42:2B-17. Filing of certificates; effectiveness

42:2B-17. Filing of certificates; effectiveness
17. a. The original signed copy of the certificate of formation and of any certificates of amendment or cancellation (or of any judicial decree of amendment or cancellation), and of any certificate of merger or consolidation and of any restated certificate shall be delivered to the Secretary of State. A person who executes a certificate as an agent or fiduciary need not exhibit evidence of his authority as a prerequisite to filing. Any signature on any certificate authorized to be filed in the office of the Secretary of State under any provision of this act may be a facsimile. Unless the Secretary of State finds that any certificate does not conform to law, upon receipt of all filing fees required by law the Secretary of State shall:

(1) Certify that the certificate of formation, the certificate of amendment, the certificate of cancellation (or of any judicial decree of amendment or cancellation), the certificate of merger or consolidation or the restated certificate has been filed in his office by endorsing upon the original certificate the word "Filed," and the date and hour of the filing. This endorsement is conclusive of the date and time of its filing in the absence of actual fraud;

(2) File and index the endorsed certificate; and



(3) Prepare and return to the person who filed it or his representative a copy of the original signed instrument, similarly endorsed, and shall certify such copy as a true copy of the original signed instrument.

b. Upon the filing of a certificate of amendment (or judicial decree of amendment) or restated certificate in the office of the Secretary of State, or upon the future effective date or time of a certificate of amendment (or judicial decree thereof) or restated certificate, as provided for therein, the certificate of formation shall be amended or restated as set forth therein. Upon the filing of a certificate of cancellation (or a judicial decree thereof), or a certificate of merger or consolidation which acts as a certificate of cancellation, or upon the future effective date or time of a certificate of cancellation (or a judicial decree thereof) or of a certificate of merger or consolidation which acts as a certificate of cancellation, the certificate of formation is cancelled.

L.1993,c.210,s.17.

42:2B-17. Filing of certificates; effectiveness

42:2B-17. Filing of certificates; effectiveness
17. a. The original signed copy of the certificate of formation and of any certificates of amendment or cancellation (or of any judicial decree of amendment or cancellation), and of any certificate of merger or consolidation and of any restated certificate shall be delivered to the Secretary of State. A person who executes a certificate as an agent or fiduciary need not exhibit evidence of his authority as a prerequisite to filing. Any signature on any certificate authorized to be filed in the office of the Secretary of State under any provision of this act may be a facsimile. Unless the Secretary of State finds that any certificate does not conform to law, upon receipt of all filing fees required by law the Secretary of State shall:

(1) Certify that the certificate of formation, the certificate of amendment, the certificate of cancellation (or of any judicial decree of amendment or cancellation), the certificate of merger or consolidation or the restated certificate has been filed in his office by endorsing upon the original certificate the word "Filed," and the date and hour of the filing. This endorsement is conclusive of the date and time of its filing in the absence of actual fraud;

(2) File and index the endorsed certificate; and



(3) Prepare and return to the person who filed it or his representative a copy of the original signed instrument, similarly endorsed, and shall certify such copy as a true copy of the original signed instrument.

b. Upon the filing of a certificate of amendment (or judicial decree of amendment) or restated certificate in the office of the Secretary of State, or upon the future effective date or time of a certificate of amendment (or judicial decree thereof) or restated certificate, as provided for therein, the certificate of formation shall be amended or restated as set forth therein. Upon the filing of a certificate of cancellation (or a judicial decree thereof), or a certificate of merger or consolidation which acts as a certificate of cancellation, or upon the future effective date or time of a certificate of cancellation (or a judicial decree thereof) or of a certificate of merger or consolidation which acts as a certificate of cancellation, the certificate of formation is cancelled.

L.1993,c.210,s.17.

