M.G.L. c. 156C, § 1 Short title
c. 156C, § 1. Short title
Section 1. This chapter may be cited as the Massachusetts Limited Liability Company Act.
LIMITED LIABILITY COMPANY ACT
M.G.L. pt. Part I, tit. Title XXII, ch. c. 156C
in effectM.G.L. c. 156C, § 2 Definitions
c. 156C, § 2. Definitions
Section 2. As used in this chapter, the following words shall unless the context clearly otherwise requires have the following meanings:—
(1) ''Bankruptcy'', the occurrence of any of the following events:
(a) a member:
(1) makes an assignment for the benefit of creditors;
(2) files a voluntary petition in bankruptcy;
(3) is adjudged a bankrupt or insolvent, or has entered against him an order for relief, in any bankruptcy or insolvency proceeding;
(4) files a petition or answer seeking for himself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation;
(5) files an answer or other pleading, admitting or failing to contest the material allegations of a petition filed against him in any proceeding of this nature;
(6) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the member or of all or any substantial part of his properties; or
(b) one hundred and twenty days after the commencement of any proceeding against the member seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within ninety days after the appointment without his consent or acquiescence of a trustee, receiver or liquidator of the member or of all or any substantial part of his properties, the appointment is not vacated or stayed, or within ninety days after the expiration of any such stay, the appointment is not vacated.
(2) ''Certificate of organization'', the certificate referred to in section twelve, and the certificate as amended.
(3) ''Contribution'', any cash, property, services rendered or a promissory note or other obligation to contribute cash or property or to perform services, which a person contributes to a limited liability company in his capacity as a member.
(4) ''Foreign limited liability company'', a limited liability company formed under the laws of any state other than the commonwealth or under the laws of any foreign country or other foreign jurisdiction and denominated as such under the laws of such state or foreign country or other foreign jurisdiction.
(5) ''Limited liability company'' and ''domestic limited liability company'', an unincorporated organization formed under this chapter and having 1 or more members.
(6) ''Limited liability company interest'', a member's share of the profits and losses of a limited liability company and the member's right to receive distributions of the limited liability company's assets.
(7) ''Manager'', a person who is designated as a manager of a limited liability company pursuant to the operating agreement.
(8) ''Member'', a person who has been admitted to a limited liability company as a member as provided in section twenty or, in the case of a foreign limited liability company, in accordance with the laws of the state or foreign country or other foreign jurisdiction under which the foreign limited liability company is organized, and whose membership has not been terminated pursuant to the operating agreement or the operation of law.
(9) ''Operating agreement'', any written or oral agreement of the members as to the affairs of a limited liability company and the conduct of its business.
(10) ''Person'', a natural person, partnership, whether general or limited and whether domestic or foreign, limited liability company, foreign limited liability company, trust, estate, association, corporation, custodian, nominee or any other individual or entity in its own or any representative capacity.
(11) ''State'', the District of Columbia or the Commonwealth of Puerto Rico or any state, territory, possession, or other jurisdiction of the United States other than the commonwealth.
M.G.L. c. 156C, § 3 Name of limited liability company
c. 156C, § 3. Name of limited liability company
Section 3. The name of each limited liability company as set forth in its certificate of organization:
(1) shall contain the words ''limited liability company'', ''limited company'', or the abbreviation ''L.L.C.'', ''L.C.'', ''LLC'' or ''LC'';
(2) may contain the name of a member or manager; and
(3) may not be the same as, or deceptively similar to the name of any corporation, limited partnership or limited liability company reserved or organized under the laws of the commonwealth or licensed or registered as a foreign corporation, foreign limited partnership or foreign limited liability company in the commonwealth, except with the written consent of said corporation, limited partnership or limited liability company previously filed with the state secretary.
M.G.L. c. 156C, § 4 Reservation of exclusive right to name
c. 156C, § 4. Reservation of exclusive right to name
Section 4. (a) The exclusive right to the use of a name may be reserved by:
(1) any person intending to organize a limited liability company under this chapter and to adopt such name;
(2) any domestic limited liability company or any foreign limited liability company registered in the commonwealth which, in either case, intends to adopt such name;
(3) any foreign limited liability company intending to register in the commonwealth and adopt such name; and
(4) any person intending to organize a foreign limited liability company and intending to have it register in the commonwealth and adopt such name.
(b) The reservation of a specified name shall be made by filing with the state secretary, an application, executed by the applicant, specifying the name to be reserved and the name and address of the applicant. If the state secretary finds that the name is available for use by a domestic or foreign limited liability company, he shall reserve the name for the exclusive use of the applicant for a period of 60 days. The state secretary may extend the reservation for an additional 60 days upon written request of the applicant. The right to the exclusive use of a reserved name may be transferred to any other person by filing in the office of the state secretary a notice of the transfer, executed by the applicant for whom the name was reserved, specifying the name to be transferred and the name and address of the transferee.
M.G.L. c. 156C, § 5 Office and agent for service of process in commonwealth
c. 156C, § 5. Office and agent for service of process in commonwealth
Section 5. Each limited liability company shall have and maintain in the commonwealth:
(1) an office, which may but need not be a place of its business in the commonwealth at which shall be kept the records required by section nine to be maintained; and
(2) a resident agent for service of process on the limited liability company, which agent must be an individual resident of the commonwealth, a domestic corporation, or a foreign corporation authorized to do business in the commonwealth.
M.G.L. c. 156C, § 5A Certificate of change of resident agent or street address of resident agent; change of address of LLC business office; resignation
c. 156C, § 5A. Certificate of change of resident agent or street address of resident agent; change of address of LLC business office; resignation
Section 5A. (a) A limited liability company may change its resident agent or the street address of the resident agent by filing a certificate of change of agent or address with the state secretary. The statement shall contain the following information:
(1) the name of the limited liability company;
(2) the name and street address of its current resident agent;
(3) if the current resident agent is to be changed, the name and street address of the new resident agent and the new agent's written consent, either on the statement or attached to it, to the appointment; and
(4) if the street address of the business office of the resident agent is to be changed, the new street address of the business office of the resident agent.
(b) If a resident agent changes the street address of his business office, he may change the street address of the business office of any limited liability company for which he is resident agent by notifying the limited liability company in writing of the change and signing, either manually or by facsimile, and delivering to the state secretary for filing a statement of change that complies with the requirements of subsection (a) and recites that the limited liability company has been notified of the change. If the street address of more than 1 limited liability company is being changed at the same time, there may be included in a single certificate the names of all limited liability companies the street addresses of the business offices of which are being changed.
(c) Any resident agent may resign his agency appointment by signing and delivering to the state secretary a certificate of resignation. The resident agent shall furnish a copy of such statement to the limited liability company. The agency appointment shall be terminated on the thirty-first day following the date on which the statement was filed.
M.G.L. c. 156C, § 6 Powers and privileges of limited liability company; information to be provided on certificate of organization or application for registration
c. 156C, § 6. Powers and privileges of limited liability company; information to be provided on certificate of organization or application for registration
Section 6. (a) Except as otherwise expressly provided by law, a limited liability company may carry on any lawful business, trade, profession, purpose or activity.
(b) A limited liability company shall possess and may exercise all the powers and privileges granted by this chapter or by any other law or by the operating agreement, together with any powers incidental thereto, so far as such powers and privileges are necessary or convenient to the conduct, promotion or attainment of the business, trade, profession, purposes or activities of the limited liability company. Without limitation of the foregoing and except as otherwise expressly set forth in a written operating agreement, a limited liability company shall have the power to make guarantees of the obligations of another person or entity.
(c) A limited liability company or foreign limited liability company which is organized to render a professional service as defined in section two of chapter one hundred and fifty-six A shall (i) indicate in its certificate of organization or application for registration the specific professional services which it shall render, (ii) be subject to any conditions or limitations established by any applicable regulating boards as defined in said section 2, including the provision of liability insurance required by section sixty-five, and (iii) include with its certificate of organization or application for registration a certificate by the applicable regulating board which indicates compliance as of the date of organization or registration by the members and managers with any eligibility standards established by such regulating board.
M.G.L. c. 156C, § 7 Transaction of business between member or manager and limited liability company
c. 156C, § 7. Transaction of business between member or manager and limited liability company
Section 7. Except as provided in a written operating agreement, a member or manager may lend money to, borrow money from, act as a surety, guarantor or endorser for, guarantee or assume one or more specific obligations of, provide collateral for, and transact other business with a limited liability company and, subject to other applicable law, has the same rights and obligations with respect to any such matter as a person who is not a member or manager.
M.G.L. c. 156C, § 8 Indemnification of member or manager
c. 156C, § 8. Indemnification of member or manager
Section 8. (a) Subject to such standards and restrictions, if any, as are set forth in its certificate of organization or a written operating agreement, a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever. Such indemnification may include payment by the limited liability company of expenses incurred in defending a civil or criminal action or proceeding in advance of the final disposition of such action or proceeding, upon receipt of an undertaking by the person indemnified to repay such payment if he shall be adjudicated to be not entitled to indemnification under this section which undertaking may be accepted without reference to the financial ability of such person to make repayment. Any such indemnification may be provided although the person to be indemnified is no longer a member or manager.
