2005 North Carolina Code - General Statutes Article 2 - Purposes, Powers, Formation, Annual Report, Name, Registered Office, and Agent.

Article 2.

Purposes, Powers, Formation, Annual Report, Name, Registered Office, and Agent.

Part 1. Purposes and Powers.

§ 57C‑2‑01.  Purposes.

(a)       Every limited liability company formed under this Chapter has the purpose of engaging in any lawful business unless a more limited lawful purpose is set forth in its articles of organization.

(b)       A domestic or foreign limited liability company engaging in a business that is subject to regulation under another statute of this State may be formed or authorized to transact business under this Chapter only if permitted by and subject to all limitations of the other statute giving effect to subsection (c) of this section.

(c)       Subsections (a) and (b) of this section to the contrary notwithstanding and except as set forth in this subsection, a domestic or foreign limited liability company shall engage in rendering professional services only to the extent that a professional corporation acting pursuant to Chapter 55B of the General Statutes or a corporation acting pursuant to Chapter 55 of the General Statutes may engage in rendering professional services under the conditions and limitations imposed by an applicable licensing statute. Chapter 55B of the General Statutes and each applicable licensing statute are deemed amended to provide that professionals licensed under the applicable licensing statute may render professional services through a domestic or foreign limited liability company. For purposes of applying the provisions, conditions, and limitations of Chapter 55B of the General Statutes and the applicable licensing statute to domestic and foreign limited liability companies that engage in rendering professional services, (i) unless the context clearly requires otherwise, references to Chapter 55 of the General Statutes (the North Carolina Business Corporation Act) shall be treated as references to this Chapter, and references to a "corporation" or "foreign corporation" shall be treated as references to a limited liability company or foreign limited liability company, respectively, (ii) members shall be treated in the same manner as shareholders of a professional corporation, (iii) managers and directors shall be treated in the same manner as directors of a professional corporation, (iv) the persons signing the articles of organization of a limited liability company shall be treated in the same manner as the incorporators of a professional corporation, and (v) the name of a domestic or foreign limited liability company so engaged shall comply with Article 3 of Chapter 55D of the General Statutes and, in addition, shall contain the word "Professional" or the abbreviation "P.L.L.C." or "PLLC". For purposes of this subsection, "applicable licensing statute" shall mean those provisions of the General Statutes referred to in G.S. 55B‑2(6).

Nothing in this Chapter shall be interpreted to abolish, modify, restrict, limit, or alter the law in this State applicable to the professional relationship and liabilities between the individual furnishing the professional services and the person receiving the professional services, the standards of professional conduct applicable to the rendering of the services, or any responsibilities, obligations, or sanctions imposed under applicable licensing statutes. A member, manager, director, or executive of a professional limited liability company is not individually liable, directly or indirectly, including by indemnification, contribution, assessment, or otherwise, for debts, obligations, and liabilities of, or chargeable to, the professional limited liability company that arise from errors, omissions, negligence, malpractice, incompetence, or malfeasance committed by another member, manager, director, executive, employee, agent, or other representative of the professional limited liability company; provided, however, nothing in this Chapter shall affect the liability of a member, manager, director, or executive of a professional limited liability company for his or her own errors, omissions, negligence, malpractice, incompetence, or malfeasance committed in the rendering of professional services. (1993, c. 354, s. 1; 1995, c. 351, s. 21; 1999‑362, s. 3; 2001‑358, s. 26; 2001‑387, ss. 55, 173, 175(a); 2001‑413, s. 6.)

 

§ 57C‑2‑02.  Powers of the limited liability company.

