seq. Indicates New Matter, General Bill Section 33-43-102. Section 33-43-808. Member's and manager's rights to payments and reimbursement. (a) A limited liability company that has been administratively dissolved may apply to the Secretary of State for reinstatement within two years after the effective date of dissolution. It is assumed that statements of authority will be primarily used where the LLC is making normal or routine transfers of real property, and as such will primarily be of benefit to title examiners who are evaluating routine transfers. Former Section 102 provided in subsection (e) when an "entity" was deemed to know, had notice, or received a notification of a fact. FORMING THE LLC 4 FORMING THE LLC At Will v. Term (a) Before the effective date of this chapter, this chapter governs only: (1) a limited liability company formed on or after the effective date of this chapter; and. (c) An agreement of conversion must include the terms and conditions of the conversion of the interests of members of a limited liability company into interests in the converted limited partnership or the cash or other consideration to be paid or delivered as a result of the conversion of the interest of the members, or both. (a) A registered agent may resign as agent for a limited liability company or registered foreign limited liability company by delivering to the Secretary of State for filing a statement of resignation that states: (1) the name of the company or foreign company; (3) that the agent resigns from serving as registered agent for the company or foreign company; and. The notice must state: (1) the revocation's effective date, which must be at least sixty days after the date the Secretary of State sends the copy; and. (2) occurs before the termination of the company and: (A) the person withdraws as a member by express will; (B) the person is expelled as a member by judicial order under Section 33-43-602(5); (C) the person is dissociated under Section 33-43-602(7)(A) by becoming a debtor in bankruptcy; or. (b) If the Secretary of State determines that an application under subsection (a) contains the required information and that the information is correct, the Secretary of State shall prepare a declaration of reinstatement that states this determination, sign and file the original of the declaration of reinstatement, and serve the limited liability company with a copy. (a) An operating agreement may specify that its amendment requires the approval of a person that is not a party to the operating agreement or the satisfaction of a condition. (2) Application to Reserve Name (Section 33-43-109): $25.00. (4) The purpose of this subitem is to establish record notice pursuant to Chapter 7, Title 30. (a) A person may reserve the exclusive use of the name of a limited liability company, including a fictitious or assumed name for a foreign limited liability company whose name is not available, by delivering an application to the Secretary of State for filing. (a) A member is not an agent of a limited liability company solely by reason of being a member. Step 2: Choose a Registered Agent 3. Section 33-43-105. (3) A record filed on behalf of a dissolved limited liability company that has no members must be signed by the person winding up the company's activities under Section 33-43-702(c) or a person appointed under Section 33-43-702(d) to wind up those activities. One person intending to become the initial member of a limited liability company may assent to terms providing that upon the formation of the company the terms will become the operating agreement. (c) After formation of a limited liability company, a person becomes a member: (1) as provided in the operating agreement; (2) as the result of a transaction effective under Article 10; (3) with the consent of all the members; or. (4) An act outside the ordinary course of the activities of the company may be undertaken only with the consent of all members. (15) 'Principal office' means the principal executive office of a limited liability company or foreign limited liability company, whether or not the office is located in this State. Section 33-43-407. Likewise, the LLC can protect itself by recording a statement that identifies any limitation of authority to transfer LLC real property. Corporations and Associations (Profit), Corporations and Associations (Nonprofit), Partnerships. In a derivative action under Section 33-43-902, the complaint must state with particularity: (1) the date and content of the plaintiff's demand and the response to the demand by the managers or other members; or. (B) otherwise as a result of the merger, the person ceases to be a member; (12) the company participates in a conversion under Article 10; (13) the company participates in a domestication under Article 10, if, as a result of the domestication, the person ceases to be a member; or. (1) all property owned by the converting limited liability company vests in the corporation; (2) all debts, liabilities and other obligations of the converting limited liability company continue as obligations of the corporation; (3) an action or proceeding pending by or against the converting limited liability company may be continued as if the conversion had not occurred; (4) except as prohibited by the law, all the rights, privileges, immunities, powers, and purposes of the converting limited liability company vest in the corporation; (5) except