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Absentee-Shawnee Tribe of Indians of Oklahoma

 

Limited Liability Company Act

§ 2500. Short Title

§ 2501. Definitions

§ 2502. Purposes for Formation

§ 2503. Limited Liability Company--Powers

§ 2504. Articles of Organization--Filing

§ 2505. Articles of Organization--Contents

§ 2506. Execution of Articles--Evidence of Authority--Signatures

§ 2507. Delivery of Articles to Secretary of the Tribe--Filing--Time When Effective

§ 2508. Name of Company--Restrictions

§ 2509. Reservation of Company Name--Application

§ 2510. Registered Office and Agent

§ 2511. Articles of Organization--Amendment

§ 2512. Articles of Correction

§ 2512.1. Cancellation of Articles of Organization

§ 2513. Managers--Qualifications--Powers

§ 2514. Managers--Election--Removal

§ 2515. Management of Company Without Designated Managers--Resignation of Member

§ 2516. Managers--Duties--Good faith--Liability

§ 2517. Member or Manager--Limitation or Elimination of Liability--Indemnification--Creation of Series or Groups

§ 2518. Voting by Managers

§ 2519. Managers as Agent of Limited Liability Company--Unauthorized Acts--Property Transactions

§ 2519.1. Title to Property--Transfer

§ 2520. Members--Voting Rights

§ 2521. Records Required to be Kept--Member Access to Information--Managers May Inspect and Copy Records

§ 2522. Liability of Member or Manager

§ 2523. Contribution of Member--Form

§ 2524. Written Promise of Contribution--Performance--Compromise--Failure to Perform--Remedy

§ 2525. Allocation of Profits and Losses--Distributions

§ 2526. Distributions to Members Before Withdrawal and Dissolution

§ 2527. Form of Distribution--Asset in Kind

§ 2528. Status of Member and Distribution

§ 2529. Restrictions on Distribution--Determination of Prohibited Distributions--Effect of Distribution--Indebtedness

§ 2530. Wrongful Distribution--Liability--Recovery Action

§ 2531. Membership Interest as Personal Property

§ 2532. Assignment of Membership Interest

§ 2533. Judgment Creditor--Rights and Interests

§ 2534. Assignee of Interest in Limited Liability Company--Membership Rights, Powers, Restrictions and Liabilities--Rights and Liability of Assignor--Admission of Membership Directly in Limited Liability Company

§ 2535. Withdrawal as Member--Rights of Legal Representative of Deceased or Incompetent Member--Expulsion of Member

§ 2536. Dissolution and Winding Up of Affairs--Causes

§ 2537. Dissolution Upon Application by Member--Decree

§ 2538. Winding Up of Business or Affairs--Binding Acts of Managers--Notice Presumed

§ 2539. Winding Up of Affairs--Distribution of Assets--Liability

§ 2540. Articles of Dissolution--Filing and Contents

§ 2541. Laws Governing Foreign Limited Liability Company--Rights and Privileges--Purposes

§ 2542. Foreign Limited Liability Company--Registration Procedure

§ 2543. Conforming Application for Registration--Duties of Secretary of the Tribe

§ 2544. Foreign Limited Liability Company--Name

§ 2545. Foreign Limited Liability Company--Correction Certificate--Recording Changes

§ 2546. Foreign Limited Liability Company--Certificate of Withdrawal

§ 2547. Registration Required to Transact Business in State--Foreign Limited Liability Company

§ 2548. Foreign Limited Liability Company--Acts Not Constituting Transacting Business in State

§ 2549. Action to Restrain Foreign Limited Liability Company

§ 2550. Action Brought by Member to Recover Judgment--Conditions

§ 2551. Derivative Action--Complaint

§ 2552. Reasonable Expenses in a Derivative Action--Remittance of Proceeds

§ 2553. Merger or Consolidation

§ 2553.1. Conversion of Certain Entities to a Limited Liability Company

§ 2553.2. Approval of Conversion of a Limited Liability Company

§ 2553.3. Appraisal Rights

§ 2553.4. Establishment of One or More Series of Members, Managers or Membership Interests--Enforceability of Debts, Liabilities, Obligations and Expenses--Powers and Duties--Voting Rights--Management of Series--Distributions--Termination of Series--Registration of Foreign Company

§ 2554. Fees

§ 2554.1. Failure to Pay Agent Fees

§ 2554.2. Annual Certificate for Domestic Limited Liability Company and Foreign Limited Liability Company

§ 2555. Petition to Direct the Execution and Filing of Articles or Document

§ 2556. Application to Commerce

§ 2557. Rules of Construction of Act

§ 2558. Jurisdiction--Tribal District Court


AST LLCA § 2500
§ 2500. Short Title

This act shall be known and may be cited as the “Absentee Shawnee Limited Liability Company Act.”

Absentee Shawnee Limited Liability Company Act § 2500, AST LLCA § 2500

 

 

 




AST LLCA § 2501
§ 2501. Definitions

As used in this act, unless the context otherwise requires:

1. “Articles of organization” means documents filed under Section 2504 of this title for the purpose of forming a limited liability company;

2. “Bankrupt” means bankrupt under the United States Bankruptcy Code, as amended, or insolvent under any state insolvency act;

3. “Business” means any trade, occupation, profession or other activity regardless of whether engaged in for gain, profit or livelihood;

4. “Capital contribution” means anything of value that a person contributes to the limited liability company as a prerequisite for, or in connection with, membership, including cash, property, services rendered, or a promissory note or other binding obligation to contribute cash or property or to perform services;

5. “Capital interest” means the fair market value as of the date contributed of a member's capital contribution as adjusted for any additional capital contributions or withdrawals;

6. “Corporation” means a corporation formed under the laws of this state or a foreign corporation as defined in this section;

7. “Court” includes every court and judge having jurisdiction in the case;

8. “Foreign corporation” means a corporation formed under the laws of any state other than this state, or under the laws of the District of Columbia or any foreign country;

9. “Foreign limited liability company” means an entity that is:

a. an unincorporated association,

b. organized under the laws of a state or a Tribe other than the laws of this Tribe or organized under the laws of any foreign country,

c. organized under a statute pursuant to which an association may be formed that affords to each of its members limited liability with respect to the liabilities of the entity, and

d. not required to be registered or organized under any statute of this Tribe other than this act;

10. “Foreign limited partnership” means a limited partnership formed under the laws of any state or Tribe other than this Tribe, or under the laws of the District of Columbia or any foreign country;

11. “Limited liability company” or “domestic limited liability company” means an entity that is an unincorporated association or proprietorship having one or more members that is organized and existing under the laws of this Tribe;

12. “Limited partnership” means a limited partnership formed under the laws of this Tribe or a foreign limited partnership as defined in this section;

13. “Manager” or “managers” means a person or persons designated by the members of limited liability company to manage the limited liability company as provided in the articles of organization or an operating agreement;

14. “Member” means a person with an ownership interest in a limited liability company, with the rights and obligations specified under this act;

15. “Membership interest” or “interest” means a member's rights in the limited liability company, collectively, including the member's share of the profits and losses of the limited liability company, the right to receive distributions of the limited liability company's assets, and any right to vote or participate in management;

16. “Operating agreement” means any agreement of the members as to the affairs of a limited liability company and the conduct of its business;

17. “Person” means an individual, a general partnership, a limited partnership, a limited liability company, a trust, an estate, an association, a corporation or any other legal or commercial entity; and

18. “State” means a state, territory or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico.

Absentee Shawnee Limited Liability Company Act § 2501, AST LLCA § 2501

 

 

 




AST LLCA § 2502
§ 2502. Purposes for Formation

A limited liability company may be organized under the Absentee Shawnee Limited Liability Company Act for the purpose of carrying on any lawful business, purpose or activity whether or not for profit, except that a limited liability company may not conduct business as a domestic insurer.

Absentee Shawnee Limited Liability Company Act § 2502, AST LLCA § 2502

 

 

 




AST LLCA § 2503
§ 2503. Limited Liability Company--Powers

Each limited liability company may:

1. Sue, be sued, complain and defend in all courts;

2. Transact its business, carry on its operations and have and exercise the powers granted by this section in any state, territory, district or possession of the United States, and in any foreign country;

3. Make contracts and guarantees, incur liabilities, and borrow money;

4. Sell, convey, lease, exchange, transfer, mortgage, pledge, and otherwise dispose of all or any part of its property and assets;

5. Acquire by purchase or in any other manner, take, receive, own, hold, improve, and otherwise deal with any interest in real or personal property, wherever located;

6. Issue notes, bonds and other obligations and secure any of them by mortgage or deed of trust or security interest of any or all of its assets;

7. Purchase, take, receive, subscribe for or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, loan, pledge or otherwise dispose of and otherwise use and deal in and with stock or other interests in and obligations of domestic and foreign corporations, associations, general or limited partnerships, limited liability companies, business trusts, and individuals;

8. Invest its surplus funds, lend money from time to time in any manner which may be appropriate to enable it to carry on the operations or fulfill the purposes set forth in its articles of organization, and take and hold real property and personal property as security for the payment of funds so loaned or invested;

9. Elect or appoint agents and define their duties and fix their compensation;

10. Be a promoter, stockholder, partner, member, associate, or agent of any corporation, partnership, limited liability company, joint venture, trust or other enterprise;

11. Indemnify and hold harmless any member, agent, or employee from and against any and all claims and demands whatsoever, except in the case of action or failure to act by the member, agent, or employee which constitutes willful misconduct or recklessness, and subject to the stands and restrictions, if any, set forth in the articles of organization or operating agreement;

12. Make and alter operating agreements, not inconsistent with its articles of organization or with the laws of this state, for the administration and regulation of the affairs of the limited liability company;

13. Cease its activities and dissolve; and

14. Do every other act not inconsistent with law which is appropriate to promote and attain the purposes set forth in its articles of organization.

Absentee Shawnee Limited Liability Company Act § 2503, AST LLCA § 2503

 

 

 




AST LLCA § 2504
§ 2504. Articles of Organization--Filing

A. One or more persons may form a limited liability company upon the filing of executed articles of organization with the Office of the Secretary of the Tribe.

B. 1. When the articles of organization become effective, the proposed organization becomes a limited liability company under the name and subject to the purposes, conditions, and provisions stated in the articles. A limited liability company formed under this act is a separate legal entity, the existence of which as a separate legal entity continues until cancellation of the limited liability company's articles of organization.

2. Filing of the articles by the Office of the Secretary of the Tribe is conclusive evidence of the formation of the limited liability company.

Absentee Shawnee Limited Liability Company Act § 2504, AST LLCA § 2504

 

 

 




AST LLCA § 2505
§ 2505. Articles of Organization--Contents

A. The articles of organization shall set forth:

1. The name of the limited liability company;

2. The term of the existence of the limited liability company which may be perpetual; and

3. The street address of its principal place of business, wherever located, and the name and street address of its resident agent which shall be identical to its registered office in this state.

B. If the limited liability company is to establish two or more series of members, managers or membership interests having separate rights, powers or duties as provided under Section 2546 of this act and the debts, liabilities and obligations incurred, contracted for or otherwise existing with respect to a particular series are to be enforceable against the assets of the series only, the articles of organization shall set forth a notice of the limitation on liabilities of the series.

C. The articles of organization may set forth any other matters the members determine to include. It is not necessary to set out in the articles of organization any of the powers enumerated in this act.

Absentee Shawnee Limited Liability Company Act § 2505, AST LLCA § 2505

 

 

 




AST LLCA § 2506
§ 2506. Execution of Articles--Evidence of Authority--Signatures

A. Articles required by this act to be filed with the Office of the Secretary of the Tribe shall be executed in the following manner:

1. Articles of organization must be signed by at least one person who need not be a member of the limited liability company; and

2. Articles of amendment, merger, consolidation, conversion or dissolution must be signed by a manager.

B. Any person may sign any articles by an attorney in fact. A person who executes articles as an attorney-in-fact, agent or fiduciary is not required to exhibit evidence of his or her authority as a prerequisite to filing.