No indemnification shall be provided for any person with respect to any matter as to which he shall have been adjudicated in any proceeding not to have acted in good faith in the reasonable belief that his action was in the best interest of the limited liability company.
(b) The certificate of organization or a written operating agreement may eliminate or limit the personal liability of a member or manager for breach of any duty to the limited liability company or to another member or manager.
M.G.L. c. 156C, § 9 Records and documents
c. 156C, § 9. Records and documents
Section 9. (a) Each limited liability company shall keep at the office referred to in clause (1) of section five the following:
(1) a current list of the full name and last known address of each member and manager;
(2) a copy of the certificate of organization and all certificates of amendment thereto, together with executed copies of any powers of attorney pursuant to which any certificate 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 then effective written operating agreements and of any financial statements of the limited liability company for the three most recent years; and
(5) unless contained in a written operating agreement, a writing setting out:
(i) 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;
(ii) 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;
(iii) any right of a member to receive, or of a manager to make, distributions to a member; and
(iv) any events upon the happening of which the limited liability company is to be dissolved and its affairs wound up.
(b) Records kept under this section shall be subject to inspection and copying at the reasonable request and at the expense of any member or manager during ordinary business hours.
(c) The current list of names and addresses of the members shall be made available to the state secretary within five business days of receipt of a written request by said state secretary or by the director of the securities division of the state secretary's office stating that such information is required in connection with an investigatory or enforcement proceeding.
M.G.L. c. 156C, § 10 Furnishing of documents and information to members and managers
c. 156C, § 10. Furnishing of documents and information to members and managers
Section 10. Each member or manager of a limited liability company has the right, subject to such reasonable standards, including standards governing what information and documents are to be furnished at what time and location and at whose expense, as may be set forth in the operating agreement or otherwise established by the manager or, if there is no manager, then by the members, to obtain from the limited liability company from time to time upon reasonable demand in writing for any purpose reasonably related to the member's or manager's interest as a member or manager of the limited liability company (i) true and full information regarding the state of the business and financial condition of the limited liability company, (ii) promptly after becoming available, a copy of the limited liability company's federal, state and local income tax returns for each year, and (iii) other information regarding the affairs of the limited liability company as is just and reasonable.
M.G.L. c. 156C, § 11 Reliance on records and documents
c. 156C, § 11. Reliance on records and documents
Section 11. A member or manager of a limited liability company shall be fully protected in relying in good faith upon the provisions of a written operating agreement and the records of the limited liability company and upon such information, opinions, reports or statements presented to the limited liability company by any of its other managers, members, officers, employees, or committees or by any other person, as to matters the member or manager reasonably believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of the limited liability company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits or losses of the limited liability company or any other facts pertinent to the existence and amount of assets from which distributions to members might properly be paid.
M.G.L. c. 156C, § 12 Certificate of organization
c. 156C, § 12. Certificate of organization
Section 12. (a) In order to form a limited liability company, one or more authorized persons must execute a certificate of organization. The certificate of organization shall be filed in the office of the state secretary and set forth:
(1) the name of the limited liability company;
(2) the address of the office in the commonwealth required to be maintained by section five;
(3) the name and address of the resident agent for service of process required to be maintained by section 5; provided, however, that the agent's written consent to the appointment shall be either in the certificate or attached to it;
(4) if the limited liability company is to have a specific date of dissolution, the latest date on which the limited liability company is to dissolve;
(5) if the limited liability company has managers at the time of its formation, the name and address of each manager;
(6) the name of any other person in addition to any manager who is authorized to execute any documents to be filed with the office of the state secretary and at least one such person shall be named if there are no managers;
(7) the general character of the limited liability company's business;
(8) if desired, the names of one or more persons authorized to execute, acknowledge, deliver and record any recordable instrument purporting to affect an interest in real property, whether to be recorded with a registry of deeds or a district office of the land court; and
(9) any other matters the authorized persons determine to be included therein.
(b) A limited liability company is formed at the time of the filing of the initial certificate of organization in the office of the state secretary or at any later date specified in the certificate of organization if, in either case, there has been substantial compliance with the requirements of this section. A limited liability company formed under this chapter shall be a separate legal entity, the existence of which as a separate legal entity shall continue until cancellation of the limited liability company's certificate of organization.
(c) All limited liability companies formed under this chapter shall also file an annual report with the state secretary setting forth the information required in subsection (a).
(d) The fee for the filing of the certificate of organization required by subsection (a) shall be five hundred dollars. The fee for the filing of the annual report required by subsection (c) shall be five hundred dollars. Such fees shall be paid to the state secretary at the time the certificate of organization or the annual report is filed.
M.G.L. c. 156C, § 13 Amendment of certificate of organization
c. 156C, § 13. Amendment of certificate of organization
Section 13. (a) A certificate of organization may be amended by filing a certificate of amendment thereto in the office of the state secretary. The certificate of amendment shall set forth:
(1) the name of the limited liability company;
(2) the date of filing of its certificate of organization; and
(3) the amendment to the certificate of organization.
(b) A manager or, it there is no manager, then any member, who becomes aware that any statement in a certificate of organization was false when made, or that any matter described in the certificate of organization has changed, making the certificate of organization false in any material respect, shall promptly amend the certificate of organization to correct such matter.
(c) A certificate of organization shall be amended to reflect (i) the designation of managers of a limited liability company which theretofore did not have managers or (ii) any change in the managers of a limited liability company or other authorized signatories.
(d) A certificate of organization may be amended at any time for any other proper purpose.
(e) Unless otherwise provided in this chapter or unless a later effective date, which shall be a date certain, is provided for in the certificate of amendment, a certificate of amendment shall be effective at the time of its filing with the state secretary.
M.G.L. c. 156C, § 14 Cancellation of certificate of organization
c. 156C, § 14. Cancellation of certificate of organization
Section 14. A certificate of organization shall be cancelled upon the dissolution and the completion of winding up of a limited liability company, or at any other time there are no members, or upon the filing of a certificate of consolidation or merger if the limited liability company is not the resulting or surviving entity in a consolidation or merger. A certificate of cancellation shall be filed in the office of the state secretary to accomplish the cancellation of a certificate of organization upon the dissolution and the completion of winding up of a limited liability company or at any other time there are no members and shall set forth:
(1) the name of the limited liability company;
(2) the date of filing of its certificate of organization;
(3) the reason for filing the certificate of cancellation;
(4) the effective date, which shall be a date certain, of cancellation if it is not to be effective upon the filing of the certificate; and
(5) any other information the person filing the certificate of cancellation determines.
M.G.L. c. 156C, § 15 Execution of certificate by authorized person
c. 156C, § 15. Execution of certificate by authorized person
Section 15. (a) Each certificate required by this chapter to be filed in the office of the state secretary shall be executed:
(1) by any manager if the limited liability company has managers or by any other authorized person set forth in the certificate of organization or any amendment thereto;
(2) if the limited liability company has not been formed, by the person or persons forming the limited liability company; or
(3) if the limited liability company is in the hands of a receiver, trustee, or other court-appointed fiduciary, by such receiver, trustee or fiduciary.
(b) Unless otherwise provided in the operating agreement, any person may sign any certificate or amendment thereto or enter into the operating agreement or amendment thereto by an agent, including an attorney-in-fact. An authorization, including a power of attorney, to sign any certificate or amendment thereto or to enter into the operating agreement or amendment thereto need not be in writing, need not be sworn to, verified or acknowledged, and need not be filed in the office of the state secretary, but if in writing, must be retained by the limited liability company.
(c) The execution of a certificate by an authorized person constitutes an affirmation, under the penalties of perjury, that the facts stated therein are true.
M.G.L. c. 156C, § 16 Failure or refusal to execute certificate
c. 156C, § 16. Failure or refusal to execute certificate
Section 16. (a) If a person required to execute a certificate required by this chapter fails or refuses to do so, any other person who is adversely affected by the failure or refusal may petition the superior court department of the trial court to direct the execution of the certificate. If the court finds that the execution of the certificate is proper and that any person so designated has failed or refused to execute the certificate, it shall order the state secretary to record an appropriate certificate.
(b) If a person required to execute an operating agreement or amendment thereto fails or refuses to do so, any person who is adversely affected by the failure or refusal may petition the superior court department of the trial court to direct the execution of the operating agreement or amendment thereto. If the court finds that the operating agreement or amendment thereto should be executed and that any person required to execute the operating agreement or amendment thereto has failed or refused to do so, it shall enter an order granting appropriate relief.
M.G.L. c. 156C, § 17 Filing of certificate with state secretary
c. 156C, § 17. Filing of certificate with state secretary
Section 17. (a) The original signed copy of the certificate of organization and of any certificates of amendment or cancellation or of any judicial decree of amendment or cancellation, and of any certificate of consolidation or merger or conversion and of any restated certificate shall be delivered to the state secretary, together with a duplicate copy which may be a photocopy or a duplicate original. A person who executes a certificate as an attorney-in-fact or fiduciary shall not be required to exhibit evidence of his authority as a prerequisite to filing. Any certificate authorized to be filed with the state secretary under any provision of this chapter shall be originally signed except as otherwise required by this chapter or permitted from time to time by the state secretary. Unless the state secretary finds that any certificate does not conform to law, he shall:
(1) confirm that the certificate of organization, the certificate of amendment, the certificate of cancellation or of any judicial decree of amendment or cancellation, the certificate of consolidation or merger or the restated certificate has been filed in his office by endorsing upon the original certificate and the duplicate certificate the word ''filed'', and the date and time of the filing. Said endorsement shall be conclusive of the date and time of its filing in the absence of actual fraud;
(2) file the endorsed certificate; and
(3) return to the person who filed it or his representative the duplicate copy of the original signed instrument, similarly endorsed.
