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to Table of Contents [Oneida
Indian Nation (New York) Codes and Rules]
Last amended: 2004 LIMITED LIABILITY COMPANY CODE - CHAPTERS 1-8
Chapter 1 - Short Title and Definitions 101. Short
title 201. Purpose.
301. Statutory
designation of Nation Clerk as agent for service of process.
401. Management
of the limited liability company by members.
501. Form
of capital contributions.
601. Nature
of membership interest. 701. Dissolution.
801. Governing
law.
1001. Merger
or consolidation. 1101. Fees.
1201. Definitions.
1301. Definitions.
This Code shall be known as the "Oneida Indian Nation Limited Liability Company Code."
(a) "Articles of organization'' means the articles of organization filed with the Nation Clerk for the purpose of forming a limited liability company pursuant to section two hundred three of this Code, as amended or restated pursuant to section two hundred eleven or section two hundred fourteen of this Code. (b) "Authorized foreign limited liability company" means a foreign limited liability company authorized to do business in this Nation pursuant to chapter eight of this Code. (c) "Authorized person" means a person, whether or not a member, who is authorized by the operating agreement, or otherwise, to act on behalf of a limited liability company or foreign limited liability company. (d) "Bankruptcy" means bankruptcy under the laws of the Oneida Indian Nation or the United States Bankruptcy Code, as amended, or insolvency under any state insolvency act. (e) "Business" means every trade, occupation, profession or commercial activity. (f) "Contribution" means any cash, property, services rendered, or promissory note or other binding obligation to contribute cash or property or to render services that a member contributes to a limited liability company in his or her capacity as a member. (g) "Corporation" means a corporation formed under the laws of the Oneida Indian Nation, or a foreign corporation as defined in subdivision (i) of this section. (h) "Court" means the Oneida Nation Court. (i) "Distribution" means the transfer of property by a limited liability company to one or more of its members in his or her capacity as a member. (j) "Foreign corporation'' means a corporation formed under the laws of any jurisdiction, including any foreign country, other than the laws of this Nation. (k) "Foreign limited liability company" means an unincorporated the laws of any jurisdiction, including any foreign country, organization formed under other than the laws of the Oneida Indian Nation (i) that is not authorized to do business in the Oneida Indian Nation under any other law of the Nation and (ii) of which some or all of the persons who are entitled (A) to receive a distribution of the assets thereof upon the dissolution of the organization or otherwise or (B) to exercise voting rights with respect to an interest in the organization have, or are entitled or authorized to have, under the laws of such other jurisdiction, limited liability for the contractual obligations or other liabilities of the organization. (l) "Foreign limited liability partnership" has the meaning given to it in the Partnership Code. (m) "Foreign limited partnership" means a partnership that is formed under the laws of any jurisdiction, including any foreign country, other than the laws of the Oneida Indian Nation and that has as partners one or more general partners and one or more limited partners. (n) "Foreign related limited liability partnership" has the meaning given to it in of the partnership Code. (o) "Licensing Authority" means, for the purposes of this Code, the State of New York. (p) "Limited liability company" and "domestic limited liability company" mean, unless the context otherwise requires, an unincorporated organization of one or more persons having limited liability for the contractual obligations and other liabilities of the business (except as authorized in section six hundred nine of this Code), other than a partnership or trust, formed and existing under this Code and the laws of the Nation. (q) "Limited partnership'' means a limited partnership formed under the laws of the Oneida Indian Nation or a foreign limited partnership as defined in subdivision (1) of this section. (r) "Majority in interest of the members" means, unless otherwise provided in the operating agreement, the members whose aggregate share of the current profits of the limited liability company constitutes more than one-half of the aggregate of such shares of all members. (s) "Manager" means, subject to section four hundred one of this Code, a person designated by the members to manage the limited liability company as provided in the operating agreement. (t) "Member'' means a person who has been admitted as a member of a limited liability company in accordance with the terms and provisions of this Code and the operating agreement and has a membership interest in a limited liability company with the rights, obligations, preferences and limitations specified under this Code and the operating agreement. (u) "Membership interest" means a member's aggregate rights in a limited liability company, including, without limitation, the member's right to a share of the profits and losses of the limited liability company, the right to receive distributions from the limited liability company and the right to vote and participate in the management of the limited liability company. (v) "Nation" means the Oneida Indian Nation. (w) "Office of the limited liability company" means the office of the limited liability company, the location of which is stated in the articles of organization of a domestic limited liability company, or in the application for authority of a foreign limited liability company. Such office need not be a place where business activities are conducted by such limited liability company. (x) "Oneida Indian Nation Clerk" and "Nation Clerk mean the Clerk of the Oneida Indian Nation. (y) "One-third in interest of the members" means, unless otherwise provided in the operating agreement, the members whose aggregate share of the current profits of the limited liability company constitutes one-third of the aggregate of such shares of all members. (z) "Operating agreement" means any written agreement of the members concerning the business of a limited liability company and the conduct of its affairs and complying with section four hundred seventeen of this Code. (aa) "Other business entity" means any person other than a natural person or domestic limited liability company. (bb) "Person" means any association, corporation, joint stock company, estate, general partnership (including any registered limited liability partnership or foreign limited liability partnership), limited association, limited liability company (including