Current Status Introducing Body:Senate Bill Number:1466 Primary Sponsor:Bryan Committee Number:11 Type of Legislation:GB Subject:Limited Liability Company Act Residing Body:Senate Current Committee:Judiciary Companion Bill Number:4732 Computer Document Number:CYY/18711.SD Introduced Date:Apr 14, 1992 Last History Body:Senate Last History Date:Apr 14, 1992 Last History Type:Introduced, read first time, referred to Committee Scope of Legislation:Statewide All Sponsors:Bryan J. Verne Smith Holland Mullinax Rose Stilwell Thomas Wilson Type of Legislation:General Bill
Bill Body Date Action Description CMN
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1466 Senate Apr 14, 1992 Introduced, read first time, 11
referred to Committee
View additional legislative information at the LPITS web site.
TO AMEND TITLE 33, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CORPORATIONS, BY ADDING CHAPTER 21 SO AS TO ENACT THE "SOUTH CAROLINA LIMITED LIABILITY COMPANY ACT".
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 33 of the 1976 Code is amended by adding:
Section 33-21-101. Short title
This chapter may be cited as the `South Carolina Limited Liability Company Act.'
Section 33-21-102. Definitions
(A) As used in this chapter:
(1) `Bankrupt' means bankrupt under the Federal Bankruptcy laws;
(2) `Court' includes every court and judge having jurisdiction in the case;
(3) `Limited liability company' or `company' means a limited liability company organized and existing under this chapter;
(4) `Person' includes individuals, general partnerships, limited partnerships, limited liability companies, corporations, trusts, business trusts, real estate investment trusts, estates and other associations;
(5) `This Chapter' means the South Carolina Code Limited Liability Company Act.
(6) `Professional service' means a service that may be rendered lawfully only by a person licensed or otherwise authorized by a licensing authority in this State to render the service and that may not be lawfully rendered by a corporation under Chapters 1 through 21 of this title.
Section 33-21-103. Purpose
(A) Each limited liability company organized and existing under this chapter may:
(1) sue and be sued, complain and defend, in its name;
(2) purchase, take, receive, lease or otherwise acquire, own, hold, improve, use and otherwise deal in and with real or personal property, or an interest in it, wherever situated;
(3) sell, convey, mortgage, pledge, lease, exchange, transfer and otherwise dispose of all or any part of its property and assets;
(4) lend money to and otherwise assist its members;
(5) purchase, take, receive, subscribe for or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge or otherwise dispose of, and otherwise use and deal in and with shares or other interests in or obligations of other limited liability companies, domestic or foreign corporations, associations, general or limited partnerships or individuals, or direct or indirect obligations of the United States or of any government, state, territory, governmental district or municipality or of any instrumentality of it;
(6) make contracts and guarantees and incur liabilities, borrow money at such rates of interest as the limited liability company may determine, issue its notes, bonds, and other obligations and secure any of its obligations by mortgage or pledge or any part of its property, franchises and income;
(7) lend money for any lawful purpose, invest and reinvest its funds, and take and hold real property and personal property for the payment of funds so loaned or invested;
(8) conduct its business, carry on its operations and have and exercise the powers granted by this chapter , within or without this State;
(9) elect or appoint managers and agents of the limited liability company, and define their duties and fix their compensation;
(10) make and alter operating agreements, not inconsistent with its articles of organization or with the laws of this State, for the administration and regulation of the affairs of the limited liability company;
(11) indemnify a member or manager or former member or manager or employee or former employee or agent or former agent of the limited liability company as provided in 33-21-137;
(12) cease its activities and surrender its certificate of organization;
(13) have and exercise all powers necessary or convenient to effect any or all of the purposes for which the limited liability company is organized;
(14) pay pensions and establish pension plans, profit sharing plans, and other incentive plans for any or all of its managers and employees;
(15) be a promoter, incorporator, general partner, limited partner, member, associate or manager of any corporation, partnership, limited partnership, limited liability company, joint venture, trust or other enterprise;
(16) make donations for the public welfare or for charitable, scientific, religious or educational purposes;
(17) transact any lawful business which the members or managers find to be in aid of governmental policy;
(18) render professional services, if each member of a limited liability company who renders professional services in South Carolina is licensed or registered to render those professional services pursuant to applicable South Carolina law.
(B) A limited liability company organized to render professional services under this chapter may render only one specific type of professional services, and services ancillary to them, and may not engage in any business other than rendering the professional services which it was organized to render, and services ancillary to them.
(C) A limited liability company organized to render professional services:
(1) may include members, managers, and employees authorized under the laws of the jurisdiction where they reside to provide similar services;
(2) may render professional services in South Carolina only through its members, managers, and employees who are licensed or registered by the State of South Carolina to render those professional services; and
(3) shall have all of the other powers provided under this section.
Section 33-21-104. Reserved
Section 33-21-105. Limited liability company name
(A) The words `limited company' or their abbreviation `L.C.' must be the last words of the name of every limited liability company formed under the provisions of this chapter; and, in addition, the limited liability company name may not be the same as, or deceptively similar to, the name of a limited liability company, or a foreign limited liability company, authorized to transact business in this State, or a name the exclusive right to which is, at the time, reserved in the manner provided under the laws of this State.
(B) Omission of the words `limited company', or their abbreviation `L.C.', in the use of the name of the limited liability company shall render any person who participates in the omission, or knowingly acquiesces in it, liable for any indebtedness, damage, or liability occasioned by the omission.
Section 33-21-106. Formation
Two or more persons may form a limited liability company by signing, certifying, and delivering in duplicate to the Secretary of State articles of organization for such limited liability company.
Section 33-21-107. Articles of organization
(A) The articles of organization shall set forth:
(1) The name of the limited liability company;
(2) The period of its duration, which may not exceed thirty years from the date of filing with the Secretary of State;
(3) The purpose for which the limited liability company is organized;
(4) The address of its principal place of business in the State and the name and address of its registered agent in the State;
(5) The total amount of cash and a description and agreed value of property other than cash contributed;
(6) The total additional contributions, if any, agreed to be made by all members and the times at which or events upon the happening of which they must be made;
(7) The right, if given, of the members to admit additional members, and the terms and conditions of the admission;
(8) The right, if given, of the remaining members of the limited liability company to continue the business on the death, retirement, resignation, expulsion, bankruptcy or dissolution of a member or occurrence of any other event which terminates the continued membership of a member in the limited liability company;
(9) If the limited liability company is to be managed by a manager or managers, the articles of organization shall so State and shall set out the names and addresses of such manager or managers who are to serve as managers until the first annual meeting of members or until their successors are elected and qualify. If the management of a limited liability company is reserved to the members, the names and addresses of the members must be set out in the articles of organization;
(10) Any other provision, not inconsistent with law, which the members elect to set out in the articles of organization for the regulation of the internal affairs of the limited liability company, including any provisions which under this chapter are required or permitted to be set out in the operating agreement of the limited liability company.
