2005 North Carolina Code - General Statutes Article 7 - Foreign Limited Liability Companies.

Article 7.

Foreign Limited Liability Companies.

§ 57C‑7‑01.� Law governing.

The laws of the state or other jurisdiction under which a foreign limited liability company is formed shall govern its formation, organization, and internal affairs and the liability of its managers and members, regardless of whether the foreign limited liability company procured or should have procured a certificate of authority under this Chapter, and a foreign limited liability company shall not be denied a certificate of authority by reason of any difference between the laws under which it is formed and the laws of this State. A foreign limited liability company with a valid certificate of authority has the same but no greater rights and has the same but no greater privileges as, and is subject to the same duties, restrictions, penalties, and liabilities now or later imposed on, a domestic limited liability company of like character. (1993, c. 354, s. 1; 2001‑387, s. 78.)

 

§ 57C‑7‑02.� Authority to transact business required.

(a)������ A foreign limited liability company may not transact business in this State until it obtains a certificate of authority from the Secretary of State.

(b)������ Without excluding other activities that may not constitute transacting business in this State, a foreign limited liability company shall not be considered to be transacting business in this State for the purposes of this Chapter by reason of carrying on in this State any one 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 managers or members or carrying on other activities concerning its internal affairs;

(3)������ Maintaining bank accounts or borrowing money in this State, with or without security, even if such borrowings are repeated and continuous transactions;

(4)������ Maintaining offices or agencies for the transfer, exchange, and registration of its membership interests, or appointing and maintaining trustees or depositories with relation to its membership interests;

(5)������ Soliciting or procuring orders, whether by mail or through employees or agents or otherwise, where the orders require acceptance without this State before becoming binding contracts;

(6)������ Making or investing in loans with or without security including servicing of mortgages or deeds of trust through independent agencies within the State, the conducting of foreclosure proceedings and sales, the acquiring of property at foreclosure sale, and the management and rental of such property for a reasonable time while liquidating its investment, provided no office or agency therefor is maintained in this State;

(7)������ Taking security for or collecting debts due to it or enforcing any rights in property securing the same;

(8)������ Transacting business in interstate commerce;

(9)������ Conducting an isolated transaction completed within a period of six months and not in the course of a number of repeated transactions of like nature;

(10)���� Selling through independent contractors; and

(11)���� Owning, without more, real or personal property.

(c)������ This section does not apply in determining the contacts or activities that may subject a foreign limited liability company to service of process or taxation in this State or to regulation under any other law of this State. (1993, c. 354, s. 1.)

 

§ 57C‑7‑03.� Consequences of transacting business without authority.

(a)������ No foreign limited liability company transacting business in this State without permission obtained through a certificate of authority under this Chapter shall be permitted to maintain any action or proceeding in any court of this State unless the foreign limited liability company shall have obtained a certificate of authority prior to trial. An issue arising under this subsection must be raised by motion and determined by the trial judge prior to trial.

(b)������ A foreign limited liability company failing to obtain a certificate of authority as required by this Chapter shall be liable to the State for the years or parts thereof during which it transacted business in this State without a certificate of authority in an amount equal to all fees and taxes which would have been imposed by law upon the foreign limited liability company had it duly applied for and received such permission, plus interest and all penalties imposed by law for failure to pay such fees and taxes. In addition, the foreign limited liability company shall be liable for a civil penalty of ten dollars ($10.00) for each day, but not to exceed a total of one thousand dollars ($1,000) for each year or part thereof, it transacts business in this State without a certificate of authority. The Attorney General may bring actions to recover all amounts due the State under the provisions of this subsection. The clear proceeds of civil penalties provided for in this subsection shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C‑457.2.

(c)������ Notwithstanding subsection (a) of this section, the failure of a foreign limited liability company to obtain a certificate of authority does not impair the validity of its acts or prevent it from defending any proceeding in this State.

(d)������ The Secretary of State is directed to require that every foreign limited liability company transacting business in this State comply with the provisions of this Chapter. The Secretary of State may employ such assistants as shall be deemed necessary in the Secretary of State's office for the purpose of enforcing the provisions of this Article and for making such investigations as shall be necessary to ascertain foreign limited liability companies transacting business in this State that may have failed to comply with the provisions of this Chapter. (1993, c. 354, s. 1; 1998‑215, s. 119.)

 

§ 57C‑7‑04.� Application for certificate of authority.

(a)������ A foreign limited liability company may apply for a certificate of authority to transact business in this State by delivering an application to the Secretary of State for filing. The application must set forth:

(1)������ The name of the foreign limited liability company or a name that satisfies the requirements of Article 3 of Chapter 55D of the General Statutes;

(2)������ The name of the state or country under whose law it is formed;

(3)������ Its date of formation and period of duration;

(4)������ The street address, and the mailing address if different from the street address, of its principal office, if any, and the county in which the principal office, if any, is located;

(5)������ The street address, and the mailing address if different from the street address, of its registered office in this State and the name of its registered agent at that office; and

(6)������ The names and usual business addresses of its current managers.