C. The execution of any articles under this act constitutes an affirmation under the penalties of perjury that the facts stated therein are true.

D. Any signature on articles or any other instrument authorized by this act may be a facsimile signature, a conformed signature or an electronically transmitted signature.

Absentee Shawnee Limited Liability Company Act § 2506, AST LLCA § 2506

 

 

 




AST LLCA § 2507
§ 2507. Delivery of Articles to Secretary of the Tribe--Filing--Time When Effective

A. One signed copy of the articles of organization or any other articles authorized by this act shall be delivered to the Secretary of the Tribe. Unless the Secretary of the Tribe finds that any articles do not conform to law, upon receipt of all filing and other fees required by law, he or she shall:

1. Endorse on each copy the work “filed” and the day, month and year, and the time, if applicable, of the filing thereof;

2. File one copy in his or her office; and

3. Return the other copy to the person who filed it or his or her representative.

B. Unless a later effective date or time, which shall be a specified date or time not later than a time on the nineteenth day after the filing, is provided in the articles, articles of organization are effective, and the limited liability company is formed, at the time of the filing of the articles of organization with the Secretary of the Tribe.

C. Unless a later effective dater or time, which shall be a specified date or time not later than a time on the nineteenth day after the filing, is provided in the articles, articles of amendment, merger, consolidation, conversion or dissolution are effective at the time of their filing with the Secretary of the Tribe.

Absentee Shawnee Limited Liability Company Act § 2507, AST LLCA § 2507

 

 

 




AST LLCA § 2508
§ 2508. Name of Company--Restrictions

The name of each limited liability company as set forth in its articles of organization:

1. Shall contain either the words “limited liability company” or “limited company” or the abbreviations “LLC”, “LC”, “L.L.C.”, or “L.C.” The word “Limited” may be abbreviated as “LTD.” and the work “Company” may be abbreviated as “CO.”; and

2. a. May not be the same as or indistinguishable from:

(1) names upon the records in the Office of the Secretary of the Tribe of then existing limited liability companies whether organized pursuant to the laws of this Tribe or licensed or registered as foreign limited liability companies, or

(2) names upon the records in the Office of the Secretary of the Tribe of corporations organized under the laws of this Tribal jurisdiction or this state or of foreign corporations registered in accordance with the laws of this Tribal jurisdiction or this state then existing or which existed at any time during the preceding three (3) years, or

(3) names upon the records in the Office of the Secretary of the Tribe of limited partnerships formed under the laws of this Tribal jurisdiction or this state or of foreign limited partnerships registered in accordance with the laws of this Tribal jurisdiction or this state, or

(4) trade names, fictitious names, or other names reserved with the Secretary of the Tribe.

b. The provisions of subparagraph A of this paragraph shall not apply if one of the following is filed with the Secretary of the Tribe:

(1) the written consent of the other limited liability company, corporation, limited partnership, or holder of the trade name, fictitious name or other reserved name to use the same or indistinguishable name with the addition of one or more words, numerals, numbers or letters to make that name distinguishable upon the records of the Secretary of the Tribe, except that the addition of words, numerals, numbers or letters to make the name distinguishable shall not be required where such written consent states that the consenting entity is about to change its name, cease to do business, withdraw from the state or be wound up, or

(2) a certified copy of a final decree of a court of competent jurisdiction establishing the prior right of such limited liability company or holder of a limited liability company name to the use of such name in this state.

Absentee Shawnee Limited Liability Company Act § 2508, AST LLCA § 2508



AST LLCA § 2509
§ 2509. Reservation of Company Name--Application

A. The exclusive right to use a specified name for a domestic or foreign limited liability company, in good faith, maybe reserved by:

1. A person who intends to organize a domestic limited liability company or a foreign limited liability company to be registered in this Tribal jurisdiction and to adopt that name;

2. A domestic limited liability company or a foreign limited liability company registered in this state which proposes to adopt to adopt that name; or

3. A foreign limited liability company which intends to register in this Tribal jurisdiction and adopt that name.

B. A person seeking to reserve a specified name shall file an application executed by the applicant with the Secretary of the Tribe and pay the filing fee required by law. If the Secretary of the Tribe 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 sixty (60) days.

C. The right to the exclusive use of a reserved name may be transferred to any other person by filing in the Office of the Secretary of the Tribe a notice of the transfer, executed by the applicant for whom the name was reserved and specifying the name and address of the transferee.

Absentee Shawnee Limited Liability Company Act § 2509, AST LLCA § 2509

 

 

 




AST LLCA § 2510
§ 2510. Registered Office and Agent

A. Every domestic limited liability company shall continuously maintain in this state:

1. An agent for service of process on the limited liability company that may be the domestic limited liability company itself, an individual resident, or a domestic or qualified foreign corporation, limited liability company, or limited partnership. Each agent shall maintain a business office which is open during regular business hours to accept service of process and otherwise perform the functions of an agent.

B. 1. A limited liability company may designate or change its agent, registered office, or principal office by filing with the Office of the Secretary of the Tribe a statement authorizing the designation or change and signed by any manager.

2. A limited liability company may change the street address of its registered office filing with the Office of the Secretary of the Tribe a statement of the change signed by any manager.

3. A designation or change of a principal office or agent or street address of the registered office for a limited liability company under this subsection is effective when the Office of the Secretary of the Tribe files the statement, unless a later effective date or time, which shall be a specified date or time not later than a time on the nineteenth day after the filing, is provided in the statement.

C. 1. A resident agent who changes his or her street address in the state may notify the Office of the Secretary of the Tribe of the change by filing with the Office of the Secretary of the Tribe a statement of the change signed by the agent or on the agent's behalf.

2. The statement shall include:

a. the name of the limited liability company for which the change is effective,

b. the new street address of the agent, and

c. the date on which the change is effective, if to be effective after the filing date.

3. If the new address of the agent is the same as the new address of the principal office of the limited liability company, the statement may include a change of address of the principal office:

a. the agent notifies the limited liability company of the change in writing, and

b. the statement recites that the agent has done so.

4. The change of address of the agent or principal office is effective when the Office of the Secretary of the Tribe files the statement, unless a later effective date or time, which shall be specified date or time not later than a time on the nineteenth day after the filing, is provided in the statement.

D. 1. An agent may resign by filing with the Office of the Secretary of the Tribe a copy of the resignation, signed and acknowledged by the agent, which contains a statement that notice of the resignation was given to the limited liability company at least thirty (30) days prior to the filing of the resignation by mailing or delivering the notice to the limited liability company at its address last known to the agent and specifying the address therein.

2. The resignation is effective thirty (30) days after it is filed, unless a later effective date or time, which shall be a specified date or time not later than a time on the nineteenth day after the filing, is provided in the resignation.

3. If a domestic limited liability company fails to obtain and designate a new agent before the resignation is effective, the Secretary of the Tribe shall be deemed to be the agent of the limited liability company until a new agent is designated.

E. If a limited liability company has no agent or the agent cannot be found, then service of process on the limited liability company may be made by serving the Secretary of the Tribe.

Absentee Shawnee Limited Liability Company Act § 2510, AST LLCA § 2510

 

 

 




AST LLCA § 2511
§ 2511. Articles of Organization--Amendment

A. The articles of organization shall be amended when:

1. There is a change in the name of the limited liability company;

2. There is a false or erroneous statement in the articles of organization;

3. There is a change in the time as stated in the articles of organization for the cancellation of the limited liability company; or

4. The members desire to restate the articles of organization in their entirety or make a change in any other statement or to add a statement in the articles of organization in order to accurately represent their agreement.

B. An amendment to the articles of organization of a limited liability company shall set forth:

1. The name of the limited liability company;

2. The date of filing the articles of organization; and

3. The amendment to the articles of organization.

Absentee Shawnee Limited Liability Company Act § 2511, AST LLCA § 2511

 

 

 




AST LLCA § 2512
§ 2512. Articles of Correction

A. If any document filed with the Office of the Secretary of the Tribe under this act contains any typographical error, error of transcription, or other technical error or has been defectively executed, the document may be corrected by filing of articles of correction.

B. Articles of Correction shall set forth:

1. The title of the document being corrected;

2. The date that the document being corrected was filed; and

3. The provision in the document as previously filed and as corrected and, if execution of the document was defective, the manner in which it was defective.

C. Articles of Correction may not make any other change or amendment which would not have complied in all respects with the requirements of this act at the time the document being corrected was filed.

D. Articles of Correction shall be executed in the same manner in which the document being corrected was required to be executed.

E. Articles of Correction may not:

1. Change the effective date of the document being corrected; or

2. Affect any right or liability accrued or incurred before its filing, except that any right or liability accrued or incurred by reason of the error or defect being corrected shall be extinguished by the filing if the person having the right has not detrimentally relied on the original document.

F. Notwithstanding that any instrument authorized to be filed with the Secretary of the Tribe pursuant to the provisions of this act is, when filed inaccurately, defectively, or erroneously executed, sealed or acknowledged, or otherwise defective in any respect, the Secretary of the Tribe shall not be liable to any person for the authorization for filing, or the filing and indexing of the instrument by the Secretary of the Tribe.

Absentee Shawnee Limited Liability Company Act § 2512, AST LLCA § 2512

 

 

 




AST LLCA § 2512.1
§ 2512.1. Cancellation of Articles of Organization

A. The articles of organization shall be canceled upon the dissolution and the completion of winding up of a limited liability company, or as provided in subsection B of this section, or upon the filing of a certificate of merger or consolidation if the limited liability company is not the surviving or resulting entity in a merger or consolidation, or upon the conversion of a domestic limited liability company approved in accordance with Section 2553.2 of this title.

B. The articles of organization of a domestic limited liability company shall be deemed to be canceled if the domestic limited liability company shall fail to pay the annual fee provided in Section 2554.2 of this title or an agent fee to the Secretary of the Tribe due under Section 2554 of this title for a period of three (3) years from the date it is due, the cancellation to be effective on the third anniversary of the due date.

C. On or before October 31 of each calendar year, the Secretary of the Tribe shall publish a list of those domestic limited liability companies whose articles of organization were canceled on July 1 of the calendar year pursuant to this section. The Secretary of the Tribe may publish the list either once in at lease one newspaper of general circulation of this state or on its website for at least thirty (30) days or both. If the Secretary of the Tribe publishes the list on its web site, the list shall be accessible without charge.

Absentee Shawnee Limited Liability Company Act § 2512.1, AST LLCA § 2512.1

 

 

 




AST LLCA § 2513
§ 2513. Managers--Qualifications--Powers

A. Except as otherwise provided in the articles of organization, operating agreement, or this act, a limited liability company shall be managed by or under the authority of one or more managers who may but need not be members.

B. The articles of organization or operating agreement may prescribe qualifications for managers.

C. The number of managers shall be specified in or fixed in accordance with the articles of organization or operating agreement.

D. The articles of organization or operating agreement of a limited liability company may authorize the manager or managers of the limited liability company to adopt, amend, and repeal bylaws, or regulations, not inconsistent with the articles of organization and the operating agreement, to govern the affairs of the limited liability company. Unless otherwise provided in the articles of organization, operating agreement or enabling resolutions, bylaws, or regulations from the managers shall be considered a part of the operating agreement.

Absentee Shawnee Limited Liability Company Act § 2513, AST LLCA § 2513

 

 

 




AST LLCA § 2514
§ 2514. Managers--Election--Removal

Unless otherwise provided in the articles of organization or operating agreement:

1. The election of managers shall be by majority vote of the members;

2. Any or all managers may be removed, with or without cause, by the written consent of the members.

3. A manager may resign in accordance with the operating agreement or, if the operating agreement does not provide for the manager's resignation, upon notice to the limited liability company.

