Last week Governor McCrory signed a new limited liability company (LLC) statute passed by the North Carolina General Assembly. Chapter 57C of the General Statutes, which formerly governed LLCs, was replaced by a new Chapter 57D. The intent of the statute is now made explicit: "The purpose of this Chapter is to provide a flexible framework under which one or more persons may organize and manage one or more businesses as they determine to be appropriate with minimum prescribed formalities or constraints. It is the policy of this Chapter to give the maximum effect to the principle of freedom of contract and the enforceability of operating agreements." Changes include the following:
- Rights and duties of parties in the LLC Act can be modified or waived by agreement.
- Members' rights to certain company information are now spelled out in the statute, as are limitations.
- The statute expressly allows for the appointment of "officials" besides Managers (e.g., President), and the officials need not also be Managers.
- Provisions regarding contributions and distributions have been simplified.
- The statute makes explicit the possibility of a distinction between a purely economic interest in an LLC and a Membership interest (which confers authority).
- Oral amendments to an operating agreement will not be enforceable if the operating agreement requires that amendments be in writing.
- Oral agreements between parties to an operating agreement would not affect any inconsistent written provision in the operating agreement to the detriment of non-parties to the operating agreement that relied on the written operating agreement.
- In the event of a conflict between the operating agreement and the articles of organization, the operating agreement would prevail as to parties to the operating agreement and company officials, and the articles of organization would prevail as to anyone else who reasonably relied on the filed document.
- Provisions relating to low-profit LLCs were deemed unnecessary and deleted.
- Specific items governing out-of-state LLCs were made consistent with the treatment of out-of-state corporations under the Business Corporation Act.
- LLC ownership interests are exempted from provisions of Article 9 of the Uniform Commercial Code that could adversely affect the interest of other members.
(The list is not exhaustive.) The new statute becomes effective on January 1, 2014, and will apply to existing LLCs. You can read the full text here.
This post is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this post without obtaining the advice of an attorney. If you have questions concerning this post, please contact Matthew A. Cordell at email@example.com or 252.672.5418.