(b)������ The foreign limited liability company 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 limited liability company records in the state or country under whose law it is formed.

(c)������ If the Secretary of State finds that the application conforms to law, the Secretary of State shall, when all taxes and fees have been tendered as prescribed in this Chapter:

(1)������ Endorse on the application and an exact or conformed copy thereof the word "filed" and the hour, day, month, and year of the filing thereof;

(2)������ File in his office the application and the certificate of existence (or document of similar import as described in subsection (b) of this section);

(3)������ Issue a certificate of authority to transact business in this State to which the Secretary of State shall affix the exact or conformed copy of the application; and

(4)������ Send to the foreign limited liability company or its representative the certificate of authority, together with the exact or conformed copy of the application affixed thereto. (1993, c. 354, s. 1; 2000‑140, s. 50; 2001‑358, s. 28; 2001‑387, ss. 79, 80, 173, 175(a); 2001‑413, s. 6.)

 

§ 57C‑7‑05.� Amended certificate of authority.

(a)������ A foreign limited liability company authorized to transact business in this State must obtain an amended certificate of authority from the Secretary of State if it changes:

(1)������ Its name;

(2)������ The period of its duration; or

(3)������ The state or country of its formation.

(b)������ A foreign limited liability company may apply for an amended certificate of authority by delivering an application to the Secretary of State for filing that sets forth:

(1)������ The name of the limited liability company and the name in which the limited liability company is authorized to transact business in North Carolina if different;

(2)������ The name of the state or country under whose law it is formed;

(3)������ The date it was originally authorized to transact business in this State; and

(4)������ A statement of the change or changes being made.

Except for the content of the application, the requirements of G.S. 57C‑7‑03 for obtaining an original certificate of authority apply to obtaining an amended certificate under this section. (1993, c. 354, s. 1; 2001‑387, ss. 81, 82.)

 

§ 57C‑7‑06: Repealed by Session Laws 2001‑358, s. 29.

 

§ 57C‑7‑07.� Registered office and registered agent of foreign limited liability company.

Each foreign limited liability company authorized to transact business or conduct affairs in this State 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(h); 2001‑358, s. 49(b); 2001‑387, ss. 173, 175(a); 2001‑413, s. 6.)

 

§§ 57C‑7‑08 through 57C‑7‑10: Repealed by Session Laws 2001‑358, s. 49, effective January 1, 2002.

 

§ 57C‑7‑11.� Withdrawal of foreign limited liability company.

(a)������ A foreign limited liability company authorized to transact business in this State may not withdraw from this State until it obtains a certificate of withdrawal from the Secretary of State.

(b)������ A foreign limited liability company authorized to transact business in this State may apply for a certificate of withdrawal by delivering an application to the Secretary of State for filing. The application must set forth:

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

(2)������ That it is not transacting business in this State and that it surrenders its authority to transact business in this State;

(3)������ That the foreign limited liability company revokes the authority of its registered agent to accept service of process and consents that service of process in any action or proceeding based upon any cause of action arising in this State, or arising out of business transacted in this State, during the time the foreign limited liability company was authorized to transact business in this State, may thereafter be made on such foreign limited liability company by service thereof on the Secretary of State;

(4)������ A mailing address to which the Secretary of State may mail a copy of any process served on the Secretary of State under subdivision (3) of this subsection; and

(5)������ A commitment to file with the Secretary of State a statement of any subsequent change in its mailing address.

(c)������ If the Secretary of State finds that the application conforms to law, the Secretary of State shall:

(1)������ Endorse on the application and an exact or conformed copy thereof the word "filed" and the hour, day, month, and year of the filing thereof;

(2)������ File the application in the Secretary of State's office;

(3)������ Issue a certificate of withdrawal to which the Secretary of State shall affix the exact or conformed copy of the application; and

(4)������ Send to the foreign limited liability company or its representative the certificate of withdrawal together with the exact or conformed copy of the application affixed thereto.

(d)������ After the withdrawal of the foreign limited liability company is effective, service of process on the Secretary of State in accordance with subsection (b) of this section 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 that process and the fee required by G.S. 57C‑1‑22(b). Upon receipt of process in the manner provided in this subsection, the Secretary of State shall mail a copy of the process by registered or certified mail, return receipt requested, to the foreign limited liability company at the mailing address designated pursuant to subsection (b) of this section. (1993, c. 354, s. 1; 2001‑387, ss. 86, 87.)

 

§ 57C‑7‑12.� Withdrawal of limited liability company by reason of a merger, consolidation, or conversion.