Absentee Shawnee Limited Liability Company Act § 2514, AST LLCA § 2514

 

 

 




AST LLCA § 2515
§ 2515. Management of Company Without Designated Managers--Resignation of Member

A. The articles of organization or operating agreement may provide that the business of the limited liability company shall be managed without designated managers. So long as such provision continues in effect:

1. The members shall be deemed to be managers for purposes of applying provisions of the Absentee Shawnee Corporation Act, unless the context clearly requires otherwise;

2. The members shall have and be subject to all duties and liabilities of managers; and

3. A member signing on behalf of the limited liability company shall sign as a manager.

B. A member of a member-managed limited liability company may resign as a member in accordance with the operating agreement or, if the operating agreement does not provide for the member's resignation, upon notice to the limited liability company. When a member of a member-managed limited liability company resigns the member shall cease to have the rights and duties of a member and shall become an assignee; provided that the profits and losses of the limited liability company shall continue to be allocated to the member and any binding commitments for contributions shall continue as if the member had not resigned. If the resignation 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 the amount otherwise distributable to the resigning member. The member's resignation shall not constitute a withdrawal from the limited liability company.

Absentee Shawnee Limited Liability Company Act § 2515, AST LLCA § 2515

 

 

 




AST LLCA § 2516
§ 2516. Managers--Duties--Good faith--Liability

Subject to the provisions of Section 2517 of this title:

1. A manager shall discharge his duties as a manager in good faith, with the care an ordinary prudent person in a like position could exercise under similar circumstances, and in the manner he reasonably believes to be in the best interests of the limited liability company;

2. In discharging his duties, a manager may rely on information, opinions, reports or statements, including financial statements and other financial data, if prepared or presented by:

a. one or more employees of the limited liability company whom the manager reasonably believes to be reliable and competent in the matters presented,

b. legal counsel, public accountants, or other persons as to matters the manager reasonably believes are within the person's professional or expert competence, or

c. a committee of managers of which he is not a member if the manager reasonably believes the committee merits confidence;

A manager is not acting in good faith if the manager has knowledge concerning the matter in question that makes reliance otherwise permitted by this paragraph unwarranted;

3. Unless otherwise provided in the operating agreement, a manager has the power and authority to delegate to one or more other persons the manager's rights and powers to manage and control the business and affairs of the limited liability company, including to delegate to the agents, officers and employees of a manager to the limited liability company, and to delegate by a management agreement or another agreement with, or otherwise to, other persons. The delegation by a manager shall not cause the manager to cease to be a manager of the limited liability company;

4. A manager is not liable for any action taken as a manager, or any failure to take any action, if the manager performed the duties of the office in compliance with the business judgment rule as applied to directors and officers of a corporation; and

5. Except as otherwise provided in the articles of organization or operating agreement, every manager must account to the limited liability company and hold as trustee for it any profit or benefit derived by the manager without the informed consent of the members from any transaction connected with the conduct or winding up of the limited liability company or from any personal use by the manager of its property.

Absentee Shawnee Limited Liability Company Act § 2516, AST LLCA § 2516

 

 

 




AST LLCA § 2517
§ 2517. Member or Manager--Limitation or Elimination of Liability--Indemnification--Creation of Series or Groups

A. Subject to subsection B of this section, the articles of organization or operating agreement may:

1. Eliminate or limit the personal liability of a member or manager for monetary damages for breach of any duty provided for in Section 2516 of this title; and

2. Provide for indemnification of a member or manager for judgments, settlements, penalties, fines or expenses incurred in any proceeding because the person is or was a member or manager.

B. No provision permitted under subsection A of this section shall limit or eliminate the liability of a manager for:

1. Any breach of the manager's duty of loyalty to the limited liability company or its members;

2. Acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; or

3. Any transaction from which the manager derived improper personal benefit.

C. The articles of organization or operating agreement may define the scope of any duties owned by the members or managers to the limited liability company, if not manifestly unreasonable. A definition shall not eliminate the duty of loyalty or the obligation of good faith and fair dealing.

D. An operating agreement may provide for classes or groups of members or managers or both having such relative rights, powers and duties as the operating agreement may provide, and may provide for the creation in the manner provided in the operating agreement of additional classes or groups of members or managers or both 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 or 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 member or manager or class or group of members or managers, including an action to create under the operating agreement a class or group of membership interests that was not previously outstanding. An operating agreement may provide that any member or class or group of members shall have no voting rights.

Absentee Shawnee Limited Liability Company Act § 2517, AST LLCA § 2517

 

 

 




AST LLCA § 2518
§ 2518. Voting by Managers

Voting by managers may be on a per capita, number, financial interest, class, group or any other basis. Unless otherwise provided in the articles of organization or operating agreement, if the limited liability company has more than one manager, all decisions of the managers shall be made by majority vote of the managers on a per capita basis. An 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.

Absentee Shawnee Limited Liability Company Act § 2518, AST LLCA § 2518

 

 

 




AST LLCA § 2519
§ 2519. Managers as Agent of Limited Liability Company--Unauthorized Acts--Property Transactions

A. Every manager is an agent of the limited liability company for the purpose of its business, and the act of every manager, including the execution in the limited liability company name of any instrument for apparently carrying on the business of the limited liability company of which he is a manager, binds the limited liability company, unless the manager so acting lacks the authority to act for the limited liability company in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority. The unauthorized acts of the manager shall bind the limited liability company as to persons acting in good faith who have no knowledge of the fact that the manager had no such authority.

B. Subject to the provisions of subsection A of this section and Section 2529 of this act, instruments and documents providing for the acquisition, mortgage, or disposition of real or personal property of the limited liability company shall be valid and binding upon the limited liability company if executed by one or more of its managers.

Absentee Shawnee Limited Liability Company Act § 2519, AST LLCA § 2519

 

 

 




AST LLCA § 2519.1
§ 2519.1. Title to Property--Transfer

A. Title to property of the limited liability company that is held in the name of the limited liability company may be transferred by an instrument of transfer executed by any manager in the name of the limited liability company.

B. Title to property of the limited liability company that is held in the name of one or more members or managers with an indication in the instrument transferring title to the property to them in their capacity as members or managers of a limited liability company or of the existence of a limited liability company, even if the name of the limited liability company is not indicated, may be transferred by an instrument of transfer executed by the persons in whose name title is held.

C. Property transferred under subsections A or B of this section may be recovered by the limited liability company if it proves that the act of the person executing the instrument of transfer did not bind the limited liability company under Section 2519 of this act, unless the property has been transferred by the initial transferee or a person claiming through the initial transferee to a subsequent transferee who gives value without having notice that the person who executed the instrument of initial transfer lacked authority to bind the limited liability company.

D. Title to property of the limited liability company that is held in the name of one or more persons other than the limited liability company without an indication in the instrument transferring title to the property to them in their capacity as members or managers of a limited liability company or of the existence of a limited liability company, may be transferred free of any claims of the limited liability company or the members by the person in whose name title is held to a transferee who gives value without having notice that it is property of a limited liability company.

Absentee Shawnee Limited Liability Company Act § 2519.1, AST LLCA § 2519.1

 




AST LLCA § 2520
§ 2520. Members--Voting Rights

A. Voting by members may be on a per capita, number, financial interest, class, group or any other basis. Unless otherwise provided in the articles of organization or operating agreement, the members of a limited liability company vote in proportion to their respective capital interests. Except as otherwise provided in subsection D of this section or unless the context otherwise requires, references in this act to a vote or the consent of the members means a vote or consent of the members holding a majority of the capital interests. The vote or consent may be evidenced in the minutes of a meeting of the members or by a written consent in lieu of a meeting.

B. Except as otherwise provided in subsection D of this section or in the articles of organization or operating agreement, a majority vote of the members shall be required to approve the following matters:

1. The sale, exchange, lease, mortgage, pledge, or other transfer of all or substantially all of the assets of the limited liability company;

2. Merger of the limited liability company with another limited liability company or other business entity; and

3. An amendment to the articles of organization or operating agreement.

C. The articles of organization or operating agreement may alter the above voting rights and provide for any other voting rights of members.

D. Unless otherwise provided in the articles of organization or a written operating agreement, the unanimous vote or consent of the members shall be required to approve the following matters:

1. The dissolution of the limited liability company pursuant to paragraph 3 of Section 2536 of this title; or

2. An amendment to the articles of organization or an amendment to a written operating agreement:

a. which reduces the term of the existence of the limited liability company,

b. which reduces the required vote of members to approve a dissolution, merger or sale, exchange, lease, mortgage, pledge, or other transfer of all or substantially all of the assets of the limited liability company,

c. which permits a member to voluntarily withdraw from the limited liability company, or

d. which reduces the required vote of members to approve an amendment to the articles of organization or written operating agreement reducing the vote previously required on the matters described in this paragraph.

E. 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.

Absentee Shawnee Limited Liability Company Act § 2520, AST LLCA § 2520

 

 

 




AST LLCA § 2521
§ 2521. Records Required to be Kept--Member Access to Information--Managers May Inspect and Copy Records

A. Unless otherwise provided in a written operating agreement, a limited liability company shall keep at its principal place of business the following:

1. A current and past list of the full name and last known mailing address of each member and manager;

2. Copies of records that would enable a member to determine the relative voting rights of the members;

3. A copy of the articles of organization, together with any amendments thereto;

4. Copies of the limited liability company's federal, state and local income tax returns and financial statements, if any, for the three (3) most recent years or, if such returns and statements were not prepared for any reason, copies of the information and statements provided to, or which should have been provided to, the members to enable them to prepare their federal, state and local tax returns for such period;

5. Copies of any effective written operating agreements and all amendments thereto and copies of any written operating agreements no longer in effect; and

6. Unless provided in writing in an operating agreement, a writing setting out:

a. the amount of cash and a statement of the agreed value of other property or services contributed by each member and the times at which or events upon the happening of which any additional contributions agreed to be made by each member are to be made, and

b. the events upon the happening of which the limited liability company is to be dissolved and its affairs wound up, and

c. any other information prepared pursuant to a requirement in an operating agreement.

B. A member, for any purpose reasonably related to the member's interest, may:

1. At the member's own expense, inspect and copy any limited liability company record upon reasonable request during ordinary business hours;

2. Obtain from time to time upon reasonable demand:

a. true and complete information regarding the state of the business and financial condition of the limited liability company,

b. promptly after becoming available, a copy of the limited liability company's federal, state and local income tax returns for each year, and

c. other information regarding the affairs of the limited liability company as is just and reasonable; and

3. Have a formal accounting of the limited liability company's affairs whenever circumstances render it just and reasonable.

C. A manager, for any purpose reasonably related to his position, may inspect and copy any limited liability company records upon reasonable request during ordinary business hours.

D. Failure of the limited liability company to keep or maintain any of the records or information required pursuant to this section shall not be grounds for imposing liability on any person for the debts and obligations of the limited liability company.

Absentee Shawnee Limited Liability Company Act § 2521, AST LLCA § 2521

 

 

 




AST LLCA § 2522
§ 2522. Liability of Member or Manager

A person who is a member or manager, or both, of a limited liability company is not liable for the obligations of a limited liability company solely by reason of being such member or manager, or both.

Absentee Shawnee Limited Liability Company Act § 2522, AST LLCA § 2522

 

 

 




AST LLCA § 2523
§ 2523. Contribution of Member--Form

The contribution of a member to a limited liability company may be in cash, property, services rendered, or a promissory note or other binding obligation to contribute cash or property or to perform services. A person may be admitted to a limited liability company as a member of the limited liability company and may receive a membership interest in the limited liability company without making a contribution or being obligated to make a contribution to the limited liability company. Unless otherwise provided in the operating agreement, a person may be admitted to a limited liability company as a member of the limited liability company without acquiring a membership interest in the limited liability company. Unless otherwise provided in the operating agreement, a person may be admitted as the sole member of a limited liability company without making a contribution or being obligated to make a contribution to the limited liability company or without acquiring a membership interest in the limited liability company.