(B) It is not necessary to set out in the articles of organization any of the powers enumerated in this chapter.
Section 33-21-108. Amendment of articles of organization
(A) A limited liability company may amend its articles of organization at any time to add or change a provision that is required or permitted in the articles or to delete a provision not required in the articles.
(B) For an amendment to the articles of organization of a limited liability company to be adopted, the amendment must be approved, unless the articles of organization require a greater vote, by a majority vote of the members entitled to vote thereon.
(C) To amend its article of organization, a limited liability company shall file with the Secretary of State articles of amendment setting forth:
(1) the name of the limited liability company;
(2) the text of each amendment adopted;
(3) the date of each amendment's adoption; and
(4) a statement that the amendment was adopted by a vote of the members in accordance with this chapter.
If the Secretary of State finds that the articles of amendment comply with the requirements of law and that all required fees have been paid, it shall issue a certificate of amendment.
(D) An amendment to articles of organization does not affect a cause of action existing against or in favor of the limited liability company, a proceeding to which the limited liability company is a party, or the existing rights of persons other than members of the limited liability company. An amendment changing a limited liability company's name does not abate a proceeding brought by or against the limited liability company in its former name.
(E) A member of a limited liability company does not have a vested property right resulting from any provision of the articles of organization.
Section 33-21-109. Filing of articles of organization
(A) Duplicate originals of the articles of organization must be delivered to the Secretary of State. If the Secretary of State finds that the articles of organization conform to law, he shall, when all fees have been paid, as in this chapter prescribed:
(1) endorse on each of the duplicate originals the word `Filed' and the month, day, and year of the filing thereof;
(2) file one of the duplicate originals in his office;
(3) issue a certificate of organization to which he shall affix the other duplicate original.
(B) The certificate of organization, together with a duplicate original of the articles of organization affixed to it by the Secretary of State, must be returned to the principal office of the limited liability company, or to its representative.
(C) Upon the filing with the Secretary of State, the articles of organization must be amended as set forth in the certificate of amendment, and upon the effective date of a certificate of dissolution or of a judicial decree of cancellation, the articles of organization must be canceled.
Section 33-21-110. Effect of issuance of certificate of organization
(A) Upon the issuance of the certificate of organization, the limited liability company must be considered organized, and such certificate of organization must be conclusive evidence that all conditions precedent required to be performed by the members have been complied with and that the limited liability company has been legally organized under this chapter, except as against this State in a proceeding to cancel or revoke the certificate of organization or for involuntary dissolution of the limited liability company.
(B) A limited liability company shall not transact business or incur indebtedness, except that which is incidental to its organization or to obtaining subscriptions for or payment of contributions, until the Secretary of State has issued a certificate of organization.
(C) The date when the existence of the company shall commence must be the date of the filing of the articles of organization by the Secretary of State, except that the date of commencement of corporate existence may be specified in the articles of organization:
(1) when the date specified in the articles of organization is the date of subscription and acknowledgement and the articles of organization are filed by the Secretary of State within five days, exclusive of legal holidays, after such date;
(2) when the date specified in the articles of organization is subsequent to, and not later than ninety days after, the date of filing of the articles of organization by the Secretary of State.
Section 33-21-111. Registered office and registered agent to be maintained
Each limited liability company shall have and continuously maintain in this State:
(1) a registered office which may be, but need not be, the same as its place of business;
(2) a registered agent, which agent may be either an individual resident in this State whose business office is identical with such registered office, or a domestic corporation, or a foreign corporation authorized to transact business in this State, having a business office identical with such registered office.
Section 33-21-112. Change of registered office or registered agent
(A) A limited liability company may change its registered office or agent, or both, upon filing in the office of the Secretary of State a statement setting forth:
(1) the name of the limited liability company;
(2) the address of its then registered office;
(3) if the address of its registered office be changed, the address to which the registered office is to be changed;
(4) the name of its then registered agent;
(5) if its registered agent be changed, the name of its successor registered agent;
(6) that the address of its registered office and the address of the business office of its registered agent, as changed, will be identical;
(7) that the change was authorized by affirmative vote of a majority of the members of the limited liability company.
(B) The statement must be verified and delivered to the secretary of State. If the Secretary of State finds that the statement conforms to the provisions of this chapter, he shall file the Statement in his office, and upon filing the change of address of the registered office or the appointment of a new registered agent or both, as the case may be, is effective.
(C) Any registered agent of a limited liability company may resign as agent upon filing a written notice thereof, executed in duplicate, with the Secretary of State, who shall forthwith mail a copy to the limited liability company at its registered office. The appointment of the agent shall terminate upon the expiration of thirty days after receipt of notice by the Secretary of State.
Section 33-21-113. Failure to maintain registered agent or registered office or pay annual fee
If any limited liability company has failed for thirty days to appoint and maintain a registered agent in this State, or has failed for thirty days after change of its registered office or registered agent to file in the office of the Secretary of State a statement of the change, or has failed to pay the fee required by Section 33-21-132 it must be deemed to be transacting business within this State without authority and to have forfeited any franchises, rights, or privileges acquired under the laws thereof and the forfeiture must be made effective in the following manner. The Secretary of State shall mail by certified mail a notice of its failure to comply with aforesaid provisions. Unless compliance is made within thirty days of the delivery of notice, the limited liability company must be deemed defunct and to have forfeited its certificate of organization acquired under the laws of this State. Provided, that any defunct limited liability company may at any time within one year from the forfeiture of its certificate, in the manner herein provided, be revived and reinstated, by filing the necessary statement under this chapter and paying the prescribed fee, together with a penalty of one hundred dollars.
Section 33-21-114. Liability of members and managers
(A) Neither the members of a limited liability company, nor the managers of a limited liability company managed by a manager or managers, are liable under a judgment, decree, or order of a court, or in any other manner, for a debt, obligation, or liability of the limited liability company.
(B) This chapter does not alter any law applicable to the relationship between a person rendering professional services and a person receiving those services, including liability arising out of those professional services.
(C) All persons rendering professional services shall remain personally liable for any results of that person's acts or omissions. No member, manager, or employee of a limited liability company is personally liable for the acts or omissions of any other member, manager, or employee of the limited liability company.
Section 33-21-115. Service of process
(A) The registered agent so appointed by a limited liability company must be an agent of the company upon whom any process, notice or demand required or permitted by law to be served upon the company may be served.