(b) Upon the filing of a certificate of amendment or judicial decree of amendment or restated certificate in the office of the state secretary, or upon the effective date of a certificate of amendment or judicial decree thereto or restated certificate, as provided for therein, the certificate of organization shall be amended or restated as set forth therein. Upon the filing of a certificate of cancellation or a judicial decree thereof, or a certificate of consolidation or merger which acts as a certificate of cancellation, or upon the effective date of a certificate of cancellation or a judicial decree thereof or of a certificate of consolidation or merger which acts as a certificate of cancellation, as provided for therein, said certificate of organization shall be cancelled.
M.G.L. c. 156C, § 18 Filing of certificate as notice
c. 156C, § 18. Filing of certificate as notice
Section 18. The fact that a certificate of organization is on file in the office of the state secretary shall be notice that the entity formed in connection with the filing of the certificate of organization is a limited liability company formed under the laws of the commonwealth and shall be notice of all other facts set forth therein which are required to be set forth in a certificate of organization by section twelve.
M.G.L. c. 156C, § 19 Restated certificates of organization
c. 156C, § 19. Restated certificates of organization
Section 19. (a) A limited liability company may at any time, integrate into a single instrument all of the provisions of its certificate of organization which are then in effect and operative as a result of there having theretofore been filed with the state secretary one or more certificates or other instruments pursuant to any of the sections referred to in this chapter and it may at the same time also further amend its certificate of organization by adopting a restated certificate of organization.
(b) If a restated certificate of organization merely restates and integrates but does not further amend the initial certificate of organization, as theretofore amended or supplemented by any instrument that was executed and filed pursuant to any of the sections in this chapter, it shall be specifically designated in its heading as a ''restated certificate of organization'' together with such other words as the limited liability company may deem appropriate and shall be executed by an authorized person and filed as provided in section seventeen in the office of the state secretary. If a restated certificate restates and integrates and also further amends in any respect the certificate of organization, as theretofore amended or supplemented, it shall be specifically designated in its heading as an ''amended and restated certificate of organization'' together with such other words as the limited liability company may deem appropriate and shall be executed by at least one authorized person, and filed as provided in section seventeen in the office of the state secretary.
(c) A restated certificate of organization shall state, either in its heading or in an introductory paragraph, the limited liability company's present name, and, if such name has been changed, the name under which it was originally filed, the date of filing of its original certificate of organization with the state secretary, and the effective date, which shall be a date certain, of the restated certificate if it is not to be effective upon the filing of the restated certificate. A restated certificate shall also state that it was duly executed and is being filed in accordance with this section. If a restated certificate only restates and integrates and does not further amend a limited liability company's certificate of organization as theretofore amended or supplemented and there is no difference between the provisions of such certificate of organization and the provisions contained in the restated certificate, it shall state the fact of such difference.
(d) Upon the filing of a restated certificate of organization with the state secretary, or upon the future effective date of a restated certificate of organization as provided for therein, the initial certificate of organization, as theretofore amended or supplemented, shall be superseded by such restated certificate; thereafter, the restated certificate of organization, including any further amendment or changes made thereby, shall be the certificate of organization of the limited liability company, but the original effective date of organization shall remain unchanged.
(e) Any amendment or change effected in connection with the restatement and integration of the certificate of organization shall be subject to any other provision of this chapter, not inconsistent with this section, which would apply if a separate certificate of amendment were filed to effect such amendment or change.
M.G.L. c. 156C, § 20 Admission as member of limited liability company
c. 156C, § 20. Admission as member of limited liability company
Section 20. (a) In connection with the formation of a limited liability company, a person acquiring a limited liability company interest is admitted as a member of the limited liability company upon the later to occur of:
(1) the formation of the limited liability company; or
(2) the time provided in and upon compliance with the operating agreement or, if the operating agreement does not so provide, when the person's admission is reflected in the records of the limited liability company.
(b) After the formation of a limited liability company, a person acquiring a limited liability company interest is admitted as a member of the limited liability company:
(1) in the case of a person acquiring a limited liability company interest directly from the limited liability company, at the time provided in and upon compliance with a written operating agreement or, if a written operating agreement does not so provide, upon the consent of all members; or
(2) in the case of an assignee of a limited liability company interest, as provided in section forty-one.
(c) A person may be admitted to a limited liability company as a member and may receive an interest in the limited liability company without making a contribution or being obligated to make a contribution to the limited liability company.
M.G.L. c. 156C, § 21 Rights, powers and duties of classes or groups of members
c. 156C, § 21. Rights, powers and duties of classes or groups of members
Section 21. (a) An operating agreement may provide for classes or groups of members having such relative rights, powers and duties as the operating agreement may provide, and may make provision for the future creation in the manner provided in the operating agreement of additional classes or groups of members having such relative rights, powers and duties as may from time to time be established, including rights, powers and duties senior to existing classes and groups of members. An operating agreement may provide for the taking of an action, including the amendment of the operating agreement, without the vote or approval of any member or class or group of members, including an action to create under the provisions of the operating agreement a class or group of limited liability company interests that was not previously outstanding.
(b) An operating agreement may grant to all or certain identified members or a specified class or group of the members the right to vote separately or with all or any class or group of the members or managers, on any matter. Voting by members may be on a per capita, number, financial interest, class group or any other basis.
(c) An operating agreement which grants members a right to vote may set forth provisions relating to notice of the time, place or purpose of any meeting at which any matter is to be voted on by any members, waiver of any such notice, action by consent without a meeting, the establishment of a record date, quorum requirements, voting in person or by proxy, or any other matter with respect to the exercise of any such right to vote.
(d) If an operating agreement does not provide for the voting rights of members, the decision of members who own more than fifty percent of the unreturned contributions to the limited liability company determined in accordance with section twenty-nine shall be controlling.
M.G.L. c. 156C, § 22 Debts, obligations and liabilities of limited liability company
c. 156C, § 22. Debts, obligations and liabilities of limited liability company
Section 22. Except as otherwise provided by this chapter, the debts, obligations and liabilities of a limited liability company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the limited liability company; and no member or manager of a limited liability company shall be personally liable, directly or indirectly, including, without limitation, by way of indemnification, contribution, assessment or otherwise, for any such debt, obligation or liability of the limited liability company solely by reason of being a member or acting as a manager of the limited liability company.
M.G.L. c. 156C, § 23 Designation of manager
c. 156C, § 23. Designation of manager
Section 23. A person may be named or designated as a manager of the limited liability company as defined in clause seven of section two.
M.G.L. c. 156C, § 24 Management of limited liability company
c. 156C, § 24. Management of limited liability company
Section 24. (a) Unless otherwise provided in the operating agreement, the management of a limited liability company shall be vested in its members. An operating agreement may provide for the management, in whole or in part, of a limited liability company by one or more managers, who shall hold office and have the duties set forth in the operating agreement. Subject to section thirty-seven, a manager shall cease to be a manager as provided in the operating agreement.
(b) If a limited liability company has at least 1 manager, then unless otherwise provided in the operating agreement, the manager shall manage and control the limited liability company and no member shall manage or control the limited liability company. If a limited liability company has no manager then, unless otherwise provided in the operating agreement, the members shall manage and control the limited liability company.
(c) If a limited liability company has at least 1 manager then, unless otherwise provided in the operating agreement, each manager may execute documents and act for the limited liability company and no member shall execute documents or act for the limited liability company. If a limited liability company has no manager then, unless otherwise provided in the operating agreement, each member may execute documents and act for the limited liability company.
(d) Unless otherwise provided in the operating agreement, a member or manager of a limited liability company may delegate some or all of such member's or manager's rights and powers to execute documents and act for and manage and control the business and affairs of the limited liability company, including delegating to agents and employees of a member or manager of the limited liability company, and delegating by a management agreement or another agreement with, or otherwise to, other persons. Unless otherwise provided in the operating agreement, such delegation by a member or manager of a limited liability company shall not cause the member or manager to cease to be a member or manager, as the case may be, of the limited liability company.
M.G.L. c. 156C, § 25 Manager's membership in company
c. 156C, § 25. Manager's membership in company
Section 25. A manager need not be a member of the limited liability company.
M.G.L. c. 156C, § 26 Relative rights, duties and powers of classes or groups of managers
c. 156C, § 26. Relative rights, duties and powers of classes or groups of managers
Section 26. (a) An operating agreement may provide for classes or groups of managers having such relative rights, powers and duties as the operating agreement may provide, and may make provision for the future creation in the manner provided in the operating agreement of additional classes or groups of managers having such relative rights, powers and duties as may from time to time be established, including rights, powers and duties senior to existing classes and groups of managers. An operating agreement may provide for the taking of an action, including the amendment of the operating agreement, without the vote or approval of any manager or class or group of managers.