Absentee Shawnee Limited Liability Company Act § 2523, AST LLCA § 2523

 

 

 




AST LLCA § 2524
§ 2524. Written Promise of Contribution--Performance--Compromise--Failure to Perform--Remedy

A. 1. Except as otherwise provided in the articles of organization or the operating agreement, a member is obligated to the limited liability company to perform any written promise to contribute cash or property or to perform services, even if he is unable to perform because of death, disability or other reason.

2. 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 value, as stated in the operating agreement, of the stated contribution that has not been made.

B. 1. The obligation of a member to make a contribution or return money or other property paid or distributed in violation of this act may be compromised only upon compliance with the operating agreement, or, if the operating agreement does not so provide, with the unanimous consent of the members.

2. A compromise shall not impair the right of any creditor to enforce the obligation or to require the obligation to be enforced if:

a. such creditor relied upon the obligation and the absence in the operating agreement of the limited liability company's authority to compromise the obligation, or

b. a duty to the creditor was breached in the making of the compromise.

C. An operating agreement may provide that the capital 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 capital interest in the limited liability company, subordinating the defaulting member's capital interest in the limited liability company to that of the nondefaulting members, a forced sale of the capital interest in the limited liability company, forfeiture of the capital 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 member's capital interest in the limited liability company by appraisal or by formula and redemption and sale of the member's capital interest in the limited liability company at that value, or other remedy or consequences.

Absentee Shawnee Limited Liability Company Act § 2524, AST LLCA § 2524

 

 

 




AST LLCA § 2525
§ 2525. Allocation of Profits and Losses--Distributions

Except as otherwise provided in the operating agreement:

1. The profits and losses of a limited liability company shall be allocated among the members, and among classes or groups of members, in proportion to their respective capital interests; and

2. Distributions of the limited liability company shall be made to the members, and among classes or groups of members, in proportion to their right to share in the profits of the limited liability company.

Absentee Shawnee Limited Liability Company Act § 2525, AST LLCA § 2525

 

 

 




AST LLCA § 2526
§ 2526. Distributions to Members Before Withdrawal and Dissolution

Except as otherwise provided in this act, a member is entitled to receive distributions from a limited liability company before the dissolution and winding up of the limited liability company to the extent and at the times upon which the members agree or as provided in the operating agreement.

Absentee Shawnee Limited Liability Company Act § 2526, AST LLCA § 2526

 

 

 




AST LLCA § 2527
§ 2527. Form of Distribution--Asset in Kind

Except as otherwise provided in the operating agreement:

1. A member, regardless of the nature of the member's contribution, has no right to demand and receive any distribution from a limited liability company in any form other than cash; and

2. No member may be compelled to accept from a limited liability company a distribution of any asset in kind to the extent that the percentage of the asset distributed to the member exceeds the percentage which the member's interest in the limited liability company is of all of the interests in the limited liability company.

Absentee Shawnee Limited Liability Company Act § 2527, AST LLCA § 2527

 

 

 




AST LLCA § 2528
§ 2528. Status of Member and Distribution

At the time a member becomes entitled to receive a distribution, the member has the status of and is entitled to all remedies available to a creditor of the limited liability company with respect to the distribution.

Absentee Shawnee Limited Liability Company Act § 2528, AST LLCA § 2528

 

 

 




AST LLCA § 2529
§ 2529. Restrictions on Distribution--Determination of Prohibited Distributions--Effect of Distribution--Indebtedness

A. A distribution may not be made if, after giving effect to the distribution:

1. The limited liability company would not be able to pay its debts as they become due in the usual course of business; or

2. The limited liability company's total assets would be less than the sum of its total liabilities plus, unless the operating agreement permits otherwise, the amount that would be needed, if the limited liability company were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of members whose preferential rights are superior to the rights of members receiving the distribution.

B. The limited liability company may base a determination that a distribution is not prohibited under subsection A of this section on:

1. Financial statements prepared on the basis of accounting practices and principles that are reasonable in the circumstances; or

2. A fair valuation or other method that is reasonable in the circumstances.

C. Except as provided in subsection E of this section, the effect of a distribution under subsection A of this section measured as of:

1. The date the distribution is authorized, if the payment occurs within one hundred twenty (120) days after the date of authorization; or

2. The date the payment if made if it occurs more than one hundred twenty (120) days after the date of authorization.

D. A limited liability company's indebtedness to a member, incurred by reason of a distribution made in accordance with this section, is at parity with the limited liability company's indebtedness to its general, unsecured creditors, except to the extent subordinated by agreement.

E. 1. If the terms of the indebtedness provide that payment of principal and interest is to be made only if, and to the extent that, payment of a distribution to members could then be made under this section, indebtedness of a limited liability company, including indebtedness issued as a distribution, is not a liability for purposes of determinations made under subsection B of this section; and

2. If the indebtedness is issued as a distribution, each payment of principal or interest on the indebtedness is treated as a distribution, the effect of which is measured on the date the payment is actually made.

Absentee Shawnee Limited Liability Company Act § 2529, AST LLCA § 2529

 

 

 




AST LLCA § 2530
§ 2530. Wrongful Distribution--Liability--Recovery Action

If a member has received a distribution in violation of the operating agreement or Section 2529 of this title, the member shall be liable to the limited liability company for the amount of the distribution wrongfully made. An action for the recovery of any wrongful distribution to a member must be brought within three (3) years from the date of the distribution.

Absentee Shawnee Limited Liability Company Act § 2530, AST LLCA § 2530

 

 

 




AST LLCA § 2531
§ 2531. Membership Interest as Personal Property

A membership interest is personal property. A member has no interest in specific limited liability company property.

Absentee Shawnee Limited Liability Company Act § 2531, AST LLCA § 2531

 

 

 




AST LLCA § 2532
§ 2532. Assignment of Membership Interest

A. Unless otherwise provided in an operating agreement:

1. A membership interest is not transferable; provided, however, that a member may assign the economic rights associated with a membership interest in whole or in part;

2. An assignment of the economic rights associated with a membership interest does not entitle the assignee to participate in the management and affairs of the limited liability company or to become or to exercise any rights or powers of a member;

3. An assignment entitles the assignee to share in profits and losses, to receive any distribution or distributions and to receive the allocation of income, gain, loss, deduction, or credit or similar item to which the assignor was entitled to the extent assigned;

4. Unless the assignee of an interest in a limited liability company becomes a member by virtue of that interest, the assignor continues to be a member and to have the power to exercise any rights of a member, unless the assignor is removed as a member either in accordance with the operating agreement of, after having assigned all of the membership interest, by an affirmative vote of the members who have not assigned their interests. The removal of an assignor shall not, by itself, cause the assignee to become a member;

5. Until an assignee of a membership interest becomes a member, the assignee has no liability as a member solely as a result of the assignment; and

6. The assignor of a membership interest is not released from liability as a member solely as a result of the assignment.

B. The operating agreement may provide that a member's interest in a limited liability company may be evidenced by a certificate of membership interest issued by the limited liability company and also may provide for the assignment or transfer of any membership interest represented by such a certificate and may make other provisions with respect to such certificates.

C. 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 membership interest of a member is not an assignment and shall not cause the member to cease to be a member or cease to have the power to exercise any rights or powers of a member.

Absentee Shawnee Limited Liability Company Act § 2532, AST LLCA § 2532


AST LLCA § 2533
§ 2533. Judgment Creditor--Rights and Interests

On application to a court of competent jurisdiction by any judgment creditor of a member, the court may charge the membership 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 membership interest. A charging order entered by a court pursuant to this section shall in no event be convertible into a membership interest through foreclosure or other action. This act does not deprive any member of the benefit of any exemption laws applicable to his or her membership interest. This section shall be the sole and exclusive remedy of a judgment creditor with respect to the judgment debtor's membership interest.

Absentee Shawnee Limited Liability Company Act § 2533, AST LLCA § 2533

 

 

 




AST LLCA § 2534
§ 2534. Assignee of Interest in Limited Liability Company--Membership Rights, Powers, Restrictions and Liabilities--Rights and Liability of Assignor--Admission of Membership Directly in Limited Liability Company

A. An assignee of an interest in a limited liability company may become a member if and to the extent that:

1. The operating agreement provides; or

2. The members representing a majority of the capital interests which are not the subject of the assignment consent in writing.

B. An assignee who becomes a member, to the extent assigned, has the rights and powers, and is subject to the restrictions and liabilities, of a member under the operating agreement and this act, Section 2000 et seq. of this title; however, unless otherwise provided in writing in the operating agreement or other written agreement, an assignee who becomes a member also is liable for any obligations of the assignor to make contributions as provided in Section 2524 of this title, but shall not be liable for the obligations of the assignor under Section 2530 of this title; however, the assignee is not obligated for liabilities of which the assignee had no knowledge at the time the assignee became a member and which could not be ascertained from a written operating agreement.

C. Regardless of whether an assignee of an interest becomes a member, the assignor is not released from liability to the limited liability company under Sections 2524, 2530 and 2532 of this title.

D. Except as otherwise provided in writing in the operating agreement, a member who assigns the member's entire interest in the limited liability company ceases to be a member or to have the power to exercise any rights of a member when any assignee of the interest becomes a member with respect to the assigned interest.

E. Subject to subsection F of this section, a person acquiring a limited liability company interest directly from the limited liability company may become a member in a limited liability company upon compliance with the operating agreement or, if the operating agreement does not so provide in writing, upon the written consent of the members.

F. The effective time of admission of a member to a limited liability company shall be the later of:

1. The date the limited liability company is formed; or

2. The time provided in the operating agreement, or if no such time is provided therein, then when the person's admission is reflected in the records of the limited liability company.

Absentee Shawnee Limited Liability Company Act § 2534, AST LLCA § 2534

 

 

 




AST LLCA § 2535
§ 2535. Withdrawal as Member--Rights of Legal Representative of Deceased or Incompetent Member--Expulsion of Member

A. Unless the operating agreement specifically permits in writing the power to withdraw voluntarily, a member may not withdraw at any time. If the operating agreement specifically provides in writing the power to withdraw voluntarily, but the withdrawal occurs as a result of wrongful conduct of the member, a member's voluntary withdrawal shall constitute a breach of the operating agreement and the limited liability company may recover from the withdrawing member damages, including the reasonable cost of replacing the services that the withdrawn member was obligated to perform. The limited liability company may offset its damages against the amount otherwise distributable to the member, in addition to pursuing any remedies provided for in the operating agreement or otherwise available under applicable law. The limited liability company shall not, however, be entitled to any equitable remedy that would prevent a member from exercising the power to withdraw if such power is permitted in the operating agreement.

B. If a member who is an individual dies or a court of competent jurisdiction adjudges the member to be incompetent to manage the member's person or property, the member's personal representative shall have all of the rights of an assignee of the member's interest. 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 personal representative.

C. If the sole member of a limited liability company dies or dissolves, or a court of competent jurisdiction adjudges the member to be incompetent or otherwise lacking legal capacity, the member's personal representative accedes to the membership interest and possesses all rights, powers and duties associated with the interest for the benefit of the incompetent member or the deceased member's estate.

D. The operating agreement may provide for the expulsion of a member, with or without cause, which shall include reasonable provision for the distributable interest.