Unless its articles of organization or this Chapter provide otherwise, each limited liability company has the same powers as an individual to do all things necessary or convenient to carry out its business and affairs, including, without limitation, power:

(1)       To sue and be sued, complain, and defend in its own name;

(2)       To make and amend operating agreements, not inconsistent with its articles of organization or with the laws of this State, for managing the business and regulating the affairs of the limited liability company;

(3)       To purchase, receive, lease, or otherwise acquire, and own, hold, improve, use, and otherwise deal with, real or personal property, or any legal or equitable interest in property, wherever located;

(4)       To sell, convey, mortgage, pledge, lease, exchange, and otherwise dispose of all or any part of its property;

(5)       To purchase, receive, subscribe for, or otherwise acquire; own, hold, vote, use, sell, mortgage, lend, pledge, or otherwise dispose of; and deal in and with shares or other interests in, or obligations of, any other entity;

(6)       To make contracts and guarantees, incur liabilities, borrow money, issue its notes, bonds, and other obligations (which may be convertible into or include the option to purchase other interests in the limited liability company), and secure any of its obligations by mortgage or pledge of any of its property, franchises, or income;

(7)       To lend money, invest and reinvest its funds, and receive and hold real and personal property as security for repayment;

(8)       To be a promoter, partner, member, associate, or manager of any partnership, joint venture, trust, or other entity;

(9)       To conduct its business, locate offices, and exercise the powers granted by this Chapter within or without this State;

(10)     To elect or appoint managers, directors, executives, officers, employees, and agents of the limited liability company, define their duties, fix their compensation, and lend them money and credit;

(11)     To pay pensions and establish pension plans, pension trusts, profit‑sharing plans, and other benefit or incentive plans for any or all of its current or former managers, directors, executives, officers, employees, and agents;

(12)     To make donations for the public welfare or for charitable, religious, cultural, scientific, or educational purposes;

(13)     To transact any lawful business that will aid governmental policy;

(14)     To make payments or donations, or do any other act, not inconsistent with law, that furthers the business and affairs of the limited liability company;

(15)     To provide insurance for its benefit on the life or physical or mental ability of any of its managers, directors, executives, officers, or employees or on the life or physical or mental ability of any owner of any interest in the limited liability company for the purpose of acquiring the interest owned by him at the time of his death or disability, and for these purposes the limited liability company is deemed to have an insurable interest in its managers, directors, executives, officers, employees, or members and other interest owners; and to provide insurance for its benefit on the life or physical or mental ability of any other person in whom it has an insurable interest; and

(16)     To render professional services, subject to G.S. 57C‑2‑01(c). (1993, c. 354, s. 1; 2001‑387, s. 56.)

 

§§ 57C‑2‑03 through 57C‑2‑19.  Reserved for future codification purposes.

 

Part 2. Formation; Articles of Organization; Amendment of Articles; Annual Report.

§ 57C‑2‑20.  Formation.

(a)       One or more persons may form a limited liability company by delivering executed articles of organization to the Secretary of State for filing. A limited liability company may also be formed through the conversion of another business entity pursuant to Part 1 of Article 9A of this Chapter.

(b)      (1)       When the filing by the Secretary of State of the articles of organization becomes effective, the proposed organization becomes a limited liability company subject to this Chapter and to the purposes, conditions, and provisions stated in the articles of organization.

(2)       Filing of the articles of organization by the Secretary of State is conclusive evidence of the formation of the limited liability company, except in a proceeding by the State to cancel or revoke the articles of organization or involuntarily dissolve the limited liability company.

(c)       Organization of a limited liability company requires one or more initial members and any further action as may be determined by the initial member or members. If initial members are not identified in the articles of organization of a limited liability company in the manner provided in G.S. 57C‑3‑01(a), the organizers shall hold one or more meetings at the call of a majority of the organizers to identify the initial members of the limited liability company. Unless otherwise provided in this Chapter or in the articles of organization of the limited liability company, all decisions to be made by the organizers at such meetings shall require the approval, consent, agreement, or ratification of a majority of the organizers. Unless otherwise provided in the articles of organization, the organizers may, in lieu of a meeting, take action as described in this subsection by written consent signed by all of the organizers. The written consent may be incorporated in, or otherwise made part of, the initial written operating agreement of the limited liability company. (1993, c. 354, s. 1; 1997‑485, s. 28; 1999‑189, s. 2.2; 1999‑369, s. 3.4; 1999‑456, s. 50; 2000‑140, ss. 10(a), 10(b); 2001‑387, s. 57.)

