CHAPTER 11. FOREIGN LIMITED LIABILITY COMPANIES
IC 23-18-11
Chapter 11. Foreign Limited Liability Companies
IC 23-18-11-1
Law governing; denial of registration; prohibited business
Sec. 1. (a) The laws of the state or other jurisdiction under whicha foreign limited liability company is organized govern itsorganization, internal affairs, and the liability of members.
(b) A foreign limited liability company may not be deniedregistration by reason of a difference between the laws of the state orother jurisdiction where it was organized and Indiana law.
(c) A foreign limited liability company may not do any kind ofbusiness in Indiana that Indiana law prohibits a domestic limitedliability company from doing.
As added by P.L.8-1993, SEC.301.
IC 23-18-11-2
Certificate of authority; activities not constituting transaction ofbusiness
Sec. 2. (a) A foreign limited liability company may not transactbusiness in Indiana until it obtains a certificate of authority from thesecretary of state.
(b) Activities that do not constitute transacting business within themeaning of subsection (a) include the following:
(1) Maintaining, defending, or settling a proceeding.
(2) Holding meetings of the managers or members or carryingon other activities concerning internal affairs.
(3) Maintaining bank accounts.
(4) Maintaining offices or agencies for the transfer, exchange,and registration of the limited liability company's interests orother securities or maintaining trustees or depositaries withrespect to those securities.
(5) Selling through independent contractors.
(6) Soliciting or obtaining orders, including those by mail orthrough employees or agents if the orders require acceptanceoutside Indiana before the orders become contracts.
(7) Making loans or creating or acquiring indebtedness,mortgages, and security interests in real or personal property.
(8) Securing or collecting debts or enforcing mortgages andsecurity interests in property securing the debts.
(9) Owning real or personal property.
(10) Conducting an isolated transaction that is completed withinthirty (30) days and that is not in the course of repeatedtransactions of a like nature.
(11) Transacting business in interstate commerce.
(c) The list of activities in subsection (b) is not exhaustive.
As added by P.L.8-1993, SEC.301.
IC 23-18-11-3
Transaction of business without certificate of authority; sanctions Sec. 3. (a) A foreign limited liability company transactingbusiness in Indiana without a certificate of authority may notmaintain a court proceeding in Indiana until it obtains a certificate ofauthority.
(b) The successor to a foreign limited liability company thattransacted business in Indiana without a certificate of authority andthe assignee of a cause of action arising out of that business may notmaintain a court proceeding in Indiana based on that cause of actionuntil the foreign limited liability company or its successor obtains acertificate of authority.
(c) A court may stay a proceeding commenced by a foreignlimited liability company or its successor or assignee until the courtdetermines whether the foreign limited liability company or itssuccessor or assignee requires a certificate of authority. If the courtdetermines that a certificate of authority is needed, the court maystay the proceeding until the foreign limited liability company or itssuccessor or assignee obtains the certificate.
(d) A foreign limited liability company is liable for a civil penaltyof not more than ten thousand dollars ($10,000) if it transactsbusiness in Indiana without a certificate of authority. The attorneygeneral may collect all penalties due under this subsection.
(e) Notwithstanding subsections (a) and (b), the failure of aforeign limited liability company to obtain a certificate of authoritydoes not impair the validity of its acts or prevent it from defendingany proceeding in Indiana.
As added by P.L.8-1993, SEC.301.
IC 23-18-11-4
Application for certificate of authority; contents; certificate ofexistence
Sec. 4. (a) A foreign limited liability company may apply for acertificate of authority to transact business in Indiana by deliveringan application to the secretary of state for filing. The applicationmust set forth the following:
(1) The name of the foreign limited liability company, or if itsname is unavailable for use in Indiana, a name that satisfies therequirements of section 7 of this chapter.
(2) The name of the state or country under whose law it isorganized.
(3) The date of its organization and the latest date, if any, uponwhich it is to dissolve.
(4) The street address of its principal office.
(5) The address of its registered office in Indiana and the nameof its registered agent at that office.
(6) If the organizational documents of the foreign limitedliability company provide for a manager or managers, astatement to that effect.
(b) The foreign limited liability company must deliver, with thecompleted application, a certificate of existence or a similardocument authenticated by the secretary of state or other official
having custody of business records of the foreign limited liabilitycompany in the state or country where the foreign limited liabilitycompany was organized.