42:2B-16. Action to compel execution of certificate, agreement

42:2B-16. Action to compel execution of certificate, agreement
16. a. If a person required to execute a certificate required by this act fails or refuses to do so, any other person who is adversely affected by the failure or refusal may petition the Superior Court to direct the execution of the certificate. If the court finds that the execution of the certificate is proper and that any person so designated has failed or refused to execute the certificate, it shall order the Secretary of State to record an appropriate certificate.

b. If a person required to execute an operating agreement or amendment thereof fails or refuses to do so, any other person who is adversely affected by the failure or refusal may petition the Superior Court to direct the execution of the operating agreement or amendment thereof. If the court finds that the operating agreement or amendment thereof should be executed and that any person required to execute the operating agreement or amendment thereof has failed or refused to do so, it shall enter an order granting appropriate relief.

42:2B-15. Execution of certificates

42:2B-15. Execution of certificates
15. a. Each certificate required by this act to be filed in the office of the Secretary of State shall be executed by one or more authorized persons.

b. Unless otherwise provided in an operating agreement, any person may sign any certificate or amendment thereof or enter into an operating agreement or amendment thereof by an agent, including an attorney-in-fact. An authorization, including a power of attorney, to sign any certificate or amendment thereof or to enter into an operating agreement or amendment thereof need not be in writing, need not be sworn to, verified or acknowledged, and need not be filed in the office of the Secretary of State, but if in writing, must be retained by the limited liability company.

c. The execution of a certificate by an authorized person constitutes an oath or affirmation, under the penalties of perjury in the third degree, that, to the best of the authorized person's knowledge and belief, the facts stated therein are true.

42:2B-14 Cancellation of certificate of formation; filing of certificate of cancellation.

42:2B-14 Cancellation of certificate of formation; filing of certificate of cancellation.

14. a. A certificate of formation shall be canceled upon the dissolution and the completion of winding up of a limited liability company, 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 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.(Deleted by amendment, P.L.1998, c.79.)

L.1993,c.210,s.14; amended 1997, c.139, s.10; 1998, c.79, s.3.

42:2B-13. Amending a certificate of formation

42:2B-13. Amending a certificate of formation
13. a. A certificate of formation is amended by filing a certificate of amendment thereto in the office of the Secretary of State. The certificate of amendment shall set forth:

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



(2) The amendment to the certificate of formation.



b. A manager or, if there is no manager, any member who becomes aware that any statement in a certificate of formation was false when made, or that any matter described has changed making the certificate of formation false in any material respect, shall promptly amend the certificate of formation.

c. A certificate of formation may be amended at any time for any other proper purpose.

d. Unless a later effective date (which shall be a date certain not later than 30 days after the date of filing) is provided for in the certificate of amendment, a certificate of amendment shall be effective at the time of its filing with the Secretary of State.

L.1993,c.210,s.13.

42:2B-12. Certificate of correction; filing

42:2B-12. Certificate of correction; filing
12. If any instrument filed with the Secretary of State under any provision of this act is an inaccurate record of the limited liability company action therein referred to, or was defectively or erroneously executed, the instrument may be corrected by filing with the Secretary of State a certificate of correction executed by an authorized person. 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 certificate 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.

L.1993,c.210,s.12.

42:2B-11 Certificate of formation; filing.

42:2B-11 Certificate of formation; filing.

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)(Deleted by amendment, P.L.1998, c.79.)

(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.

L.1993,c.210,s.11; amended 1997, c.139, s.9; 1998, c.79, s.2.

42:2B-10. Indemnification powers

42:2B-10. Indemnification powers
10. Subject to such standards and restrictions, if any, as are set forth in its operating agreement, a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.

L.1993,c.210,s.10.

42:2B-9. Members', managers' rights, obligations

42:2B-9. Members', managers' rights, obligations

9. Except as otherwise provided in an operating agreement, a member or manager may lend money to, borrow money from, act as a surety, guarantor or endorser for, guarantee or assume one or more specific obligations of, provide collateral for, and transact other business with a limited liability company and, subject to other applicable law, has the same rights and obligations with respect to any such matter as a person who is not a member or manager.

L.1993,c.210,s.9.

