S2160

SENATE, No. 2160

STATE OF NEW JERSEY

INTRODUCED JUNE 5, 1997

By Senator KYRILLOS

An Act concerning the status of certain entities and revising various parts of the statutory law.

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

1. N.J.S.14A:4-3 is amended to read as follows:

14A:4-3. Change of registered office or registered agent.

(1) A domestic corporation or a foreign corporation authorized to transact business in this State may change its registered office or its registered agent, or both. When the registered office is changed, or when the registered agent is changed, or dies, resigns or becomes disqualified, the corporation shall, by resolution of the board, forthwith fix the address of the new registered office or designate the successor registered agent or both, as the case may be.

(2) Such corporation shall forthwith file in the office of the Secretary of State a certificate executed on behalf of the corporation setting forth

(a) the name of the corporation;

(b) if the registered agent is not being changed, the name of the registered agent;

(c) if the registered agent is being changed, the names of the registered agent being succeeded and of the successor registered agent;

(d) if the registered office is not being changed, the address of the then registered office;

(e) if the registered office is being changed, the address of the registered office immediately prior to the change, and the address of the new registered office;

(f) that the address of its registered office and the address of its registered agent will be identical after the change; and

(g) that the change in registered office, or registered agent, or both, is made pursuant to resolution of the board.

(3) The registered agent of one or more domestic or foreign corporations may change the registered office of such corporation or corporations to another address in this State by filing in the office of the Secretary of State a certificate executed by such agent and setting forth

(a) the names of all the corporations whose registered offices are being changed and for which he or it is the registered agent, listed in alphabetical order;

(b) the address of the registered office of each such corporation immediately prior to the change, and the address of the new registered office;

(c) that the address of the registered office of each such corporation and the address of its registered agent will be identical after the change; and

(d) a statement that at least 20 days' prior notice of the change has been given to each such corporation in writing.

The change of the registered office of each of the corporations named in the certificate shall become effective upon the date of such filing or at such later time, not to exceed 30 days after the date of filing, as may be set forth in the certificate.

(4) [If any certificate of change required by this section is not filed, the corporation shall, after written demand therefor by the Secretary of State by certified mail addressed to the corporation at the last address appearing of record in his office, forfeit to the State a penalty of $200.00 to be recovered with costs in a civil action prosecuted by the Attorney General. No corporation shall be subject to penalty if it shall, within 30 days after written demand, file the certificate of change required by law and pay to the Secretary of State the fee provided by law for the filing of each such certificate of change. In lieu of such civil action, the Secretary of State, after expiration of such 30-day period, may issue a certificate to the Clerk of the Superior Court that the corporation is indebted for the payment of such penalty, and thereupon the clerk shall immediately enter upon his record of docketed judgments the name of such corporation as the judgment debtor and of the State as the judgment creditor, a statement that the penalty is imposed under this section, the amount of the penalty, and the date of such certificate. Such entry shall have the same force as a judgment docketed in the Superior Court. The Secretary of State within 5 days after such entry shall give notice thereof to the corporation by certified mail addressed to the corporation at the last address appearing of record in his office.] (Deleted by amendment, P.L. , c. .)

(cf: P.L.1977, c.34, s.1)

2. N.J.S.14A:4-4 is amended to read as follows:

14A:4-4. Resignation of registered agent.

(1) The registered agent of a domestic corporation or a foreign corporation authorized to transact business in this State may resign by complying with the provisions of this section.

(2) The registered agent shall serve a notice of resignation by certified mail, return receipt requested, upon the president, or any vice president, or the secretary or treasurer of the corporation at the address last known to the agent, and shall make an affidavit of such service. The notice shall also advise the recipient of the requirements of subsection 14A:4-3(1) [and the penalties for failure to comply imposed by subsection 14A:4-3(4)]. If such service cannot be made, the affidavit shall so state, and shall state briefly why such service cannot be made. The affidavit, together with a copy of the notice of resignation, shall be filed in the office of the Secretary of State.

(3) Such resignation shall become effective upon the expiration of 30 days after the filing in the office of the Secretary of State of the affidavit under this section or upon the designation by the corporation of a new registered agent pursuant to this act, whichever is earlier. If the corporation fails to designate a new registered agent within said 30-day period, the corporation shall thereafter be deemed to have no registered agent or registered office in this State.

(4) [Service of a notice of resignation shall be in lieu of and shall be deemed to be the written demand of the Secretary of State required by subsection 14A:4-3(4).] (Deleted by amendment, P.L. , c. .)