as otherwise provided in the agreement of conversion pursuant to Section 33-43-1004(c), all the members of the converting limited liability company continue as shareholders of the corporation; and. The statement: (1) must include the name of the company and the street and mailing addresses of its principal office; (2) with respect to any position that exists in or with respect to the company, may state the authority, or limitations on the authority, of all persons holding the position to: (A) execute an instrument transferring real property held in the name of the company; or, (B) enter into other transactions on behalf of, or otherwise act for or bind, the company; and. (d) When a statement of resignation takes effect, the registered agent ceases to have responsibility under this chapter for any matter thereafter tendered to it as agent for the limited liability company or registered foreign limited liability company. (a) A foreign limited liability company may become a South Carolina limited liability company pursuant to this section, Sections 33-43-1014 through 33-43-1017, and a plan of domestication, if: (1) the foreign limited liability company's governing statute authorizes the domestication; (2) the domestication is not prohibited by the law of the jurisdiction that enacted the governing statute; and. The committee was asked to review the 2006 Uniform Act and suggest any needed modifications to make it fit with South Carolina practice or needs. We are regularly developing new academic programs based on local, regional, and national employment trends for our locations in Knoxville, Nashville, Asheville, Atlanta, Indianapolis, Orlando, Section 33-43-503. Failure to make the required filing of a limited partnership name change does not affect the legality, force, effect, or enforceability as between the parties of any conveyance or other transaction involving the real estate owned by the affected limited partnership that is made after the change in name. (20) Application for Amended Certificate of Authority (Section 33-43-805): $110.00. to file an operating agreement within 30 days of formation. (d) If a foreign limited liability company transacts business in this State without a certificate of authority or cancels its certificate of authority, it appoints the Secretary of State as its agent for service of process for rights of action arising out of the transaction of business in this State. The shield provides no protection when a member engages in actionable conduct. (e) Subject to subsection (c), a grant of authority not pertaining to transfers of real property and contained in an effective statement of authority is conclusive in favor of a person that gives value in reliance on the grant, except to the extent that when the person gives value: (1) the person has knowledge to the contrary; (2) the statement has been canceled or restrictively amended under subsection (b); or. (8) if the surviving entity is not a limited liability company, an agreement that the surviving entity may be served with process in this State and is subject to liability in any action or proceeding for the enforcement of any liability or obligation of any limited liability company previously subject to suit in this State which is to merge, and for the enforcement, as provided in this chapter, of the right of members of any limited liability company to receive payment for their interest against the surviving entity. (a) A person has the power to dissociate as a member at any time, rightfully or wrongfully, by withdrawing as a member by express will under Section 33-43-602(1). (a) Except as otherwise provided in subsection (b), if a member of a member-managed limited liability company or manager of a manager-managed limited liability company consents to a distribution made in violation of Section 33-43-405 and in consenting to the distribution fails to comply with Section 33-43-409, as may be modified by Section 33-43-110(d), the member or manager is personally liable to the company for the amount of the distribution that exceeds the amount that could have been distributed without the violation of Section 33-43-405. If the filing fees have been paid, unless the Secretary of State determines that a record does not comply with the filing requirements of this chapter, the Secretary of State shall file the record and: (1) for a statement of denial under Section 33-43-303, send a copy of the filed statement and a receipt for the fees to the person on whose behalf the statement was delivered for filing and to the limited liability company; and. Over the past few decades, the limited liability company form has become the most popular choice of business entity for business owners and companies. (2) implead any person that received a distribution in violation of subsection (c) and seek to compel contribution from the person in the amount the person received in violation of subsection (c). The application must state the name and address of the applicant and the name proposed to be reserved. (i) After a statement of dissolution becomes effective, a limited liability company may deliver to the Secretary of State for filing and, if appropriate, may record a statement of authority that is designated as a post-dissolution statement of authority. (b) If the sole plaintiff in a derivative action dies while the action is pending, the court may permit another member of the limited liability company