(b) The operating agreement may grant to all or certain identified managers or a specified class or group of the managers the right to vote, separately or with all or any class or group of managers or members, on any matter. Voting by managers may be on a per capita, number, financial interest, class, group or any other basis.
(c) An operating agreement which grants managers a right to vote may set forth provisions relating to notice of the time, place or purpose of any meeting at which any matter is to be voted on by any manager or class or group of managers, waiver of any such notice, action by consent without a meeting, the establishment of a record date, quorum requirements, voting in person or by proxy, or any other matter with respect to the exercise of any such right to vote.
(d) If an operating agreement does not provide for the voting rights of managers, the decision of a majority in number of the managers shall be controlling.
M.G.L. c. 156C, § 27 Contributions of members
c. 156C, § 27. Contributions of members
Section 27. The contribution of a member to a limited liability company may be in cash, property or services rendered, or a promissory note or other obligation to contribute cash or property or to perform services.
M.G.L. c. 156C, § 28 Members' obligations to limited liability company
c. 156C, § 28. Members' obligations to limited liability company
Section 28. (a) Except as provided in a written operating agreement, a member is obligated to a limited liability company to perform any promise to contribute cash or property or to perform services, even if he is unable to perform because of death, disability or any other reason. If a member does not make the required contribution of property or services, he is obligated at the option of the limited liability company to contribute cash equal to that portion of the agreed value as stated in the records of the limited liability company of the contribution that has not been made. The foregoing option shall be in addition to, and not in lieu of, any other rights, including the right to specific performance, that the limited liability company may have against such member under an operating agreement or applicable law.
(b) Unless otherwise provided in a written operating agreement, the obligation of a member to make a contribution or return money or other property paid or distributed in violation of this chapter may be compromised only by consent of all the members. Notwithstanding the compromise, a creditor of a limited liability company who extends credit, after the entering into of the operating agreement or an amendment thereto which, in either case, reflects the obligation, and before the amendment thereof to reflect the compromise, may enforce the original obligation to the extent that, in extending credit, the creditor reasonably relied on the obligation of a member to make a contribution or return. A conditional obligation of a member to make a contribution or return money or other property to a limited liability company may not be enforced unless the conditions of the obligation have been satisfied or waived as to or by such member. Conditional obligations include contributions payable upon a discretionary call of a limited liability company prior to the time the call occurs.
(c) An operating agreement may provide that the interest of a member who fails to make any contribution or other payment that the member is required to make shall be subject to specified remedies for, or specified consequences of, the failure. The remedy or consequence may take the form of reducing the defaulting member's interest in the limited liability company, subordinating the defaulting member's interest in the limited liability company to that of the nondefaulting members, a forced sale of the interest in the limited liability company, forfeiture of the interest in the limited liability company, the lending by the nondefaulting members of the amount necessary to meet the commitment, a fixing of the value of the member's interest in the limited liability company by appraisal or by formula and redemption and sale of the member's interest in the limited liability company at that value, or other remedy or consequences.
M.G.L. c. 156C, § 29 Allocation of profits and losses
c. 156C, § 29. Allocation of profits and losses
Section 29. (a) The profits and losses of a limited liability company shall be allocated among the members, and among classes or groups of members, in the manner provided in the operating agreement. If an operating agreement does not so provide, profits and losses shall be allocated on the basis of the agreed value as stated in the records of the limited liability company of the contributions of each member to the extent they have been received by the limited liability company and have not been returned.
(b) For purposes of this chapter, a member receives a return of his contribution to the extent that a distribution to him reduces his share of the fair value of the net assets of the limited liability company below the value, as set forth in the records required to be kept under this chapter, of his contribution which has not been distributed to him.
M.G.L. c. 156C, § 30 Distributions of cash or other assets
c. 156C, § 30. Distributions of cash or other assets
Section 30. Distributions of cash or other assets of a limited liability company shall be allocated among the members, and among classes or groups of members, in the manner provided in the operating agreement. If the operating agreement does not so provide, distributions shall be made on the basis of the agreed value as stated in the records of the limited liability company of the contributions of each member to the extent they have been received by the limited liability company and have not been returned.
M.G.L. c. 156C, § 31 Entitlement to distributions
c. 156C, § 31. Entitlement to distributions
Section 31. Except as provided in sections thirty-two and forty-six, a member is entitled to receive distributions from a limited liability company only to the extent and at the times or upon the happening of the events specified in the operating agreement or, if the operating agreement does not so specify, as determined by the members or managers pursuant to section twenty-one or section twenty-six.
M.G.L. c. 156C, § 32 Distribution to resigning member
c. 156C, § 32. Distribution to resigning member
Section 32. Upon resignation, a resigning member is entitled to receive any distribution to which he is entitled upon resignation under a written operating agreement. If not otherwise provided in a written operating agreement, a resigning member is entitled to receive, within a reasonable time after resignation, the fair value of his limited liability company interest as of the date of resignation based upon his right to share in distributions from the limited liability company.
M.G.L. c. 156C, § 33 Form of distribution on demand; acceptance of distribution of assets
c. 156C, § 33. Form of distribution on demand; acceptance of distribution of assets
Section 33. Except as provided in a written operating agreement, a member, regardless of the nature of his contribution, has no right to demand and receive any distribution from a limited liability company in any form other than cash. Except as provided in a written operating agreement, a member may not be compelled to accept a distribution of any asset in kind from a limited liability company to the extent that the percentage of the asset distributed to him exceeds a percentage of the asset which is equal to the percentage in which he shares in distributions from the limited liability company.
M.G.L. c. 156C, § 34 Entitlement to creditor remedies
c. 156C, § 34. Entitlement to creditor remedies
Section 34. Except as provided in the operating agreement, and subject to section forty-six, at the time a member becomes entitled to receive a distribution, he has the status of, and is entitled to all remedies available to, a creditor of the limited liability company with respect to the distribution. An operating agreement may provide for the establishment of a record date with respect to allocations and distributions by a limited liability company.
M.G.L. c. 156C, § 35 Liability for distribution in excess of terms of operating agreement
c. 156C, § 35. Liability for distribution in excess of terms of operating agreement
Section 35. (a) A member or manager who votes for or assents to a distribution in violation of the operating agreement shall be personally liable to the limited liability company for the amount of the distribution that exceeds what could have been distributed without violating the operating agreement.
(b) Each member or manager held liable under subsection (a) for an unlawful distribution is entitled to contribution:
(1) from each other member or manager who could be held liable under said subsection (a) for the unlawful distribution; and
(2) from each member for the amount the member received knowing that the distribution was made in violation of the operating agreement.
(c) A proceeding under this section is barred unless it is commenced within two years after the date of the distribution.
M.G.L. c. 156C, § 36 Resignation of member
c. 156C, § 36. Resignation of member
Section 36. A member may resign as a member of a limited liability company at the time or upon the happening of events specified in the operating agreement and in accordance with the operating agreement. An operating agreement may provide that a member shall not have the right to resign as a member of a limited liability company. Regardless of whether an operating agreement provides that a member does not have the right to resign as a member of a limited liability company, a member may resign as a member of a limited liability company upon not less than six months' prior written notice to the limited liability company at its office in the commonwealth as set forth in the certificate of organization filed in the office of the state secretary and to each other member and each manager at each other member's and each manager's address as set forth on the records of the limited liability company as of the date of the notice. If the resignation of a member violates the operating agreement, in addition to any remedies otherwise available under applicable law, a limited liability company may recover from the resigning member damages for breach of the operating agreement and offset the damages against any amounts otherwise distributable to the resigning member.
M.G.L. c. 156C, § 37 Resignation of manager
c. 156C, § 37. Resignation of manager
Section 37. A manager may resign as a manager of a limited liability company at the time or upon the happening of events specified in the operating agreement and in accordance with the operating agreement. An operating agreement may provide that a manager shall not have the right to resign as a manager of a limited liability company. Regardless of whether the operating agreement provides that a manager does not have the right to resign as a manager of a limited liability company, a manager may resign as a manager of a limited liability company at any time upon prior written notice to each member and each other manager at each member's and each other manager's address as set forth on the records of the limited liability company as of the date of the notice. If the resignation of a manager violates the operating agreement, in addition to any remedies otherwise available under applicable law, a limited liability company may recover from the resigning manager damages for breach of the operating agreement and offset the damages against any amounts otherwise distributable to the resigning manager.
M.G.L. c. 156C, § 38 Personal property
c. 156C, § 38. Personal property
Section 38. A limited liability company interest is personal property. A member has no interest in specific limited liability company property.
M.G.L. c. 156C, § 39 Assignment of interest
c. 156C, § 39. Assignment of interest
Section 39. (a) A limited liability company interest is assignable in whole or in part except as provided in the operating agreement. The assignee of a member's limited liability company interest shall have no right to participate in the management of the business and affairs of a limited liability company except:
(1) upon the approval of all of the members of the limited liability company other than the member assigning the limited liability company interest; or
(2) upon compliance with any procedure provided for in a written operating agreement.
