North Dakota Code 10-32.1-21 – Amendment or restatement of articles of organization
1. Articles of organization may be amended or restated at any time.
Terms Used In North Dakota Code 10-32.1-21
- Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- following: when used by way of reference to a chapter or other part of a statute means the next preceding or next following chapter or other part. See North Dakota Code 1-01-49
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Organization: includes a foreign or domestic association, business trust, corporation, enterprise, estate, joint venture, limited liability company, limited liability partnership, limited partnership, partnership, trust, or any legal or commercial entity. See North Dakota Code 1-01-49
- Partnership: A voluntary contract between two or more persons to pool some or all of their assets into a business, with the agreement that there will be a proportional sharing of profits and losses.
- Partnership: includes a limited liability partnership registered under chapter 45-22. See North Dakota Code 1-01-49
- Person: means an individual, organization, government, political subdivision, or government agency or instrumentality. See North Dakota Code 1-01-49
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See North Dakota Code 1-01-49
- Statute: A law passed by a legislature.
- United States: includes the District of Columbia and the territories. See North Dakota Code 1-01-49
- Verified: means sworn to before an officer authorized to administer oaths. See North Dakota Code 1-01-42
- written: include "typewriting" and "typewritten" and "printing" and "printed" except in the case of signatures and when the words are used by way of contrast to typewriting and printing. See North Dakota Code 1-01-37
a. Before any contribution is reflected in the required records of a limited liability company, the articles of organization may be amended by the organizers or by the board. The articles of organization may also be amended by the board to establish or fix the rights and preferences of a class or series of membership interests before any contribution pertaining to that class or series is reflected in the records of the limited liability company by filing articles of amendment with the secretary of state.
b. With respect to amendment after contribution:
(1) Except as otherwise provided in subdivision a, after any contribution has been reflected in the records of a limited liability company, the articles of organization may be amended in the manner set forth in this subdivision.
(2) A resolution approved by the affirmative vote of a majority of the governors present, or proposed by a member or members owning five percent or more of the voting power of the members entitled to vote, that sets forth the proposed amendment must be submitted to a vote at the next regular or special meeting of the members of which notice has not yet been given but still can be timely given. Any number of amendments may be submitted to the members and voted upon at one meeting, but the same or substantially the same amendment proposed by a member or members need not be submitted to the members or be voted upon at more than one meeting during a fifteen-month period. The resolution may amend the articles of organization in their entirety to restate and supersede the original articles of organization and all amendments to them.
(3) Written notice of the meeting of the members setting forth the substance of the proposed amendment must be given to each member entitled to vote in the manner provided in subsection 5 of section 10-32.1-39 for the giving of notice of meetings of members.
(4) The proposed amendment is adopted:
(a) When approved by the affirmative vote of the members required by section 10-32.1-39; or
(b) If the articles of organization provide for a specified proportion equal to or larger than the majority necessary to transact a specified type of business at a meeting, or if it is proposed to amend the articles to provide for a specified proportion equal to or larger than the majority necessary to transact a specified type of business at a meeting, then the affirmative vote necessary to add the provision to, or to amend an existing provision in, the articles of organization is the larger of:
[1] The specified proportion or number or, in the absence of a specific provision, the affirmative vote necessary to transact the type of business described in the proposed amendment at a meeting immediately before the effectiveness of the proposed amendment; or
[2] The specified proportion or number that would, upon effectiveness of the proposed amendment, be necessary to transact the specified type of business at a meeting.
2. To amend its articles of organization, a limited liability company must file with the secretary of state an amendment stating:
a. The name of the company; b. The changes the amendment makes to the articles of organization as most recently amended or restated; and
c. A statement that the amendment was adopted pursuant to this chapter.
3. If only a change of address of the principal executive office is required, then an amendment need not be filed. However, the change of address of the principal executive office must then be reported in the next annual report filed after the change or be submitted in writing to the secretary of state without a filing fee.
4. To restate its articles of organization, a limited liability company must file with the secretary of state a restatement, designated as such in its heading, stating:
a. In the heading or an introductory paragraph, the present name of the company; and b. The changes the restatement makes to the articles of organization as most recently amended or restated, except that the name and address of each organizer may be omitted.
5. Subject to subsection 3 of section 10-32.1-15 and subsection 3 of section 10-32.1-87, an amendment to or restatement of articles of organization is effective when filed with the secretary of state or at a later date as specified in the amendment to, or restatement of, the articles of organization.