Absentee Shawnee Limited Liability Company Act § 2535, AST LLCA § 2535

 

 

 




AST LLCA § 2536
§ 2536. Dissolution and Winding Up of Affairs--Causes

A limited liability company is dissolved and its affairs shall be wound up upon the earlier of:

1. The occurrence of the latest date on which the limited liability company is to dissolve set forth in the articles of organization;

2. The occurrence of events specified in writing in the operating agreement;

3. The written consent of all of the members or, if there is more than one class or group of members, then by the written consent of all of the members of each class or group;

4. At any time there are no members; provided, that the limited liability company is not dissolved and is not required to be wound up if:

a. unless otherwise provided in an operating agreement, within ninety (90) days or such other period as is provided for in the operating agreement after the occurrence of the event that terminated and continued membership of the last remaining member, the personal representative of the last remaining member agrees in writing to continue the limited liability company and to the admission of the personal representative of the member or its nominee or designee to the limited liability company as a member, effective as of the occurrence of the event that terminated the continued membership of the last remaining member; provided, that an operating agreement may provide that the personal representative of the last remaining member shall be obligated to agree in writing to continue the limited liability company and to the admission of the personal representative of the member or its nominee or designee to the limited liability company as a member, effective as of the occurrence of the event that terminated the continued membership of the last remaining member, or

b. a member is admitted to the limited liability company in the manner provided for in the operating agreement, effective as of the occurrence of the event that terminated the continued membership of the last remaining member, within ninety (90) days or such other period as is provided for in the operating agreement after the occurrence of the event that terminated the continued membership of the last remaining member, pursuant to a provision of the operating agreement that specifically provides for the admission of a member to the limited liability company after there is no longer a remaining member of the limited liability company; or

5. Entry of a decree of judicial dissolution under Section 2537 of this title.

Absentee Shawnee Limited Liability Company Act § 2536, AST LLCA § 2536

 

 

 




AST LLCA § 2537
§ 2537. Dissolution Upon Application by Member--Decree

On application by or for a member, the district court may decree dissolution of a limited liability company whenever it is not reasonably practicable to carry on the business in conformity with the articles of organization or operating agreement.

Absentee Shawnee Limited Liability Company Act § 2537, AST LLCA § 2537

 

 

 




AST LLCA § 2538
§ 2538. Winding Up of Business or Affairs--Binding Acts of Managers--Notice Presumed

A. Except as otherwise provided in the articles of organization or operating agreement:

1. The business or affairs of the limited liability company may be wound up in one of the following ways:

a. by the managers, or

b. if one or more of the members or managers have engaged in conduct that casts reasonable doubt on their ability to wind up the business or affairs of the limited liability company, or upon other cause shown, by the district court on application of any member, his legal representative, or assignee; and

2. The persons winding up the business or affairs of the limited liability company may, in the name of, and for and on behalf of, the limited liability company;

a. prosecute and defend suits,

b. settle and close the business of the limited liability company,

c. dispose of and transfer the property of the limited liability company,

d. discharge the liabilities of the limited liability company, and

e. distribute to the members any reaming assets of the limited liability company.

B. Except as provided in subsections D and E of this section, after an event causing dissolution of the limited liability company any manager can bind the limited liability company:

1. By any act appropriate for wind up the limited liability company's affairs or completing transactions unfinished at dissolution; and

2. By any transaction that would have bound the limited liability company if it had not been dissolved, if the other party to the transaction does not have notice of the dissolution.

C. The filing of the articles of dissolution shall be presumed to constitute notice of dissolution for purposes of paragraph 2 of subsection B of this section.

D. An act of a manager or member that is not binding on the limited liability company pursuant to subsection B of this section is binding if it is otherwise authorized by the limited liability company.

E. An act of a manager or member that would be binding under subsection B or would be otherwise authorized but that is in contravention of a restriction on authority shall not bind the limited liability company to persons having knowledge of the restriction.

Absentee Shawnee Limited Liability Company Act § 2538, AST LLCA § 2538

 

 

 




AST LLCA § 2539
§ 2539. Winding Up of Affairs--Distribution of Assets--Liability

A. Upon the winding up of a limited liability company, the assets shall be distributed as follows:

1. Payment, or adequate provision for payment, shall be made to creditors, including to the extent permitted by law, members who are creditors, in satisfaction of liabilities of the limited liability company;

2. Except as provided in writing in the articles of organization or operating agreement, to members or former members in satisfaction of liabilities for distributions under Section 2506 of this title; and

3. Except as provided in writing in the articles of organization or operating agreement, to members and former members first for the return of their contributions and second respecting their membership interests, in proportions in which the members share in distributions.

B. A member who receives a distribution in violation of subsection A of this section, and who knew or should have known at the time of the distribution that the distribution violated subsection A of this section, shall be liable to a limited liability company for the amount of the distribution. A member who receives a distribution in violation of subsection A of this section, and who did not know and had no reason to know at the time of the distribution that the distribution violated subsection A of this section, shall not be liable for the amount of the distribution. Subject to subsection C of this section, this subsection shall not affect any obligation or liability of a member under an agreement or other applicable law for distribution.

C. Unless otherwise agreed, a member who receives a distribution from a limited liability company shall have no liability under this act or other applicable law for the amount of the distribution after the expiration of three (3) years from the date of the distribution unless an action to recover the distribution from the member is commenced before the expiration of the three-year period and an adjudication of liability against the member is made in the action.

Absentee Shawnee Limited Liability Company Act § 2539, AST LLCA § 2539

 

 

 




AST LLCA § 2540
§ 2540. Articles of Dissolution--Filing and Contents

After the dissolution of the limited liability company, pursuant to Section 2536 of this title, the limited liability company shall file articles of dissolution in the Office of the Secretary of the Tribe upon payment of the filing fee required by Section 2554 of this title, the articles of dissolution shall set forth:

1. The name of the limited liability company;

2. The date of filing of its articles of organization;

3. The reason for filing the articles of dissolution;

4. The effective date of the articles of dissolution if they are not to be effective upon the filing; and

5. Any other information the members or managers filing certificate determine.

Absentee Shawnee Limited Liability Company Act § 2540, AST LLCA § 2540

 

 

 




AST LLCA § 2541
§ 2541. Laws Governing Foreign Limited Liability Company--Rights and Privileges--Purposes

A. Subject to the Constitution of this state:

1. The laws of the state, Tribe or other jurisdiction under which a foreign limited liability company is organized shall govern its organization and internal affairs and the liability of its managers and members; and

2. A foreign limited liability company may not be denied registration by reason of any difference between those laws and the laws of this Tribal jurisdiction.

B. A foreign limited liability company holding a valid registration in this Tribal jurisdiction shall have not greater rights and privileges than a domestic limited liability company. The registration shall not be deemed to authorize the foreign limited liability company to exercise any of its powers or purposes that a domestic limited liability company is forbidden by law to exercise in this Tribal jurisdiction.

Absentee Shawnee Limited Liability Company Act § 2541, AST LLCA § 2541



AST LLCA § 2542
§ 2542. Foreign Limited Liability Company--Registration Procedure

Before transacting business in this state, a foreign limited liability company shall register with the Office of the Secretary of the Tribe. In order to register, a foreign limited liability company shall:

1. Pay to the Secretary of the Tribe a registration fee required by Section 2554 of this act;

2. Provide the Secretary of the Tribe with an original certificate from the certifying officer of the jurisdiction of the foreign limited liability company's organization attesting to the foreign limited liability company's organization under the laws of such jurisdiction; and

3. Submit to the Office of the Secretary of the Tribe an application in duplicate for registration as a foreign limited liability company, signed by a manager, member, or other person, and setting forth;

a. the name of the foreign limited liability company and, if different, the name under which it proposes to transact business in this Tribal jurisdiction,

b. the state or other jurisdiction and date of its organization,

c. the name and street address of an agent, which agent shall be an individual or a domestic or qualified foreign corporation, limited liability company, or limited liability partnership. Each agent shall maintain a business office which is open during regular business hours to accept service of process and otherwise perform that functions of an agent. If an additional agent is designated, service of process shall be on that agent and not on the Secretary of the Tribe,

d. a statement that the Office of the Secretary of the Tribe is appointed the agent of the foreign limited liability company for service of process if no agent has been appointed under subparagraph c of this paragraph, or if appointed, the agent's authority has been revoked or if the agent cannot be found or served with the exercise of reasonable diligence,

e. the address of the office where the agent resides, and

f. such additional information as may be necessary or appropriate in order to enable the Office of the Secretary of the Tribe to determine whether such limited liability company is entitled to transact business in this jurisdiction.

Absentee Shawnee Limited Liability Company Act § 2542, AST LLCA § 2542

 

 

 




AST LLCA § 2543
§ 2543. Conforming Application for Registration--Duties of Secretary of the Tribe

If the Office of the Secretary of the Tribe finds that an application for registration conforms to the provisions of this act and all requisite fees have been paid, it shall:

1. Endorse on the applications the word “filed,” and the month, day, and year of the filing;

2. File in its office one copy of the application;

3. Issue a certificate of registration to transact business in this state; and

4. Return the certificate of registration, together with a copy of the application to the person who filed the application or his representative.

Absentee Shawnee Limited Liability Company Act § 2543, AST LLCA § 2543

 

 

 




AST LLCA § 2544
§ 2544. Foreign Limited Liability Company--Name

Subject to the provisions of Section 2508 of this title, foreign limited liability company may register with the Secretary of the Tribe under the name which it is registered by a domestic limited liability company. If the name of a foreign limited liability company does not satisfy the requirements of Section 2508 of this title, the foreign limited liability company may file with the Secretary of the Tribe a statement by its manager duly adopting a fictitious name that is available, and which satisfies the requirements of sect 2508 of this title, which shall be used to the exclusion of its true name when transacting business within this jurisdiction.

Absentee Shawnee Limited Liability Company Act § 2544, AST LLCA § 2544

 

 

 




AST LLCA § 2545
§ 2545. Foreign Limited Liability Company--Correction Certificate--Recording Changes

A. 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 Secretary of the Tribe a certificate, signed by a manager, member, or other person, correcting the statement and pay the fee provided for in Section 2554 of this title.

B. A registered foreign limited liability company shall record any changes in its principal office, its agent, or the agent's address, by filing with the Office of the Secretary of the Tribe a statement of the change and paying the fee provided for in Section 2554 of this title.

C. A foreign limited liability company authorized to transact business in this Tribal jurisdiction shall promptly file a certificate, issued by the proper officer of the state or jurisdiction of its organization, attesting to the occurrence of a merger, in the Office of the Secretary of the Tribe and pay the fee provided for in Section 2554 of this title, whenever it is the surviving limited liability company and the merger:

1. Changes any statement in the application of registration of the foreign limited liability company; or

2. Involves any other foreign business entity authorized to transact business in this Tribal jurisdiction.

D. If the merger changes any arrangements or other facts described in the application for registration of the surviving foreign limited liability company, it shall also comply with the provisions of this section; provided that it will not be required to pay an additional fee.

E. Whenever a foreign limited liability company authorized to transact business in this state ceases to exist because of a statutory merger or consolidation with a foreign business entity not qualified to transact business in this state, it shall comply with the provisions of Section 2546 of this title.

F. An agent of a foreign limited liability company may resign by filing with the Office of the Secretary of the Tribe a copy of the resignation, signed and acknowledged by the agent, which contains a statement that notice of the resignation was given to the limited liability company at least thirty (30) days prior to the filing of the resignation by mailing or delivering the notice to the limited liability company at its address last known to the agent and specifying such address therein.

1. Unless a later time is specified in the resignation, it is effective thirty (30) days after it is filed.

2. If a foreign limited liability company fails to obtain and designate a new agent prior to the expiration of the thirty (30) days after the filing by the agent of a resignation statement, the Secretary of the Tribe shall be deemed to be the agent of such limited liability company.