(cf: P.L.1988, c.94, s.15)

3. N.J.S.14A:4-5 is amended to read as follows:

14A:4-5. Annual report to Secretary of State.

(1) Every domestic corporation and every foreign corporation authorized to transact business in this State shall file in the office of the Secretary of State, within the time prescribed by this section, an annual report, executed on behalf of the corporation, or executed by the registered agent, setting forth

(a) The name of the corporation and, in the case of a foreign corporation, the jurisdiction of its incorporation;

(b) The address of the registered office of the corporation in this State, and the name of its registered agent in this State at such address;

(d) (Deleted by amendment, P.L. 1988, c. 94.)

(e) The address of its main business or headquarters office; and

(f) The address of its principal business office in New Jersey, if any.

(2) The Secretary of State shall designate a date for filing annual reports for each corporation required to submit a report pursuant to this section and shall annually notify the corporation of the date so designated not less than 60 days prior to such date. The corporation shall file the report within 30 days before or 30 days after the date so designated. If the date so designated is not more than six months after the date on which an annual report pursuant to the provisions of prior law was filed or on which the certificate of incorporation became effective, the corporation shall not be required to file an annual report until one year after the first occurrence of the date so designated.

(3) [If the report is not so filed, the corporation shall, after written demand therefor by the Secretary of State by certified mail addressed to the corporation at the last address appearing of record in his office, forfeit to the State a penalty of $200.00 for each report required to have been filed not more than five years prior thereto and remaining unfiled, to be recovered with costs in a civil action prosecuted by the Attorney General. No corporation shall be subject to penalty if it shall, within 30 days after such written demand, file the reports required by law and pay to the Secretary of State the fee provided by law for the filing of each such report. In lieu of such civil action, the Secretary of State, after expiration of such 30-day period, may issue a certificate to the Clerk of the Superior Court that the corporation is indebted for the payment of such penalty, and thereupon the clerk shall immediately enter upon his record of docketed judgments the name of such corporation as the judgment debtor, and of the State as the judgment creditor, a statement that the penalty is imposed under this section, the amount of the penalty, and the date of such certificate. Such entry shall have the same force as a judgment docketed in the Superior Court. The Secretary of State within five days after such entry shall give notice thereof to the corporation by certified mail addressed to the corporation at the last address appearing of record in his office.] (Deleted by amendment, P.L. , c. .)

(4) The Secretary of State shall furnish annual report forms, shall keep in his office all such reports and shall prepare an alphabetical index thereof, which reports and index shall be open to public inspection at proper hours.

(5) In the event a domestic corporation fails to file an annual report for two consecutive years with the Secretary of State, then, after written notice by certified mail to the corporation at its last known main business or headquarters office [and] or at the address of its registered agent, the Secretary of State may issue a proclamation declaring that the certificate of incorporation of the corporation has been revoked and that all powers conferred by law upon it shall thereafter be inoperative and void. The proclamation of the Secretary of State shall be filed in the office of the Secretary of State. No corporation's certificate of incorporation shall be revoked pursuant to this subsection if, within 30 days after the giving of notice, it files the reports required by law and pays to the Secretary of State all of the fees due for the filing of the reports [and all penalties which have been imposed pursuant to subsection (3)].

(6) In the event a foreign corporation fails to file an annual report for two consecutive years with the Secretary of State, then, after written notice by certified mail to the corporation at its last known main business or headquarters office [and] or at the address of its registered agent, the Secretary of State may issue a proclamation declaring that the certificate of authority to do business of the corporation and the powers conferred by law upon it shall be revoked. The proclamation of the Secretary of State shall be filed in the office of the Secretary of State. No corporation's certificate of authority shall be revoked pursuant to this paragraph if, within 30 days after the giving of notice, it files the reports required by law and pays to the Secretary of State all of the fees due for the filing of the reports [and all penalties which have been imposed pursuant to subsection (3)].