As added by P.L.8-1993, SEC.301.
IC 23-18-11-5
Amended certificate of authority
Sec. 5. (a) A foreign limited liability company authorized totransact business in Indiana must obtain an amended certificate ofauthority from the secretary of state if it does any of the following:
(1) Changes its name.
(2) Changes the latest date, if any, upon which it is to dissolve.
(3) Changes the state or country of its organization.
(4) Converts to a different form of entity.
(b) The requirements of section 4 of this chapter for obtaining anoriginal certificate of authority apply to obtaining an amendedcertificate under this section.
As added by P.L.8-1993, SEC.301. Amended by P.L.121-1994,SEC.3; P.L.130-2006, SEC.34.
IC 23-18-11-6
Revocation of certificate of authority; powers and duties of foreigncompany with valid certificate
Sec. 6. (a) A certificate of authority authorizes the foreign limitedliability company to transact business in Indiana. The state mayrevoke the certificate as provided in this article.
(b) Except as provided by this article, a foreign limited liabilitycompany with a valid certificate of authority has the same rights andprivileges and is subject to the same duties, restrictions, penalties,and liabilities as a domestic limited liability company of likecharacter.
As added by P.L.8-1993, SEC.301.
IC 23-18-11-7
Name
Sec. 7. (a) If the name of a foreign limited liability company doesnot satisfy the requirements under IC 23-18-2-8, the foreign limitedliability company, to obtain or maintain a certificate of authority totransact business in Indiana:
(1) may add the words "limited liability company" or theabbreviations "L.L.C." or "LLC" to its name for use in Indiana;or
(2) may use a fictitious name to transact business in Indiana ifthe company's real name is unavailable.
(b) Except as authorized by subsections (c) and (d), the limitedliability company name, including a fictitious name, of a foreignlimited liability company must be distinguishable upon the recordsof the secretary of state from the following:
(1) The name of a limited liability company organized orauthorized to transact business in Indiana. (2) A name reserved under IC 23-18-2-9.
(3) The fictitious name of another foreign limited liabilitycompany authorized to transact business in Indiana.
(c) A foreign limited liability company may apply to the secretaryof state for authorization to use in Indiana the name of anotherlimited liability company organized or authorized to transactbusiness in Indiana that is not distinguishable from the name appliedfor. The secretary of state must authorize use of the name applied forif:
(1) the other limited liability company consents to the use inwriting and submits an undertaking in a form satisfactory to thesecretary of state to change its name to a name that isdistinguishable upon the records of the secretary of state fromthe name of the applying limited liability company; or
(2) the applicant delivers to the secretary of state a certifiedcopy of a final judgment of a circuit or superior courtestablishing the applicant's right to use the name applied for inIndiana.
(d) A foreign limited liability company may use in Indiana thename, including the fictitious name, of another domestic or foreignlimited liability company that is used in Indiana if the other limitedliability company is organized or authorized to transact business inIndiana and the foreign limited liability company:
(1) has merged with the other limited liability company;
(2) has been formed by reorganization of the other limitedliability company; or
(3) has acquired all or substantially all of the assets, includingthe name, of the other limited liability company.
(e) If a foreign limited liability company authorized to transactbusiness in Indiana changes its name to a name that does not satisfythe requirements under IC 23-18-2-8, it may not transact business inIndiana under the changed name until it adopts a name satisfying therequirements and obtains an amended certificate of authority undersection 5 of this chapter.
As added by P.L.8-1993, SEC.301.
IC 23-18-11-8
Registered office; registered agent
Sec. 8. Each foreign limited liability company authorized totransact business in Indiana must continuously maintain in Indianathe following:
(1) A registered office.
(2) A registered agent, who may be:
(A) an individual who resides in Indiana and whose businessoffice is identical with the registered office;
(B) a domestic limited liability company, domesticcorporation, or nonprofit domestic corporation whosebusiness office is identical with the registered office; or
(C) a foreign limited liability company, foreign corporation,or foreign nonprofit corporation authorized to transact
business in Indiana whose business office is identical withthe registered office.
As added by P.L.8-1993, SEC.301.
IC 23-18-11-9
Change of registered office or agent
Sec. 9. (a) A foreign limited liability company authorized totransact business in Indiana may change its registered office orregistered agent by delivering to the secretary of state for filing astatement of change that sets forth the following:
(1) Its name.