Absentee Shawnee Limited Liability Company Act § 2545, AST LLCA § 2545

 

 

 




AST LLCA § 2546
§ 2546. Foreign Limited Liability Company--Certificate of Withdrawal

A. A foreign limited liability company authorized to transact business in this state may withdraw from the state upon procuring from the Office of the Secretary of the Tribe a certificate of withdrawal. In order to procure such certificate, the foreign limited liability company shall file with the Office of the Secretary of the Tribe an application for withdrawal and pay the fee provided for in Section 2555 of this act. The application for withdrawal shall set forth:

1. The name of the foreign limited liability company and the state or other jurisdiction under the laws of which it is organized;

2. That the foreign limited liability company is not transacting business in this state;

3. That the foreign limited liability company surrenders its certificate of registration to transact business in this state;

4. That the foreign limited liability company revokes the authority of its agent for service of process in this state and consents that service of process in any action, suit, or proceeding based upon any cause of action arising in this state during the time the foreign limited liability company was authorized to transact business in this state may thereafter be made on such foreign limited liability company by service thereof upon the Office of the Secretary of the Tribe; and

5. An address to which a person may mail a copy of any process against the foreign limited liability company.

B. The application for withdrawal shall be executed by the foreign limited liability company by one of its managers, members, or other persons, or, if the foreign limited liability company is in the hands of a receiver or trustee, by such receiver or trustee on behalf of the foreign limited liability company.

Absentee Shawnee Limited Liability Company Act § 2546, AST LLCA § 2546

 

 

 




AST LLCA § 2547
§ 2547. Registration Required to Transact Business in State--Foreign Limited Liability Company

A. A foreign limited liability company transacting business in this state may not maintain an action, suit, or proceeding in a court of this Tribal jurisdiction until it has registered in this Tribal jurisdiction as provided in this act.

B. The failure of a foreign limited liability company to register in this Tribal jurisdiction does not impair the validity of any contract or act of the foreign limited liability company or prevent the foreign limited liability company from defending any action, suit, or proceeding in any court of this Tribal jurisdiction.

C. A member of a foreign limited liability company is not liable for the debts and obligations of the limited liability company solely by reason of such company's having transacted business in this Tribal jurisdiction without a valid certificate of registration.

Absentee Shawnee Limited Liability Company Act § 2547, AST LLCA § 2547

 

 

 




AST LLCA § 2548
§ 2548. Foreign Limited Liability Company--Acts Not Constituting Transacting Business in State

A. The following activities of a foreign limited liability company, among others, do not constitute transacting business within the meaning of this act:

1. Maintaining, defending, or settling any proceeding;

2. Holding meetings of its members or carrying on any other activities concerning its internal affairs;

3. Maintaining bank accounts;

4. Maintaining offices or agencies for the transfer, exchange and registration of the foreign limited liability company's own securities or maintaining trustees or depositaries with respect to those securities;

5. Selling through independent contractors;

6. Soliciting or obtaining orders, whether by mail or through employees or agents or otherwise, if the orders require acceptance outside this Tribal jurisdiction before they become contracts;

7. Creating or acquiring indebtedness, mortgages and security interests in real or personal property;

8. Securing or collecting debts or enforcing mortgages and security interest in property securing the debts, including the holding, protecting, renting, maintaining and operating real or personal property in this state so acquired;

9. Transacting business wholly in interstate commerce;

10. Selling or transferring title to property in state to any person;

11. Conducting an isolated transaction that is completed within thirty (30) days and that is not one in the course of repeated transactions of a like nature; or

12. Investing in or acquiring royalties or other non-operating mineral or leasehold interests and the execution of division orders, contracts for sale, leases and other instruments incidental to the ownership of the non-operating interests.

B. For the purposes of this section, any foreign limited liability company which owns income-producing real or tangible personal property in this Tribal jurisdiction, other than property exempted by subsection A of this section, will be considered transacting business in this Tribal jurisdiction.

C. A person shall not be deemed to be doing business in this Tribal jurisdiction solely by reason of being a member or manager of a domestic limited liability company or a foreign limited liability company.

D. This section does not apply in determining the contracts or activities that my subject a foreign limited liability company to service of process or taxation in this Tribal jurisdiction or to regulation under any other law of this Tribal jurisdiction.

Absentee Shawnee Limited Liability Company Act § 2548, AST LLCA § 2548

 

 

 




AST LLCA § 2549
§ 2549. Action to Restrain Foreign Limited Liability Company

The Attorney General may maintain an action to restrain a foreign limited liability company from transacting business in this Tribal jurisdiction in violation of this act.

Absentee Shawnee Limited Liability Company Act § 2549, AST LLCA § 2549

 

 

 




AST LLCA § 2550
§ 2550. Action Brought by Member to Recover Judgment--Conditions

A member may bring an action in the right of the limited liability company to recover a judgment in its favor if all of the following conditions are met:

1. Either:

a. management of the limited liability company is vested in a manager or managers who have the sole authority to cause the limited liability company to sue in its own right, or

b. management of the limited liability company is reserved to the members but the plaintiff does not have the authority to cause the limited liability company to sue in its own right under the provisions of an operating agreement; and

2. The plaintiff has made demand on those managers or those members with such authority requesting that such managers or such members cause the limited liability company to sue in its own right; and

3. The members or managers with such authority have wrongfully refused in the exercise of their business judgment to bring the action or, after adequate time to consider the demand, have failed to respond to such demand; and

4. The plaintiff:

a. is a member of the limited liability company at the time of bringing the action, and

b. was a member of the limited liability company at the time of the transaction of which he complains, or his status as a member of the limited liability company thereafter developed upon him pursuant to the terms of the operating agreement from a person who was a member at such time; and

5. The plaintiff fairly and adequately represents the interests of the members in enforcing the rights of the limited liability company.

Absentee Shawnee Limited Liability Company Act § 2550, AST LLCA § 2550

 

 

 




AST LLCA § 2551
§ 2551. Derivative Action--Complaint

In a derivative action, the complaint shall set forth with particularity the effort of the plaintiff to secure initiation of the action by the managers or the members who would otherwise have the authority to cause the limited liability company to sue in its own right.

Absentee Shawnee Limited Liability Company Act § 2551, AST LLCA § 2551

 

 

 




AST LLCA § 2552
§ 2552. Reasonable Expenses in a Derivative Action--Remittance of Proceeds

A. If a derivative action is successful, in whole or in part, or if anything is received by the plaintiff as a result of a judgment, compromise or settlement of an action or claim, the court may award the plaintiff reasonable expenses, including reasonable attorneys' fees, and shall direct him to remit to the limited liability company the remainder of those proceeds received by him.

B. In any action hereafter instituted in the right of any domestic or foreign limited liability company by a member or members thereof, the court having jurisdiction, upon final judgment and a finding that the action was brought without reasonable cause, may require the plaintiff or plaintiffs to pay to the parties named as defendants the reasonable expenses, including attorneys' fees, incurred by them in the defense of such action.

Absentee Shawnee Limited Liability Company Act § 2552, AST LLCA § 2552

 

 

 




AST LLCA § 2553
§ 2553. Merger or Consolidation

A. Pursuant to an agreement of merger or consolidation, a domestic limited liability company may merge or consolidate with or into one or more domestic or foreign limited liability company or other business entities. As used in this section, “business entity” means a domestic or foreign corporation, business trust, common law trust, or unincorporated business including a partnership, whether general or limited.

B. Unless otherwise provided in the articles of organization or the operating agreement, a merger or consolidation shall be approved by each domestic limited liability company which is to merge or consolidate by a majority of the membership interest of, if there is more than one class or group of members, then by a majority of the membership interest of each class or group. In connection with a merger or consolidation hereunder, rights or securities of, or interests in, a domestic limited liability company or other business entity which is a constituent party to the merger or consolidation may be exchanged for or converted into cash, property, rights or securities of, or interests in, the surviving or resulting 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 surviving or resulting limited liability company or other business entity in the merger or consolidation. Notwithstanding prior approval, an agreement of merger or consolidation may be terminated or amended pursuant to a provision for such termination or amendment contained in the agreement of merger or consolidation.

C. If a domestic limited liability company is merging or consolidating pursuant to this section, the domestic or other business entity surviving or resulting in or from the merger or consolidation shall file articles of merger or consolidation with the Office of the Secretary of the Tribe. The articles of merger or consolidation shall state:

1. The name and jurisdiction of formation or organization of each of the limited liability companies or other business entities which are to merge or consolidate;

2. That an agreement of merger or consolidation has been approved and executed by each of the domestic limited liability companies or other business entities which is to merge or consolidate;

3. The name of the surviving or resulting domestic limited liability company or other business entity;

4. The future effective date or time, which shall be a specific date or time not later than a time on the nineteenth day after the filing, of the merger or consolidation if it is not to be effective upon the filing of the articles of merger or consolidation;

5. That the agreement of merger or consolidation is on file at a place of business of the surviving or resulting domestic limited liability company or other business entity, and shall state the address thereof;

6. That a copy of the agreement of merger or consolidation shall be furnished by the surviving or resulting domestic limited liability company or other business entity, upon 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 merge or consolidate;

7. In the case of a merger, any amendments or changes in the articles of organization of the surviving domestic limited liability company that are to be affected by the merger;

8. In the case of a consolidation, that the articles of organization of the resulting domestic limited liability company shall be as set forth in an attachment to the articles of consolidation; and

9. If the surviving or resulting entity is not a domestic limited liability company or business entity formed or organized pursuant to the laws of this Tribal jurisdiction, a statement that the surviving or resulting other business entity agrees to be served with process in this Tribal jurisdiction in any action, suit, or proceeding for the enforcement of any obligation of any domestic limited liability company which is to merge or consolidate; irrevocably appoints the Secretary of the Tribe as its agent to accept service of process in any action, suit, or proceeding; and specifies the address to which process when received shall be mailed to the entity by the Secretary of the Tribe.

D. A merger or consolidation shall be effective upon the filing with the Secretary of the Tribe Articles of Merger or Consolidation, unless a future effective date or time is provided in the articles of merger or consolidation.

E. Articles of Merger or Consolidation terminate the separate existence of a domestic limited liability company which is not the surviving or resulting entity in the merger or consolidation.

F. Once any merger or consolidation is effective pursuant to this section, for all purposes of the laws of this Tribal jurisdiction, all of the rights, privileges, and powers of each of the domestic limited liability companies and other business entities that have merged or consolidated and all property, real, personal, and mixed, and all debts due to each domestic limited liability company or other business entity, as well as all other things and causes of action belonging to each domestic limited liability company or other business entity shall be vested in the surviving or resulting domestic limited liability company or other business entity, and shall thereafter be the property of the surviving or resulting domestic limited liability company or other business entity as they were of each domestic limited liability company or other business entity that has merged or consolidated, and the title to any real property vested by deed or otherwise, under the laws of this Tribal jurisdiction, in any domestic limited liability company or other business entity shall not revert or be in any way impaired by reason of this section, but all rights of creditors and all liens upon any property of each domestic limited liability company or other business entity shall be preserved unimpaired. All debts, liabilities and duties of each domestic limited liability company or other business entity that has merged or consolidated shall thereafter attach to the surviving or resulting domestic limited liability company or other business entity, and may be enforced against the surviving or resulting limited liability company or other entity to the same extent as if the debts, liabilities, and duties had been incurred or contracted by the surviving or resulting limited liability company or other entity. Unless otherwise agreed, a merger or consolidation of a domestic limited liability company, including a domestic limited liability company which is not the surviving or resulting entity in the merger or consolidation, shall not require the domestic limited liability company to wind up its affairs or pay its liabilities and distribute its assets.

Absentee Shawnee Limited Liability Company Act § 2553, AST LLCA § 2553

 

 

 

AST LLCA § 2553.1
§ 2553.1. Conversion of Certain Entities to a Limited Liability Company

A. As used in this section, the term “business entity” means a domestic corporation, partnership, whether general or limited, business trust, common law trust, or other unincorporated association.

B. Any business entity may convert to a domestic limited liability company by complying with subsection H of this section and filing with the Secretary of the Tribe in accordance with Section 2507 of this title articles of conversion to a limited liability company that have been executed in accordance with Section 2506 of this title, to which shall be attached articles of organization that comply with Sections 2505 and 2508 of this title and have been executed by one or more authorized persons in accordance with Section 2506 of this title.

