[Second Reprint]

ASSEMBLY, No. 2875

 

STATE OF NEW JERSEY

 

INTRODUCED MARCH 24, 1997

 

 

By Assemblymen STUHLTRAGER, RUSSO and Felice

 

 

An Act concerning limited liability companies, amending P.L.1973, c.367 and amending and supplementing P.L.1993, c.210.

 

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

 

    21. Section 7 of P.L. 1993, c.210 (C.42:2B-7) is amended to read as follows:

    7. a. The registered agent of a domestic limited liability company or a foreign limited liability company authorized to transact business in this State may resign by complying with the provisions of this section.

    b. The registered agent of a foreign or domestic limited liability company may resign and appoint a successor registered agent by filing a certificate in the office of the Secretary of State, stating that it resigns and the name and address of the successor registered agent. There shall be attached to such certificate a statement executed by the affected limited liability company ratifying and approving such change of registered agent. Upon such filing, the successor registered agent shall become the registered agent of each limited liability company which has ratified and approved the substitution and the successor registered agent's address, as stated in such certificate, shall become the address of each limited liability company's registered office in this State. The Secretary of State shall furnish to the successor registered agent upon request a certified copy of the certificate of resignation. Filing of the certificate of resignation shall be deemed to be an amendment of the certificate of formation of the limited liability company affected thereby and the limited liability company shall not be required to take any further action with respect thereto, to amend its certificate of formation under this act.

    c. The registered agent of a limited liability company may resign without appointing a successor registered agent by complying with the following provisions:

    (1) The registered agent, or, in the case of a registered agent who is deceased or has been declared incompetent by a court of competent jurisdiction, his legal representative, shall serve a notice of resignation by certified mail, return receipt requested, upon the limited liability company at the address last known to the agent, and shall make an affidavit of such service. If service cannot be made, the affidavit shall so state, and shall state briefly why service cannot be made. The affidavit, together with a copy of notice of resignation, shall be filed in the office of the Secretary of State.

    (2) The resignation shall become effective 30 days after filing the affidavit of service in the office of the Secretary of State or upon the designation by the limited liability company of a new registered agent pursuant to this act, whichever is earlier. If the limited liability company fails to designate a new registered agent within the 30 day period, the limited liability company shall thereafter be deemed to have no registered agent or registered office in this State, until the limited liability company files a certificate of change of address of registered office and registered agent indicating the new registered office and registered agent.

    [(3) If any certificate of change replacing a resigned agent is not filed, the limited liability company shall, after written demand therefor by the Secretary of State, forfeit to the State a penalty of $200 for each year or part thereof until an agent is appointed. The Secretary of State may issue a certificate to the Clerk of the Superior Court that the limited liability company is indebted for the payment of this penalty. This certificate shall be entered by the Clerk as a judgment docketed in the Superior Court, and shall have the same form as a docketed judgment.

    (4) If a certificate of change replacing a resigned agent is not filed within two years from the effective date of the resignation, the certificate of formation of the limited liability company shall remain filed with the office of the Secretary of State but be transferred to an inactive list. A limited liability company whose certificate has been transferred to the inactive list shall remain a limited liability company formed under this act but no name reservations, transfers of reserved names or certificates of amendment may be filed until the limited liability company regains active status by making all required filings and payments. The transfer of the certificate of formation of a limited liability company to the inactive list shall have no effect on the liability of a member of a limited liability company.]2

(cf: P.L.1993, c.210, s.7)

 

    2[1.] 2.2 Section 11 of P.L.1993, c.210 (C.42:2B-11) is amended to read as follows:

    11. a. In order to form a limited liability company, one or more authorized persons must execute a certificate of formation. The certificate of formation shall be filed in the office of the Secretary of State and set forth:

    (1) The name of the limited liability company;

    (2) The address of the registered office and the name and address of the registered agent for service of process required to be maintained by section 6 of this act;

    (3) That the limited liability company has two or more members;