 

§ 57C‑2‑21.  Articles of organization.

(a)       The articles of organization must set forth:

(1)       A name for the limited liability company that satisfies the provisions of G.S. 55D‑20 and G.S. 55D‑21;

(2)       If the limited liability company is to dissolve by a specific date, the latest date on which the limited liability company is to dissolve. If no date for dissolution is specified, there shall be no limit on the duration of the limited liability company;

(3)       The name and address of each person executing the articles of organization and whether the person is executing the articles of organization in the capacity of a member or an organizer;

(4)       The street address, and the mailing address if different from the street address, of the limited liability company's initial registered office, the county in which the initial registered office is located, and the name of the limited liability company's initial registered agent at that address;

(4a)     The street address, and the mailing address if different from the street address, of the limited liability company's principal office, if any, and the county in which the principal office, if any, is located; and

(5)       Unless all of the members by virtue of their status as members shall be managers of the limited liability company, a statement that, except as provided in G.S. 57C‑3‑20(a), the members shall not be managers by virtue of their status as members.

(b)       The articles of organization may set forth any other provision, not inconsistent with law, including any other matter that under this Chapter is permitted to be set forth in an operating agreement.

(c)       The articles of organization need not set forth any of the powers enumerated in this Chapter. (1993, c. 354, s. 1; 1999‑189, s. 2.3; 2000‑140, s. 101(t); 2001‑358, s. 27; 2001‑387, ss. 58, 173, 175(a); 2001‑413, s. 6.)

 

§ 57C‑2‑22.  Amendment of articles of organization.

(a)       The articles of organization shall be amended when:

(1)       There is a change in the name of the limited liability company;

(2)       There is a false or erroneous statement in the articles of organization;

(3)       There is a change in the time as stated in the articles of organization for the dissolution of the limited liability company; or

(4)       The members desire to make a change in the articles of organization.

(b)       Unless otherwise provided in the articles of organization or a written operating agreement, any amendment to the articles of organization shall require the unanimous vote of the members or, if no initial members of the limited liability company have been identified in the manner provided in this Chapter, by the unanimous vote of the organizers. (1993, c. 354, s. 1; 1999‑189, s. 2.4; 2000‑140, s. 101(t).)

 

§ 57C‑2‑22.1.  Restated articles of organization.

(a)       A limited liability company may restate its articles of organization at any time with or without member action.

(b)       The restated articles of organization may include one or more amendments to the articles of organization. Unless otherwise provided in the articles of organization or a written operating agreement, any amendment requires the unanimous vote of the members or, if no initial members of the limited liability company have been identified in the manner provided in this Chapter, by the unanimous vote of the organizers. The restated articles of organization may include a statement of the address of the current registered office and the name of the current registered agent of the limited liability company.

(c)       A limited liability company restating its articles of organization shall deliver to the Secretary of State for filing articles of restatement that:

(1)       Set forth the name of the limited liability company.

(2)       Attach as an exhibit thereto the text of the restated articles of organization.

(3)       State that the restated articles of organization do not contain an amendment or, if the articles do contain an amendment, that there is an amendment that was approved as required by this Chapter.

(d)       Duly adopted restated articles of organization supersede the original articles of organization and all amendments to them.

(e)       The Secretary of State may certify restated articles of organization as the articles of organization currently in effect, without including the other information required by subsection (c) of this section. (1997‑485, s. 18; 1999‑189, s. 2.5; 2000‑140, s. 101(t).)

 

§ 57C‑2‑23.  Annual report for Secretary of State.

(a)       Each domestic limited liability company other than a professional limited liability company governed by G.S. 57C‑2‑01(c) and each foreign limited liability company authorized to transact business in this State, shall deliver to the Secretary of State for filing an annual report, in a form prescribed by the Secretary of State, that sets forth all of the following:

(1)       The name of the limited liability or foreign limited liability company and the state or country under whose law it is formed.