(7) If the certificate of incorporation of a domestic corporation or a certificate of authority of a foreign corporation has been revoked by proclamation, the certificate shall be reinstated by proclamation of the Secretary of State upon: (a) payment by the corporation of all fees [and fines] due to the Secretary of State , consisting of a reinstatement filing fee of $50, tax clearance filing fee of $20, current annual report fee, all delinquent annual report fees, and a reinstatement assessment of $200; and (b) certification of the Director of the Division of Taxation that no cause exists for revocation of the corporation's certificate of incorporation or certificate of authority pursuant to R.S.54:11-2. The reinstatement relates back to the date of issuance of the proclamation revoking the certificate of incorporation or the certificate of authority and shall validate all actions taken in the interim. In the event that in the interim the corporate name has become unavailable, the Secretary of State shall issue the certificate upon, in the case of a domestic corporation, the filing of an amendment to its certificate of incorporation to change the corporate name to an available name, and, in the case of a foreign corporation, the filing of an amended certificate of authority adopting an assumed name. The Secretary of State shall provide the forms necessary to effect annual report reinstatements.

(cf: P.L.1988, c.94, s.16)

4. N.J.S.15A:4-3 is amended to read as follows:

15A:4-3. Change of Registered Office or Registered Agent.

a. A domestic corporation or a foreign corporation authorized to conduct activities in this State may change its registered office or its registered agent, or both. When the registered office is changed, or when the registered agent is changed, or dies, resigns or becomes disqualified, the corporation shall, by resolution of the board, forthwith fix the address of the new registered office or designate the successor registered agent or both, as the case may be.

b. The corporation shall forthwith file in the office of the Secretary of State a certificate executed on behalf of the corporation setting forth:

(1) The name of the corporation;

(2) If the registered agent is not being changed, the name of the registered agent;

(3) If the registered agent is being changed, the names of the registered agent being succeeded and of the successor registered agent;

(4) If the registered office is not being changed, the address of the then registered office;

(5) If the registered office is being changed, the address of the registered office immediately prior to the change, and the address of the new registered office;

(6) That the address of its registered office and the address of its registered agent will be identical after the change; and

(7) That the change in registered office, or registered agent, or both, is made pursuant to resolution of the board.

c. The registered agent of one or more domestic or foreign corporations may change the registered office of the corporation or corporations to another address in this State by filing in the office of the Secretary of State a certificate executed by the agent and setting forth:

(1) The names of all the corporations whose registered offices are being changed and for which it is the registered agent, listed in alphabetical order;

(2) The address of the registered office of each corporation immediately prior to the change, and the address of the new registered office;

(3) That the address of the registered office of each corporation and the address of its registered agent will be identical after the change; and

(4) A statement that at least 20 days' prior notice of the change has been given to each corporation in writing.

The change of the registered office of each of the corporations named in the certificate shall become effective upon the date of the filing or at a later time, not to exceed 30 days after the date of filing, as may be set forth in the certificate.

d. [If any certificate of change required by this section is not filed, the corporation shall, after written demand by the Secretary of State by certified mail addressed to the corporation at the last address appearing of record in his office, forfeit to the State a penalty of $200.00 to be recovered with costs in a civil action prosecuted by the Attorney General. No corporation shall be subject to penalty if it shall, within 30 days after written demand, file the certificate of change required by law and pay to the Secretary of State the fee provided by law for the filing of each certificate of change. In lieu of the civil action, the Secretary of State, after expiration of the 30-day period, may issue a certificate to the Clerk of the Superior Court that the corporation is indebted for the payment of the penalty, and the clerk shall immediately enter upon the record of docketed judgments the name of the corporation as the judgment debtor and of the State as the judgment creditor, a statement that the penalty is imposed under this section, the amount of the penalty, and the date of the certificate. The entry shall have the same force as a judgment docketed in the Superior Court. The Secretary of State within 5 days after the entry shall give notice thereof to the corporation by certified mail addressed to the corporation at the last address appearing of record in the office of the Secretary of State.] (Deleted by amendment, P.L. , c. .)

(cf: N.J.S.15A:4-3)

5. N.J.S.15A:4-5 is amended to read as follows:

15A:4-5. Annual Report to Secretary of State.

a. Every domestic corporation and every foreign corporation authorized to conduct activities in this State shall file in the office of the Secretary of State, within the time prescribed by this section, an annual report, executed on behalf of the corporation, setting forth:

(1) the name of the corporation and, in the case of a foreign corporation, the jurisdiction of its incorporation;

(2) the address, including the actual location as well as postal designation, if different, of the registered office of the corporation in this State, and the name of its registered agent in this State at that address, and, if a foreign corporation, the address of its main or headquarters office; and

(3) the names and addresses of the trustees and the officers of the corporation, which addresses shall be either the residence address of that person or other address where that person regularly receives mail and which is not the address of the corporation.