    (4) If the limited liability company is to have perpetual existence, regardless of whether the limited liability company is subject to any dissolution contingencies, then the word “perpetual” shall be stated; if the limited liability company is to have a specific date of dissolution, regardless of whether the limited liability company is subject to any dissolution contingencies, the latest date on which the limited liability company is to dissolve; and

    (5) Any other matters the members determine to include therein.

    b. A limited liability company is formed at the time of the filing of the initial certificate of formation in the office of the Secretary of State or at any later date or time specified in the certificate of formation if, in either case, there has been substantial compliance with the requirements of this section. A limited liability company formed under this act shall be a separate legal entity, the existence of which as a separate legal entity shall continue until cancellation of the limited liability company's certificate of formation.

(cf: P.L.1993, c.210, s.11)

 

    2[2.] 3.2 Section 14 of P.L.1993, c.210 (C.42:2B-14) is amended to read as follows:

    14. a. A certificate of formation shall be canceled upon the dissolution and the completion of winding up of a limited liability company, [or at any other time there are fewer than two members,] or upon the filing of a certificate of merger or consolidation if the limited liability company is not the surviving or resulting entity in a merger or consolidation.

    b. A certificate of cancellation shall be filed in the office of the Secretary of State to accomplish the cancellation of a certificate of formation upon the dissolution and the completion of winding up of a limited liability company [or at any other time there are not two members] and shall set forth:

    (1) The name of the limited liability company;

    (2) The date of filing of its certificate of formation;

    (3) The reason for filing the certificate of cancellation;

    (4) The future effective date or time (which shall be a date or time certain) of cancellation if it is not to be effective upon the filing of the certificate; and

    (5) Any other information the person filing the certificate of cancellation determines.

    c. A certificate of formation shall not be canceled, and no certificate of cancellation shall be required to be filed, when a limited liability company has only one member, and the certificate of formation shall remain valid when a limited liability company has only one member, if within 90 days of the date on which the limited liability company first had only one member, one or more additional members are admitted. If no additional member is admitted within that 90 day period, the certificate of formation of that limited liability company shall be canceled and a certificate of cancellation shall be filed on and as of the end of that 90 day period.

(cf: P.L.1993, c.210, s.14)

 

    2[3.] 4.2 Section 18 of P.L.1993, c.210 (C.42:2B-18) is amended to read as follows:

    18. A certificate of formation filed in the office of the Secretary of State is notice that the entity formed in connection with the filing of the certificate of formation is a limited liability company formed under the laws of this State and is notice of all other facts set forth therein which are required or permitted to be set forth in a certificate of formation by paragraphs (1) and (2) of subsection a. of section 11 of this act. If any provision of an operating agreement is inconsistent with the information contained in the certificate of formation of that limited liability company, as amended, on file with the office of the Secretary of State, the operating agreement shall be controlling except with respect to any third party who can show actual and reasonable reliance to the detriment of that third party, upon the information contained in the certificate of formation.

(cf: P.L.1993, c.210, s.18)

 

    2[4.] 5.2 Section 22 of P.L.1993, c.210 (C.42:2B-22) is amended to read as follows:

    22. a. An operating agreement may provide for classes or groups of members having such relative rights, powers and duties as the operating agreement may provide, and may make provision for the future creation in the manner provided in the operating agreement of additional classes or groups of members having such relative rights, powers and duties as may from time to time be established, including rights, powers and duties senior to existing classes and groups of members. An operating agreement may provide for the taking of an action, including the amendment of the operating agreement, without the vote or approval of any member or class or group of members, including an action to create under the provisions of the operating agreement a class or group of limited liability company interests that was not previously outstanding.

    b. An operating agreement may grant to all or certain identified members or a specified class or group of the members the right to vote, separately or with all or any class or group of managers or members, on any matter. Voting by members may be on a per capita, number, financial interest, class, group or any other basis. [In the absence of any provision in the operating agreement, voting by members shall be on a per capita basis.]

    c. An operating agreement which grants a right to vote may set forth provisions relating to notice of the time, place or purpose of any meeting at which any matter is to be voted on by any manager or class or group of managers, waiver of any such notice, action by consent without a meeting, the establishment of a record date, quorum requirements, voting in person or by proxy, or any other matter with respect to the exercise of any such right to vote.