to be substituted as plaintiff. (b) A foreign limited liability company may not be denied a certificate of authority by reason of any difference between the law of the jurisdiction under which the company is formed and the law of this State. (a) Except as otherwise provided in subsection (b), a derivative action under Section 33-43-902 may be maintained only by a person that is a member at the time the action is commenced and remains a member while the action continues. (2) as to persons that previously relied on the uncorrected record and would be adversely affected by the retroactive effect. (19) Application Certificate of Authority, Foreign LLC (Section 33-43-802): $110.00. (c) A member or manager of a foreign limited liability company is not liable for the debts, obligations, or other liabilities of the company solely because the company transacted business in this State without a certificate of authority. (b) A foreign limited liability company shall deliver with a completed application under subsection (a) a certificate of existence or a record of similar import signed by the Secretary of State or other official having custody of the company's publicly filed records in the state or other jurisdiction under whose law the company is formed. (d) An action requiring the consent of members under this chapter may be taken without a meeting, and a member may appoint a proxy or other agent to consent or otherwise act for the member by signing an appointing record, personally or by the member's agent. (c) Subject to any qualification stated in the certificate, a certificate of existence or certificate of authorization issued by the Secretary of State is conclusive evidence that the limited liability company is in existence or the foreign limited liability company is authorized to transact business in this State. Section 33-43-113. On the other hand, in most circumstances, a member of an LLC will not be liable on a contract made by the member on behalf of the LLC. (5) The operating agreement may be amended only with the consent of all members. Failure to make the required filing of a limited liability company name change does not affect the legality, force, effect, or enforceability as between the parties of any conveyance or other transaction involving the real estate owned by the affected limited liability company that is made after the change in name. (2) The company shall furnish to each member: (A) without demand, any information concerning the company's activities, financial condition, and other circumstances which the company knows and is material to the proper exercise of the member's rights and duties under the operating agreement or this chapter, except to the extent the company can establish that it reasonably believes the member already knows the information; and. To the extent the former member might have been owed fiduciary duties, these can be eliminated by the amendment or modification of the operating agreement. (4) if, within ninety consecutive days after the company ceases to have any members: (A) the last person to have been a member, or the legal representative of that person, designates one or more persons to become a member or members; and. "A tort is no less a tort for being committed in the service of a separate legal person. ', and 'company' may be abbreviated as 'Co.'. Subsections (a) and (b) merely require the person (if a single member LLC is planned) or one or more of the persons who will be members of a multi-person LLC, to instruct a person (who may be one of the future members) to file the articles of organization. (c) A limited liability company has perpetual duration. WebThe South Carolina 1996 Uniform Limited Liability Company Act (South Carolina LLC Act) governs the formation and organization of South Carolina LLCs. (8) 'Partnership agreement' means an agreement among the partners concerning the partnership or limited partnership. The Uniform LLC Act and other similar business acts (ULPA) provide for a ninety consecutive-day period. Upon receipt of process, the Secretary of State shall send a copy of the process by registered or certified mail, return receipt requested, to the surviving entity at the address set forth in the articles of merger. (7) A person's ceasing to be a manager does not discharge any debt, obligation, or other liability to the limited liability company or members which the person incurred while a manager. A tortfeasor is no less a tortfeasor when the tortious conduct occurs as part of an enterprise." TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING CHAPTER 43 TO TITLE 33 SO AS TO ENACT THE "UNIFORM LIMITED LIABILITY COMPANY ACT OF 2021", TO PROVIDE FOR THE MANNER IN AND REQUIREMENTS UNDER WHICH LIMITED LIABILITY COMPANIES ARE ORGANIZED, OPERATED, REGULATED, DISSOLVED, TRANSFERRED, AND CONVERTED; AND TO REPEAL CHAPTER 44 OF TITLE 33 RELATING TO THE "UNIFORM LIMITED LIABILITY COMPANY ACT OF 1996". Section 33-43-109. (4) the contents of the amendment or a declaration that the statement being affected is canceled. (d) After a conversion is approved pursuant to subsection (b), the limited liability company shall file with the Secretary of State articles of incorporation that satisfy the requirements of Section 33-2-102 and contain: (1) a statement that the limited liability company was converted to a corporation from a limited liability company; (3) a statement of the number of votes cast by the