(B) Whenever a limited liability company shall fail to appoint or maintain a registered agent in this State, or whenever its registered agent cannot with reasonable diligence be found at the registered office, then the Secretary of State must be an agent of the company upon whom any process, notice or demand must be made by delivering to and leaving with him, or with any clerk of his office, duplicate copies of such process, notice, or demand. In the event any such process, notice, or demand is served on the Secretary of State, he shall immediately cause one of the copies to be forwarded by registered mail addressed to the limited liability company at its registered office. Any such service on the Secretary of State must be returnable in not less than thirty days.
(C) The Secretary of State shall keep a record of all processes, notices, and demands served upon him under this section and shall record therein the time of such service and his action with reference thereto.
(D) Nothing herein contained shall limit or affect the right to serve any process, notice, or demand required or permitted by law to be served upon a limited liability company in any other manner now or hereafter permitted by law.
Section 33-21-116. Contributions to capital
The contributions to capital by a member to the limited liability company may consist of any tangible or intangible property or benefit to the limited liability company, including cash, promissory notes, services performed, written contracts for services performed, written contracts for services to be performed, or other securities of the limited liability company.
Section 33-21-117. Contracting debts
Except as otherwise provided in this chapter, no debt must be contracted or liability incurred by or on behalf of a limited liability company, except by one or more of its managers, if management of the limited liability company has been vested by the members in a manager or managers, or by any member, if management of the limited liability company has been retained by the members.
Section 33-21-118. Property
Real and personal property owned or purchased by a limited liability company must be held and owned, and conveyance made, in the limited liability company name. Instruments and documents providing for the acquisition, mortgage or disposition of property of the limited liability company must be valid and binding upon the limited liability company if executed by one or more managers of a limited liability company having a manager or managers or one or more members of a limited liability company in which management has been retained in the members.
Section 33-21-119. Division of profits; impairment of capital
The limited liability company may, from time to time, divide the profits of its business and distribute the same to the members of the limited liability company upon the basis stipulated in the operating agreement; provided, that after distribution is made, the assets of the limited liability company are in excess of all liabilities of the limited liability company except liabilities to members on account of their contributions.
Section 33-21-120. Withdrawal or reduction of members' contributions to capital
(A) A member shall not receive out of limited liability company property any part of his or its contribution to capital until all liabilities of the limited liability company, except liabilities to members on account of their contributions to capital, have been paid or there remains property of the limited liability company sufficient to pay them, and either:
(1) The consent of all members is had, unless the return of the contribution to capital may be rightfully demanded as provided in this chapter; or
(2) The articles of organization are canceled or so amended as to set out the withdrawal or reduction.
(B) Subject to the provisions of subsection (A), a member may rightfully demand the return of his or its contribution:
(1) On the dissolution of the limited liability company; or
(2) After the member has given all other members of the limited liability company six months prior notice in writing, if no time is specified in the articles of organization for the dissolution of the limited liability company.
(C) In the absence of a statement in the articles of organization to the contrary or the written consent of all members of the limited liability company, a member, irrespective of the nature of his or its contribution, has only the right to demand and receive cash in return for his or its contribution to capital.
(D) A member of a limited liability company may have the limited liability company dissolved and its affairs wound up when:
(1) The member rightfully but unsuccessfully has demanded the return of his or its contribution; or
(2) The other liabilities of the limited liability company have not been paid, or the limited liability company property is insufficient for their payment, and the member would otherwise be entitled to the return of his or its contribution.
Section 33-21-121. Liability of member to company
(A) A member is liable to the limited liability company:
(1) for the difference between his or its contributions to capital as actually made and that stated in the articles of organization as having been made; and
(2) for any unpaid contribution to capital which he or it agreed in the articles of organization to make in the future at the time and on the conditions stated in the articles of organization.
(B) A member holds as trustee for the limited liability company:
(1) specific property stated in the articles of organization as contributed by such member, but which was not contributed or which has been wrongfully or erroneously returned; and
(2) money or other property wrongfully paid or conveyed to such member on account of his or its contribution.
(C) The liabilities of a member as set out in this section can be waived or compromised only by the consent of all members, but a waiver or compromise may not affect the right of a creditor of the limited liability company who extended credit or whose claim arose after the filing, and before a cancellation or amendment of the articles of organization, to enforce the liabilities.
(D) When a contributor has rightfully received the return in whole or in part of the capital of his or its contribution, the contributor is nevertheless liable to the limited liability company for any sum, not in excess of the return with interest calculated at the legal rate, necessary to discharge its liability of such contribution to all creditors of the limited liability company who extended credit or whose claims arose before the return.
Section 33-21-122. Interest in company; transferability of interest
An interest of a member in a limited liability company is personal property and constitutes an intangible, and may be transferred or assigned as provided in the operating agreement. However, if all of the other members of the limited liability company other than the member proposing to dispose of his or its interest do not approve of the proposed transfer or assignment by unanimous written consent, the transferee of the member's interest shall have no right to participate in the management of the business and affairs of the limited liability company or to become a member. The transferee is only entitled to receive the share of profits or other compensation by way of income and the return of contributions, to which that member would otherwise be entitled.
Section 33-21-123. Dissolution
(A) A limited liability company organized under this chapter must be dissolved upon the occurrence of any of the following events:
(1) when the period fixed for the duration of the limited liability company expires;
(2) by the unanimous written agreement of all members; or
(3) upon the death, retirement, resignation, expulsion, bankruptcy, or dissolution of a member, or occurrence of any other event which terminates the continued membership of a member in the limited liability company, unless the business of the limited liability company is continued by the consent of all the remaining members under a right to do so stated in the articles of organization of the limited liability company.
(B) As soon as possible following the occurrence of any of the events specified in this section effecting the dissolution of the limited liability company, the limited liability company shall execute a statement of intent to dissolve in such form as must be prescribed by the Secretary of State.
Section 33-21-124. Filing of statement of intent to dissolve
Duplicate originals of the statement of intent to dissolve must be delivered to the Secretary of State. If the Secretary of State finds that the statement conforms to law, he shall, when all fees and license taxes have been paid as are by law prescribed:
(1) endorse on each of such duplicate originals the word `Filed' and the month, day and year of the filing;
(2) file one of the duplicate originals in his office;
(3) return the other duplicate original to the limited liability company or its representative.
Section 33-21-125. Effect of filing of dissolving statement
Upon the filing by the Secretary of State of a statement of intent to dissolve, the limited liability company shall cease to carry on its business, except insofar as may be necessary for the winding up of its business, but its separate existence shall continue until a certificate of dissolution has been issued by the Secretary of State or until a decree dissolving the limited liability company has been entered by a court of competent jurisdiction.