(cf: P.L.1993, c.210, s.22)

 

    2[5.] 6.2 Section 24 of P.L.1993, c.210 (C.42:2B-24) is amended to read as follows:

    24. A [person ceases to be a] member [of] shall be dissociated from a limited liability company upon the [happening] occurrence of any of the following events:

    a. Unless otherwise provided in an operating agreement, or with the written consent of all members,

    (1) the limited liability company receives notice of the member’s resignation as a member, or on a later date specified by the member;

    (2) an event agreed to in the operating agreement as causing the member’s dissociation;

    (3) a member:

    [(1) Makes an assignment for the benefit of creditors;

    (2) Files a voluntary petition in bankruptcy;

    (3) Is adjudged bankrupt or insolvent, or has entered against him an order for relief, in any bankruptcy or insolvency proceeding;

    (4) Files a petition or answer seeking for himself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation;

    (5) Files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against him in any proceeding of this nature;

    (6) Seeks]

    (a) becomes a debtor in bankruptcy;

    (b) executes an assignment for the benefit of creditors;

    (c) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the member or of all or [any substantial part of his] substantially all of that member’s properties; or

    (d) fails, within 90 days after the appointment, without the member’s consent or acquiescence, of a trustee, receiver or liquidator of the member or of all or substantially all of that member’s properties, to have the appointment vacated or stayed, or fails within 90 days after the expiration of a stay to have the appointment vacated; or

    b. [Unless otherwise provided in an operating agreement, or with the written consent of all members, 120 days after the commencement of any proceeding against the member seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without his consent or acquiescence of a trustee, receiver or liquidator of the member or of all or any substantial part of his properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated.]

    (1) the member’s expulsion pursuant to the operating agreement;

    (2) the member’s expulsion by the unanimous vote of the other members if:

    (a) it is unlawful to carry on the limited liability company 1[without] with1 that member;

    (b) there has been a transfer of all 1[or substantially all]1 of that member’s transferable interest in the limited liability company, other than a transfer for security purposes, or a court order charging the member’s interest;

    (c) within 90 days after the limited liability company notifies a corporate member that it will be expelled because it has filed a certificate of dissolution or the equivalent, its charter has been revoked, or its right to conduct business has been suspended by the jurisdiction of its incorporation, there is no revocation of the certificate of dissolution or no reinstatement of its charter or its right to conduct business; or

    (d) a limited liability company 1or a partnership1 that is a member has been dissolved and its business is being wound up;

    (3) on application by the limited liability company or another member, the member’s expulsion by judicial determination because:

    (a) the member engaged in wrongful conduct that adversely and materially affected the limited liability company’s business;

    (b) the member willfully or persistently committed a material breach of the operating agreement; or

    (c) the member engaged in conduct relating to the limited liability company business which makes it not reasonably practicable to carry on the business with the member as a member of the limited liability company;

    (4) in the case of a member who is an individual:

    (a) the member’s death;

    (b) the appointment of a guardian or general conservator for the member; or

    (c) a judicial determination that the member has otherwise become incapable of performing the member’s duties under the operating agreement;

    (5) in the case of a member that is a trust or is acting as a member by virtue of being a trustee of a trust, distribution of the trust’s entire transferable interest in the limited liability company, but not merely by reason of the substitution of a successor trustee;

    (6) in the case of a member that is an estate or is acting as a member by virtue of being a personal representative of an estate, distribution of the estate’s entire transferable interest in the limited liability company, but not merely by reason of the substitution of a successor personal representative; or

    (7) 1[termination] dissolution1 of a member who is not an individual, partnership, corporation, trust or estate.

(cf: P.L.1993, c.210, s.24)

 

    2[6.] 7.2 (New section) Upon a member’s dissociation, the dissociated member has, subject to section 39 of P.L.1993, c.210 (C.42:2B-39), only the rights of an assignee of a member’s limited liability interest.