(2) The street address of its current registered office.
(3) If the current registered office is to be changed, the streetaddress of its new registered office.
(4) The name of its current registered agent.
(5) If the current registered agent is to be changed, the name ofits new registered agent and the new agent's written consent ora representation that the new registered agent has consented tothe change either on the statement or attached it to theappointment.
(6) That after the change or changes are made, the streetaddresses of its registered office and the business office of itsregistered agent will be identical.
(b) If a registered agent changes the street address of the agent'sbusiness office, the registered agent may change the street address ofthe registered office of any foreign limited liability company that theregistered agent serves by notifying the limited liability company inwriting of the change and signing either manually or in facsimile anddelivering to the secretary of state for filing, a statement of changethat complies with the requirements of subsection (a) and states thatthe limited liability company has been notified of the change.
As added by P.L.8-1993, SEC.301.
IC 23-18-11-10
Resigning agency appointment
Sec. 10. (a) The registered agent of a foreign limited liabilitycompany may resign the agency appointment by signing anddelivering to the secretary of state for filing as described inIC 23-18-12 a statement of resignation. The statement of resignationmay include a statement that the registered office is alsodiscontinued.
(b) After filing the statement, the secretary of state shall attach thefiling receipt to one (1) copy and mail the copy and receipt to theregistered office, if the registered office is not discontinued. Thesecretary of state shall mail one (1) copy to the foreign limitedliability company at its principal office address shown on the recordsof the secretary of state.
(c) The agency appointment is terminated, and the registeredoffice is discontinued if so provided, thirty-one (31) days after thestatement is filed.As added by P.L.8-1993, SEC.301. Amended by P.L.228-1995,SEC.27.
IC 23-18-11-11
Service of process; perfection
Sec. 11. (a) The registered agent of a foreign limited liabilitycompany authorized to transact business in Indiana is the limitedliability company's agent for service of process, notice, or demandrequired or permitted by law to be served on the foreign limitedliability company.
(b) A foreign limited liability company may be served byregistered or certified mail, return receipt requested, addressed to theforeign limited liability company at its principal office shown in itsapplication for a certificate of authority or as shown on the recordsof the secretary of state if at least one (1) of the following conditionsapply to the foreign limited liability company:
(1) It does not have a registered agent or its registered agentcannot with reasonable diligence be served.
(2) It has withdrawn from transacting business in Indiana undersection 13 of this chapter.
(3) Its certificate of authority was revoked under section 16 ofthis chapter.
(c) Service is perfected under subsection (b) at the earliest of thefollowing:
(1) The date the foreign limited liability company receives themail.
(2) The date shown on the return receipt if signed on behalf ofthe foreign limited liability company.
(3) Five (5) days after deposit in the United States mail ifmailed postpaid and correctly addressed.
(d) This section does not prescribe the only means, or necessarilythe required means, of serving a foreign limited liability company.
As added by P.L.8-1993, SEC.301.
IC 23-18-11-12
Withdrawal from state
Sec. 12. A foreign limited liability company authorized to transactbusiness in Indiana may not withdraw from Indiana until it obtainsa certificate of withdrawal from the secretary of state.
As added by P.L.8-1993, SEC.301.
IC 23-18-11-13
Certificate of withdrawal; application
Sec. 13. A foreign limited liability company authorized to transactbusiness in Indiana may apply for a certificate of withdrawal bydelivering an application to the secretary of state for filing. Theapplication must set forth the following:
(1) The name of the foreign limited liability company and thename of the state or country under whose law it is organized.
(2) That it is not transacting business in Indiana and that it
surrenders its authority to transact business in Indiana.
(3) That it revokes the authority of its registered agent to acceptservice on its behalf and appoints the secretary of state as itsagent for service of process in any proceeding based on a causeof action arising during the time it was authorized to transactbusiness in Indiana.
(4) A mailing address to which the secretary of state may maila copy of any process served on the secretary of state undersubsection 3.
(5) A commitment to notify the secretary of state in the futureof any change in its mailing address.
As added by P.L.8-1993, SEC.301.
IC 23-18-11-14
Service of process on secretary of state; withdrawn companies
Sec. 14. After the withdrawal of the limited liability company iseffective, service of process on the secretary of state under thischapter is service on the foreign limited liability company. Uponreceipt of process, the secretary of state shall mail a copy of theprocess to the foreign limited liability company at the mailingaddress set forth in its application for withdrawal.