Section 33-21-126. Distribution of assets upon dissolution
In settling accounts after dissolution, the liabilities of the limited liability company must be entitled to payment in the following order:
(1) those to creditors, in the order of priority as provided by law, except those to members of the limited liability company on account of their contributions;
(2) those to members of the limited liability company in respect of their share of the profits and other compensation by way of income on their contributions; and
(3) those to members of the limited liability company in respect of their contributions to capital.
Section 33-21-127. Articles of dissolution
When all debts, liabilities and obligations have been paid and discharged or adequate provision has been made therefor and all of the remaining property and assets have been distributed to the members, articles of dissolution must be executed in duplicate and verified by the person signing the statement, which statement must set forth:
(1) the name of the limited liability company;
(2) that the Secretary of State has theretofore filed a statement of intent to dissolve the company and the date on which such statement was filed;
(3) that all debts, obligations and liabilities have been paid and discharged or that adequate provision has been made for them;
(4) that all the remaining property and assets have been distributed among its members in accordance with their respective rights and interests;
(5) that there are no suits pending against the company in any court or that adequate provision has been made for the satisfaction of any judgment, order, or decree which may be entered against it in any pending suit.
Section 33-21-128. Filing of articles of dissolution
(A) Duplicate originals of the articles of dissolution must be delivered to the Secretary of State. If the Secretary of State finds that the articles of dissolution conform to law, he shall when all fees and license taxes have been paid as are by law prescribed:
(1) endorse on each of such duplicate originals the word `Filed' and the month, day and year of the filing thereof;
(2) file one of the duplicate originals in his office;
(3) issue a certificate of dissolution to which he shall affix the other duplicate original.
(B) The certificate of dissolution, together with the duplicate original of the articles of dissolution affixed thereto by the Secretary of State, must be returned to the representative of the dissolved limited liability company. Upon the issuance of such certificate of dissolution, the existence of the company shall cease, except for the purpose of suits, other proceedings, and appropriate action as provided in this chapter. The manager or managers in office at the time of dissolution, or the survivors of them, shall thereafter be trustees for the members and creditors of the dissolved limited liability company and as such have authority to distribute any company property discovered after dissolution, convey real estate, and take such other action as may be necessary on behalf of and in the name of such dissolved limited liability company.
Section 33-21-129. Cancellation of certificate of organization; amendment of articles of organization
(A) The certificate of organization must be canceled by the Secretary of State upon issuance of the certificate of dissolution.
(B) The articles of organization must be amended when:
(1) There is a change in the name of the limited liability company or in the amount or the character of the contributions to capital;
(2) There is a change in the character of the business of the limited liability company;
(3) There is a false or erroneous statement in the articles of organization;
(4) There is a change in the time as stated in the articles of organization for the dissolution of the limited liability company;
(5) A time is fixed for the dissolution of the limited liability company if no time is specified in the articles of organization; or
(6) The members desire to make a change in any other statement in the articles of organization in order that it shall accurately represent the agreement between them.
(C) The form for evidencing an amendment to the articles of organization of a limited liability company must be promulgated by the Secretary of State and shall contain such terms and provisions, consistent with this chapter as must be determined by the Secretary of State. The amendment must be signed and sworn to by all members and an amendment adding a new member must be signed also by the member to be added and thereafter, duplicate originals of the amendment must be forwarded to the Secretary of State for filing, accompanied by the requisite filing fee.
Section 33-21-130. Parties to actions
A member of a limited liability company is not a proper party to proceedings by or against a limited liability company, except where the object is to enforce a member's right against, or liability to, the limited liability company.
Section 33-21-131. Waiver of notice
When, under the provisions of this chapter or under the provisions of the articles of organization or operating agreement of a limited liability company, notice is required to be given to a member or to a manager of a limited liability company having a manager or managers, a waiver in writing signed by the person or persons entitled to the notice, whether before or after the time stated in it, is equivalent to the giving of notice.
Section 33-21-132. Fees; annual tax
The Secretary of State shall charge and collect for:
(1) filing the original articles of organization and issuing certificates of organization, if the capital of the limited liability company is:
CAPITAL FILING FEE
Not in excess of $50,000.00 $ 50.00
$50,001 to $100,000.00 $100.00
In excess of $100,000.00 $100.00 for
first
$100,000.00
plus $.50 for
each additional
$1,000.00
provided the
fee in no
event shall
exceed
$25,000.00
(2) for amending the articles of organization, a filing fee of five dollars, together with the appropriate fee set out in subsection (1) of this section if the amendment is to increase the amount of capital;
(3) for filing a statement of intent to dissolve, five dollars;
(4) for filing articles of dissolution, issuing a certificate of dissolution and canceling the certificate of organization, seven dollars and fifty cents;
(5) for filing a statement of change of address of registered office or change of registered agent, or both, five dollars;
(6) an annual tax of fifty dollars, due and payable January 1 of each year. This tax is delinquent if not paid by February first and an addition to the tax shall then be due of fifty dollars.
Section 33-21-133. Unauthorized assumption of powers
All persons who assume to act as a limited liability company without authority to do so must be jointly and severally liable for all debts and liabilities.
Section 33-21-134. Charge for service of process
The Secretary of State shall charge and collect at the time of any service of process on him as resident agent of a limited liability company, five dollars which may be recovered as taxable costs by the party to the suit or action causing the service to be made if the party prevails in the suit or action.
Section 33-21-135. Applicability of provisions to foreign and interstate commerce
The provisions of this chapter shall apply to commerce with foreign nations and among the several States only as permitted by law.
Section 33-21-136. Conflicting laws; existing rights and liabilities; severability
(A) This chapter takes precedence in the event of a conflict with the provisions of the South Carolina Business Corporation Act or other laws of this State. This chapter does not affect a right accrued or established or any liability or penalty incurred, prior to the effective date of this chapter.
(B) If any provision of this chapter or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the chapter which can be given effect without the invalid provision or application. To this end, the provisions of this chapter are severable.
Section 33-21-137. Indemnification of managers, employees, or agents
(A) As used in this section:
(1) `Expenses' includes attorney fees.
(2) `Liability' means the obligation to pay a judgment, settlement, penalty, fine, including an excise tax assessed with respect to a proceeding.
(3) `Official capacity', when used with respect to a manager, means the office of manager in the limited liability company and, when used with respect to a person other than a manager, means the employment or agency relationship undertaken by the employee or agent on behalf of the limited liability company. Official capacity does not include service for any other foreign or domestic limited liability company or for any corporation, partnership, joint venture, trusts, other enterprise, or employee benefit plan.
(4) `Party' includes an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding.
(5) `Proceeding' means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative or whether formal or informal.