 

    2[7.] 8.2 Section 27 of P.L.1993, c.210 (C.42:2B-27) is amended to read as follows:

    27. a. (1) Unless otherwise provided in an operating agreement, the management of a limited liability company shall be vested in its members in proportion to the then current percentage or other interest of members in the profits of the limited liability company owned by all of the members, the decision of members owning more than 50 percent of the then current percentage or other interest in the profits controlling; (2) provided, however, that if an operating agreement provides for the management, in whole or in part, of a limited liability company by [a manager] one or more managers, the management of the limited liability company, to the extent so provided, shall be vested in the manager or managers who shall be chosen by the members in the manner provided in the operating agreement. The [manager] managers shall also hold the offices and have the responsibilities accorded to [him] them by the members and set forth in an operating agreement. Subject to section 37 of this act, a manager shall cease to be a manager as provided in an operating agreement.

    b. (1) If a limited liability company is managed by its members, unless otherwise provided in the operating agreement, each member shall have the authority to bind the limited liability company. In addition, unless otherwise provided in the operating agreement, or to the extent that a court of competent jurisdiction determines that the operating agreement is without effect in this regard, each member in a limited liability company managed by its members shall also have the authority to file for insolvency or reorganization under appropriate State or federal law, so long as that filing has the prior approval of members then owning more than 50 percent of the interests in the profits of the limited liability company.

    (2) If the limited liability company is managed by a manager or managers, the managers shall, in addition to all other authority accorded by the operating agreement, have the authority to file for insolvency or reorganization under appropriate State or federal law, unless otherwise provided in the operating agreement, except to the extent a court of competent jurisdiction determines that the operating agreement is without effect in this regard.

(cf: P.L.1993, c.210, s.27)

 

    2[8.] 9.2 Section 39 of P.L.1993, c.210 (C.42:2B-39) is amended to read as follows:

    39. a. Except as provided in this act, upon resignation any resigning member is entitled to receive any distribution to which he is entitled under an operating agreement and, if not otherwise provided in an operating agreement, he is entitled to receive, within a reasonable time after resignation, the fair value of his limited liability company interest as of the date of resignation based upon the net present value of his right to share in distributions from the limited liability company, less all applicable valuation discounts, unless the operating agreement provides for another distribution formula. If the resignation of a member violates an operating agreement, in addition to any remedies otherwise available under applicable law, a limited liability company may recover from the resigning member damages for breach of the operating agreement and offset the damages against the amount otherwise distributable to the resigning member.

    b. As used in subsection a. of this section, “all applicable valuation discounts” shall include discounts for lack of liquidity, relative size of holding, absence of any trading market and comparable factors.

(cf: P.L.1993, c.210, s.39)

 

    2[9.] 10.2 Section 44 of P.L.1993, c.210 (C.42:2B-44) is amended to read as follows:

    44. a. A limited liability company interest is assignable in whole or in part except as provided in an operating agreement. The assignee of a member's limited liability company interest shall have no right to participate in the management of the business and affairs of a limited liability company except as provided in an operating agreement and upon:

    (1) The approval of all of the members of the limited liability company other than the member assigning his limited liability company interest; or

    (2) Compliance with any procedure provided for in the operating agreement.

    b. Unless otherwise provided in an operating agreement:

    (1) An assignment entitles the assignee to share in the profits and losses, to receive the distribution or distributions, and to receive the allocation of income, gain, loss, deduction, or credit or similar item to which the assignor was entitled, to the extent assigned;

    (2) A member ceases to be a member and to have the power to exercise any rights or powers of a member upon assignment of all of his limited liability company interest; and

    (3) The pledge of, or granting of a security interest, lien or other encumbrance in or against, any or all of the limited liability company interest of a member shall not cause the member to cease to be a member or to have the power to exercise any rights or powers of a member.

    c. An operating agreement may provide that a member's interest in a limited liability company may be evidenced by a certificate of limited liability company interest issued by the limited liability company.

    d. Unless otherwise provided in an operating agreement and except to the extent assumed by agreement, until an assignee of a limited liability company interest becomes a member, the assignee shall have no liability as a member solely as a result of the assignment.

    e. An assignee shall have no authority to seek or obtain a court order dissolving or liquidating a limited liability company.