members entitled to vote for and against the conversion and, if the vote is less than unanimous, the number or percentage required to approve the conversion pursuant to subsection (b); and. Section 33-43-107. WebSouth College offers more than 70 Certificate, Associate, Bachelors, Masters, Educational Specialist, and Doctoral programs to meet the needs of students. (3) A difference arising among members as to a matter in the ordinary course of the activities of the company may be decided by a majority of the members. (3) may state the authority, or limitations on the authority, of a specific person to: (B) enter into other transactions on behalf of, or otherwise act for or bind, the company. (b) A domestication becomes effective: (1) when the certificate of organization takes effect, if the domesticated company becomes a South Carolina limited liability company; and. Subject only to any court order issued under Section 33-43-503(b)(2) to effectuate a charging order, an amendment to the operating agreement made after a person becomes a transferee or dissociated member is effective with regard to any debt, obligation, or other liability of the limited liability company or its members to the person in the person's capacity as a transferee or dissociated member. (e) After making a determination under subsection (d), a special litigation committee shall file with the court a statement of its determination and its report supporting its determination, giving notice to the plaintiff. Applying for a certificate of authority is not an admission of tax liability. (a) A limited liability company that is converted to a corporation is for all purposes the same entity that existed before the conversion. Similar to former South Carolina law, Section 33-43-409 imposes specified fiduciary duties on members and managers (which are the only ones unless expanded by the operating agreement). (3) the changes the amendment makes to the certificate as most recently amended or restated. (c) Two or more persons intending to become the initial members of a limited liability company may make an agreement providing that upon the formation of the company the agreement will become the operating agreement. After obtaining a certificate of authority with an alternate name, a foreign limited liability company shall transact business in this State under the alternate name. Section 33-43-410. (d) Subject to subsection (c), if a record that has been delivered by a limited liability company to the Secretary of State for filing and has become effective under this chapter conflicts with a provision of the operating agreement: (1) the operating agreement prevails as to members, dissociated members, transferees, and managers; and. (a) A plan of domestication must be consented to: (1) by all the members, subject to Section 33-43-1017, if the domesticating company is a South Carolina limited liability company; and. (f) A member who becomes a partner of a partnership as a result of a conversion remains liable as a member for the existing debts and obligation of the former limited liability company, only to the extent the member was liable for an obligation incurred by the limited liability company before the conversion takes effect and for which a member would be personally liable. Unless a written operating agreement specifically includes additional fiduciary duties, the fiduciary duties provided in this section are the only ones that affect members or managers; judges should not impose any additional fiduciary duties. (c) On ten days' demand made in a record received by a limited liability company, a dissociated member may have access to information to which the person was entitled while a member if the information pertains to the period during which the person was a member, the person seeks the information in good faith, and the person satisfies the requirements imposed on a member by subsection (b)(2). This unanimous vote requirement may be changed by a specific provision in the operating agreement, subject however to the limitations found in Section 33-43-1017, which generally gives a member a veto right if the domestication (or merger or conversion) would in of itself impose personal liability on the member. A charging order constitutes a lien on a judgment debtor's transferable interest and requires the limited liability company to pay over to the person to which the charging order was issued any distribution that would otherwise be paid to the judgment debtor. If the court finds that the members of the committee were disinterested and independent and that the committee acted in good faith, independently, and with reasonable care, the court shall enforce the determination of the committee. Section 33-43-405. (D) the person is a limited liability company or partnership that has been dissolved and whose business is being wound up; (5) on application by the company, the person is expelled as a member by judicial order because the person: (A) has engaged, or is engaging, in wrongful conduct that has adversely and materially affected, or will adversely and materially affect, the company's activities; (B) has willfully or persistently committed, or is willfully and persistently committing, a material breach of the operating agreement or the person's existing duties or obligations under Section 33-43-409; or. (d) A limited liability company's indebtedness to a member incurred by reason of a distribution