C. The articles of conversion to a limited liability company shall state:

1. The date on which the business entity was first formed;

2. The name of the business entity immediately prior to the filing of the articles of conversion to limited liability company;

3. The name of the limited liability company as set forth in its articles of organization filed in accordance with subsection B of this section; and

4. The future effective date or time, which shall be a specified date or time not later than a time on the nineteenth day after filing, of the conversion to a limited liability company if it is not to be effective upon the filing of the articles of conversion to a limited liability company and the articles of organization.

D. Upon the filing in the Office of the Secretary of the Tribe of the Articles of Conversion to a limited liability company and the articles of organization or upon the future effective date or time of the articles of conversion to limited liability company and the Articles of Organization, the business entity shall be converted into a domestic limited liability company and the limited liability company shall thereafter be subject to all of the provisions of this act, except that notwithstanding Section 2504 of this title, the existence of the limited liability company shall be deemed to have commenced on the date the business entity was formed.

E. The conversion of any business entity into a domestic limited liability company shall not be deemed to affect any obligations or liabilities of the business entity incurred prior to its conversion to a domestic limited liability company or the personal liability of any person incurred prior to the conversion.

F. When any conversion shall have become effective under this section, for all purposes of the laws of this Tribal jurisdiction, all of the rights, privileges and powers of the business entity that has converted, and all property, real, personal and mixed, and all debts due to the business entity, as well as all other things and causes of action belonging to the business 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 the business entity that was converted, and the title to any real property vested by deed or otherwise in the business entity shall not revert or be in any way impaired by reason of this act, but all rights of the creditors and all liens upon any property of the business entity shall be preserved unimpaired, and all debts, liabilities and duties of the business entity that has converted shall thenceforth 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 otherwise provided by any laws of this Tribal jurisdiction applicable to the converting business entity, the converting business 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 the business entity and shall constitute a continuation of the existence of the converting business entity in the form of a domestic limited liability company. When a business entity has been converted to a limited liability company pursuant to this section, the limited liability company shall, for all purposes of the laws of this Tribal jurisdiction, be deemed to be a continuation of the converting business entity.

H. Before filing the articles of conversion of a business entity to a limited liability company with the Office of the Secretary of the Tribe, the conversion shall be approved in the manner provided for by the document, instrument, agreement or other writing, as the case may be, governing the internal affairs of the business entity and the conduct of its business or by applicable law, as appropriate, and an operating agreement shall be approved by the same authorization required to approve the conversion.

I. In connection with a conversion hereunder, rights or securities of or interests in the business entity that is to be converted to a domestic limited liability company may be exchanged for or converted into cash, property, or rights or securities of or interests in the domestic limited liability company or, in addition to or in lieu thereof, may be exchanged for or converted into cash, property, or rights or securities of or interests in another domestic limited liability company or other business entity.

Absentee Shawnee Limited Liability Company Act § 2553.1, AST LLCA § 2553.1

 

 

 




AST LLCA § 2553.2
§ 2553.2. Approval of Conversion of a Limited Liability Company

A. A domestic limited liability company may convert to a business entity upon the authorization of such conversion in accordance with this section. As used in this section, the term “business entity” means a domestic corporation, partnership, whether general or limited, business trust, common law trust, or other unincorporated association.

B. If the operating agreement specifies the manner of authorizing a conversion of the limited liability company, the conversion shall be authorized as specified in the operating agreement.

C. If the operating agreement does not specify the manner of authorizing a conversion of the limited liability company and does not prohibit a conversion of the limited liability company, the conversion shall be authorized in the same manner as is specified in the operating agreement for authorizing a merger or consolidation that involves the limited liability company as a constituent party to a merger or consolidation.

D. If the operating agreement does not specify the manner of authorizing a conversion of the limited liability company or a merger or consolidation that involves the limited liability company as a constituent party and does not prohibit a conversion of the limited liability company, the conversion shall be authorized by the approval of a majority of the membership interest, or if there is more than one class or group of members, then by a majority of the membership interest in each class or group of members. Notwithstanding the foregoing, in addition to any other authorization required by this section, if the business entity into which the limited liability company is to convert does not afford all of its interest holders protection against personal liability for the debts of the business entity, the conversion must be authorized by any and all members who would be exposes to personal liability.

E. Unless otherwise agreed, the conversion of a domestic limited liability company to another business entity pursuant to this section shall not require the limited liability company to wind up its affairs or pay its liabilities and distribute its assets.

F. In connection with a conversion of a domestic limited liability company to another business entity pursuant to this section, rights of securities of or interests in the domestic limited liability company which are to be converted may be exchanged for or converted into cash, property, rights or securities of or interests in the business entity into which the domestic limited liability company is being converted or, in addition to or in lieu thereof, may be exchanged for or converted into cash, property, rights or securities of or interests in another business entity.

G. If the governing act of the domestic business entity into which the limited liability company is converting does not provide for the filing of a conversion notice with the Secretary of the Tribe, articles of conversion executed in accordance with Section 2506 of this title, shall be filed in the office of the Secretary of the Tribe in accordance with Section 2507 of this title. The articles of conversion shall state:

1. The name of the limited liability company and, if it has been changed, the name under which its articles of organization were originally filed;

2. The date of filing of its original articles of organization with the Secretary of the Tribe;

3. The future effective date or time, which shall be a date or time not later than the nineteenth day after the time of the filing, of the conversion if it is not to be effective upon the filing of the articles of conversion; and

4. That the conversion has been approved in accordance with this section.

H. Upon the filing of a conversion notice with the Secretary of the Tribe, whether under subsection G of this section or under the governing act of the domestic business entity into which the limited liability company is converting, the filing of any formation document required by the governing act of the domestic entity into which the limited liability company is converting, and payment to the Secretary of the Tribe of all prescribed fees, the Secretary of the Tribe shall certify that the limited liability company has filed all documents and paid all required fees, and thereupon the limited liability company shall cease to exist as a limited liability company of this Tribal jurisdiction. The Secretary of the Tribe's certificate shall be prima facie evidence of the conversion by the limited liability company.

Absentee Shawnee Limited Liability Company Act § 2553.2, AST LLCA § 2553.2

 

 

 




AST LLCA § 2553.3
§ 2553.3. Appraisal Rights

An operating agreement or other agreement may provide that contractual appraisal rights with respect to a membership interest or another interest in a limited liability company shall be available for any class or group of members or membership interests in connection with any amendment of an operating agreement, any merger or consolidation to which the limited liability company is a constituent party, any conversion of the limited liability company to another business entity, any transfer to or domestication in any jurisdiction by the limited liability company, or the sale of all or substantially all of the limited liability company's assets. The Absentee Shawnee District Court shall have jurisdiction to hear and determine any matter relating to any such appraisal rights.

Absentee Shawnee Limited Liability Company Act § 2553.3, AST LLCA § 2553.3

 

 

 




AST LLCA § 2553.4
§ 2553.4. Establishment of One or More Series of Members, Managers or Membership Interests--Enforceability of Debts, Liabilities, Obligations and Expenses--Powers and Duties--Voting Rights--Management of Series--Distributions--Termination of Series--Registration of Foreign Company

A. An operating agreement may establish or provide for the establishment of one or more designated series of members, managers or membership interests having separate rights, powers or duties with respect to specified property or obligations of the limited liability company or profits and losses associated with specified property or obligations, and any such series may have a separate business purpose or investment objective.

B. Notwithstanding anything to the contrary set forth in this act or under other applicable law, if an operating agreement establishes or provides for the establishment of one or more series and if separate and distinct records are maintained for any such series and the assets associated with any such series are held, directly or indirectly, including through a nominee or otherwise, and accounted for separately from the other assets of the limited liability company, or any other series thereof, and if the operating agreement so provides, and if notice of the limitation on liabilities of a series as referenced in this subsection is set forth in the articles of organization of the limited liability company, then the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to a particular series shall be enforceable against the assets of such series only, and not against the assets of the limited liability company generally or any other series thereof, and, unless otherwise provided in the operating agreement, none of the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to the limited liability company generally or any other series thereof shall be enforceable against the assets of the series. Notice in articles of organization of the limitation on liabilities of a series as referenced in this subsection shall be sufficient for all purposes regardless of whether the limited liability company has established any series when the notice is included in the articles of organization, and there shall be no requirement that any specific series of the limited liability company be referenced in the notice. The fact that articles of organization containing the foregoing notice of the limitation on liabilities of a series are on file in the office of the Secretary of the Tribe shall constitute notice of the limitation on liabilities of series.

C. Notwithstanding Section 2522 of this title, under an operating agreement or under another agreement, a member or manager may agree to be obligated personally for any or all of the debts, obligations and liabilities of one or more series.

D. An operating agreement may provide for classes or groups of members or managers associated with a series 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 or managers associated with the series 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 or managers associated with the series. 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 manager or glass or group of members or managers, including an action to create un the provisions of the operating agreement a class or group of the series of membership interests that was not previously outstanding. An operating agreement may provide that any member or class or group of members associated with a series shall have no voting rights.

E. An operating agreement may grant to all or certain identified members or managers or a specified class or group of the members or managers associated with a series the right to vote separately or with all or any class or group of the members or managers associated with the series, on any matter. Voting by members or managers associated with a series may be on a per capita, number, financial interest, class, group or any other basis.

F. Unless otherwise provided in an operating agreement, the management of a series shall be vested in the members associated with the series in proportion to their membership interest, with the decision of members owning a majority of the membership interest controlling; provided, however, that if an operating agreement provides for the management of the series, in whole or in part, by a manager, the management of the series, to the extent so provided, shall be vested in the manager who shall be chosen in the manner provided in the operating agreement. The manager of the series shall also hold the offices and have the responsibilities accorded to the manager as set forth in an operating agreement. A series may have more than one manager. Subject to paragraph 3 of Section 2514 of this title, a manager shall cease to be a manager with respect to a series as provided in the operating agreement. Except as otherwise provided in an operating agreement, any event under this chapter or in an operation agreement that causes a manager to cease to be a manager with respect to a series shall not, in itself, cause the manager to cease to be a manager of the limited liability company or with respect to any other series thereof.

G. Subject to subsections H and K of this section, and unless otherwise provided in an operating agreement, at the time a member associated with a series that has been established in accordance with subsection B of this section becomes entitled to receive a distribution with respect to the series, the member has the status of, and is entitled to all remedies available to, a creditor of the series, with respect to the distribution. An operating agreement may provide for the establishment of a record date with respect to allocations and distributions with respect to a series.

H. Notwithstanding Section 2539 of this title, a limited liability company may make a distribution with respect to a series that has been established in accordance with subsection B of this section. A limited liability company shall not make a distribution with respect to a series that has been established in accordance with subsection B of this section to a member to the extent that at the time of the distribution, after giving effect to the distribution, all liabilities of the series, other than liabilities to members on account of their membership interests with respect to the series and liabilities for which the recourse of creditors is limited to specified property of the series, exceed the fair value of the assets associated with the series, except that the fair value of property of the series that is subject to a liability for which the recourse of creditors is limited shall be included in the assets associated with the series only to the extent that the fair value of that property exceeds that liability. For purposes of the immediately preceding sentence, the term “distribution” shall not include amounts constituting reasonable compensation for present or past services or reasonable payments made in the ordinary course of business pursuant to a bona fide retirement plan or other benefits program. A member who receives a distribution in violation of this subsection, and who knew or should have known at the time of the distribution that the distribution violated this subsection, shall be liable to a series for the amount of the distribution. A member who receives a distribution in violation of this subsection, and who did not know and has no reason to know at the time of the distribution that the distribution violated this subsection, shall not be liable for the amount of the distribution. Subject to subsection C of Section 2539 of this title, which shall apply to any distribution made with respect to a series under this subsection, this subsection shall not affect any obligation or liability of a member under an agreement or other applicable law for the amount of a distribution.