(B) (1) Except as provided in item (4) of this subsection (B), a limited liability company may indemnify against liability incurred in any proceeding an individual made a party to the proceeding because he is or was a manager if:
(a) he conducted himself in good faith;
(b) he reasonably believed:
(i) in the case of conduct in his official capacity, that his conduct was in the limited liability company's best interests; or
(ii) in all other cases, that his conduct was at least not opposed to the limited liability company's best interests; and
(c) in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful.
(2) The termination of any proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, is not of itself determinative that the individual did not meet the standard of conduct set forth in item (1) of this subsection (B).
(3) A limited liability company may not indemnify a manager under this subsection (B) either:
(a) in connection with a proceeding by or in the right of the limited liability company in which the manager was adjudged liable to the limited liability company; or
(b) in connection with any proceeding charging improper personal benefit to the manager, whether or not involving action in his official capacity, in which he was adjudged liable on the basis that personal benefit was improperly received by him.
(4) Indemnification permitted under this subsection (B) in connection with a proceeding by or in the right of a limited liability company is limited to reasonable expenses incurred in connection with the proceeding.
(C) Unless limited by the articles of organization, a limited liability company must be required to indemnify a manager of the limited liability company who was wholly successful, on the merits or otherwise, in defense of any proceeding to which he was a party, against reasonable expenses incurred by him in connection with the proceeding.
(D) Unless limited by the articles of organization, a manager who is or was party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction. On receipt of an application, the court, after giving any notice the court considers necessary, may order indemnification in the following manner:
(1) If it determines the manager is entitled to mandatory indemnification under subsection (C) of this section, the court shall order indemnification, in which case the court shall also order the limited liability company to pay the manager's reasonable expenses incurred to obtain court-ordered indemnification.
(2) If it determines that the manager is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not he met the standard of conduct set forth in item (1) of subsection (B) or was adjudged liable in the circumstances described in item (3) of subsection (B), the court may order such indemnification as the court deems proper; except that the indemnification with respect to any proceedings in which liability shall have been adjudged in the circumstances described in item (3) of subsection (B) is limited to reasonable expenses incurred.
(E) (1) A limited liability company may not indemnify a manager under subsection (B) unless authorized in the specific case after a determination has been made that indemnification of the manager is permissible in the circumstances because he has met the standard of conduct set forth in item (1) of subsection (B).
(2) The determination required to be made by item (1) of this subsection (E) must be made by the members by a majority vote; except that such vote may not include members who are parties or plaintiffs to the proceedings.
(3) Authorization of indemnification and evaluation as to reasonableness of expenses must be made in the same manner as the determination that indemnification is permissible.
(F) (1) A limited liability company may pay for or reimburse the reasonable expenses incurred by a manager who is a party to a proceeding in advance of the final disposition of the proceeding if:
(a) The manager furnishes the limited liability company a written affirmation of his good faith belief that he has met the standard of conduct described in item (1) of subsection (B);
(b) The manager furnishes the limited liability company a written undertaking, executed personally or on his behalf, to repay the advance if it is determined that he did not meet such standard of conduct; and
(c) A determination is made that the facts then known to those making the determination would not preclude indemnification under this subsection (F).
(2) The undertaking required by subitem (b), item (1) of this subsection (F) must be an unlimited general obligation of the manager but need not be secured and may be accepted without reference to financial ability to make repayment.
(3) Determinations and authorizations of payments under this subsection (F) must be made in the manner specified in subsection (E).
(G)(1) A provision concerning a limited liability company's indemnification of or advance for expenses to managers contained in its articles of organization, its operating agreement, or in a contract, except for insurance policies, must be valid only if and to the extent the provision is consistent with this section and, if indemnification is limited by the articles of organization, is consistent with such articles.
(2) This subsection (G) shall not limit a limited liability company's power to pay or reimburse expenses incurred by a manager in connection with his appearance as a witness in a proceeding at a time when he has not been made a named defendant or respondent in the proceeding.
(H) Unless limited by the articles of organization:
(1) A limited liability company may indemnify and advance expenses pursuant to subsection (F) of this section to an employee, agent, or member of the limited liability company who is not a manager to the same extent as a manager; and
(2) A limited liability company may indemnify and advance expenses to an employee, agent, or member of the limited liability company who is not a manager to a greater extent if consistent with law and if provided for by its articles of organization, its operating agreement, or in a contract.
(I) A limited liability company may purchase and maintain insurance on behalf of a person who is or was a manager, member, employee, fiduciary,or agent of the limited liability company or who, while a manager, employee, fiduciary, or agent of the limited liability company, is or was serving at the request of the limited liability company as manager, officer, partner, trustee, employee, fiduciary, member, or agent of any other foreign or domestic limited liability company or any corporation, partnership, joint venture, trust, other enterprise, or employer benefit plan against any liability asserted against or incurred by him in any such capacity or arising out of his status as such, whether or not the limited liability company would have the power to indemnify him against such liability under the provisions of this section. Any such insurance may be procured from any insurance company designated by the members of the limited liability company, whether such insurance company is formed under the laws of this State or any other jurisdiction of the United States or elsewhere.
(J) Any indemnification of or advance of expenses to a manager in accordance with this section, if arising out of a proceeding by or on behalf of the limited liability company, must be reported in writing to the members with or before the notice of the next members' meeting.
Section 33-21-138. Legislative intent.
The State of South Carolina intends by the enactment of this chapter that the legal existence of limited liability companies formed under this chapter be recognized beyond the limits of this State and that, subject to any reasonable registration requirements, any such limited liability company transacting business outside this State be granted the protection of full faith and credit under Section 1 of Article IV of the Constitution of the United States.
Section 33-21-139. Reserved.
Section 33-21-140. Regulating board authority; prohibitions on individuals apply
(A) Nothing in this chapter restricts or limits in any manner the authority and duty of the regulating board to license individual persons rendering professional services or the practice of the profession that is within the jurisdiction of the regulating board, notwithstanding that the person is a member, manager, or employee of a limited liability company and rendering the professional services or engaging in the practice of the profession through the limited liability company.
(B) No limited liability company may do anything that is prohibited to be done by individual persons licensed to practice the profession that the limited liability company is organized to render.
Section 33-21-141. Records
(A) Each limited liability company shall keep at its principal place of business the following:
(1) a current list in alphabetical order of the full name and last known business street address of each member;
(2) a copy of the stamped articles of organization and all certificates of amendment to them, collectively referred to as the `certificate of organization', together with executed copies of any powers of attorney pursuant to which any certificate of amendment has been executed;
(3) copies of the limited liability company's federal, state, and local income tax returns and reports, if any, for the three most recent years;
(4) copies of any financial statements of the limited liability company, if any, for the three most recent years; and
(5) unless otherwise set forth in the articles of organization, a written statement setting forth:
(a) the amount of cash and a description and statement of the agreed value of the other property or services contributed by each member and which each member has agreed to contribute;
(b) the times at which, or events on the happening of which, any additional contributions agreed to be made by each member are to be made;
(c) any right of a member to receive distributions which include a return of all or any of the member's contributions; and
(d) any event upon the happening of which the limited liability company is to be dissolved and its affairs wound up.