(cf: P.L.1993, c.210, s.44)

 

    2[10.] 11.2 Section 45 of P.L.1993, c.210 (C.42:2B-45) is amended to read as follows:

    45. On application to a court of competent jurisdiction by any judgment creditor of a member, the court may charge the limited liability company interest of the member with payment of the unsatisfied amount of the judgment with interest. To the extent so charged, the judgment creditor has only the rights of an assignee of the limited liability company interest. An action by a court pursuant to this section does not deprive any member of the benefit of any exemption laws applicable to his limited liability company interest. A court order charging the limited liability company interest of a member pursuant to this section shall be the sole remedy of a judgment creditor, who shall have no right under P.L.1993, c.210 (42:2B-1 et seq.) or any other State law to interfere with the management or force dissolution of a limited liability company or to seek an order of the court requiring a foreclosure sale of 1the1 limited liability company interest. Nothing in this section shall be construed to affect in any way the rights of a judgment creditor of a member under federal bankruptcy or reorganization laws.

(cf: P.L.1993, c.210, s.45)


    2[11.] 12.2 Section 48 of P.L.1993, c.210 (C.42:2B-48) is amended to read as follows:

    48. A limited liability company is dissolved and its affairs shall be wound up upon the first to occur of the following:

    a. [At] Unless the certificate of formation specifies that the limited liability company is perpetual, at the time specified in an operating agreement, or 30 years from the date of the formation of the limited liability company if no [such] specified time for dissolution and winding up, regardless of any dissolution contingencies, is set forth in the operating agreement;

    b. Upon the happening of events specified in an operating agreement;

    c. The written consent of all members, which includes written consent of the sole remaining member of a limited liability company;

    d. [The death, retirement, resignation, expulsion, bankruptcy or dissolution of a member or the occurrence of any other event which terminates the continued membership of a member in the limited liability company unless the business of the limited liability company is continued either by the consent of all the remaining members within 90 days following the occurrence of any such event or pursuant to a right to continue stated in the operating agreement] Ninety days after the date on which the limited liability company has only one member, unless at least one additional member is admitted within 90 days after the date on which the limited liability company had only one member; or

    e. The entry of a decree of judicial dissolution under section 49 of this act.

(cf: P.L.1993, c.210, s.48)

 

    2[12.] 13.2  Section 50 of P.L.1993, c.210 (C.42:2B-50) is amended to read as follows:

    50. a. Unless otherwise provided in an operating agreement, a manager who has not wrongfully dissolved a limited liability company or, if there is no manager, the members or a person approved by the members or, if there is more than one class or group of members, then by each class or group of members, in either case, by members who own more than 50 percent of the then current percentage or other interest in the profits of the limited liability company owned by all of the members or by the members in each class or group, as appropriate, may wind up the limited liability company's affairs; but the [Court of] Chancery Division, General Equity Part of Superior Court, upon cause shown, may wind up the limited liability company's affairs upon application of any member or manager, his legal representative or assignee, and in connection therewith, may appoint a liquidating trustee.

    b. Upon dissolution of a limited liability company and until the filing of a certificate of cancellation as provided in section 14 of this act, the persons winding up the limited liability company's affairs may, in the name of, and for and on behalf of, the limited liability company, prosecute and defend suits, whether civil, criminal or administrative, gradually settle and close the limited liability company's business, dispose of and convey the limited liability company's property, discharge or make reasonable provision for the limited liability company's liabilities, and distribute to the members any remaining assets of the limited liability company, all without affecting the liability of members and managers and without imposing liability on a liquidating trustee.