(a)������ Whenever a foreign limited liability company authorized to transact business in this State ceases its separate existence as a result of a statutory merger, consolidation, or conversion permitted by the laws of the state or country under which it was formed, or converts into another type of entity as permitted by those laws, the surviving or resulting entity shall apply for a certificate of withdrawal for the foreign limited liability company by delivering to the Secretary of State for filing a copy of the articles of merger, consolidation, or conversion or a certificate reciting the facts of the merger, consolidation, or conversion, duly authenticated by the Secretary of State or other official having custody of limited liability company records in the state or country under the laws of which the foreign limited liability company was formed. If the surviving or resulting entity is not authorized to transact business or conduct affairs in this State, the articles or certificate must be accompanied by an application which must set forth:

(1)������ The name of the foreign limited liability company authorized to transact business in this State, the type of entity and name of the surviving or resulting entity, and a statement that the surviving or resulting entity is not authorized to transact business or conduct affairs in this State;

(2)������ A statement that the surviving or resulting entity consents that service of process based upon any cause of action arising in this State, or arising out of business transacted in this State, during the time the foreign limited liability company was authorized to transact business in this State, may thereafter be made by service thereof on the Secretary of State;

(3)������ A mailing address to which the Secretary of State may mail a copy of any process served on the Secretary of State under subdivision (a)(2) of this section; and

(4)������ A commitment to file with the Secretary of State a statement of any subsequent change in its mailing address.

(b)������ If the Secretary of State finds that the articles or certificate and the application for withdrawal, if required, conform to law, the Secretary of State shall:

(1)������ Endorse on the articles or certificate and the application for withdrawal, if required, the word "filed" and the hour, day, month, and year of filing thereof;

(2)������ File the articles or certificate and the application, if required;

(3)������ Issue a certificate of withdrawal; and

(4)������ Send to the surviving or resulting entity or its representative the certificate of withdrawal, together with the exact or conformed copy of the application, if required, affixed thereto.

(c)������ After the withdrawal of the foreign limited liability company is effective, service of process on the Secretary of State in accordance with subsection (a) of this section 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 process and the fee required by G.S. 57C‑1‑22(b). Upon receipt of process in the manner provided in this subsection, the Secretary of State shall immediately mail a copy of the process by registered or certified mail, return receipt requested, to the surviving or resulting entity at the mailing address designated pursuant to subsection (a) of this section. (1993, c. 354, s. 1; 1999‑369, s. 3.6; 2000‑140, s. 101(i); 2001‑387, ss. 88, 89; 2001‑487, s. 62(k).)

 

§ 57C‑7‑13.� Action by Attorney General.

The Attorney General may maintain an action to restrain a foreign limited liability company from transacting business in this State in violation of this Article. (1993, c. 354, s. 1.)

 

§ 57C‑7‑14.� Revocation of certificate of authority.

(a)������ The Secretary of State may administratively revoke the certificate of authority of a foreign limited liability company authorized to transact business in this State if the Secretary of State determines that:

(1)������ The foreign limited liability company has not paid, within 60 days after they are due, any penalties, fees, or other payments due under this Chapter;

(2)������ The foreign limited liability company has not delivered its annual report to the Secretary of State on or before the date it is due;

(3)������ The foreign limited liability company has been without a registered agent or a registered office in this State for 60 days or more;

(4)������ The foreign limited liability company does not inform the Secretary of State as required by this Chapter that its registered agent or registered office has been changed, that its registered agent has resigned, or that its registered office has been discontinued within 60 days of the change, resignation, or discontinuance;

(5)������ An organizer, member, manager, or agent of the foreign limited liability company has signed a document that he knew was false in any material respect with the intent the document be delivered to the Secretary of State for filing;

(6)������ The Secretary of State receives a duly authenticated certificate from the secretary of state or other official having custody of limited liability company records in the state or country under whose law the foreign limited liability company is organized stating that it has been dissolved or has ceased to exist as the result of a merger or otherwise; or

(7)������ The limited liability company is exceeding the authority conferred upon it by this Chapter.

(b)������ If the Secretary of State determines that one or more grounds exist under this section for revocation of the certificate of authority, the Secretary of State shall mail the foreign limited liability company written notice of his determination. If, within 60 days after notice is mailed, a foreign limited liability company does not correct each ground for revocation, or demonstrate to the reasonable satisfaction of the Secretary of State that each ground does not exist, the Secretary of State shall revoke the foreign limited liability company's certificate of authority by signing a certificate of revocation that recites the ground or grounds for the revocation, shall file the certificate of revocation, and shall mail a copy to the foreign limited liability company. The authority of the foreign limited liability company to transact business in this State shall cease on the date the certificate of authority is revoked by the filing of the certificate of revocation by the Secretary of State.

(c)������ Upon the revocation of a foreign limited liability company's certificate of authority, the Secretary of State shall become the foreign limited liability company's agent for service of process in any proceeding based on a cause of action arising in this State or arising out of business transacted in this State during the time the foreign limited liability company was authorized to transact business in this State. The Secretary of State shall then proceed in accordance with G.S. 55D‑33.

(d)������ A foreign limited liability company may appeal the Secretary of State's revocation of its certificate of authority under the same procedures that a foreign corporation may appeal the revocation of its certificate of authority pursuant to G.S. 55‑15‑32 and G.S. 55‑15‑33. (1993, c. 354, s. 1; 2001‑358, s. 49(d); 2001‑387, ss. 173, 175(a); 2001‑413, s. 6.)