(B) Records kept under this section are subject to inspection and copying at the reasonable request and at the expense of any member during ordinary business hours.
Section 33-21-142. Annual report.
(A) Each limited liability company and each foreign limited liability company authorized to transact business in this State shall file with the Secretary of State, during the month of the anniversary date of its formation, in the case of domestic limited liability companies, or during the month of the anniversary date of being granted authority to transact business in this State, in the case of foreign limited liability companies authorized to transact business in this State, an annual report setting forth:
(1) the name of the limited liability company and the state or country under the laws of which it is formed;
(2) the name and street address of the agent for service of process required to be maintained under Section 33-21-111;
(3) if there is a change of the registered agent required to be maintained by Section 33-21-111;
(B) The annual report must be made on forms prescribed and furnished by the Secretary of State, and the information contained on the annual report must be given as of the date of execution of the report. The annual report forms must include a statement notifying the limited liability company that failure to file the annual report will result in the suspension and eventual cancellation of its certificate of organization, in the case of a domestic limited liability company, or of its registration, in the case of a foreign limited liability company authorized to transact business in this State.
(C) The annual report must be signed by any member under penalty of perjury. If the registered agent has changed since the last annual report, the annual report also must be signed by the new registered agent.
(D) If the report conforms to the requirements of this chapter, the Secretary of State shall file the report. If the report does not conform, the Secretary of State shall mail the report first class postage prepaid to the limited liability company at the street address set forth for its agent for service of process in the certificate of organization or most recent report, for any necessary corrections. If a report is returned, the penalties for failure to file the report within the time prescribed in this section do not apply, as long as the report is corrected and returned to the Secretary of State within thirty days from the date the nonconforming report was mailed to the limited liability company.
Section 33-21-143. When amendments required
The articles of organization of a limited liability company must be amended when:
(1) there is a change in the name of the limited liability company;
(2) there is a change in the character of the business of the limited liability company specified in the articles of organization;
(3) there is a false or erroneous statement in the articles of organization;
(4) there is a change in the time, as stated in the articles of organization, for the dissolution of the limited liability company;
(5) there is a change in the names and street addresses of the managers of the limited liability company, or if the limited liability company is managed by its members, the names and street addresses of the members;
(6) the members determine to fix a time, not previously specified in the articles of organization, for the dissolution of the limited liability company; or
(7) the members desire to make a change in any other statement in the articles of organization in order for the articles to accurately represent the agreement among them.
Section 33-21-144. Restated articles of organization
(A) A limited liability company may integrate into a single instrument all of the provisions of its articles of organization and amendments to them, and it may at the same time also further amend its articles of organization by adopting restated articles of organization.
(B) If the restated articles of organization merely restate and integrate but do not further amend the initial articles of organization, as previously amended or supplemented by any certificate or instrument that was executed and file pursuant to this chapter, they must be specifically designated in their heading as `Restated Articles of Organization', together with other words that the company considers appropriate, and must be executed and filed with the Secretary of State.
(C) If the restated articles restate and integrate and also further amend in any respect the articles of organization, as previously amended or supplemented, they must be specifically designated in their heading as `Amended and Restated Articles of Organization', together with other words that the company considers appropriate, and must be executed and filed with the Secretary of State.
(D)(1) Restated articles of organization shall state, either in their heading or in an introductory paragraph, the company's present name, and, if it has been changed, the name under which it was originally filed and the date of filing of its original articles of organization with the Secretary of State. Restated articles shall also state that they were duly executed and filed in accordance with this section.
(2) If the restated articles only restate and integrate and do not further amend the provisions of the articles of organization as previously amended or supplemented, and there is no discrepancy between those provisions and the provisions of the restated articles, they shall so state.
(E) Upon the filing of the restated articles of organization with the Secretary of State, the initial articles, as previously amended or supplemented, must be superseded. Thereafter, the restated articles of organization, including any further amendment or changes made by the restated articles, must be the articles of organization, but the original effective date of formation shall remain unchanged.
(F) Any amendment or change made in connection with the restatement and integration of the articles of organization must be subject to any other provision of this chapter, not inconsistent with this section, that would apply if a separate certificate of amendment were filed to make the amendment or change.
Section 33-21-145. Merger and consolidation
(A) Pursuant to any agreement, a domestic limited liability company may merge or consolidate with or into one or more limited liability companies formed under the laws of this State or any other state. The successor limited liability company must be as provided in the agreement.
(B) A domestic limited liability company that is not the successor limited liability company in the merger or consolidation shall file articles of dissolution, which shall have an effective date not later than the effective date of the merger or consolidation.
(C) If, following a merger or consolidation of one or more domestic limited liability companies or one or more limited liability companies formed under the laws of any other state, the successor limited liability company is not a domestic limited liability company, there must be attached to the articles of dissolution for each such domestic limited liability company a copy of the articles of merger or consolidation executed by the successor limited liability company:
(1) stating that the successor limited liability company may be served with process in the State of South Carolina in any action, suit, or proceeding for the enforcement of any obligation of the domestic limited liability company;
(2) irrevocably appointing the Secretary of State as the successor limited liability company's agent to accept service of process in any action, suit, or proceeding; and
(3) specifying the address to which a copy of process must be mailed to the successor limited liability company by the Secretary of State.
(D) When the articles of dissolution required by subsection (B) have become effective, the following must be vested in and enforced against the successor limited liability company as they were in each of the limited liability companies that have merged or consolidated:
(1) all of the rights, privileges, and powers of each of the limited liability companies that have merged or consolidated;
(2) all property, real, personal, and mixed;
(3) all debts due to any of the limited liability companies; and
(4) all other things and causes of action belonging to each of the limited liability companies.
Section 33-21-146. Correction of technical errors in instruments
(A) If any instrument filed under this chapter contains, as of the date of the action referred to in the instrument, a typographical error, misspelling, or other technical error or defect, the instrument may be corrected by filing, in accordance with this section, a statement of correction.
(B) The statement of corrections shall set forth:
(1) the name of the limited liability company and the state or country under whose laws it is organized;
(2) the title of the instrument being corrected and the date it was filed with the division; and
(3) the error, misspelling, or defect to be corrected and the portion of the instrument being corrected in corrected form.
(C) A statement of corrections must be executed in the same manner in which the instrument being corrected was required to be executed.
(D) The corrected instrument is effective as of the date the original instrument was filed.