(b) Unless otherwise provided in the operating agreement:
(1) an assignment entitles the assignee to share in such profits and losses, to receive such distribution or distributions, and to receive such allocation of income, gain, loss, deduction, or credit or similar items to which the assignor was entitled, to the extent assigned; and
(2) a member ceases to be a member and to have the power to exercise any rights or powers of a member upon assignment of all of his limited liability company interest. Unless otherwise provided in the operating agreement, the pledge of, or granting of a security interest, lien or other encumbrance in or against, any or all of the limited liability company interest of a member shall not cause the member to cease to be a member or to have the power to exercise any rights or powers of a member.
(c) An operating agreement may provide that a member's interest in a limited liability company may be evidenced by a certificate of limited liability company interest issued by the limited liability company.
(d) Unless otherwise provided in the operating agreement and except to the extent assumed by agreement, until an assignee of a limited liability company interest becomes a member, the assignee shall have no liability as a member solely as the result of the assignment.
M.G.L. c. 156C, § 40 Judgment against member payable with interest in limited liability company
c. 156C, § 40. Judgment against member payable with interest in limited liability company
Section 40. On application to a court of competent jurisdiction by any judgment creditor of a member, the court may charge the limited liability company interest of the member with payment of the unsatisfied amount of the judgment with interest. To the extent so charged, the judgment creditor has only the rights of an assignee of the limited liability company interest. This chapter does not deprive any member of the benefit of any exemption laws applicable to his limited liability company interest.
M.G.L. c. 156C, § 41 Membership of assignee
c. 156C, § 41. Membership of assignee
Section 41. (a) An assignee of a limited liability company interest may become a member:
(1) upon the approval of all of the members of the limited liability company other than the member assigning the limited liability company interest; or
(2) upon compliance with any procedure provided for in a written operating agreement.
(b) An assignee who has become a member has, to the extent assigned, the rights and powers, and is subject to the restrictions and liabilities, of a member under the operating agreement and this chapter. Notwithstanding the foregoing, unless otherwise provided in the operating agreement, an assignee who becomes a member is liable for the obligations of his assignor to make contributions as provided in section twenty-eight, but shall not be liable for the obligations of his assignor under section thirty-five. However, the assignee is not obligated for liabilities, including the obligations of his assignor to make contributions as provided in section twenty-eight, unknown to the assignee at the time he became a member and which could not be ascertained from the operating agreement.
(c) Whether or not an assignee of a limited liability company interest becomes a member, the assignor is not released from his liability to a limited liability company under sections thirty-one to thirty-seven, inclusive.
M.G.L. c. 156C, § 42 Death or incompetence of member
c. 156C, § 42. Death or incompetence of member
Section 42. Unless otherwise provided in the operating agreement, if a member who is an individual dies or a court of competent jurisdiction adjudges him to be incompetent to manage his person or his property, the member's executor, administrator, guardian, conservator or other legal representative may exercise all of the member's rights for the purpose of settling his estate or administering his property, including any power under the operating agreement of an assignee to become a member. Unless otherwise provided in an operating agreement, if a member is a corporation, trust or other entity and is dissolved or terminated, the powers of that member may be exercised by its legal representative or successor.
M.G.L. c. 156C, § 43 Dissolution of limited liability company
c. 156C, § 43. Dissolution of limited liability company
Section 43. A limited liability company is dissolved and its affairs shall be wound up upon the first to occur of the following:
(1) the time specified in the operating agreement;
(2) the happening of an event as specified in the operating agreement;
(3) the written consent of all members;
(4) with respect to a limited liability company formed prior to January 1, 1997, except as provided in a written operating agreement, the death, insanity, retirement, resignation, expulsion, bankruptcy or dissolution of a member or the occurrence of any other event which terminates the membership of a member in the limited liability company unless the business of the limited liability company is continued either by the consent of all the remaining members within ninety days following the occurrence of any such event or pursuant to a right to continue stated in a written operating agreement; or
(5) the entry of a decree of judicial dissolution under section forty-four.
M.G.L. c. 156C, § 44 Court-decreed dissolution
c. 156C, § 44. Court-decreed dissolution
Section 44. On application by or for a member or manager the superior court department of the trial court may decree dissolution of a limited liability company whenever it is not reasonably practicable to carry on its business in conformity with the certificate of organization or the operating agreement.
M.G.L. c. 156C, § 45 Winding up affairs of dissolved limited liability company
c. 156C, § 45. Winding up affairs of dissolved limited liability company
Section 45. (a) Unless otherwise provided in an operating agreement, a manager who has not wrongfully dissolved a limited liability company or, if none, the members or a person approved by the members pursuant to the operating agreement, or if there is no operating agreement, pursuant to section twenty-one, may wind up the limited liability company's affairs; but the superior court department of the trial court, upon cause shown, may wind up the limited liability company's affairs upon application of any member or manager, his legal representative or assignee, and in connection therewith, may appoint a liquidating trustee.
(b) Upon dissolution and notwithstanding the filing of a certificate of cancellation pursuant to section 14, a limited liability company may continue its existence but shall not carry on any business except as necessary to wind up its affairs or distribute its assets which may include, but shall not be limited to, prosecuting and defending suits, whether civil, criminal or administrative, gradually settling and closing the limited liability company's business, disposing of and conveying the limited liability company's property, discharging or making reasonable provision for the limited liability company's liabilities and distributing to members any remaining assets of the limited liability company, without affecting the liability of members and managers and without imposing liability on a liquidating trustee.
M.G.L. c. 156C, § 46 Distribution of assets of limited liability company following dissolution
c. 156C, § 46. Distribution of assets of limited liability company following dissolution
Section 46. (a) Upon the winding up of a limited liability company, the assets shall be distributed as follows:
(1) to creditors, including members and managers who are creditors, to the extent otherwise permitted by law, in satisfaction of liabilities of the limited liability company, whether by payment or the making of reasonable provision for payment thereof, other than liabilities for which reasonable provision for payment has been made and liabilities for distributions to members under section thirty-one or section thirty-two;
(2) unless otherwise provided in the operating agreement, to members and former members in satisfaction of liabilities for distributions under section thirty-one or section thirty-two; and
(3) unless otherwise provided in the operating agreement, to members first for the return of their contributions and second respecting their limited liability company interests, in the proportions in which the members share in distributions.
(b) A limited liability company which has dissolved shall pay or make reasonable provision to pay all claims and obligations, including all contingent, conditional or unmatured claims and obligations, known to the limited liability company and all claims and obligations which are known to the limited liability company but for which the identity of the claimant is unknown. If there are sufficient assets, such claims and obligations shall be paid in full and any such provision for payment made shall be made in full. If there are insufficient assets, such claims and obligations shall be paid or provided for according to their priority and, among claims and obligations of equal priority, ratably to the extent of assets available therefor. Unless otherwise provided in an operating agreement, any remaining assets shall be distributed as provided in this chapter. Any liquidating trustee winding up a limited liability company's affairs who has complied with this section shall not be personally liable to the claimants of the dissolved limited liability company by reason of such person's actions in winding up the limited liability company.
M.G.L. c. 156C, § 47 Laws applicable to foreign limited liability company
c. 156C, § 47. Laws applicable to foreign limited liability company
Section 47. A foreign limited liability company shall not do any business in the commonwealth which is prohibited to a limited liability company organized under this chapter. A member, manager or other agent of a foreign limited liability company shall be subject to the liabilities, and shall have the defenses, with respect to the limited liability company, as officers, directors and other agents of a foreign corporation have under section 15.11 of subdivision A of Part 15 of chapter 156D. Subject to the constitution of the commonwealth, a foreign limited liability company's organization and internal affairs and the liability of its members and managers shall be governed by the laws of the jurisdiction under which it is organized. A foreign limited liability company may not be denied registration by reason of any difference between such laws and the laws of the commonwealth.
M.G.L. c. 156C, § 48 Registration of foreign limited liability company
c. 156C, § 48. Registration of foreign limited liability company
Section 48. A foreign limited liability company shall be considered to be doing business in the commonwealth for the purpose of this section if it would be considered to be doing business in the commonwealth for the purpose of Part 15 of subdivision A of chapter 156D if it were a foreign corporation. Every foreign limited liability company doing business in the commonwealth shall submit to the state secretary, within ten days after it commences doing business in the commonwealth, an application for registration as a foreign limited liability company, which shall be signed and sworn to by an authorized person. The application shall be in such form as the state secretary shall require and shall be accompanied by a certificate of legal existence or comparable certificate of the foreign limited liability company, issued by an officer or agency properly authorized in the jurisdiction in which the foreign limited liability company is organized, or such other evidence of legal existence as the state secretary shall approve. If the certificate or such evidence is in a foreign language, a translation thereof, under oath of the translator, shall be attached thereto.
