N.Y. Limited Liability Company Law § 802: Application for authority

§ 802. Application for authority. (a) Before doing business in this

state, a foreign limited liability company shall apply for authority to

do business in this state by submitting to the department of state (i) a

certificate of existence or, if no such certificate is issued by the

jurisdiction of formation, a certified copy of the articles of

organization of the limited liability company and all subsequent

amendments thereto or, if no articles of organization have been filed, a

certified copy of the certificate filed as its organizational basis and

all amendments thereto (if such certificate or certified copy is in a

foreign language, a translation in English thereof under oath of the

translator shall be attached thereto) and (ii) an application for

authority as a foreign limited liability company entitled "Application

for authority of... (name of foreign limited liability company) under

section eight hundred two of the Limited Liability Company Law," signed

and setting forth:

(1) the name of the foreign limited liability company and, if a

foreign liability company's name is not acceptable for authorization

pursuant to section two hundred four of this chapter, the fictitious

name under which it proposes to apply for authority and do business in

this state, which name shall be in compliance with section two hundred

four of this chapter and shall be used by the foreign limited liability

company in all its dealings with the department of state and in the

conduct of its business in this state. The provisions of section one

hundred thirty of the general business law shall not apply to any

fictitious name filed by a foreign limited liability company pursuant to

this section, and a filing under section one hundred thirty of the

general business law shall not constitute the adoption of a fictitious

name;

(2) the jurisdiction and date of its organization;

(3) the county within this state in which the office of the foreign

limited liability company is to be located or if the foreign limited

liability company shall maintain more than one office in this state, the

county within the state in which the principal office of the foreign

limited liability company is to be located;

(4) a designation of the secretary of state as its agent upon whom

process against it may be served and the post office address within or

without this state to which the secretary of state shall mail a copy of

any process against it served upon him or her. The limited liability

company may include an email address to which the secretary of state

shall email a notice of the fact that process against it has been

electronically served upon him or her;

(5) if it is to have a registered agent, his or her name and address

within the state and a statement that the registered agent is to be its

agent upon whom process may be served;

(6) the address of the office required to be maintained in the

jurisdiction of its formation by the laws of that jurisdiction or, if

not so required, of the principal office of the foreign limited

liability company;

(7) a statement that the foreign limited liability company is in

existence in the jurisdiction of its formation at the time of the filing

of such application; and

(8) the name and address of the authorized officer in the jurisdiction

of its formation where a copy of its articles of organization is filed

or, if no public filing of its articles of organization is required by

the law of the jurisdiction of formation, a statement that the foreign

limited liability company shall provide, on request, a copy thereof with

all amendments thereto (if such documents are in a foreign language, a

translation in English thereof under oath of the translator shall be

attached thereto), and the name and post office address of the person

responsible for providing such copies.

(b) (i) Within one hundred twenty days after the filing of the

application for authority with the department of state, a copy of the

same or a notice containing the substance thereof shall be published

once in each week for six successive weeks, in two newspapers of the

county within this state in which the office of the foreign limited

liability company is located, one newspaper to be printed weekly and one

newspaper to be printed daily, to be designated by the county clerk.

When such county is located within a city with a population of one

million or more, such designation shall be as though the copy or notice

were a notice or advertisement of judicial proceedings. Proof of the

publication required by this paragraph, consisting of the certificate of

publication of the foreign limited liability company with the affidavits

of publication of such newspapers annexed thereto, must be filed with

the department of state. Notwithstanding any other provision of law, if

the office of the foreign limited liability company is located in a

county wherein a weekly or daily newspaper of the county, or both, has

not been so designated by the county clerk, then the publication herein

required shall be made in a weekly or daily newspaper of any county, or

both, as the case may be, which is contiguous to, such county, provided

that any such newspaper meets all the other requirements of this

paragraph. A copy or notice published in a newspaper other than the

newspaper or newspapers designated by the county clerk shall not be

deemed to be one of the publications required by this subdivision. The

notice shall include: (l) the name of the foreign limited liability

company; (2) the date of filing of the application for authority with

the department of state; (3) the jurisdiction and date of its

organization; (4) the county within this state, in which the office of

the foreign limited liability company is located; (4-a) the street

address of the principal business location, if any; (5) a statement that

the secretary of state has been designated as agent of the foreign

limited liability company upon whom process against it may be served and

the post office address within or without this state to which the

secretary of state shall mail a copy of any process against it served

upon him or her; (6) if the foreign limited liability company is to have

a registered agent, his or her name and address within this state and a

statement that the registered agent is to be the agent of the foreign

limited liability company upon whom process against it may be served;

(7) 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 office of the foreign limited

liability company; (8) the name and address of the authorized officer in

its jurisdiction of organization where a copy of its certificate of

organization is filed or, if no public filing of its certificate of

organization is required by the law of its jurisdiction of organization,

a statement that the foreign limited liability company shall provide, on

request, a copy thereof with all amendments thereto (if such documents

are in a foreign language, a translation thereof under oath of the

translator shall be attached thereto), and the name and post office

address of the person responsible for providing such copies; and (9) the

character or purpose of the business of such foreign limited liability

company. Where, at any time after completion of the first of the six

weekly publications required by this paragraph and prior to the

completion of the sixth such weekly publication, there is a change in

any of the information contained in the copy or notice as published, the

foreign limited liability company may complete the remaining

publications of the original copy or notice, and the foreign limited

liability company shall not be required to publish any further or

amended copy or notice. Where, at any time after completion of the six

weekly publications required by this paragraph, there is a change to any

of the information contained in the copy or notice as published, no

further or amended publication or republication shall be required to be

made. If within one hundred twenty days after the filing of its

application for authority with the department of state, proof of such

publication, consisting of the certificate of publication of the foreign

limited liability company with the affidavits of publication of the

newspapers annexed thereto has not been filed with the department of

state, the authority of such foreign limited liability company to carry

on, conduct or transact any business in this state shall be suspended,

effective as of the expiration of such one hundred twenty day period.