I. Unless otherwise provided in the operating agreement, a member shall cease to be associated with a series and to have the power to exercise any rights or powers of a member with respect to the series upon the assignment of all of the member's membership interest with respect to the series. Except as otherwise provided in an operating agreement, any event under this chapter or an operating agreement that causes a member cease to be associated with a series shall not, in itself, cause the member to cease to be associated with any other series or terminate the continued membership of a member in the limited liability company or cause the termination of the series, regardless of whether the member was the last remaining member associated with the series.

J. Subject to Section 2536 of this title, except to the extent otherwise provided in the operating agreement, a series maybe terminated and its affairs wound up without causing the dissolution of the limited liability company. The termination of a series established in accordance with subsection B of this section shall not affect the limitation on liabilities of the series provided by subsection B of this section. A series is terminated and its affairs shall be wound up upon the dissolution of the limited liability company under Section 2536 of this title or otherwise upon the first to occur of the following:

1. At the time specified in the operating agreement;

2. Upon the happening of events specified in the operating agreement;

3. Unless otherwise provided in the operating agreement, upon the affirmative vote or written consent of the members of the limited liability company associated with the series or, if there is more than one class of group of members associated with the series, then by each class or group of members associated with the series, in either case, by members associated with the series who own more than two-thirds (2/3) of the then-current membership interest owned by all of the members associated with the series or by the members of each class or group of the series, as appropriate; or

4. The termination of the series under subsection L of this section.

K. Unless otherwise provided in the operating agreement, a manager associated with a series who has wrongfully terminated the series or, if none, the members associated with the series or a person approved by the members associated with the series or, if there is more than one class or group of members associated with the series, then by each class or group of members associated with the series, in either case, by a majority of the membership interest owned by all of the members associated with the series or by the members in each class or group associated with the series, as appropriate, may wind up the affairs of the series; but, if the series has been established in accordance with subsection B of this section, the district court, upon cause shown, may wind up the affairs of the series upon application of any member associated with the series, the member's personal representative or assignee, and in connection therewith, may appoint a liquidating trustee. The person winding up the affairs of a series may, in the name of the limited liability company and for and on behalf of the limited liability company and the series, take all actions with respect to the series as are permitted under subsection A of Section 2538 of this title. The person winding up the affairs of a series shall provide for the claims and obligations of the series and distribute the assets of the series as provided in Section 2539 of this title, which section shall apply to the winding up and distribution of assets of a series. Actions taken in accordance with this subsection shall not affect the liability of members and shall not impose liability on a liquidating trustee.

L. On application by or for a member or manager associated with a series established in accordance with subsection B of this section, the district court may decree termination of the series whenever it is not reasonably practicable to carry on the business of the series in conformity with an operating agreement.

M. If a foreign limited liability company that is registering to do business in this Tribal jurisdiction in accordance with Section 2542 of this title is governed by an operating agreement that establishes or provides for the establishment of designated series of members, managers or membership interests having separate rights, powers or duties with respect to specified property or obligations of the foreign limited liability company or profits and losses associated with specified property or obligations, that fact shall be so stated on the application for registration as a foreign limited liability company. In addition, the foreign limited liability company shall state on the application whether the debts, liabilities and obligations incurred, contracted for or otherwise existing with respect to a particular series, if any, shall be enforceable against the assets of the series only, and not against the assets of the foreign limited liability company generally or any other series thereof, and, unless otherwise provided in the operating agreement, none of the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to the foreign limited liability company generally or any other series thereof shall be enforceable against the assets of the series.

Absentee Shawnee Limited Liability Company Act § 2553.4, AST LLCA § 2553.4

 

 

 




AST LLCA § 2554
§ 2554. Fees

The Secretary of the Tribe shall charge and collect the following fees:

1. For filing the original articles of organization, a fee of one hundred dollars ($100.00);

2. For filing amended, corrected or restated articles of organization, a fee of Fifty Dollars ($50.00);

3. For filing articles of merger or consolidation and issuing a certificate of merger or consolidation or filing articles of conversion, a fee of one hundred dollars ($100.00);

4. For filing articles of dissolution and issuing a certificate of cancellation, a fee of fifty dollars ($50.00);

5. For filing a certificate of correction of statements in an application for registration of a foreign limited liability company, a fee of one hundred dollars ($100.00);

6. For issuing a certificate for any purpose whatsoever, a fee of ten dollars ($10.00);

7. For filing an application for reservation of a name, or for filing a notice of the transfer or cancellation of any name reservation, a fee of ten dollars ($10.00);

8. For filing a statement of change of address of the principal office or resident agent, or both, or the resignation of a resident agent, a fee of twenty-five dollars ($25.00);

9. For filing an application for registration as a foreign limited liability company, a fee of one hundred dollars ($100.00);

10. For filing an application of withdrawal as provided in Section 2546 of this title, a fee of one hundred dollars ($100.00);

11. For any service of notice, demand, or process upon the Secretary of the Tribe as resident agent of a limited liability company, a fee of twenty-five dollars ($25.00), which amount may be recovered as taxable costs by the party to be sued, action, or proceeding causing such service to be made if such party prevails therein; and

12. For action as the agent, a fee of forty dollars ($40.00) shall be paid on July 1 each year to the Office of the Secretary of the Tribe.

All fees shall be properly accounted for and shall be paid into the Tribe's General Fund Account on the day collected.

Absentee Shawnee Limited Liability Company Act § 2554, AST LLCA § 2554

 

 

 




AST LLCA § 2554.1
§ 2554.1. Failure to Pay Agent Fees

A domestic or foreign limited liability company for which the Secretary of the Tribe acts as the agent that fails to pay the agent fee by the due date as provided in paragraph 12 of Section 2554 of this title shall be subject to the provisions of Sections 2512.1 and 2554.2 of this act.

Absentee Shawnee Limited Liability Company Act § 2554.1, AST LLCA § 2554.1

 

 

 




AST LLCA § 2554.2
§ 2554.2. Annual Certificate for Domestic Limited Liability Company and Foreign Limited Liability Company

A. Every domestic limited liability company and every foreign limited liability company registered to do business in this Tribal jurisdiction shall file a certificate each year in the Office of the Secretary of the Tribe which shall confirm it is an active business and include its principal place of business address.

B. The annual certificate shall be due on July 1 following the close of the calendar year until the dissolution of the articles of organization or the withdrawal of the foreign limited liability company has been filed with the Secretary of the Tribe.

C. The Secretary of the Tribe shall, at least sixty (60) days prior to July 1 of each year, cause to be mailed a notice of the annual certificate to each domestic limited liability company and each foreign limited liability company required to comply with the provisions of this section in care of its agent; or, if there is no agent listed upon the records of the Secretary of the Tribe, the last known principal place of business address of the limited liability company.

D. A domestic limited liability company or foreign limited liability company that neglects, refuses or fails to file the annual certificate within sixty (60) days after the date due shall cease to be in good standing as a domestic limited liability company or registered as a foreign limited liability company in this Tribal jurisdiction.

E. Until dissolution or withdrawal, a domestic limited liability company that has ceased to be in good standing or a foreign limited liability company that has ceased to be registered by reason of the failure to file the annual certificate with the Secretary of the Tribe may be restored to and have the status of a domestic limited liability company in good standing or a foreign limited liability company that is registered in this Tribal jurisdiction upon the filing of the annual certificate for each year for which the domestic limited liability company or foreign limited liability company neglected, refused or failed to file the annual certificate within three (3) years from the date it is due.

F. A domestic limited liability company that has ceased to be in good standing by reason of its neglect, refusal or failure to file an annual certificate with the Secretary of the Tribe or pay the agent fee to the Secretary of the Tribe shall remain a domestic limited liability company formed under this act until dissolution of its articles of organization. The Secretary of the Tribe shall not accept for filing any certificate or articles, except a resignation of an agent when a successor agent is not being appointed, required or permitted by this act to be filed in respect to any domestic limited liability company or foreign limited liability company which has neglected, refused or failed to file an annual certificate, and shall not issue any certificate of good standing with respect to the domestic limited liability company or foreign limited liability company, unless or until the domestic limited liability company or foreign limited liability company shall have been restored to and have the status of a domestic limited liability company in good standing or a foreign limited liability company duly registered in this Tribal jurisdiction.

G. A domestic limited liability company that has ceased to be in good standing or a foreign limited liability company that has ceased to be registered in this Tribal jurisdiction by reason of its neglect, refusal or failure to file an annual certificate or pay an annual agent fee to the Secretary of the Tribe may not maintain any action, suit or proceeding in any court of this Tribal jurisdiction until such domestic limited liability company or foreign limited liability company has been restored to and has the status of a domestic limited liability company or foreign limited liability company in good standing or duly registered in this Tribal jurisdiction. An action, suit or proceeding may not be maintained in any court of this state by any successor or assignee of the domestic limited liability company or foreign limited liability company on any right, claim or demand arising out of the transaction of business by the domestic limited liability company after it has ceased to be in good standing or a foreign limited liability company that has ceased to be registered in this Tribal jurisdiction until the domestic limited liability company or foreign limited liability company, or any person that has acquired all or substantially all of its assets, has filed its annual certificate with the Secretary of the Tribe or paid its agent fee to the Secretary of the Tribe then due and payable, together with penalties.

H. The neglect, refusal or failure of a domestic limited liability company or foreign limited liability company to file an annual certificate or pay an agent fee to the Secretary of the Tribe shall not impair the validity on any contract, deed, mortgage, security interest, lien or act of the domestic limited liability company or foreign limited liability company or prevent the domestic limited liability company or foreign limited liability company from defending any action, suit or proceeding with any court of this Tribal jurisdiction.

I. A member or manager of a domestic limited liability company or foreign limited liability company is not liable for the debts, obligations or liabilities of the domestic limited liability company or foreign limited liability company solely by reason of the neglect, refusal or failure of the domestic limited liability company or foreign limited liability company to file an annual certificate or pay an agent fee to the Secretary of the Tribe or by reason of the domestic limited liability company or foreign limited liability company ceasing to be in good standing or duly registered.

Absentee Shawnee Limited Liability Company Act § 2554.2, AST LLCA § 2554.2

 

 

 




AST LLCA § 2555
§ 2555. Petition to Direct the Execution and Filing of Articles or Document

Any person who is adversely affected by the failure or refusal of any person to execute and file any articles or other document to be filed under this act may petition the district court in the county where the registered office of the limited liability company is located or, if no such address is on file with the Secretary of the Tribe, in Oklahoma County, to direct the execution and filing of the articles or other document. If the court finds that it is proper for the articles or other document to be executed and filed and that there has been failure or refusal to execute and file such document, it shall order the Secretary of the Tribe to file the appropriate articles or other document.

Absentee Shawnee Limited Liability Company Act § 2555, AST LLCA § 2555

 

 

 




AST LLCA § 2556
§ 2556. Application to Commerce

The provisions of this act shall apply to commerce with foreign nations and among the several states and Tribes only as permitted by law.

Absentee Shawnee Limited Liability Company Act § 2556, AST LLCA § 2556

 

 

 




AST LLCA § 2557
§ 2557. Rules of Construction of Act

A. The law of estoppel shall apply to this act.

B. The law of agency shall apply under this act.

C. It is the policy of this act to give the maximum effect to the principle of freedom of contract and to the enforceability of operating agreements.

D. This act shall not be construed so as to impair the obligations of any contract existing when the act goes into effect, nor to affect any action or proceedings begun or right accrued before this act takes effect.

Absentee Shawnee Limited Liability Company Act § 2557, AST LLCA § 2557

 

 

 




AST LLCA § 2558
§ 2558. Jurisdiction--Tribal District Court

The Absentee Shawnee Tribal District Court shall have jurisdiction to enforce the provisions of this act.

Absentee Shawnee Limited Liability Company Act § 2558, AST LLCA § 2558

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