b. The Secretary of State shall designate a date for filing annual reports for each corporation required to submit a report pursuant to this section and shall annually notify the corporation of the date so designated not less than 60 days prior to that date. The corporation shall file the report within 30 days before or within 30 days after the date so designated. If the date so designated is not more than 6 months after the date on which an annual report pursuant to the provisions of prior law was filed or on which the certificate of incorporation became effective, the corporation shall not be required to file an annual report until 1 year after the first occurrence of the date so designated.

c. If the report is not filed for 2 consecutive years, the certificate of incorporation of the corporation or the certificate of authority of a foreign corporation shall, after written demand for the reports by the Secretary of State by certified mail addressed to the corporation at the last address appearing of record in the office of the Secretary of State, be revoked for the failure to file reports. No corporation shall be subject to the revocation of its certificate of incorporation or its certificate of authority if it shall, within 60 days after the written demand, file the reports required by law and pay to the Secretary of State the fee provided by law for the filing of each report. Any corporation having its certificate of incorporation or its certificate of authority revoked may [, within 2 years of the revocation,] cause a reinstatement of the certificate upon payment to the Secretary of State of [double the amount of] : the fee then payable upon the filing of the certificate [and upon filing] of incorporation; a current annual report fee; and payment of a reinstatement filing assessment of $135. The reinstatement relates back to the date of issuance of the proclamation revoking the certificate of incorporation or the certificate of authority and shall validate all actions taken in the interim. If the corporate name has become unavailable in the interim, the Secretary of State shall issue the certificate upon the filing of an amendment to its certificate of incorporation to change the corporate name to an available name, if the corporation is a domestic corporation, and the filing of an amended certificate of authority adopting an assumed name, if the corporation is a foreign corporation.

d. The Secretary of State shall furnish annual report forms, including the forms necessary to effect annual report reinstatments, shall keep all the reports and shall prepare an alphabetical index thereof. The reports and index shall be open to public inspection at proper hours.

(cf: N.J.S.15A:4-5)

6. N.J.S.15A:12-11 is amended to read as follows:

15A:12-11. Dissolution in Action Brought by the Attorney General.

a. The Attorney General may bring an action in the Superior Court for the dissolution of a corporation upon the ground that the corporation:

(1) Has procured its organization through fraudulent misrepresentation or concealment of a material fact;

(2) Has had its certificate of incorporation revoked under subsection c. of section 15A:4-5 (failure to file its annual report) [or has violated subsection d. of section 15A:4-3 (failure to file change of registered agent)];

(3) Has conducted activities after the period of duration specified in its certificate of incorporation and has neither amended its certificate of incorporation to extend the period nor proceeded to liquidate and cease activities;

(4) Has repeatedly exceeded the authority conferred upon it by law;

(5) Has repeatedly conducted its business in an unlawful manner;

(6) Has misused or improperly failed to use its powers, privileges or franchises;

(7) Is insolvent;

(8) Has suspended its ordinary activities for lack of funds;

(9) Is conducting its activities in violation of its certificate of incorporation or, with respect to specific assets, in violation of any terms, conditions, or restrictions applicable to those assets imposed upon it;

(10) Is conducting its activities at a great loss and with great prejudice to the interests of its creditors or members; or

(11) Is conducting activities in a manner which is prejudicial to the public.

b. The Superior Court may proceed in the action in a summary manner or otherwise. Upon a showing by clear and convincing evidence of any cause set forth in subsection a. of this section, the court may declare the corporation dissolved and a copy of the order of the court may be filed in the office of the Secretary of State as evidence thereof.

c. The enumeration in subsection a. of this section of grounds for dissolution shall not exclude any other statutory or common law action by the Attorney General for the dissolution of a corporation or the revocation or forfeiture of its corporate franchises.

(cf: N.J.S.15A:12-11)

7. Section 8 of P.L.1995, c.96 (C.42:1-44) is amended to read as follows:

8. a. To become a limited liability partnership, a partnership shall file in the Office of the Secretary of State an application stating the name of the partnership; the address of its principal office; the address of the registered office and name of the registered agent for service of process as required by this act; a brief statement of the business in which the partnership engages; any other matters that the partnership determines to include; and that the partnership thereby applies for status as a limited liability partnership.