The failure of a foreign limited liability company to cause such copy or

notice to be published and such certificate of publication and

affidavits of publication to be filed with the department of state

within such one hundred twenty day period or the suspension of such

foreign limited liability company's authority to carry on, conduct or

transact business in this state pursuant to this paragraph shall not

limit or impair the validity of any contract or act of such foreign

limited liability company, or any right or remedy of any other party

under or by virtue of any contract, act or omission of such foreign

limited liability company, or the right of any other party to maintain

any action or special proceeding on any such contract, act or omission,

or right of such foreign limited liability company to defend any action

or special proceeding in this state, or result in any member, manager or

agent of such foreign limited liability company becoming liable for the

contractual obligations or other liabilities of the foreign limited

liability company. If, at any time following the suspension of a foreign

limited liability company's authority to carry on, conduct or transact

business in this state pursuant to this paragraph, such foreign limited

liability company shall cause proof of publication in substantial

compliance with the provisions (other than the one hundred twenty day

period) of this paragraph, consisting of the certificate of publication

of the foreign limited liability company with the affidavits of

publication of the newspapers annexed thereto, to be filed with the

department of state, such suspension of such foreign limited liability

company's authority to carry on, conduct or transact business shall be

annulled.

(ii)(1) A foreign limited liability company which was formed and filed

its application for authority with the department of state prior to the

effective date of this paragraph and complied with the publication and

filing requirements of this subdivision as in effect prior to such

effective date shall not be required to make any publication or

republication or any filing under paragraph (i) of this subdivision, and

shall not be subject to suspension pursuant to this subdivision.

(2) Within twelve months after the effective date of this paragraph, a

foreign limited liability company which was formed and filed its

application for authority with the department of state prior to such

effective date and which did not comply with the publication and filing

requirements of this subdivision as in effect prior to such effective

date shall publish a copy of its application for authority or a notice

containing the substance thereof in the manner required (other than the

one hundred twenty day period) by this subdivision as in effect prior to

such effective date and file proof of such publication, consisting of

the certificate of publication of the foreign limited liability company

with the affidavits of publication of the newspapers annexed thereto,

with the department of state.

(3) If a foreign limited liability company that is subject to the

provisions of subparagraph two of this paragraph fails to file the

required proof of publication with the department of state within twelve

months after the effective date of this paragraph, its authority to

carry on, conduct or transact any business in this state shall be

suspended, effective as of the expiration of such twelve month period.

(4) The failure of a foreign limited liability company that is subject

to the provisions of subparagraph two of this paragraph to fully comply

with the provisions of said subparagraph two or the suspension of such

foreign limited liability company's authority to carry on, conduct or

transact any business in this state pursuant to subparagraph three of

this paragraph shall not impair or limit the validity of any contract or

act of such foreign limited liability company, or any right or remedy of

any other party under or by virtue of any contract, act or omission of

such foreign limited liability company, or the right of any other party

to maintain any action or special proceeding on any such contract, act

or omission, or right of such foreign limited liability company to

defend any action or special proceeding in this state, or result in any

member, manager or agent of such foreign limited liability company

becoming liable for the contractual obligations or other liabilities of

the foreign limited liability company.

(5) If, at any time following the suspension of a foreign limited

liability company's authority to carry on, conduct or transact business

in this state, pursuant to subparagraph three of this paragraph, such

foreign limited liability company shall cause proof of publication in

substantial compliance with the provisions (other than the one hundred

twenty day period) of paragraph (i) of this subdivision, consisting of

the certificate of publication of the foreign limited liability company

with the affidavits of publication of the newspapers annexed thereto, to

be filed with the department of state, such suspension of such foreign

limited liability company's authority to carry on, conduct or transact

business shall be annulled.

(6) For the purposes of this paragraph, a foreign limited liability

company which was formed and filed its application for authority with

the department of state prior to the effective date of this paragraph

shall be deemed to have complied with the publication and filing

requirements of this subdivision as in effect prior to such effective

date if (i) the foreign limited liability company was formed and filed

its application for authority with the department of state on or after

January first, nineteen hundred ninety-nine and prior to such effective

date and the foreign limited liability company filed at least one

affidavit of the printer or publisher of a newspaper with the department

of state at any time prior to such effective date, or (ii) the foreign

limited liability company was formed and filed its application for

authority with the department of state prior to January first, nineteen

hundred ninety-nine, without regard to whether the foreign limited

liability company did or did not file any affidavit of the printer or

publisher of a newspaper with the secretary of state.

(iii) The information in a notice published pursuant to this

subdivision shall be presumed to be in compliance with and satisfaction

of the requirements of this subdivision.