42:2B-8.1. Annual report by limited liability company to Secretary of State

42:2B-8.1. Annual report by limited liability company to Secretary of State

22. 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.

(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 its 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.

L.1997,c.139,s.22.

42:2B-8. Purpose of limited liability company; powers

42:2B-8. Purpose of limited liability company; powers
8. a. A limited liability company may carry on any lawful business, purpose or activity.

b. A limited liability company shall possess and may exercise all the powers and privileges granted by this act or by any other law or by its operating agreement, together with any powers incidental thereto, so far as such powers and privileges are necessary or convenient to the conduct, promotion or attainment of the business, purposes or activities of the limited liability company.

L.1993,c.210,s.8.

42:2B-6. Company office; agent LLC

42:2B-6. Company office; agent
6. a. Each domestic and foreign limited liability company shall have and maintain in this State:

(1) A registered office, which may but need not be a place of its business in this State; and

(2) A registered agent for service of process on the limited liability company, which agent may be either an individual resident of this State whose business office is identical with the limited liability company's registered office, or a domestic corporation, or a foreign corporation authorized to do business in this State having a business office identical with such registered office, or the limited liability company itself.

b. (1) A registered agent may (with prior notice to the limited liability company for which it is the registered agent), change the address of the registered office of any domestic or foreign limited liability company for which the registered agent is registered agent to another address in this State by filing in the office of the Secretary of State a certificate, executed by the registered agent, setting forth the names of each limited liability company, and the address at which the registered agent has maintained the registered office for each limited liability company, and further certifying to the new address to which the registered office will be changed on a given day, and at which new address the registered agent will thereafter maintain the registered office for each limited liability company recited in the certificate. Upon the filing of such certificate, the Secretary of State shall furnish to the registered agent a certified copy of the same under his hand and seal of office, and thereafter, or until further change of address, as authorized by law, the registered office in this State of each limited liability company recited in the certificate shall be located at the new address of the registered agent thereof as given in the certificate.

(2) In the event of a change of name of any person acting as a registered agent of a limited liability company, the registered agent shall file in the office of the Secretary of State a certificate, executed by the registered agent, setting forth the new name of the registered agent, the name of the registered agent before it was changed, the name of each limited liability company represented by the registered agent, and the address at which the registered agent has maintained the registered office for each limited liability company. Upon the filing of the certificate, the Secretary of State shall furnish to the registered agent a certified copy of the certificate under his hand and seal of office.

(3) Filing a certificate under this section shall be deemed to be an amendment of the certificate of formation of each limited liability company affected thereby and no limited liability company shall be required to take any further action with respect thereto, to amend its certificate of formation under this act.

L.1993,c.210,s.6.

42:2B-5 Exclusive use, reservation of specified name

42:2B-5 Exclusive use, reservation of specified name

5. a. The exclusive right to the use of a name may be reserved by:



(1) Any person intending to organize a limited liability company under this act and to adopt that name;

(2) Any domestic limited liability company or any foreign limited liability company registered in this State which, in either case, proposes to change its name;

(3) Any foreign limited liability company intending to register in this State and adopt that name; and

(4) Any person intending to organize a foreign limited liability company and intending to have it register in this State and adopt that name.

b. The reservation of a specified name shall be made by filing with the Secretary of State an application, executed by the applicant, together with a duplicate copy, which may be either a signed or conformed copy, specifying the name to be reserved and the name and address of the applicant. If the Secretary of State finds that the name is available for use by a domestic or foreign limited liability company, he shall reserve the name for the exclusive use of the applicant for a period of 120 days. Once having so reserved a name, the same applicant may again reserve the same name for successive 120 day periods. The right to the exclusive use of a reserved name may be transferred to any other person by filing in the office of the Secretary of State a notice of the transfer, executed by the applicant for whom the name was reserved, together with a duplicate copy, which may be either a signed or conformed copy, specifying the name to be transferred and the name and address of the transferee. The reservation of a specified name may be cancelled by filing with the Secretary of State a notice of cancellation, executed by the applicant or transferee, together with a duplicate copy, which may be either a signed or conformed copy, specifying the name reservation to be cancelled and the name and address of the applicant or transferee. Any duplicate copy filed with the Secretary of State as required by this subsection shall be returned by the Secretary of State to the person who filed it or his representative with a notation thereon of the action taken with respect to the original copy thereof by the Secretary of State.