b. Before doing business in this State, a foreign limited liability partnership shall register as a foreign limited liability partnership in the Office of the Secretary of State by filing an application setting forth the name of the partnership and, if different, the name under which it proposes to do business in this State; the State, territory or possession where formed; date of formation; the address of its principal office; if the partnership's principal office is not located in this State, the address of the registered office and the name and address of the registered agent for service of process, as required by this act; a statement that the partnership validly exists as a limited liability partnership under the laws of the jurisdiction of its formation; and a brief statement of the nature of the business or purpose to be conducted or promoted in this State.

c. The application shall be executed by a majority in interest of the partners or by one or more of the partners authorized to execute an application.

d. The Secretary of State shall register as a limited liability partnership or foreign limited liability partnership any partnership that files a completed application that substantially conforms with the requirements of this act, accompanied by the appropriate fee.

e. A partnership registered pursuant to this section shall file, in each year following the year in which its application is filed, on a date specified by the Secretary of State, an annual report. The annual report shall be on a form provided by the Secretary of State, and shall indicate any material change in the information contained in the partnership's application for registration. If the annual report is not filed or the filing fee is not paid for two consecutive years, the registration of a limited liability partnership or foreign limited liability partnership shall, after written demand for the annual report by the Secretary of State by mail addressed to the limited liability partnership or foreign limited liability partnership at the last address appearing of record in the office of the Secretary of State, remain filed but be transferred to an inactive list. A limited liability partnership or foreign limited liability partnership shall not have its registration transferred to the inactive list if it shall, within 60 days after the written demand, file the annual report and fee required by this act. If the registration of a domestic or foreign limited liability partnership has been placed on the inactive list, the registration 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 of $50, current annual reports fee, all delinquent annual report fees, and a reinstatement filing assessment of $200. Reinstatement relates back to the date of issuance of the proclamation placing the certificate of registration on the inactive list and shall validate all actions taken in the interim. If the limited liability partnership name of a domestic or foreign limited liability partnership has become unavailable in the interim, the Secretary of State shall issue the reinstatement upon the filing of a name change certificate that changes the name to an available name. The Secretary of State shall provide the forms necessary to effect annual report reinstatements.

f. Registration is effective immediately after the date an application is filed in the Office of the Secretary of State, and remains effective until it is voluntarily withdrawn by filing in the Office of the Secretary of State a written withdrawal notice executed by a majority in interest of the partners or by one or more partners of the partnership authorized to execute a withdrawal notice.

g. A partnership continues as a limited liability partnership if there has been substantial compliance with the requirements of this act. After the filing of an application, the status of a partnership as a limited liability partnership, or the liability of the partners thereof, shall not be affected by errors or changes in the information stated in the application.

h. If an instrument filed in the Office of the Secretary of State pursuant to this section is an inaccurate record of the facts stated therein, or was defectively or erroneously executed, the instrument may be corrected by filing in the Office of the Secretary of State a certificate of correction by a partner. The certificate of correction shall specify the inaccuracy or defect to be corrected and shall set forth the correction. The instrument so corrected shall be deemed to have been effective in its corrected form as of its original filing date except as to persons who actually relied in good faith upon the inaccurate portion of the instrument and who are adversely affected by the correction. As to these persons, the correction shall be effective as of the effective date of filing of the certificate of correction. Such filing shall only be made if the Secretary of State consents to the filing.

i. The Secretary of State may provide forms for application for registration, notice of changes or payment of the annual fee.

j. Any limited liability partnership formed pursuant to an agreement governed by this section or any foreign limited liability partnership transacting business in this State under this section shall be exempt from the filing requirements of R.S.56:1-1 et seq.

k. The fact that an application or annual report is on file in the Office of the Secretary of State is notice that the partnership is a limited liability partnership or foreign limited liability partnership and is notice of all other facts set forth in the application or annual report. (cf: P.L.1995, c.96, s.8)

8. Section 66 of P.L.1983, c.489 (C.42:2A-69) is amended to read as follows:

66. Annual report to the Secretary of State by domestic limited partnerships.

a. Every domestic limited partnership authorized in this State shall file in the Office of the Secretary of State, within the time prescribed by this section, an annual report, executed on behalf of the limited partnership or executed by the registered agent setting forth:

1. The name of the limited partnership;

2. The address, including the actual location as well as the postal designation, if different, of the registered agent in this State; and

3. The name of the registered agent.

b. The Secretary of State shall designate a date of filing annual reports for each limited partnership required to submit a report pursuant to this section.