a professional service limited liability company), foreign limited liability company (including a foreign professional service limited liability company), joint venture, limited partnership, natural person, real estate investment trust, business trust or other trust, custodian, nominee or any other individual or entity in its own or any representative capacity. (cc) "Process" means judicial process and all orders, demands, notices or other papers required or permitted by law to be personally served on a limited liability company or foreign limited liability company, for the purpose of acquiring jurisdiction of such limited liability company in any action or proceeding, civil or criminal, whether judicial, administrative, arbitrative or otherwise, in the Oneida Indian Nation. (dd) "Profession" has the meaning given to it in subdivision (b) of section twelve hundred one of this Code. (ee) "Professional service limited liability company'' has the meaning given to it in subdivision (a) of section thirteen hundred one of this Code. (ff) "Registered limited liability partnership" has the meaning given to it in the partnership Code. (gg) "State" means a state, territory or possession of the United States, the District of Columbia or the Commonwealth of Puerto Rico. (hh) "Two-thirds in interest of the members" means, unless otherwise provided in the operating agreement, the members whose aggregate share of the current profits of the limited liability company constitutes two-thirds of the aggregate of such shares of all members. (ii) "Uniform Commercial Code" means, when not referring to the Oneida Indian Nation Uniform Commercial Code, the current version of the Uniform Commercial Code utilized by the State of New York.
A limited liability company may be formed under this Code for any lawful business purpose or purposes except to do in the Nation any business for which another statute specifically requires some other business entity or natural person to be formed or used for such business.
Unless the articles of organization provide otherwise and subject to any limitations provided in this Code or any other law of the Nation, a limited liability company may:
(a) One or more persons may act as an organizer or organizers to form a limited liability company by (i) preparing the articles of organization of such limited liability company in accordance with section two hundred six of this Code, (ii) executing such articles of organization in accordance with section two hundred seven of this Code and (iii) filing such articles entitled "Articles or organization of ... ( name of limited liability company) under section two hundred three of the Limited Liability Company Code," in accordance with section two hundred nine of this Code. (b) An organizer may, but need not be, a member of the limited liability company that he or she forms. (c) At the time of its formation, a limited liability company must have at least one member. (d) A limited liability company is formed at the time of the filing of the initial articles of organization with the Nation Clerk or at any later time specified in the articles of organization, not to exceed sixty days from the date of such filing. The filing of the articles of organization shall, in the absence of actual fraud, be conclusive evidence of the formation of the limited liability company as of the time of filing or effective date if later, except in an action or special proceeding brought by the Nation Prosecutor. A limited liability company formed under this Code shall be a separate legal entity, the existence of which as a separate legal entity shall continue until the cancellation of the limited liability company's articles of organization.
The name of each limited liability company as set forth in its articles of organization:
(a) Subject to section two hundred four of this Code, the exclusive right to the use of a name may be reserved by:
(b) A fictitious name for use pursuant to section eight hundred two of this Code may be reserved by:
(c) Application to reserve a limited liability company name shall be delivered to the Nation Clerk. It shall set forth the name and address of the applicant, the name to be reserved and a statement of the basis for the application under subdivision (a) or (b) of this section. The Nation Clerk may require that there be included in the application a statement as to the nature of the business to be conducted by the limited liability company it being sufficient to state, either alone, or with other purposes, that the limited liability company intends to conduct any lawful act or activity for which limited liability companies may be formed under this Code. If the name is available for use by the applicant for a limited liability company, the Nation Clerk shall reserve the name for the use of the applicant for a period of sixty days and issue a certificate of reservation. The restrictions and qualifications set forth in section two hundred four of this Code are not waived by the issuance of a certificate of reservation. The certificate of reservation shall include the name of the applicant, the name reserved and the date of reservation. The certificate of reservation (or in lieu thereof an affidavit by the applicant or by his or her agent or attorney that the certificate of reservation has been lost or destroyed) shall accompany the articles of organization or the application for authority when either is delivered to the Nation Clerk. The Nation Clerk may extend the reservation for additional periods of not more than sixty days each, upon the written request of the applicant or h s or her attorney in fact or agent delivered to the Nation Clerk and filed before expiration of the reservation period then in effect. Such request shall have attached to it the certificate of reservation. No more than two such extensions shall be granted.
(a) The articles of organization of a limited liability company shall set forth:
(b) In order for a limited liability company to exercise the powers enumerated in this Code, it is not necessary to set forth such powers in its articles of organization.
(a) Each article or certificate required by this Code to be filed with the Nation Clerk shall be executed in the following manner:
(b) Any person may sign any articles or certificate by an attorney in fact. Powers of attorney relating to the signing of articles or a certificate by an attorney in fact need not be filed with the Nation Clerk or provided as evidence of authority by the person filing but must be retained in the records of the limited liability company. (c) Each article or certificate must be signed and verified or affirmed under penalties of Perjury. (d) Each article or certificate must be dated, and the name and capacity of each signer must be stated beneath or opposite his or her signature.