L.1993,c.210,s.5.

42:2B-4. Conditions for use of alternate name; certificate of registration

42:2B-4. Conditions for use of alternate name; certificate of registration
4. a. No domestic limited liability company or foreign limited liability company which conducts activities in this State shall conduct any of those activities using an alternate name, including an abbreviation of its name or an acronym, unless:

(1) It also uses its actual name in the transaction of any of its activities in a manner that is not deceptive as to its actual identity; or

(2) It has first registered the alternate name as provided in subsection b. of this section.

b. Any limited liability company may adopt and use any alternate name, including any name which would be unavailable as the name of a domestic or foreign limited liability company because of the prohibitions of subsection c. of section 3, but not including any name not permitted as a limited liability company name by subsection a. or d. of section 3, by filing an original and a copy of a certificate of registration of alternate name with the Secretary of State executed on behalf of the limited liability company. The certificate shall set forth:

(1) The name, jurisdiction and date of establishment of the limited liability company;

(2) The alternate name;



(3) A brief statement of the character or nature of the particular activities to be conducted using the alternate name;

(4) That the limited liability company intends to use the alternate name in this State;

(5) That the limited liability company has not previously used the alternate name in this State in violation of this section or, if it has, the month and year in which it commenced the use.

c. The registration shall be effective for five years from the date of filing and may be renewed successively for additional five-year periods by filing an original and a copy of the certificate of renewal executed on behalf of the limited liability company anytime within 90 days prior to, but not later than, the date of expiration of the registration. The certificate of renewal shall set forth the information required in paragraphs (1) through (4) of subsection b. of this section, the date of the certificate of registration then in effect and that the limited liability company is continuing to use the alternate name.

d. This section shall not:



(1) Grant to the registrant of an alternate name any right in the name as against any prior or subsequent use of the name, regardless of whether used as a trademark, trade name, business name or corporate name; or

(2) Interfere with the power of any court to enjoin the use of the name on the basis of the law of unfair competition or on any other basis except the identity or similarity of the alternate name to any corporate, limited partnership or limited liability company name.

e. A limited liability company which has used an alternate name in this State contrary to the provisions of this section shall, upon filing a certificate of registration of alternate name or an untimely certificate of renewal, pay to the Secretary of State the filing fee prescribed for the certificate plus an additional filing fee equal to the full amount of the regular filing fee multiplied by the number of years it has been using the alternate name in violation of this section. For the purpose of this subsection, any part of a year shall be considered a full year.

f. The failure of a limited liability company to file a certificate of registration or renewal of alternate name shall not impair the validity of any contract or act of the limited liability company and shall not prevent the limited liability company from defending any action or proceedings in any court of this State, but the limited liability company shall not maintain any action or proceeding in any court of this State arising out of a contract or act in which it used the alternate name until it has filed the applicable certificate.

g. (1) A limited liability company which files a certificate of registration of alternate name which contains a false statement or omission regarding the date it first used an alternate name in this State shall, if the false statement or omission reduces the amount of the additional fee it paid or should have paid as provided in subsection e. of this section, forfeit to the State a penalty of not less than $200 nor more than $500.

(2) A limited liability company which should have filed a certificate of registration or renewal of alternate name and fails to do so within 60 days after being notified of its obligation to do so by certified or registered mail by the Secretary of State, by any other governmental officer, or by any person aggrieved by its failure to do so, shall forfeit to the State a penalty of not less than $200 nor more than $500.

(3) A penalty imposed under this section shall be recovered with costs in an action brought by the Attorney General. The court may proceed on the action in a summary manner.

L.1993,c.210,s.4.