As added by P.L.8-1993, SEC.301.
IC 23-18-11-15
Revocation of certificate of authority; grounds
Sec. 15. The secretary of state may commence a proceeding undersection 16 of this chapter to revoke the certificate of authority of aforeign limited liability company authorized to transact business inIndiana if at least one (1) of the following applies:
(1) The foreign limited liability company does not deliver itsbiennial report to the secretary of state within sixty (60) daysafter the biennial report is due.
(2) The foreign limited liability company is without a registeredagent or registered office in Indiana for at least sixty (60) days.
(3) The foreign limited liability company does not inform thesecretary of state under section 9 or 10 of this chapter that its:
(A) registered agent or registered office has changed;
(B) registered agent has resigned; or
(C) registered office has been discontinued;
within sixty (60) days of the change, resignation, ordiscontinuance.
(4) A member, a manager, or an agent of the foreign limitedliability company signed a document the member, manager, oragent knew was false in a material respect with the intent thatthe document be delivered to the secretary of state for filing.
(5) The secretary of state receives an authenticated certificatefrom the secretary of state or other official having custody ofbusiness entity records in the state or country under whose lawsthe foreign limited liability company is organized stating that ithas dissolved or disappeared as the result of a merger.As added by P.L.8-1993, SEC.301. Amended by P.L.121-1994,SEC.4; P.L.11-1996, SEC.28.
IC 23-18-11-16
Notice of revocation; failure to cure deficiencies; consequences
Sec. 16. (a) If the secretary of state determines that one (1) ormore grounds exist under section 15 of this chapter for revocation ofa certificate of authority, the secretary of state shall, under section 11of this chapter, serve the foreign limited liability company withwritten notice of the determination.
(b) If the foreign limited liability company does not correct eachground for revocation or demonstrate to the reasonable satisfactionof the secretary of state that each ground determined by the secretaryof state does not exist not more than sixty (60) days after service ofthe notice is perfected under section 11 of this chapter, the secretaryof state may revoke the foreign limited liability company's certificateof authority by signing a certificate of revocation that recites theground or grounds for revocation and its effective date. The secretaryof state shall file the original of the certificate and serve a copy onthe foreign limited liability company under section 11 of this chapter.
(c) The authority of a foreign limited liability company to transactbusiness in Indiana ceases on the date shown on the certificaterevoking the certificate of authority.
(d) The secretary of state's revocation of a foreign limited liabilitycompany's certificate of authority appoints the secretary of state theforeign limited liability company's agent for service of process in aproceeding based on a cause of action that arose during the time theforeign limited liability company was authorized to transact businessin Indiana. Service of process on the secretary of state under thissubsection is service on the foreign limited liability company. Uponreceipt of process, the secretary of state shall mail a copy of theprocess to the foreign limited liability company at its principal officeshown in the most recent communication received from thecorporation stating the current mailing address of its principal officeor, if it is not on file, in its application for a certificate of authority.
(e) Revocation of a foreign limited liability company's certificateof authority does not terminate the authority of the registered agentof the limited liability company.
As added by P.L.8-1993, SEC.301.
IC 23-18-11-17
Appeal of revocation determination
Sec. 17. (a) A foreign limited liability company may appeal thesecretary of state's revocation of its certificate of authority to thecircuit or superior court of the county where the foreign limitedliability company's registered office is located not more than thirty(30) days after service of the certificate of revocation is perfectedunder section 11 of this chapter by doing the following:
(1) Filing a petition with the court to set aside the revocation.
(2) Attaching to the petition copies of its certificate of authority
and the secretary of state's certificate of revocation.
(b) The court may order the secretary of state to reinstate thecertificate of authority or may take other action the court considersappropriate.
(c) The court's final decision may be appealed as in other civilproceedings.
As added by P.L.8-1993, SEC.301.
IC 23-18-11-18
Uniform Partnership Act company
Sec. 18. A foreign limited liability company authorized to transactbusiness in Indiana under the Indiana Revised Uniform PartnershipAct (IC 23-16-10.1) (before its repeal July 1, 1993), is subject to thisarticle, but is not required to obtain a new certificate of authorityunder this article to continue to transact business in Indiana.
As added by P.L.8-1993, SEC.301.