character or purpose of the business of such foreign
  limited liability company. Failure to cause such notice to be  published
  or  to  file  such proof within one hundred twenty days of the filing of
  the  application  for  authority  shall  prohibit  the  foreign  limited
  liability  company  from maintaining any action or special proceeding in
  this state unless and  until  such  foreign  limited  liability  company
  causes  such notice to be published and files such proof of publication.
  The failure of a foreign limited liability company to cause such  notice
  to  be  published  or  to file proof of publication shall not impair the
  validity of any contract or act of the foreign limited liability company
  or the right of any other party to the contract to maintain  any  action
  or  special  proceeding  thereon,  shall not prevent the foreign limited
  liability company from defending any action  or  special  proceeding  in
  this state.
    * NB Effective until June 1, 2006
    * (b)  (i)  Within  one  hundred  twenty  days after the filing of the
  application for authority with the department of state, a  copy  of  the
  same  or  a  notice  containing the substance thereof shall be published
  once in each week for four successive weeks, in two  newspapers  of  the
  county  within  this  state  in  which the office of the foreign limited
  liability company is intended to be located, one newspaper to be printed
  weekly and one newspaper to be printed daily, to be  designated  by  the
  county   clerk,   as  though  the  copy  or  notice  were  a  notice  or
  advertisement of judicial proceedings, and proof  of  such  publication,
  consisting  of  the  certificate  of  publication of the foreign limited
  liability  company with the affidavits of publication of such newspapers
  annexed  thereto,  must  be  filed  with  the   department   of   state.
  Notwithstanding any other provision of law, if the office of the foreign
  limited  liability  company  is  located in a county wherein a weekly or
  daily newspaper of the county, or both, has not been  so  designated  by
  the  county clerk, then the publication herein required shall be made in
  a weekly or daily newspaper of the county, or both, as the case may  be,
  which is closest to, such county, provided that any such newspaper meets
  all the other requirements of this paragraph. A copy or notice published
  in  a newspaper other than the newspaper or newspapers designated by the
  county clerk shall not be deemed to be one of the publications  required
  by  this  subdivision.  Notwithstanding  any  other  provision of law, a
  foreign limited liability company shall  not  include  for  purposes  of
  subparagraphs  five-a  and five-b of this paragraph, any foreign limited
  liability company which is (i) an investment adviser as defined  in  the
  Investment  Advisers  Act  of  1940  or  a  commodity  pool  operator or
  commodity trading advisor as defined in the Commodity Exchange  Act,  or
  (ii)   a  collective  investment  vehicle  or  any  direct  or  indirect
  subsidiary and affiliates thereof sponsored, advised or  managed  by  an
  investment adviser, commodity pool operator or commodity trading advisor
  as set forth in item (i) of this sentence. The notice shall include: (l)
  the  name  of  the  foreign  limited  liability company; (2) the date of
  filing of the application for authority with the  department  of  state;
  (3) the jurisdiction and date of its organization; (4) the county within
  this state, in which the office of the foreign limited liability company
  is  to be located; (4-a) the city, town or village therein together with
  the number and street where such office is to be  located,  or,  if  the
  street  address  of  such office has not been determined at the time the
  notice is prepared for publication, the following statement: "The street
  address of the foreign limited liability company's office  has  not  yet
  been  determined."; (5) a statement that the secretary of state has been
  designated as agent of the foreign limited liability company  upon  whom
  process  against  it may be served and the post office address within or
  without this state to which the secretary of state shall mail a copy  of
  any  process  against  it served upon him or her; (5-a) the names of the
  ten persons, or such lesser number  of  persons  as  permitted  by  this
  subparagraph who are actively engaged in the business and affairs of the
  foreign  limited  liability  company  and  who,  under  the  laws of the
  jurisdiction under  which  the  foreign  limited  liability  company  is
  formed,  are  members,  managers  or other authorized persons having the
  most valuable type of aggregate rights in such company as  provided  for
  under the laws of such jurisdiction. In complying with the provisions of
  this  subparagraph,  the  foreign limited liability company may elect to
  select any one of  the  aggregate  rights  components  of  such  company
  recognized,  under  such  laws of such jurisdiction provided that in the
  event each of such component items have less than ten members,  managers
  or  other  authorized  persons, as the case may be, such foreign limited
  liability company shall select a component item which has  the  greatest