c. If the report is not filed for two consecutive years, the certificate of limited partnership shall, after written demand for the reports by the Secretary of State by mail addressed to the limited partnership at the last address appearing of record in the office of the Secretary of State , remain filed but be transferred to an inactive list. A limited partnership shall not have its certificate of limited partnership transferred to the inactive list if it shall, within 60 days after the written demand, file the reports required by law and pay to the Secretary of State the fee provided by law for the filing of each report.

d. (1) Any domestic limited partnership on the inactive list may return to active status by:

[(1)] (a) Paying to the Secretary of State [double the amount of] the current annual report fee [for each year an annual report was not filed. Years prior to becoming inactive and years subsequent to being declared inactive shall be included in calculating this fee;

(2) Filing a current annual report; and

(3)] , all delinquent annual report fees, a reinstatement filing fee of $50 and a reinstatement filing assessment of $200; and

(b) Submitting a certificate of amendment adopting a name which complies with paragraph (4) of subsection a. of section 6 of [this chapter] P.L.1983, c.489 (C.42:2A-6) , if the name of the inactive limited partnership does not comply with paragraph (4) of subsection a. of section 6.

(2) The Secretary of State shall provide the forms necessary to effect annual report reinstatements.

e. A limited partnership whose certificate has been transferred to the inactive list shall remain a limited partnership formed under this chapter or under R.S. 42:2-1 et seq., but no name reservations, transfers of reserved names, or certificates of amendment may be filed until the limited partnership whose certificate has been placed on the inactive list regains active status. A limited partner of a limited partnership is not liable as a general partner of the limited partnership solely by reason of the transfer of the certificate of limited partnership to the inactive list.

f. The Secretary of State shall furnish annual report forms, shall keep all the reports and shall prepare an index thereof. The reports shall be open to public inspection at proper hours.

(cf: P.L.1988, c.130, s.37.1).

9. Section 67 of P.L.1983, c.489 (C.42:2A-70) is amended to read as follows:

67. Annual report to Secretary of State by foreign limited partnership.

a. Every foreign limited partnership authorized to transact business in this State shall file in the office of the Secretary of State, within the time prescribed by this section, an annual report, executed on behalf of the foreign limited partnership setting forth:

1. The name of the foreign limited partnership;

2. The address, including the actual location as well as postal designation, if different, of the registered agent in this State; and

3. The name of the registered agent.

b. The Secretary of State shall designate a date for filing annual reports for each foreign limited partnership required to submit a report pursuant to this section.

c. If the report is not filed for two consecutive years, the certificate of a foreign limited partnership to transact business in this State shall, after written demand for the reports by the Secretary of State by certified mail addressed to the foreign limited partnership at the last address appearing of record in the office of the Secretary of State, be revoked for the failure to file reports. A foreign limited partnership shall not be subject to the revocation of its certificate to transact business in this State if it shall, within 60 days after the written demand, file the reports required by law and pay to the Secretary of State the fee provided by law for the filing of each report.

d. Any foreign limited partnership may, within two years of the revocation of its certificate to transact business in this State, cause a reinstatement of the certificate upon :

(1) payment to the Secretary of State [double the amount] of the current annual report fee [for each year an annual report was not filed. Years prior to revocation and years after revocation shall be included in calculating this fee, and by filing a current annual report] , all delinquent annual report fees, a reinstatement filing fee of $50 and a reinstatement filing assessment of $200; and

(2) compliance with the requirements of subsection c. of section 6 of P.L.1983, c.489 (C.42:2A-6), if the name of the inactive foreign limited partnership does not comply with the provisions of paragarph (4) of subsection a. of section 6 of P.L.1983, c.489 (C.42:2A-6). e . A limited partner of a foreign limited partnership is not liable as a general partner of the foreign limited partnership solely by reason of the revocation, pursuant to this section , of the certificate of authority to transact business in this State.

[e.] f. The Secretary of State shall furnish annual report forms, including the forms necessary to effect annual report reinstatements, shall keep all the reports and shall prepare an index thereof. The reports shall be open to public inspection at proper hours.

(cf: P.L.1983, c.489, s.67)

10. 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.] (Deleted by amendment, P.L. , c. .)

(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.] (Deleted by amendment, P.L. , c. .)