(cf: P.L.1993, c.210, s.50)

 

    2[113.] 14.2 Section 65 of P.L.1993, c.210 (C.42:2B-65) is amended to read as follows:

    65. a. No document required to be filed under this act shall be effective until the applicable fee required by this section is paid. The following fees shall be paid to and collected by the Secretary of State for the use of the State:

    (1) Upon the receipt for filing of a certificate of registration of alternate name or a certificate of renewal pursuant to section 4 of this act, a fee in the amount of $50.

    (2) Upon the receipt for filing of an application for reservation of name, an application for renewal of reservation or a notice of transfer or cancellation of reservation pursuant to section 5 of this act, a fee in the amount of $50.

    (3) Upon the receipt for filing of a certificate under subsection b. of section 6 of this act, a fee in the amount of $25, upon the receipt for filing of a certificate under subsection b. of section 7 of this act, a fee in the amount of $25 and a further fee of $10 for each limited liability company affected by such certificate.

    (4) Upon the receipt for filing of a notice of resignation and affidavit pursuant to subsection c. of section 7 of this act, a fee in the amount of $25 and upon the receipt for filing of a certificate of change pursuant to subsection c. of section 7 of this act, a fee in the amount of $25.

    (5) Upon the receipt for filing of a certificate of formation under section 11 of this act, a certificate of correction under section 12 of this act, a certificate of amendment under section 13 of this act, a certificate of cancellation under section 14 of this act, a certificate of merger or consolidation under section 20 of this act or a restated certificate of formation under section 19 of this act, a fee in the amount of $100.

    (6) Upon filing of a an annual report, a fee in the amount of $50.00.

    (7) Upon requesting a reinstatement of a certificate of a limited liability company, a late filing fee of $200.00 and a reinstatement filing fee of $50.00.

    [(6)] (8) For certifying copies of any paper on file as provided for by this act, a fee in the amount of $25 for each copy certified.

    [(7)] (9) The Secretary of State may issue photocopies of instruments on file as well as other copies, and for all of those copies, whether certified or not, a fee in the amount of $10 for the first page and $2 per page thereafter shall be paid.

    [(8)] (10) Upon the receipt for filing of an application for registration as a foreign limited liability company under section 53 of this act or a certificate of cancellation under section 56 of this act, a fee in the amount of $100.

    [(9)] (11) For preclearance of any document for filing, a fee in the amount of $50.

    [(10)] (12) For preparing and providing a written report of a record search, a fee in the amount of $50.

    [(11)] (13) For issuing any certificate of the Secretary of State, including but not limited to a certificate of good standing, other than a certification of a copy under paragraph (6) of this subsection, a fee in the amount of $50, except that for issuing any certificate of the Secretary of State that recites all of a limited liability company's filings with the Secretary of State, a fee of $100 shall be paid for each such certificate.

    [(12)] (14) For receiving and filing and/or indexing any certificate, affidavit, agreement or any other paper provided for by this act, for which no different fee is specifically prescribed, a fee in the amount of $50.

    [(13) ] (15) The Secretary of State may in his discretion charge a fee of $50 for each check received for payment of any fee that is returned due to insufficient funds or the result of a stop payment order.

    b. In addition to those fees charged under subsection a. of this section, there shall be collected by and paid to the Secretary of State the following:

    (1) for all services described in subsection a. of this section that are requested to be completed within the same day as the day of the request, an additional sum of up to $50; and

    (2) for all services described in subsection a. of this section that are requested to be completed within a 24-hour period from the time of the request, an additional sum of up to $25.

    The Secretary of State shall establish (and may from time to time amend) a schedule of specific fees payable pursuant to this subsection.     c. The Secretary of State may in his discretion permit the extension of credit for the fees required by this section upon such terms as he shall deem to be appropriate.1

(cf: P.L.1993, c.210, s.65)

1[13.] 2[14.1] 15.2 (New section) a. Each domestic and foreign limited liability company shall file an annual report with the office of the Secretary of State, setting forth:

    (1) the name and address of the limited liability company;

    (2) the name and address of the registered agent of the limited liability company; and

    (3) the name and addresses of the managing members or managers, as the case may be.

    b. If no annual report is filed as required by this section for two consecutive years,

    (1) the certificate of a domestic limited liability company shall be transferred to an inactive list maintained by the Secretary of State. A limited liability company on the inactive list shall remain a limited liability company and the limited liability of its members and managers shall not be affected by its transfer to this list. The name of a limited liability company on the inactive list shall, subject to any other rights that limited liability company may have to its name, be available for use by any other limited liability company, including a newly-formed limited liability company.