  number of members, managers or other authorized persons, as the case may
  be;  (5-b)  the  following  statement:  "The  inclusion of the name of a
  person in this notice does not necessarily indicate that such person  is
  personally  liable  for  the  debts,  obligations  or liabilities of the
  foreign limited liability company, and such person's liability, if  any,
  under  applicable  law  is  neither increased nor decreased by reason of
  this notice."; (6) if the foreign limited liability company is to have a
  registered agent, his or her name and address within this  state  and  a
  statement  that  the  registered agent is to be the agent of the foreign
  limited liability company upon whom process against it  may  be  served;
  (7)  the  address  of  the  office  required  to  be  maintained  in the
  jurisdiction of its organization by the laws of that jurisdiction or, if
  not so  required,  of  the  principal  office  of  the  foreign  limited
  liability company; (8) the name and address of the authorized officer in
  its  jurisdiction  of  organization  where  a copy of its certificate of
  organization is filed or, if no public  filing  of  its  certificate  of
  organization is required by the law of its jurisdiction of organization,
  a statement that the foreign limited liability company shall provide, on
  request,  a  copy thereof with all amendments thereto (if such documents
  are in a foreign language, a  translation  thereof  under  oath  of  the
  translator  shall  be  attached  thereto),  and the name and post office
  address of the person responsible for providing such copies; and (9) the
  character or purpose of the business of such foreign  limited  liability
  company.  Where,  at  any time after completion of the first of the four
  weekly  publications  required  by  this  paragraph  and  prior  to  the
  completion  of  the fourth such weekly publication, there is a change in
  any of the information contained in the copy or notice as published, the
  foreign  limited  liability   company   may   complete   the   remaining
  publications  of  the  original  copy or notice, and the foreign limited
  liability company shall not  be  required  to  publish  any  further  or
  amended  copy or notice. Where, at any time after completion of the four
  weekly publications required by this paragraph, there is a change to any
  of the information contained in the copy  or  notice  as  published,  no
  further  or amended publication or republication shall be required to be
  made. If within  one  hundred  twenty  days  after  the  filing  of  its
  application  for  authority  with the department of state, proof of such
  publication, consisting of the certificate of publication of the foreign
  limited liability company with the  affidavits  of  publication  of  the
  newspapers  annexed  thereto  has  not been filed with the department of
  state, the authority of such foreign limited liability company to  carry
  on,  conduct  or transact any business in this state shall be suspended,
  effective as of the expiration of such one hundred  twenty  day  period.
  Neither the failure of a foreign limited liability company to cause such
  copy  or  notice to be published and such certificate of publication and
  affidavits of publication to be  filed  with  the  department  of  state
  within  such  one  hundred  twenty day period nor the suspension of such
  foreign limited liability company's authority to carry  on,  conduct  or
  transact  business  in this state pursuant to this paragraph shall limit
  or impair the validity of any contract or act of  such  foreign  limited
  liability company, or any right or remedy of any other party under or by
  virtue  of  any  contract,  act  or  omission  of  such  foreign limited
  liability company, or the right of  any  other  party  to  maintain  any
  action  or  special proceeding on any such contract, act or omission, or
  right of such foreign limited liability company to defend any action  or
  special  proceeding  in  this  state.  If,  at  any  time  following the
  suspension of a foreign limited liability company's authority  to  carry
  on,  conduct  or  transact  business  in  this  state  pursuant  to this
  paragraph, such foreign limited liability company shall cause  proof  of
  publication  in  substantial  compliance with the provisions (other than
  the one hundred twenty day period) of this paragraph, consisting of  the
  certificate of publication of the foreign limited liability company with
  the  affidavits  of publication of the newspapers annexed thereto, to be
  filed with the department of state,  such  suspension  of  such  foreign
  limited  liability  company's authority to carry on, conduct or transact
  business shall be annulled.
    (ii)(1) A foreign limited liability company which was formed and filed
  its application for authority with the department of state prior to  the
  effective  date  of this paragraph and complied with the publication and
  filing requirements of this subdivision  as  in  effect  prior  to  such
  effective  date  shall  not  be  required  to  make  any  publication or
  republication or any filing under paragraph (i) of this subdivision, and
  shall not be subject to suspension pursuant to this subdivision.