The application for registration shall set forth the following information:
(1) the name of the foreign limited liability company and, if different, the name under which it proposes to do business in the commonwealth;
(2) the jurisdiction where such limited liability company was organized and the date of its organization;
(3) the general character of the business the foreign limited liability company proposes to do in the commonwealth;
(4) the address of the principal office of the foreign limited liability company;
(5) if the foreign limited liability company has managers, the name and address of each manager;
(6) the address of the principal office of the foreign limited liability company in the commonwealth, if any;
(7) the name and address of its resident agent and the agent's written consent, either on the certificate or attached to it, to his appointment as agent;
(8) if the foreign limited liability company has a specific date of dissolution, the latest date on which the foreign limited liability company is to dissolve; and
(9) if desired, the name of one or more persons authorized to execute, acknowledge, deliver and record any recordable instrument purporting to affect an interest in real property, whether to be recorded with a registry of deeds or a district office of the land court.
If the foreign limited liability company's certificate of organization from its jurisdiction of organization sets forth any part of the information required to be set forth in the application for registration in the commonwealth, the foreign limited liability company may submit a certified copy of such certificate, with a sworn translation, if necessary, in lieu of such part of the application for registration.
Each foreign limited liability company formed under this chapter shall also file with the state secretary an annual report setting forth, in updated form, the information contained in the application for registration.
The fee for the filing of the application of registration and each annual report shall be five hundred dollars payable to the state secretary and due at the time of filing.
M.G.L. c. 156C, § 49 Duties of state secretary with respect to foreign limited liability companies
c. 156C, § 49. Duties of state secretary with respect to foreign limited liability companies
Section 49. The state secretary shall examine and endorse his approval on the application for registration if the business of the foreign limited liability company is not prohibited by law to a limited liability company formed under this chapter and if the state secretary determines that the application complies with section forty-eight. Upon such approval, the application shall be deemed to be filed with the state secretary and the foreign limited liability company shall be deemed to be registered to do business in the commonwealth. The state secretary shall keep the records and have the other duties with respect to foreign limited liability companies as provided in subsection (c) of section 15.03 of subdivision A of Part 15 of chapter 156D.
M.G.L. c. 156C, § 50 Name of foreign limited liability company
c. 156C, § 50. Name of foreign limited liability company
Section 50. A foreign limited liability company may register with the state secretary and do business in the commonwealth under any name, whether or not it is the name under which it is registered in its jurisdiction of organization, that could be assumed by a limited liability company organized under this chapter.
M.G.L. c. 156C, § 51 Resident agent for service of process on foreign limited liability company
c. 156C, § 51. Resident agent for service of process on foreign limited liability company
Section 51. Each foreign limited liability company doing business in the commonwealth shall appoint a resident agent as its true and lawful attorney upon whom all lawful process in any action or proceeding against the foreign limited liability company in the commonwealth may be served. Sections 15.07, 15.08 and 15.09 of chapter 156D relative to the appointment and qualifications of a resident agent shall be applicable to the appointment of a resident agent pursuant to this section.
M.G.L. c. 156C, § 52 Correction or amendment of application for registration of foreign limited liability company
c. 156C, § 52. Correction or amendment of application for registration of foreign limited liability company
Section 52. If any statement in the application for registration of 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, the foreign limited liability company shall promptly file in the office of the state secretary a certificate, signed and sworn to by an authorized person, correcting or amending such statement.
M.G.L. c. 156C, § 53 Cancellation of registration of foreign limited liability company
c. 156C, § 53. Cancellation of registration of foreign limited liability company
Section 53. The registration of a foreign limited liability company doing business in the commonwealth shall be canceled in the manner and at such times as are provided in section fourteen, except that the certificate of cancellation required under section fourteen shall, in addition to the information required thereunder, set forth either that all taxes and fees owed the commonwealth have been paid or provided for or that such foreign limited liability company has no assets. A foreign limited liability company doing business in this commonwealth may withdraw from the commonwealth by submitting to the state secretary a certificate of withdrawal, in such form as said state secretary shall require, signed and sworn to by an authorized person, stating:
(1) the name of such foreign limited liability company and, if different, the name under which it is registered and doing business in the commonwealth;
(2) the address of the principal office of such foreign limited liability company;
(3) the address of the principal office in the commonwealth of such foreign limited liability company, if any, and the name and business address of its resident agent in the commonwealth;
(4) that such foreign limited liability company is not doing business in the commonwealth; and
(5) that all taxes and fees owed the commonwealth have been paid or provided for.
The state secretary shall examine and endorse his approval on the certificate of withdrawal if he determines that the certificate complies with this section. Upon such approval, the certificate of withdrawal shall be deemed to be filed with the state secretary.
M.G.L. c. 156C, § 54 Failure to register; penalty; service of process
c. 156C, § 54. Failure to register; penalty; service of process
Section 54. (a) A foreign limited liability company doing business in the commonwealth which fails to register with the state secretary shall, for each year that such failure shall continue, be fined not more than five hundred dollars. No such failure shall affect the validity of any contract involving the foreign limited liability company, nor is a member or a manager of a foreign limited liability company liable for the obligations of the foreign limited liability company solely by reason of such failure, but no action shall be maintained or recovery had by the foreign limited liability company in any of the courts of the commonwealth as long as such failure continues. The failure of a foreign limited liability company to register with the state secretary shall not prevent the foreign limited liability company from defending any action, suit or proceeding in any of the courts of the commonwealth.
(b) A foreign limited liability company shall be liable to be sued and to have its property attached in the same manner and to the same extent as persons who are residents of other jurisdictions. Every foreign limited liability company doing business in the commonwealth without having registered as prescribed in this chapter, and every foreign limited liability company having registered as prescribed in this chapter but whose resident agent cannot after a diligent search by an officer authorized to serve legal process be found at the business address of such resident agent stated in its most recent certificate filed with the state secretary pursuant to this chapter, and every foreign limited liability company whose resident agent refuses to act as such, shall be deemed to have appointed the state secretary to be its true and lawful attorney upon whom all process in any action or proceeding may be served so long as any liability incurred in the commonwealth while it was doing business shall remain outstanding.
Service of process in all actions and proceedings in the commonwealth against such a foreign limited liability company may be made upon the state secretary. Service of process in all actions and proceedings in the commonwealth against a foreign limited liability company formerly doing business in the commonwealth that has not complied with the provisions of section forty-eight or against a foreign limited liability company formerly doing business in the commonwealth that has withdrawn from the commonwealth pursuant to this chapter, may be made upon the state secretary if the action or proceeding involves a liability alleged to have been incurred by the foreign limited liability company while it was doing business in the commonwealth.
When lawful process in any action or proceeding against any foreign limited liability company which pursuant to this section may be made upon the state secretary is served upon the state secretary, he shall immediately forward the process by mail, postage prepaid, directed to such foreign limited liability company at its last known principal office or, in the case of a foreign limited liability company established in a foreign country, to the resident manager, if any, in the United States. The state secretary shall keep a record of all such process, which shall show the date of service.
In the case of service of process on a foreign limited liability company that has not complied with the provisions of section forty-eight, the notice herein provided for shall be mailed by the state secretary to the proper address of the foreign limited liability company furnished to him by the plaintiff or his attorney.
Service of process upon a foreign limited liability company for violation of any criminal law of the commonwealth may be made in the manner hereinabove provided.
M.G.L. c. 156C, § 55 Suits by or against limited liability company
c. 156C, § 55. Suits by or against limited liability company
Section 55. Suit may be brought by or against a limited liability company in its own name.
M.G.L. c. 156C, § 56 Suits on behalf of limited liability company
c. 156C, § 56. Suits on behalf of limited liability company
Section 56. Except as otherwise provided in a written operating agreement, suit on behalf of the limited liability company may be brought in the name of the limited liability company by:
(a) any member or members of a limited liability company, whether or not the operating agreement vests management of the limited liability company in one or more managers, who are authorized to sue by the vote of members who own more than fifty percent of the unreturned contributions to the limited liability company determined in accordance with section twenty-nine; provided, however, that in determining the vote so required, the vote of any member who has an interest in the outcome of the suit that is adverse to the interest of the limited liability company shall be excluded; or
(b) any manager or managers of a limited liability company, if the operating agreement vests management of the limited liability company in one or more managers, who are authorized to sue by the vote of a majority in number of the managers; provided, however, that, in determining the vote so required, the vote of any manager who has an interest in the outcome of the suit that is adverse to the interest of the limited liability company shall be excluded.
M.G.L. c. 156C, § 57 Court orders on termination of derivative suit
c. 156C, § 57. Court orders on termination of derivative suit
Section 57. On termination of the derivative suit, the court may:
(a) order the limited liability company to pay the plaintiff's reasonable expenses, including counsel fees, incurred in the proceeding if it finds that the suit has resulted in a substantial benefit to the limited liability company; or
(b) order the plaintiff to pay any defendant's reasonable expenses, including counsel fees, incurred in defending the suit if it finds that the suit was commenced or maintained without reasonable cause or for an improper purpose.
M.G.L. c. 156C, § 58 Lack of authority to sue
c. 156C, § 58. Lack of authority to sue
Section 58. The lack of authority of a member or manager to sue on behalf of the limited liability company may not be asserted as a defense to an action by the limited liability company or by the limited liability company as a basis for bringing a subsequent suit on the same cause of action.