Section 33-21-147. Application of corporation case law to set aside limited liability
In any case in which a party seeks to hold the members of a limited liability company personally responsible for the alleged improper actions of the limited liability company, the court shall apply the case law which interprets the conditions and circumstances under which the corporate veil of a corporation may be pierced under laws of this State.
Section 33-21-148. Management of limited liability company
(A) Unless the articles of organization or an operating agreement provides for management of a limited liability company by a manager or managers, management of a limited liability company must be vested in its members.
(B) Unless otherwise provided in the articles of organization or an operating agreement, the members of a limited liability company shall vote in proportion to their contributions to the limited liability company, as adjusted from time to time to reflect any additional contributions or withdrawals.
Section 33-21-149. Operating agreement
(A) The members of a limited liability company may enter into any operating agreement to regulate or establish the affairs of the limited liability company, the conduct of its business and the relations of its members. An operating agreement may contain any provisions regarding the affairs of a limited liability company and the conduct of its business to the extent that such provisions are not inconsistent with the laws of this State or the articles of organization.
(B)(1) An operating agreement must initially be agreed to by all of the members. Unless the articles of organization specifically require otherwise, an operating agreement need not be in writing.
(2) If an operating agreement does not provide for the method by which an operating agreement may be amended, then all of the members must agree to any amendment of an operating agreement.
(C)(1) A court of equity may enforce an operating agreement by injunction or by such other relief that the court in its discretion determines to be fair and appropriate in the circumstances.
(2) As an alternative to injunctive or other equitable relief, the court may order dissolution of the limited liability company where appropriate.
Section 33-21-150. Management of a limited liability company by a manager or managers
(A) The articles of organization or an operating agreement of a limited liability company may apportion responsibility for managing a limited liability company among one or more managers.
(B) Managers must be natural persons eighteen years of age or older but need not be residents of this State or members of the limited liability company unless the articles of organization or an operating agreement requires. The articles of organization or an operating agreement may prescribe other qualifications for managers.
(C) The number of managers must be fixed by or in the manner provided in the articles of organization or an operating agreement. The number of managers may be increased or decreased by amendment to, or in the manner provided in, the articles of organization or an operating agreement.
(D) Unless otherwise provided in the articles of organization or an operating agreement, managers must be elected by a majority of the members.
(E) Unless otherwise provided in the articles of organization or an operating agreement, any vacancy occurring in the office of manager must be filled by a majority vote of the members.
(F) All managers or any lesser number may be removed in the manner provided in the articles of organization or an operating agreement. If the articles of organization or an operating agreement does not provide for the removal of managers, then all managers or any lesser number may be removed with or without cause by a majority vote of the members.
(G)(1) A manager shall discharge his duties as a manager in accordance with his good faith business judgment of the best interests of the limited liability company.
(2) Unless he has knowledge or information concerning the matter in question that makes reliance unwarranted, a manager is entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, if prepared or presented by:
(a) one or more managers or employees of the limited liability company whom the manager believes, in good faith, to be reliable and competent in the matters presented;
(b) legal counsel, public accountants, or other persons as to matters the manager believes, in good faith, are within the person's professional or expert competence; or
(c) a committee of the managers of which he is not a member if the manager believes, in good faith, that the committee merits confidence.
(3) A person alleging a violation of this subsection (G) has the burden of proving the violation.
Section 33-21-151. Limitation of liability of members and managers; exception
(A) In any proceeding brought by or in the right of a limited liability company or brought by or on behalf of members of the limited liability company, the damages assessed against a manager or member arising out of a single transaction, occurrence, or course of conduct shall not exceed the lesser of:
(1) the monetary amount, including the elimination of liability, specified in the articles of organization or an operating agreement as a limitation on or elimination of the liability of the manager or member; or
(2) the greater of one hundred thousand dollars or the amount of cash compensation received by the manager or member from the limited liability company during the twelve months immediately preceding the act or omission for which liability was imposed.
(B) The liability of a manager or member is not limited as provided in this section if the manager or member engaged in wilful misconduct or a knowing violation of the criminal law.
(C) No limitation on or elimination of liability adopted pursuant to this section may be effected by any amendment of the articles of organization or operating agreement with respect to any act or omission occurring before such amendment.
Section 33-21-152. Business transactions of members or managers with the limited liability company
Except as provided in the articles of organization or an operating agreement, a member or manager may lend money to and transact other business with the limited liability company and, subject to other applicable law, has the same rights and obligations with respect thereto as a person who is not a member or manager.
Section 33-21-153. Law governing foreign limited liability companies
Subject to the constitution of this State, the laws of the jurisdiction under which a foreign limited liability company is organized shall govern its organization and internal affairs and the liability of its members, and a foreign limited liability company may not be denied a certificate of authority to transact business in this State by reason of any difference between those laws and the laws of this State.
Section 33-21-154. Name
A foreign limited liability company may apply for a certificate of authority under any name that would be available to a domestic limited liability company, whether or not such name is the name under which it is authorized in its jurisdiction of organization.
Section 33-21-155. Registered name; limitation; procedure
(A) Any limited liability company organized and existing under the laws other than the laws of this State may register its company name pursuant to the provisions of this chapter, if the name would be available to a domestic limited liability company pursuant to Section 33-21-105.
(B) The registration must be made by delivering to the Secretary of State an application for registration executed by an officer of the limited liability company, setting forth:
(1) the name of the limited liability company;
(2) the jurisdiction under the laws of which it is organized;
(3) the date of its organization;
(4) a statement that it is carrying on or doing business and a brief statement of the business in which it is engaged; and
(5) a certificate stating that the corporation is in good standing under the laws of the jurisdiction wherein it is organized, executed by the Secretary of State of such jurisdiction or by such other official as may have custody of the records pertaining to limited liability companies.
(C) The applicant shall also pay to the Secretary of State a registration fee in the amount of one dollar for each month, or fraction of a month, between the date of filing the application and December thirty-first of the calendar year in which the application is filed.
(D) The registration is effective until the close of the calendar year in which the application for registration is filed.
Section 33-21-156. Certificate of authority; application
Before transacting business in this State, a foreign limited liability company shall obtain a certificate of authority. An applicant for a certificate shall pay a filing fee in an amount determined by the Secretary of State and shall submit to the Secretary of State, in duplicate, an application executed by a manager, member, or other authorized agent and setting forth:
(1) the name of the foreign limited liability company and, if different, the name under which it proposes to transact business in this State;
(2) the jurisdiction and date of its formation;
(3) the name and business address of the proposed registered agent in this State, who must be an individual resident of this State, a domestic corporation, or a foreign corporation having a place of business in, and authorized to do business in, this State;
(4) the address of the office required to be maintained in the jurisdiction of its organization by the laws of that jurisdiction or, if not so required, of the principal place of business of the foreign limited liability company;
(5) additional information as may be necessary or appropriate in order to enable the Secretary of State to determine whether the limited liability company is entitled to transact business in this State.