    (2) Within eighteen months after the effective date of this paragraph,
  a foreign limited liability company  which  was  formed  and  filed  its
  application  for  authority  with  the department of state prior to such
  effective date and which did not comply with the publication and  filing
  requirements  of  this  subdivision as in effect prior to such effective
  date shall publish a copy of its application for authority or  a  notice
  containing  the substance thereof in the manner required (other than the
  one hundred twenty day period) by this paragraph as in effect  prior  to
  such  effective  date  and file proof of such publication, consisting of
  the certificate of publication of the foreign limited liability  company
  with  the  affidavits  of publication of the newspapers annexed thereto,
  with the department of state.
    (3) If a foreign limited liability company  that  is  subject  to  the
  provisions  of  subparagraph  two  of  this  paragraph fails to file the
  required proof of  publication  with  the  department  of  state  within
  eighteen  months  after  the  effective  date  of  this  paragraph,  its
  authority to carry on, conduct or transact any business  in  this  state
  shall  be  suspended,  effective  as  of the expiration of such eighteen
  month period.
    (4) Neither the failure of a foreign limited liability company that is
  subject to the provisions of subparagraph two of this paragraph to fully
  comply with the provisions of said subparagraph two nor  the  suspension
  of  such  foreign  limited  liability  company's  authority to carry on,
  conduct or transact any business in this state pursuant to  subparagraph
  three  of  this  paragraph  shall  impair  or  limit the validity of any
  contract or act of such foreign limited liability company, or any  right
  or  remedy of any other party under or by virtue of any contract, act or
  omission of such foreign limited liability company, or the right of  any
  other  party  to  maintain  any action or special proceeding on any such
  contract, act or omission, or right of such  foreign  limited  liability
  company to defend any action or special proceeding in this state.
    (5)  If,  at  any  time  following the suspension of a foreign limited
  liability company's authority to carry on, conduct or transact  business
  in  this  state,  pursuant to subparagraph three of this paragraph, such
  foreign limited liability company shall cause proof  of  publication  in
  substantial  compliance  with the provisions (other than the one hundred
  twenty day period) of paragraph (i) of this subdivision,  consisting  of
  the  certificate of publication of the foreign limited liability company
  with the affidavits of publication of the newspapers annexed thereto, to
  be filed with the department of state, such suspension of  such  foreign
  limited  liability  company's authority to carry on, conduct or transact
  business shall be annulled.
    (6) For the purposes of this paragraph, a  foreign  limited  liability
  company  which  was  formed and filed its application for authority with
  the department of state prior to the effective date  of  this  paragraph
  shall  be  deemed  to  have  complied  with  the  publication and filing
  requirements of this subdivision as in effect prior  to  such  effective
  date  if  (i) the foreign limited liability company was formed and filed
  its application for authority with the department of state on  or  after
  January  first, nineteen hundred ninety-nine and prior to such effective
  date and the foreign  limited  liability  company  filed  at  least  one
  affidavit of the printer or publisher of a newspaper with the department
  of  state  at any time prior to such effective date, or (ii) the foreign
  limited liability company was  formed  and  filed  its  application  for
  authority  with the department of state prior to January first, nineteen
  hundred ninety-nine, without  regard  to  whether  the  foreign  limited
  liability  company  did  or did not file any affidavit of the printer or
  publisher of a newspaper with the secretary of state.
    (iii)  The  information  in  a  notice  published  pursuant  to   this
  subdivision  shall be presumed to be in compliance with and satisfaction
  of the requirements of this subdivision. In particular, but not  by  way
  of  limitation,  the  list  of  names of persons included in such notice
  pursuant to subparagraph five-a of paragraph  (i)  of  this  subdivision
  shall  be  presumed  to be complete and accurate and to be in compliance
  with and satisfaction of  the  requirements  of  this  subdivision,  and
  neither  the  omission  of  any  name  or  names  which should have been
  included in such list, nor the inclusion of  any  name  or  names  which
  should  not  have  been included in such list, nor any misspelling of or
  other irregularity with respect to any name or names  included  in  such
  list,  shall  negate  or  otherwise limit or impair the effectiveness of
  such notice or the publication thereof,  provided  that  such  omission,
  inclusion,  misspelling  or irregularity was not willfully made with the
  intention of deceiving the public.
    * NB Effective June 1, 2006