North Dakota Code 10-32.1-90 – Secretary of state – Involuntary termination – Revocation of certificate of authority
1. With respect to the involuntary termination of a limited liability company by the secretary of state:
Terms Used In North Dakota Code 10-32.1-90
- Affidavit: A written statement of facts confirmed by the oath of the party making it, before a notary or officer having authority to administer oaths.
- 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.
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- 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
- 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
a. A limited liability company may be involuntarily terminated by the secretary of state if:
(1) The limited liability company has failed to:
(a) File with the secretary of state its annual report or any other record required to be filed with the secretary of state under this chapter together with the fees provided in section 10-32.1-92; (b) Appoint and maintain a registered agent and registered office as provided in chapter 10-01.1.
(2) A misrepresentation has been made of any material matter in any application, report, affidavit, or other record submitted by the limited liability company pursuant to this chapter.
b. A limited liability company that fails to file its annual report, together with the fees provided in section 10-32.1-92, within six months after the date established in subsection 3 of section 10-32.1-89 ceases to exist and is considered involuntarily terminated by operation of law.
(1) The secretary of state shall note the termination of the certificate of organization of the limited liability company on the records of the secretary of state and shall give notice of the action to the terminated limited liability company.
(2) Notice by the secretary of state must be mailed to the last registered agent of the limited liability company at the last registered office in this state or, if the limited liability company fails to appoint and maintain a registered agent in this state, then mailed to the principal executive office.
(3) The decision of the secretary of state that the limited liability company has been involuntarily terminated under this subsection is final.
(4) A limited liability company that was terminated for failure to file an annual report may be reinstated as provided in subsection 1 of section 10-32.1-91 and may appeal as provided in subsection 2 of section 10-32.1-91.
c. Except for termination of a limited liability company for failure to file the annual report as provided in section 10-32.1-89, no limited liability company may be terminated by the secretary of state unless:
(1) The secretary of state has given the limited liability company not less that sixty days notice by mail addressed to the registered agent at the registered office in this state or, if the limited liability company fails to appoint and maintain a registered agent in this state, then addressed to its principal executive office; and
(2) During the sixty-day period, the limited liability company has failed to:
(a) File the report of change as provided in chapter 10-01.1 regarding the registered office or the registered agent; (b) File any other required record; or
(c) Correct the misrepresentation.
d. Upon the expiration of sixty days after the mailing of the notice, the existence of the limited liability company is terminated. The secretary of state shall issue a notice of termination and shall mail the notice to the registered agent at the registered office in this state, or, if the limited liability company failed to appoint and maintain a registered agent or a registered office in this state, then addressed to the principal executive office of the limited liability company.
2. With respect to the revocation of a certificate of authority of a foreign limited liability company by the secretary of state:
a. The certificate of authority of a foreign limited liability company to transact business in this state may be revoked by the secretary of state if: (1) The foreign limited liability company has failed to:
(a) File with the secretary of state its annual report or any other record required to be filed with the secretary of state under this chapter together with the fees provided in section 10-32.1-77; (b) Appoint and maintain a registered agent and registered office as provided in chapter 10-01.1; (c) File with the secretary of state any amendment to its application for a certificate of authority as provided in section 10-32.1-77; (d) File with the secretary of state any merger as provided in section 10-32.1-79; or
(e) File with the secretary of state an application for certificate of withdrawal of its authority as provided in section 10-32.1-81 when the existence of the limited liability company has expired or the limited liability company has been dissolved or terminated in the jurisdiction of the organization; or
(2) A misrepresentation has been made of any material matter in any application, report, affidavit, or other record submitted by the foreign limited liability company pursuant to this chapter.
b. A foreign limited liability company that fails to file its annual report together with the fees provided in section 10-32.1-92, within six months after the date established by subsection 3 of section 10-32.1-89, forfeits the authority to transact business in this state and its certificate of authority is considered revoked by operation of law.
(1) The secretary of state shall note the revocation of the certificate of authority of the foreign limited liability company on the records of the secretary of state and shall give notice of the action to the foreign limited liability company.
(2) Notice by the secretary of state must be mailed to the last registered agent of the foreign limited liability company at its last registered office in this state or, if the foreign limited liability company fails to appoint and maintain a registered agent in this state, then mailed to its principal executive office.
(3) The decision of the secretary of state that a certificate of authority must be revoked under this subsection is final.
(4) A foreign limited liability company whose authority was forfeited by, and whose certificate of authority was revoked by the secretary of state for, failure to file an annual report may be reinstated as provided in subsection 1 of section 10-32.1-91 and may appeal as provided in subsection 2 of section 10-32.1-91.
c. Except for revocation of the certificate of authority for failure to file the annual report as provided in section 10-32.1-89, no certificate of authority of a foreign limited liability company may be revoked by the secretary of state unless:
(1) The secretary of state has given the foreign limited liability company not less than sixty days notice by mail addressed to its registered agent at the registered office in this state or, if the foreign limited liability company fails to appoint and maintain a registered agent in this state, then addressed to the principal office; and
(2) During the sixty-day period, the foreign limited liability company has failed to:
(a) File the report of change as provided in chapter 10-01.1 regarding the registered office or registered agent; (b) File any merger; (c) File an application for withdrawal; (d) File any other required record; or (e) Correct the misrepresentation.
d. Upon the expiration of sixty days after the mailing of the notice, the authority of the foreign limited liability company to transact business in this state ceases. The secretary of state shall issue a notice of revocation and shall mail the notice to the registered agent at the registered office in this state, or, if the foreign limited liability company failed to appoint and maintain a registered agent or a registered office in this state, then addressed to the principal executive office of the foreign limited liability company.