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

11. (New section) a. Every domestic limited liability company and every foreign limited liability company authorized to transact business in this State shall file in the Office of the Secretary of State, within the time prescribed by this section, an annual report, executed on behalf of the limited liability company, or executed by the registered agent, setting forth:

(1). The name of the limited liability company and, in the case of a foreign limited liability company, the jurisdiction of its formation;

(2) The address of the registered office of the limited liability company in this State, and the name of the registered agent in this State at that address;

(3) The name and addresses of the members, managers or officers, as applicable, of the limited liability company;

(4) The address of its main business or headquarters office; and

(5) The address of its principal business office in New Jersey, if any.

b. The Secretary of State shall designate a date for filing an annual report for each limited liability company required to submit a report pursuant to this section and shall annually notify the limited liability company of that not less than 60 days prior to that date. Each limited liability company shall file its report within 30 days before or 30 days after notification. A limited liability company shall not be required to file an annual report until one year after the effective date of its certificate of formation or registration.

c. The Secretary of State shall: furnish annual report forms; keep all reports filed in the Secretary's office; and prepare an alphabetical index thereof. The reports and index shall be open to public inspection at hours set by the Secretary of State.

d. If a domestic limited liability company fails to file an annual report for two consecutive years and after a written demand for the reports by certified mail to the limited liability company's last known main business address or headquarters, or to the address of its registered agent, the Secretary of State may issue a proclamation declaring that the certificate of formation of the limited liability company has been revoked and that all powers conferred by law upon it shall be thereafter inoperative and void. No limited liability company's certificate of formation shall be revoked pursuant to this subsection if, within 30 days after the giving of notice, it files the reports required by law and pays to the Secretary of State all fees due. A revocation shall have no effect on the liability of a member of a limited liability company.

e. If a foreign limited liability company fails to file an annual report with the Secretary of State for two consecutive years and after a written demand for the reports by certified mail to the limited liability company's last known main business address or headquarters, or to the address of its registered agent, the Secretary of State may issue a proclamation declaring that the certificate of registration of the limited liability company has been revoked and that all powers conferred by law upon it shall be thereafter inoperative and void. No limited liability company's certificate of registration shall be revoked pursuant to this subsection if, within 30 days after the giving of notice, it files the reports required by law and pays to the Secretary of State all fees due. A revocation shall have no effect on the liability of a member of a limited liability company.

f. If the certificate of formation of a domestic limited liability company or the certificate of registration of a foreign limited liability company has been revoked by proclamation, 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 of $50, current annual report fee, all delinquent annual report fees, and a reinstatement filing assessment of $200. Reinstatement relates back to the date of the issuance of the proclamation revoking the certificate of formation or registration and validates all actions taken in the interim. If the name of a domestic or foreign limited liability company has become unavailable in the interim, the Secretary of State shall issue the certificate of formation or registration, as appropriate, upon the filing of an amendment to the certificate of formation by a domestic limited liability company to change its name to an available name or the filing of an amendment to the certificate of registration by a foreign limited liability company adopting an assumed name. The Secretary of State shall provide the forms necessary to effect annual report reinstatements.

12. This act shall take effect immediately.

STATEMENT

This bill streamlines the procedures for revoking and reinstating the certificates issued by the Secretary of State which give authority to the following domestic and foreign entities to transact business in this State: for profit and not for profit corporations; limited partnerships; limited liability companies and limited liability partnerships.

This bill removes (1) the penalty imposed on any domestic or foreign for-profit or not-for-profit corporation which fails to file a certificate of change of its registered office or agent or its annual report and (2) the action which would result in the subsequent entry of the name of the corporation as a judgment debtor upon the Clerk of the Superior Court's record of docketed judgments.

The bill requires domestic and foreign limited liability companies to file an annual report with the Secretary of State. If a limited liability company fails to file an annual report as required under the bill and after a written demand for the annual report, the Secretary of State may issue a proclamation declaring the certificate of formatino, if a domestic limited liability company, or the certificate of registration, if a foreign limited liability company, has been revoked. The Secretary of State already has the authority to do the same with repect to the other entities.

The Secretary of State, under the bill, will reinstate an entity's certificate, if the entity pays all fees required. Under the bill, the fees vary according to the entity whose certificate is being reinstated, but include the following, as appropriate: a reinstatement filing fee; a tax clearance fee; current annual report fee; all delinquent annual report fees; current fee for filing a certificate and a reinstatement assessment.

The bill provides that, if the name of the entity has become unavailable in the period during which the entity's certificate was revoked, the entity may file an amended certificate changing its name, if a domestic entity, or taking an assumed name, if a foreign entity.

Streamlines the revocation and reinstatement processes for certain entities.