made in accordance with this section is at parity with the company's indebtedness to its general, unsecured creditors. (b) To the extent necessary to effectuate the collection of distributions pursuant to a charging order in effect under subsection (a), the court may: (1) appoint a receiver of the distributions subject to the charging order, with the power to make all inquiries the judgment debtor might have made; and. (b) The failure of a foreign limited liability company to have a certificate of authority to transact business in this State does not impair the validity of a contract or act of the company or prevent the company from defending an action or proceeding in this State. (a) A person's obligation to make a contribution to a limited liability company is not excused by the person's death, disability, or other inability to perform personally. Document Path: l:\council\bills\cc\15973sd21.docx, Introduced in the House on February 23, 2021 (c) An agreement of conversion must set forth the terms and conditions of the conversion of the interests of partners of a partnership or of a limited partnership, as the case may be, into interests in the converted limited liability company or the cash or other consideration to be paid or delivered as a result of the conversion of the interests of the partners, or a combination thereof. Unless displaced by particular provisions of this chapter, the principles of law and equity supplement this chapter. (d) Subject to subsection (c) and Section 33-43-103(d) and except as otherwise provided in subsections (f), (g), and (h), a limitation on the authority of a person or a position contained in an effective statement of authority is not by itself evidence of knowledge or notice of the limitation by any person. (e) At any time before foreclosure under subsection (c), a limited liability company or one or more members whose transferable interests are not subject to the charging order may pay to the judgment creditor the full amount due under the judgment and thereby succeed to the rights of the judgment creditor, including the charging order. (i) affidavit executed in accordance with the provisions of Section 33-1-200 and containing the old name of the limited liability company and new name of the corporation and describing the real property owned by that corporation; or, (ii) filing a certified copy of the articles of incorporation including a description of the real property; or. (a) A partnership or limited partnership that has been converted pursuant to this article is for all purposes the same entity that existed before the conversion. (b) A member may maintain a direct action to enforce a right of a limited liability company if all members at the time of the suit are parties to the action. See, Restatement (Third) or Agency Section 6.01, "When an agent acting with actual or apparent authority makes a contract on behalf of a disclosed principal, (1) the principal and the third party are parties to the contract; and (2) the agent is not a party to the contract unless the agent and third party agree otherwise." WebSouth Carolina Limited Liability Companies and Limited Liability Partnerships Fourth Edition TABLE OF CONTENTS Chapter 1 Overview of the South Carolina Uniform Limited (g) Except as otherwise provided in Section 33-43-602(4)(B), when a member transfers a transferable interest, the transferor retains the rights of a member other than the interest in distributions transferred and retains all duties and obligations of a member. Follow everyone's favorite troublemakersStan, Kyle, Cartman and Kenny--from the very beginning of their unforgettable adventures. This document contains important information about the companys structure and management. (A) deliver to the Secretary of State for filing a statement of dissolution stating the name of the company and that the company is dissolved; (B) preserve the company activities and property as a going concern for a reasonable time; (C) prosecute and defend actions and proceedings, whether civil, criminal, or administrative; (E) settle disputes by mediation or arbitration; and. If a process, notice, or demand is served on the Secretary of State, the Secretary of State shall forward one of the copies by registered or certified mail, return receipt requested, to the company at its principal office. (a) After a plan of domestication is approved, the domesticating company, the company that effects a domestication pursuant to Sections 33-43-1013 through 33-43-1017, shall deliver to the Secretary of State for filing articles of domestication, which must include: (1) a statement, as the case may be, that the company has been domesticated from or into another jurisdiction; (2) the name of the domesticating company and the jurisdiction of its original governing statute; (3) the name of the resulting domesticated company and the jurisdiction of its governing statute; (4) the date the domestication is effective under the governing statute of the resulting domesticated company; (5) if the domesticating company was a South Carolina limited liability company, a statement that the resulting domestication was approved as required by this chapter; (6) if the domesticating company was a foreign limited liability company, a statement that the domestication was approved as required by the governing statute of the other jurisdiction; and. 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