Section 33-21-157. Filing; issuance of certificate of authority
If the Secretary of State finds that an application or amended application for a certificate of authority conforms to law and all requisite fees have been paid, he shall:
(1) endorse on the application or the amended application the word `Filed' and the date of the filing thereof;
(2) file in his office one duplicate original of the application or the amended application; and
(3) return the other duplicate original of the application or the amended application to the person who filed it or to his representative with a certificate of authority issued by the Secretary of State.
Section 33-21-158. Changes and amendments
If any statement in the application for a certificate of authority by a foreign limited liability company was false when made or any arrangements or other facts described have changed, making the application inaccurate in any respect, including, but not limited to, a change in the name or address of the registered agent required to be maintained by Section 33-21-159, the foreign limited liability company shall promptly submit to the office of the Secretary of State, in duplicate, an amended application for a certificate of authority, executed by a manager, member, or other authorized agent correcting the statement.
Section 33-21-159. Requirement for registered agent and certain reports
A foreign limited liability company authorized to transact business in this State shall:
(1) appoint and continuously maintain a registered agent in the same manner as provided in Section 33-21-111;
(2) file a report upon any change in the name or business address of its registered agent in the same manner as provided in Section 33-21-112;
(3) pay the annual fee as provided in Section 33-21-132.
Section 33-21-160. Revocation of certificate of authority
(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 upon the occurrence of any of these events:
(1) The foreign limited liability company has failed to:
(a) appoint and maintain a registered agent as required by this chapter or pay any fee or penalties as prescribed by this chapter;
(b) file a report upon any change in the name or business address of the registered agent;
(c) file in the office of the Secretary of State any amendment to this application for a certificate of authority as specified in Section 33-21-158.
(2) A misrepresentation has been made of any material matter in any application, report, affidavit, or other document submitted by such foreign limited liability company pursuant to this chapter.
(B) No certificate of authority of a foreign limited liability company may be revoked by the Secretary of State unless:
(1) He has given the foreign limited liability company not less than sixty days notice by mail addressed to its registered office in this State or, if the foreign limited liability company fails to appoint and maintain a registered agent in this State, addressed to the office required to be maintained pursuant to Section 33-21-156(4); and
(2) During such sixty day period, the foreign limited liability company has failed to pay the fees or penalties, to file the report of change regarding the registered agent, to file any amendment, or to correct the misrepresentation.
(C) 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 shall cease.
Section 33-21-161. Certificate of withdrawal
(A) A foreign limited liability company authorized to transact business in this State may withdraw from this State upon procuring from the Secretary of State a certificate of withdrawal. In order to procure such certificate, the foreign limited liability company shall deliver to the Secretary of State an application for withdrawal, which must set forth:
(1) the name of the limited liability company and the State or country under the laws of which it is incorporated;
(2) that the limited liability company is not transacting business in this State;
(3) that the limited liability company surrenders its authority to transact business in this State;
(4) that the limited liability company revokes the authority of its registered agent in this State to accept service of process and consents that service of process in any action, suit, or proceeding based upon any cause of action arising in this State during the time the limited liability company was authorized to transact business in this State may thereafter be made on the limited liability company by service upon the Secretary of State;
(5) a post office address to which a person may mail a copy of any process against the limited liability company;
(6) additional information as is necessary or appropriate in order to enable the Secretary of State to determine and assess any unpaid fees payable by the limited liability company as prescribed in this chapter.
(B) The application for withdrawal must be in the form and manner designated by the Secretary of State and must be executed by the limited liability company by one of its managers, or, if the limited liability company does not have a manager, by an authorized agent, or, if the limited liability company is in the hands of a receiver or trustee, by such receiver or trustee on behalf of the limited liability company. This report must be accompanied by a written declaration that it is made under the penalties of perjury.
Section 33-21-162. Transaction of business without certificate of authority
(A) A foreign limited liability company transacting business in this State may not maintain any action, suit, or proceeding in any court in this State until it possesses a certificate of authority.
(B) The failure of a foreign limited liability company to obtain a certificate of authority does not impair the validity of any contract or act of the foreign limited liability company or prevent the foreign limited liability company from defending any action, suit, or proceeding in any court of this State.
(C) A foreign limited liability company, by transacting business in this State without a certificate of authority, appoints the Secretary of State as its agent upon whom any notice, process, or demand may be served.
(D) A foreign limited liability company which transacts business in this State without a valid certificate of authority must be liable to the State for the years or parts thereof during which it transacted business in this State without such certificate in an amount equal to all fees which would have been imposed by this article upon that limited liability company had it duly obtained such certificate, filed all reports required by this article, and paid all penalties imposed by this article. The attorney general shall bring proceedings to recover all amounts due this State under the provisions of this section.
(E) A foreign limited liability company which transacts business in this State without a valid certificate of authority must be subject to a civil penalty, payable to the State, not to exceed five thousand dollars. Each manager, or, in the absence of managers, each member or agent who authorizes, directs, or participates in the transaction of business in this State on behalf of a foreign limited liability company which does not have such certificate must be subject to a civil penalty, payable to the State, not to exceed one thousand dollars.
(F) The civil penalties set forth in subsection (E) may be recovered in an action brought within the court in and for the City of Columbia, and County of Richland by the attorney general. Upon a finding by the court that a foreign limited liability company or any of its members, managers, or agents have transacted business in this State in violation of this article, the court shall issue, in addition to the imposition of a civil penalty, an injunction restraining the further transaction of the business of the foreign limited liability company and the further exercise of any limited liability company's rights and privileges in this State. The foreign limited liability company must be enjoined from transacting business in this State until all civil penalties plus any interest and court costs which the court may assess have been paid and until the foreign limited liability company has otherwise complied with the provisions of this article.
(G) A member of a foreign limited liability company is not liable for the debts and obligations of the limited liability company solely by reason of such company's having transacted business in this State without a valid certificate of authority.
Section 33-21-163. Action to restrain from transaction of business
The attorney general may bring an action to restrain a foreign limited liability company from transacting business in this State in violation of this chapter.
Section 33-21-164. Process; service on a foreign limited liability company
Service of process on a foreign limited liability company must be as provided in Section 33-21-115.
Section 33-21-165. Execution of application or certificate
The execution of an application constitutes an affirmation under the penalties of perjury that the facts stated therein are true."
SECTION 2. The analysis lines in or after each code section of Chapter 21 of Title 33 of the 1976 Code, as contained in Section 1 of this act, are for informational purposes only and are not deemed to be part of the code sections themselves.
SECTION 3. This act takes effect upon approval by the Governor.