M.G.L. c. 156C, § 59 Consolidation or merger
c. 156C, § 59. Consolidation or merger
Section 59. (a) As used in sections 59 to 63, inclusive, the words ''other business entity'' shall mean a corporation to which section 17.01 of Part 17 of chapter 156D applies, a professional corporation and a foreign professional corporation each as defined in section 2 of chapter 156A, a foreign corporation, an association or a trust, as defined in section 1 of chapter 182, a partnership whether general or limited and whether domestic or foreign, as defined, respectively, in section 6 of chapter 108A and section 1 of chapter 109, and a foreign limited liability company as defined in this chapter.
(b) Pursuant to an agreement of consolidation or merger, a domestic limited liability company may consolidate or merge with or into one or more domestic limited liability companies or other business entities formed or organized under the law of the commonwealth or any other state of the United States or any foreign country or other foreign jurisdiction, with such domestic limited liability company or other business entity as the agreement shall provide being the resulting or surviving domestic limited liability company or other business entity.
(c) In connection with a consolidation or merger under this chapter, rights or securities of, or interests in, a domestic limited liability company or other business entity which is a constituent party to the consolidation or merger may be exchanged for or converted into cash, property, rights or securities of, or interests in, the resulting or surviving domestic limited liability company or other business entity or, in addition to or in lieu thereof, may be exchanged for or converted into cash, property, rights or securities of, or interests in, a domestic limited liability company or other business entity which is not the resulting or surviving limited liability company or other business entity in the consolidation or merger.
M.G.L. c. 156C, § 60 Approval of consolidation or merger; objection; termination or amendment
c. 156C, § 60. Approval of consolidation or merger; objection; termination or amendment
Section 60. (a) Unless otherwise provided in a written operating agreement, a consolidation or merger shall be approved by each domestic limited liability company which is to consolidate or merge by the members or, if there is more than one class or group of members, then by each class or group of members, in either case, by members who own more than fifty percent of the unreturned contributions to the domestic limited liability company, determined in accordance with section twenty-nine, owned by all of the members or by the members in each class or group, as appropriate.
(b) The exclusive remedy of a member of a domestic limited liability company, which has voted to consolidate or to merge with another entity under the provisions of sections fifty-nine to sixty-three, inclusive, who objects to such consolidation or merger, shall be the right to resign as a member and to receive any distribution with respect to his limited liability company interest, as provided in sections thirty-one to thirty-seven, inclusive. Such members and the resulting or surviving entity shall have the rights and duties, and shall follow the procedure set forth in said sections.
(c) Notwithstanding prior approval, an agreement of consolidation or merger may be terminated or amended pursuant to a provision for such termination or amendment contained in the agreement of consolidation or merger.
M.G.L. c. 156C, § 61 Certificate of consolidation or merger
c. 156C, § 61. Certificate of consolidation or merger
Section 61. (a) If a domestic limited liability company is consolidating or merging under this chapter, the domestic limited liability company or other business entity resulting from or surviving in the consolidation or merger shall file in the manner described in section seventeen a certificate of consolidation or merger in the office of the state secretary. The certificate of consolidation or merger shall be executed in the manner described in section fifteen and shall state:
(1) the name and jurisdiction of formation or organization of each of the domestic limited liability companies or other business entities which is to consolidate or merge;
(2) that an agreement of consolidation or merger has been approved and executed by each of the domestic limited liability companies or other business entities which is to consolidate or merge;
(3) the name of the resulting or surviving domestic limited liability company or other business entity;
(4) the future effective date or time, which shall be a date or time certain, of the consolidation or merger if it is not to be effective upon the filing of the certificate of consolidation or merger;
(5) that the agreement of consolidation or merger is on file at a place of business of the resulting or surviving domestic limited liability company or other business entity, and shall state the address thereof;
(6) that a copy of the agreement of consolidation or merger will be furnished by the resulting or surviving domestic limited liability company or other business entity, on request and without cost, to any member of any domestic limited liability company or any person holding an interest in any other business entity which is to consolidate or merge; and
(7) if the resulting or surviving entity is not an entity organized under the laws of the commonwealth, a statement that the resulting or surviving entity agrees that, if the entity does not continuously maintain an agent for service of process in the commonwealth, to appoint irrevocably the state secretary to be its true and lawful attorney upon whom all lawful process in any action or proceeding in the commonwealth may be served in the manner set forth in subsections (d), (e), (f) and (g) of section 15.10 of subdivision A of Part 15 of chapter 156D relative to foreign corporations.
(b) Unless a future effective date or time is provided in a certificate of consolidation or merger, in which event a consolidation or merger shall be effective at any such future effective date or time, a consolidation or merger shall be effective upon the filing in the office of the state secretary of a certificate of consolidation or merger.
(c) A certificate of consolidation or merger shall act (1) as a certificate of cancellation for a domestic limited liability company which is not the resulting or surviving entity in the consolidation or merger and (2) as a final annual report for an association or trust, as defined in section one of chapter one hundred and eighty-two.
(d) An agreement of consolidation or merger approved in accordance with section sixty may (1) effect any amendment to the operating agreement or (2) effect the adoption of a new operating agreement, for a domestic limited liability company if it is the resulting or surviving entity in the consolidation or merger. Any amendment to an operating agreement or adoption of a new operating agreement made pursuant to the foregoing sentence shall be effective at the effective time or date of the consolidation or merger. The provisions of this subsection shall not be construed to limit the accomplishment of a merger or of any of the matters referred to herein by any other means provided for in the operating agreement, or other agreement, or as otherwise permitted by law; the operating agreement of any constituent limited liability company to the consolidation or merger including a limited liability company formed for the purpose of consummating a consolidation or merger may be the operating agreement of the resulting or surviving limited liability company.
M.G.L. c. 156C, § 62 Rights, privileges, powers, property and debts of consolidated or merged business entity
c. 156C, § 62. Rights, privileges, powers, property and debts of consolidated or merged business entity
Section 62. When any consolidation or merger becomes effective as hereinbefore provided, for all purposes of the laws of the commonwealth, all of the rights, privileges and powers of each of the domestic limited liability companies and other business entities that have consolidated or merged, and all property, real, personal and mixed, and all debts due to any of said domestic limited liability companies and other business entities, as well as all other things and causes of action belonging to each of such domestic limited liability companies and other business entities, shall be vested in the resulting or surviving domestic limited liability company or other business entity, and shall thereafter be the property of the resulting or surviving domestic limited liability company or other business entity as they were of each of the domestic limited liability companies and other business entities that have consolidated or merged, and the title to any real property vested by deed or otherwise, under the laws of the commonwealth, in any of such domestic limited liability companies and other business entities, shall not revert or be in any way impaired by reason of this chapter; but all rights of creditors and all liens upon any property of any of said domestic limited liability companies and other business entities shall be preserved unimpaired, and all debts, liabilities and duties of each of the said domestic limited liability companies and other business entities that have consolidated or merged shall thenceforth attach to the resulting or surviving domestic limited liability company or other business entity, and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred or contracted by it. Unless otherwise agreed, a consolidation or merger of a domestic limited liability company, including a domestic limited liability company which is not the resulting or surviving entity in the consolidation or merger, shall not require such domestic limited liability company to wind up its affairs under section forty-five or pay its liabilities and distribute its assets under section forty-six.
M.G.L. c. 156C, § 63 Duties and liabilities of members and managers
c. 156C, § 63. Duties and liabilities of members and managers
Section 63. (a) Unless the provisions of this chapter or the context indicate otherwise, each reference in the General Laws to a ''person'', where such reference includes any partnership, whether general or limited and whether domestic or foreign, shall be deemed to include a limited liability company.
(b) To the extent that, at law or in equity, a member or manager has duties, including fiduciary duties, and liabilities relating thereto to a limited liability company or to another member or manager, (1) any such member or manager acting under the operating agreement shall not be liable to the limited liability company or to any such other member or manager for the member's or manager's good faith reliance on the provision of the operating agreement, and (2) the member's or manager's duties and liabilities may be expanded or restricted by provisions in the operating agreement.
M.G.L. c. 156C, § 64 Reorganization of limited liability company
c. 156C, § 64. Reorganization of limited liability company
Section 64. (a) Any limited liability company, a plan of reorganization of which, pursuant to the provisions of any applicable statute of the United States relating to reorganizations of corporations or limited liability companies, has been or shall be confirmed by the decree or order of a court of competent jurisdiction, may put into effect and carry out the plan and the decrees and orders of the court relative thereto and may take any proceeding and do any act provided in the plan or directed by such decrees and orders, without further action by its members or managers. Such power and authority may be exercised, and such proceedings and acts may be taken, as may be directed by such decrees or orders, by the trustee or trustees of such limited liability company appointed by the court in the reorganization proceedings or a majority thereof or if none be appointed and acting, by designated members or managers of the limited liability company, or by a master or other representative appointed by the court, with like effect as if exercised and taken by unanimous action of the members and managers of the limited liability company.
(b) The provisions of this section shall cease to apply to such limited liability company upon the entry of a final decree in the reorganization proceedings closing the case and discharging the trustee or trustees, if any.
