Also known as: certificates of organization · certificate of formation
Written by attorneys — see sources below.
A document that may be amended or restated at any time by delivering the appropriate document to the secretary of state. If a member or manager knows information in a filed certificate was or has become inaccurate, that person must promptly correct it.
Crestview Holdings expanded from one hotel to three locations across the state after its original certificate listed only the first property. The managing member delivered an amendment to the secretary of state updating the listed properties and naming a new organizer following the original organizer's death. The filing office accepted the amendment and updated the public record, allowing the company to proceed with licensing renewals.
Cade Carpenter and Chloe Chen discovered the principal office address listed in their LLC's certificate had become outdated after a move. They delivered an amendment correcting the address to the secretary of state. The filing office accepted the amendment, satisfying the duty to correct inaccurate information.
Elf Atochem North America, Inc., a Pennsylvania corporation manufacturing solvent-based maskants for the aerospace industry, approached Cyrus A. Jaffari in the mid-nineties regarding a joint venture to develop and market his innovative water-based maskant. Jaffari served as president of Malek, Inc., a California corporation with limited resources and international sales expertise. The parties agreed to form a Delaware limited liability company to conduct the business. On October 29, 1996, Malek, Inc. filed a Certificate of Formation for Malek LLC with the Delaware Secretary of State. Subsequently, on November 4, 1996, Elf, Jaffari, and Malek, Inc. executed a comprehensive thirty-eight page LLC Agreement. Under its terms, Elf contributed one million dollars in exchange for a thirty percent interest in Malek LLC while Malek, Inc. contributed its rights to the water-based maskant technology for a seventy percent interest, and Jaffari was named manager of the LLC. Elf and Malek LLC also entered into an Exclusive Distributorship Agreement, and Jaffari signed an employment agreement with Malek LLC. The LLC Agreement contained detailed dispute resolution provisions. Section 13.8 required submission of any controversy or dispute arising out of the Agreement to arbitration in San Francisco, California, and barred members from instituting court actions except to compel arbitration or enforce an award. Section 13.7 provided for the exclusive jurisdiction of California state and federal courts over claims not subject to arbitration and included consent to personal jurisdiction in that state. On April 27, 1998, Elf filed a complaint in the Delaware Court of Chancery against Jaffari and Malek LLC, asserting claims both individually and derivatively on behalf of Malek LLC. The allegations included breaches of fiduciary duty by Jaffari, such as withdrawing funds for personal use and interfering with business opportunities, as well as breach of contract, tortious interference, and fraud. The Court of Chancery granted the defendants' motion to dismiss for lack of subject matter jurisdiction, prompting Elf's appeal to the Delaware Supreme Court.
View caseThe certificate must state the company name, the street and mailing addresses of the principal office, and the name and street and mailing addresses of the registered agent. These elements are mandatory under the statute.
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No. A filing that omits a required item such as the registered agent's name and address is ineffective to form an LLC even if the office accepts the document.
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Yes. The statute permits amendment or restatement at any time by delivering the appropriate document to the secretary of state.
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The company is formed when the certificate of organization becomes effective and at least one person has become a member.
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…which provides: A limited liability company agreement may be entered into either before, after or at the time of the filing of a certificate of formation and, whether entered into before, after or at the time of such filing, may be made effective as of the formation of the limited liability company or at such other time or date as provided…