    (2) the certificate of a foreign limited liability company may be revoked by the Secretary of State.

    1(3) if the certificate of a domestic limited liability company has been transferred to the inactive list or if the certificate of a foreign limited liability company has been revoked, the certificate shall be reinstated by proclamation of the Secretary of State upon payment of all fees due to the Secretary of State, consisting of a reinstatement filing fee, current annual report fee, all delinquent annual report fees, and a late filing fee. The reinstatement relates back to the date of transfer of the certificate of a domestic limited liability company to the inactive list or to the date of revocation of the certificate of a foreign limited liability company, as the case may be, and shall validate all actions taken in the interim. In the event that in the interim the name of the limited liability company has become unavailable, the Secretary of State shall reinstate the certificate upon, in the case of a domestic limited liability company, the filing of an amendment to is certificate of formation to change the name to an available name and in the case of a foreign limited liability company, the filing of an amended certificate of registration adopting an alternate name. The Secretary of State shall provide the forms necessary to effect annual report reinstatements.1

 

    1[14.] 2[15.1] 16.2 Section 2 of P. L.1973, c.367 (C.54:50-13) is amended to read as follows:

    2. Until all taxes owing by it have been paid, or provided for as set forth in section 4 of P.L.1973, c.367 (C.54:50-15):

    a. no domestic or foreign corporation shall merge or consolidate into a foreign corporation not authorized to transact business in this State; and

    b. no domestic corporation shall dissolve and no domestic or foreign corporation shall distribute any of its assets in dissolution or liquidation to any shareholder unless

    (1) one or more domestic corporations or foreign corporations authorized to transact business in this State are owners in the aggregate of 50% or more of all classes of such corporation's capital stock and, prior to such dissolution or distribution, all such holders of the corporation's capital stock jointly and severally undertake in writing to pay all such taxes on or before the date such taxes are payable; or

    (2) such corporate action is pursuant to a plan of reorganization under which a domestic corporation or a foreign corporation authorized to transact business in this State has purchased, or is about to purchase, all, or substantially all, of the assets of such corporation in exchange for shares of its capital stock and has undertaken in writing to pay all such taxes on or before the date such taxes are payable; and

    c. no business entity shall merge or consolidate into any other business entity other than a domestic [corporation] business entity or a foreign [corporation] business entity authorized to transact business in this State.

(cf: P.L.1995, c.279, s.23)

 

    1[15.] 2[16.1] 17.2 Section 3 of P.L.1973, c.367 (C.54:50-14) is amended to read as follows:

    3. The Secretary of State shall not:

    a. accept for filing a certificate of dissolution of a domestic corporation;

    b. issue a certificate of withdrawal of a foreign corporation, unless such withdrawal is effected by its merger or consolidation into a domestic corporation or a foreign corporation authorized to transact business in this State;

    c. accept for filing a certificate of merger or consolidation of a domestic corporation into a foreign corporation not authorized to transact business in this State; or

    d. accept for filing a certificate of merger or consolidation of any business entity into any other business entity other than a domestic [corporation] business entity or a foreign [corporation] business entity authorized to transact business in this State;

    unless the business entity files with the Secretary of State a certificate issued by the Director of the Division of Taxation dated not earlier than 45 days prior to the effective date of the business entity


action evidencing that the business entity's taxes have been paid or provided for.

(cf: P.L.1995, c.279, s.24)

 

    1[16.] 2[17.1] 18.2 This act shall take effect immediately.

 

                             

 

 

Revises law concerning limited liability companies.