(2)       The street address, and the mailing address if different from the street address, of the registered office, the county in which the registered office is located, and the name of its registered agent at that office in this State, and a statement of any change of the registered office or registered agent, or both.

(3)       The address and telephone number of its principal office.

(4)       The names and business addresses of its managers or, if the limited liability company has never had members, its organizers.

(5)       A brief description of the nature of its business.

If the information contained in the most recently filed annual report has not changed, a certification to that effect may be made instead of setting forth the information required by subdivisions (2) through (5) of this subsection. The Secretary of State shall make available the form required to file an annual report.

(b)       Information in the annual report must be current as of the date the annual report is executed on behalf of the limited liability company or the foreign limited liability company.

(c)       The Secretary of State must notify limited liability companies of the annual report filing requirement. The annual report shall be delivered to the Secretary of State by April 15th of each year.

(d)       If an annual report does not contain the information required by this section, the Secretary of State shall promptly notify the reporting domestic or foreign limited liability company in writing and return the report to it for correction. If the report is corrected to contain the information required by this section and delivered to the Secretary of State within 30 days after the effective date of notice, it is deemed to be timely filed.

(e)       Amendments to any previously filed annual report may be filed with the Secretary of State at any time for the purpose of correcting, updating, or augmenting the information contained in the annual report. (1993, c. 354, s. 1; 1997‑475, s. 6.7; 2001‑387, ss. 59, 59A.)

 

§§ 57C‑2‑24 through 57C‑2‑29.  Reserved for future codification purposes.

 

§ 57C‑2‑30 through 57C‑2‑34: Repealed by Session Laws 2001‑358, s. 30, effective January 1, 2002.

 

§§ 57C‑2‑35 through 57C‑2‑39: Reserved for future codification purposes.

 

Part 4. Registered Office and Registered Agent.

§ 57C‑2‑40.  Registered office and registered agent.

Each limited liability company must maintain a registered office and registered agent as required by Article 4 of Chapter 55D of the General Statutes and is subject to service on the Secretary of State under that Article. (1993, c. 354, s. 1; 2000‑140, s. 101(g); 2001‑358, s. 49(a); 2001‑387, ss. 173, 175(a); 2001‑413, s. 6.)

 

§§ 57C‑2‑41 through 57C‑2‑42: Repealed by Session Laws 2001‑358, s. 49, effective January 1, 2002.

 

§ 57C‑2‑43.  Service on limited liability company.

(a)       A limited liability company's registered agent is an agent of the limited liability company for service of process, notice, or demand required or permitted by law to be served on the limited liability company.

(b)       Whenever a limited liability company shall fail to appoint or maintain a registered agent in this State, or whenever its registered agent cannot with due diligence be found at the registered office, then the Secretary of State shall be an agent of the limited liability company upon whom any process, notice, or demand may be served. Service on the Secretary of State of any such process, notice, or demand shall be made by delivering to and leaving with the Secretary of State or with any clerk authorized by the Secretary of State to accept service of process, duplicate copies of the process, notice, or demand and the fee required by G.S. 57C‑1‑22(b). In the event any such process, notice, or demand is served on the Secretary of State in the manner provided for in this section, the Secretary of State shall immediately mail one of the copies thereof, by registered or certified mail, return receipt requested, to the limited liability company at its principal office or, if there is no mailing address for the principal office on file, to the limited liability company at its registered office. Service on a limited liability company under this subsection shall be effective for all purposes from and after the date of the service on the Secretary of State.

(c)       The Secretary of State shall keep a record of all processes, notices, and demands served upon the Secretary of State under this section and shall record therein the time of the service and his action with reference thereto.

(d)       Nothing herein contained shall limit or affect the right to serve any process, notice, or demand required or permitted by law to be served upon a limited liability company in any other manner now or hereafter permitted by law. (1993, c. 354, s. 1; 2000‑140, s. 49.)