M.G.L. c. 156C, § 65 Liability insurance
c. 156C, § 65. Liability insurance
Section 65. The regulating boards, as defined in subsection (c) of section two of chapter one hundred and fifty-six A, shall adopt regulations requiring the designated amount of required liability insurance to be maintained by limited liability companies and members subject to their jurisdiction pursuant to subsection (c) of section six. The term designated amount shall be the amount deemed appropriate by the regulating board to cover negligence, wrongful acts, errors and omissions and that insures the company and its members.
M.G.L. c. 156C, § 66 Recordable instruments affecting real property binding on limited liability company
c. 156C, § 66. Recordable instruments affecting real property binding on limited liability company
Section 66. Any recordable instrument purporting to affect an interest in real property, including without limitation, any deed, lease, notice of lease, mortgage, discharge or release of mortgage, assignment of mortgage, easement and certificate of fact, executed in the name of a limited liability company by any person who is identified on the certificate of organization, as amended, of a domestic limited liability company, or on the application for registration, as amended, of a foreign limited liability company, as a manager or as a person authorized to execute, acknowledge, deliver and record recordable instruments affecting interests in real property, shall be binding on the limited liability company in favor of a seller, purchaser, grantor, grantee, lessor, lessee, mortgagor, mortgagee, and any other person relying in good faith on such instrument, notwithstanding any inconsistent provisions of the operating agreement, side agreements among the members or managers, by-laws or rules, resolutions or votes of the limited liability company.
M.G.L. c. 156C, § 67 Certification of authority to act for limited liability company
c. 156C, § 67. Certification of authority to act for limited liability company
Section 67. Any person who is identified on the certificate of organization, as amended, of a domestic limited liability company, or on the application for registration, as amended, of a foreign limited liability company, as a manager or as a person who is authorized to execute any documents to be filed with the office of the state secretary, may certify as to the incumbency of any manager or member and as to the authority of any person, whether or not such person is identified on the certificate of organization or on the application for registration, to act for the limited liability company, including without limitation with respect to the matters referred to in section sixty-six, and any such certification shall be binding on the limited liability company in favor of a person relying in good faith on such certification, notwithstanding any inconsistent provisions of the operating agreement, side agreements among the members, the managers or both, by-laws or rules, resolutions or votes of the limited liability company.
M.G.L. c. 156C, § 68 Good standing
c. 156C, § 68. Good standing
Section 68. A limited liability company shall be deemed to be in good standing with the secretary of the commonwealth if such limited liability company appears from the records of the said secretary to exist and has paid all fees then due to the secretary, and no certificate of cancellation has been filed by or with respect to the limited liability company. Upon the request of any person and payment of such fee as may be prescribed by law, the secretary of the commonwealth shall issue a certificate stating, in substance, as to any limited liability company meeting the requirements of this section, that such limited liability company appears from the records in his office to exist and to be in good standing and the identity of any and all managers and persons authorized to act with respect to real property instruments who are named in the certificate of organization of the limited liability company, as amended.
M.G.L. c. 156C, § 69 Conversion of business entity to limited liability company
c. 156C, § 69. Conversion of business entity to limited liability company
Section 69. (a) As used in this section the term ''other business entity'' shall mean an association or trust as defined in section 1 of chapter 182, and a partnership, whether general or limited and whether domestic or foreign as each may be defined in section 6 of chapter 108A or section 1 of chapter 109, including a foreign or domestic registered limited liability partnership as defined in section 2 of said chapter 108A.
(b) Any other business entity may convert to a domestic limited liability company by complying with subsection (h) and filing with the office of the state secretary in accordance with section 17:
(1) a certificate of conversion to a limited liability company that has been executed in accordance with section 15; and
(2) a certificate of organization of a limited liability company that complies with section 12 and has been executed in accordance with said section 15.
(c) The certificate of conversion to a limited liability company shall state:
(1) the date on which, and jurisdiction in which, the other business entity was first created, incorporated or otherwise came into being and, if it has changed, its jurisdiction immediately prior to its conversion to a domestic limited liability company;
(2) the name of the other business entity immediately prior to the filing of the certificate of conversion to a limited liability company;
(3) the name of the limited liability company as set forth in its certificate of organization filed in accordance with subsection (b); and
(4) the future effective date, which shall be a date certain, of the conversion to a limited liability company if it is not to be effective upon the filing of the certificate of conversion and certificate of organization.
(d) Upon the effective date of the filing of the certificate of conversion and certificate of organization in the office of the state secretary, the other business entity shall be converted into a domestic limited liability company and the limited liability company shall thereafter be subject to this chapter.
(e) The conversion of any other business entity into a domestic limited liability company shall not be deemed to affect any obligations or liabilities of the other business entity incurred prior to such conversion or the personal liability of any person incurred prior to such conversion.
(f) When a conversion becomes effective under this section, for all purposes of the laws of the commonwealth, all of the rights, privileges and powers of the other business entity that has converted and all property, real, personal and mixed, and all debts due to such other entity, as well as all other things and causes of action belonging to such other entity, shall be vested in the domestic limited liability company and shall thereafter be the property of the domestic limited liability company as they were of such other entity. The title to any real property vested by deed or otherwise under the laws of the commonwealth in such other entity shall not revert or be in any way impaired by reason of this chapter, but all rights of creditors and all liens upon any property of such other entity shall be preserved unimpaired and all debts, liabilities and duties of such other entity shall then attach to the domestic limited liability company and may be enforced against it to the same extent as if the debts, liabilities and duties had been incurred or contracted by it.
(g) Unless otherwise agreed or required under the laws of another jurisdiction applicable to the other business entity, such other entity shall not be required to wind up its affairs or pay its liabilities and distribute its assets and the conversion shall not be deemed to constitute a dissolution of such other entity.
(h) Prior to filing a certificate of conversion to a limited liability company with the state secretary, the conversion and the operating agreement of the limited liability company shall be approved by the other business entity in the manner provided in its governing documents or the laws applicable to it for authorization of a merger of the other business entity into a limited liability company or, in the absence of such provisions, in the manner of a sale of all or substantially all of its assets.
(i) This section shall not be construed to limit the ability of another business entity to change its governing law, its legal status or its domicile by any other means provided for in its governing documents, instruments or agreements or by applicable laws, including by amendment of the governing documents or operating agreement.
M.G.L. c. 156C, § 70 Administrative dissolution; notice; wind up and liquidation of affairs
c. 156C, § 70. Administrative dissolution; notice; wind up and liquidation of affairs
Section 70. (a) The state secretary may commence a proceeding to dissolve a limited liability company if:
(1) the limited liability company has failed for 2 consecutive years to comply with the laws requiring the filing of annual reports; or
(2) he is satisfied that the limited liability company has become inactive and its dissolution would be in the public interest.
(b) If the state secretary determines that grounds exist under subsection (a), he shall serve the limited liability company with written notice of his determination. The notice shall be sent to the address of the office in the commonwealth required by clause (1) of section 5. If, within 90 days after the notice, the limited liability company fails to correct each ground for dissolution or fails to demonstrate to the reasonable satisfaction of the state secretary that each ground determined by the state secretary does not exist, the state secretary shall administratively dissolve the limited liability company.
(c) A limited liability company administratively dissolved continues in existence, but shall not carry on any business except that necessary to wind up and liquidate its affairs.
M.G.L. c. 156C, § 71 Application for reinstatement by limited liability company subject to administrative dissolution or revocation of authority to transact business
c. 156C, § 71. Application for reinstatement by limited liability company subject to administrative dissolution or revocation of authority to transact business
Section 71. A limited liability company administratively dissolved under section 70 or whose authority to transact business in the commonwealth has been revoked under section 72 may apply to the state secretary for reinstatement at any time. The application shall:
(1) recite the name of the limited liability company and the effective date of its administrative dissolution or revocation;
(2) state that the grounds for dissolution or revocation either did not exist or have been corrected;
(3) state that the name of the limited liability company satisfies the requirements of section 3; provided, however, that if the state secretary determines that the application contains the full and correct information, he shall reinstate the limited liability company.
M.G.L. c. 156C, § 72 Revocation of foreign limited liability company's authority to transact business in commonwealth; grounds; notice; effective date
c. 156C, § 72. Revocation of foreign limited liability company's authority to transact business in commonwealth; grounds; notice; effective date
Section 72. (a) The state secretary may commence a proceeding to revoke the authority of a foreign limited liability company to transact business in the commonwealth if:
(1) the limited liability company has failed for 2 consecutive years to comply with the laws requiring the filing of annual reports; or
(2) he is satisfied that the revocation of the limited liability company's authority to transact business in the commonwealth would be in the public interest.
(b) If the state secretary determines that grounds exist under subsection (a), he shall serve the limited liability company with written notice of his determination. The notice shall be sent to the address of the foreign limited liability company. If, within 90 days after the notice, the limited liability company fails to correct each ground for revocation or fails to demonstrate to the reasonable satisfaction of the state secretary that each ground determined by the secretary of state does not exist, the state secretary shall administratively revoke the authority of the foreign limited liability company to transact business in the commonwealth.
(c) The authority of the foreign limited liability company to transact business in the commonwealth shall cease on the date on which the state secretary makes such revocation effective.
Source: Massachusetts General Court (malegislature.gov)URL: https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXXII/Chapter156CFetched: 10/20/2026