6. The owners of the outstanding transferable interests of a class or series are entitled to vote as a class or series upon a proposed amendment to the articles of organization, whether or not entitled to vote on the amendment by the provisions of the articles of organization, if the amendment would:
a. Effect an exchange, reclassification, or cancellation of all or part of the membership interests of the class or series, or effect a combination of outstanding membership interests of a class or series into a lesser number of membership interests of the class or series if each other class or series is not subject to a similar combination; b. Effect an exchange, or create a right of exchange, of all or any part of the membership interests of another class or series for the membership interests of the class or series; c. Change the rights or preferences of the membership interests of the class or series; d. Create a new class or series of membership interests having rights and preferences prior and superior to the membership interests of that class or series, or increase the rights and preferences or the number of membership interests, of a class or series having rights and preferences prior or superior to the membership interests of that class or series; e. Divide the membership interests of the class into series and determine the designation of each series and the variations in the relative rights and preferences between the membership interests of each series or authorize the board to do so; f. Limit or deny any existing pre-emptive rights of the membership interests of the class or series; or
g. Cancel or otherwise affect distributions on the membership interests of the class or series.
7. With respect to the effect of the amendment:
a. An amendment does not affect an existing cause of action in favor of or against the limited liability company, nor a pending suit to which the limited liability company is a party, nor the existing rights of persons other than members.
b. If the limited liability company name is changed by the amendment, a suit brought by or against the limited liability company under its former name does not abate for that reason.
c. An amendment restating the articles in their entirety supersedes the original articles and all amendments to the original articles.
8. If the secretary of state finds that the articles of amendment conform to law, and that all fees have been paid as provided in section 10-32.1-92, then the articles of amendment must be recorded in the office of the secretary of state.
9. A limited liability company that amends its name and which is the owner of a service mark, trademark, or trade name, is a general partner named in a fictitious name certificate, is a general partner in a limited partnership or a limited liability limited partnership, or is a managing partner of a limited liability partnership that is on file with the secretary of state must change or amend the name of the limited liability company in each registration when the limited liability company files an amendment.
10. With respect to the amendment of articles of organization in court-supervised reorganization:
a. Whenever a plan of reorganization of a limited liability company has been confirmed by decree or order of a court of competent jurisdiction in proceedings for the reorganization of the limited liability company, pursuant to the provisions of any applicable statute of the United States relating to reorganization of limited liability companies, the articles may be amended, in the manner provided in this section, in as many respects as may be necessary to carry out the plan and to put it into effect, so long as the articles as amended contain only provisions which might be lawfully contained in original articles of organization at the time of making the amendment. In particular, and without limitation upon any general power of amendment, the articles may be amended to:
(1) Change the limited liability company name, period of duration, or organizational purposes of the limited liability company.
(2) Repeal, alter, or amend the bylaws of the limited liability company.
(3) Change the preferences, limitations, relative rights in respect of all or any part of the membership interests of the limited liability company, and classify, reclassify, or cancel all or any part thereof.
(4) Authorize the issuance of bonds, debentures, or other obligations of the limited liability company, whether convertible into membership interests of any class or bearing warrants or other evidence of optional rights to purchase or subscribe for membership interests of any class, and fix the terms and conditions thereof.
(5) Constitute or reconstitute and classify or reclassify the board and appoint governors and managers in place of or in addition to all or any of the governors or managers then in office.
b. Amendments to the articles pursuant to subdivision a must be made in the following manner:
(1) Articles of amendment approved by decree or order of the court must be signed and verified in duplicate by the person or persons designated or appointed by the court for that purpose and must set forth the name of the limited liability company, the amendments of the articles approved by the court, the date of the decree or order approving the articles of amendment, the title of the proceedings in which the decree or order was entered by a court having jurisdiction of the proceedings for the reorganization of the limited liability company pursuant to the provisions of an applicable statute of the United States.
(2) An original of the articles of amendment must be filed with the secretary of state. If the secretary of state finds that the articles of amendment conform to law, and that all fees have been paid as provided in section 10-32.1-92, then the articles of amendment must be recorded in the office of the secretary of state.
c. The articles of amendment become effective upon their acceptance by the secretary of state or at any other time within ninety days after their acceptance if the articles of amendment so provide.
d. The articles are deemed to be amended accordingly, without any action by the governors or members of the limited liability company and with the same effect as if the amendment had been adopted by the unanimous action provided for in section 10-32.1-39.
11. If a member-managed limited liability company, a manager of a manager-managed limited liability company, or a governor of a board-managed limited liability company, knows that any information in articles of organization filed with the secretary of state was inaccurate when the articles were filed, or has become inaccurate owing to changed circumstances, the member, manager, or governor shall promptly:
a. Cause the articles to be amended; or
b. If appropriate, file with the secretary of state a change of registered agent or change of registered office in the manner prescribed by chapter 10-01.1.