If a person required by section two hundred seven of this Code to execute articles or a certificate fails or refuses to do so, any member or any permitted assignee of a membership interest who is adversely affected by such failure or refusal may petition the court to direct the execution of such articles or certificate. If the court finds that such articles or certificate should be executed and that such person has failed or refused to execute such articles or certificate, it shall order such person to file the appropriate articles or certificate.
A signed articles of organization and any signed certificate of amendment or other certificates filed pursuant to this Code or of any judicial decree of amendment or cancellation shall be delivered to the Nation Clerk. If the instrument that is delivered to the Nation Clerk for filing complies as to form with the requirements of law and the filing fee required by any statute of the Nation in connection therewith has been paid, the instrument shall be filed and indexed by the Nation Clerk. The Nation Clerk shall not review such articles or certificates for legal sufficiency; its review shall be limited to determining that the form has been completed.
(a) If any articles of organization, certificate of amendment or other certificate filed pursuant to this Code contains a materially false statement, one who suffers loss by reasonable reliance on the statement may recover damages for the loss from:
(b) Notwithstanding paragraph two of subdivision (a) of this section, no person shall have any liability for failing to cause the amendment or cancellation of the articles of organization or a certificate to be filed or failing to file a petition for its amendment or cancellation, if the articles of organization certificate or petition is filed within ninety days of the time when that person knew or should have known that the statement in the articles of organization or certificate was false in any material respect.
(a) A limited liability company may amend its articles of organization from time to time, in any and as many respects as may be desired by (i) preparing a certificate of amendment, entitled "Certificate of amendment of the articles of organization of ... (name of the limited liability company) under section two hundred eleven of the Limited Liability Company Code," in accordance with this section, (ii) executing such certificate of amendment in accordance with section two hundred seven of this Code and (iii) filing such certificate of amendment in accordance with section two hundred nine of this Code. (b) The certificate of amendment may set forth only such provisions as might be lawfully contained in the initial articles of organization filed at the time of making such amendment. (c) The certificate of amendment shall set forth:
(d) In particular, but without limiting the general power of amendment as stated in subdivision (b) of this section, a limited liability company shall amend its articles of organization no later than ninety days after the happening of any of the following events:
(e) Unless otherwise provided in this Code, a certificate of amendment shall be effective at the time of its filing with the Nation Clerk.
The articles of organization, and certificate or any other instrument relating to a domestic or foreign limited liability company filed with the Nation Clerk under this Code may be corrected with respect to any informality or error apparent on the face, incorrect statement or defect in the execution thereof, including the deletion of any matter not permitted to be stated therein. A certificate, entitled "Certificate of correction of ... (title of articles or certificate and name of limited liability company) under section two hundred twelve of the Limited Liability Company Code," shall be signed, verified and delivered to the Nation Clerk. It shall set forth the name of the limited liability company, the date the articles or certificate to be corrected was filed by the Nation Clerk, a statement as to the nature of the informality, error, incorrect statement or defect, the provision in the articles or certificate as corrected or eliminated and, if the execution was defective, the proper execution. The filing of the certificate of correction with the Nation Clerk shall not alter the effective date of the instrument being corrected and shall not affect any right or liability accrued or incurred before such filing. A name of a limited liability company may not be changed or corrected pursuant to this section.
(a) Except as provided in the operating agreement, an amendment of the articles of organization shall be authorized by at least a majority in interest of the members entitled to vote thereon. (b) Notwithstanding subdivision (a) of this section, unless the operating agreement provides otherwise (including, but not limited to, by restricting or enlarging the management powers or responsibilities of one or more managers or classes of managers), if the limited liability company is managed by one or more managers then any of the following amendments may be authorized by a majority of such managers:
(a) A limited liability company may at any time, and from time to time, restate in a single instrument the test of its articles of organization, without making any amendment thereby. Alternatively, a limited liability company may restate in a single instrument the text of its articles of organization and as amended thereby to effect any one or more of the amendments authorized by this Code. (b) The restated or amended and restated articles of organization, as the case may be, shall be executed in accordance with section two hundred seven of this Code. (c) The restated articles of organization shall be filed with the Nation Clerk in accordance with section two hundred nine of this Code and shall set forth:
(d) Any amendments effected in connection with the restatement of the articles of organization shall be subject to any other provisions of this Code, including, but not limited to, section two hundred thirteen of this Code, that would apply if a separate certificate of amendment were filed to effect such amendment. (e) Unless otherwise provided in this Code, the restated or amended and restated articles of organization, as the case may be, shall be effective at the time of its filling with the Nation Clerk.
(a) The Nation Clerk shall be the agent of every domestic limited liability company that has filed with the Nation Clerk articles of organization making such designation and every foreign limited liability company upon which process may be served pursuant to this Code. (b) No domestic or foreign limited liability company may be formed or authorized to do business in the Nation under this Code unless its articles of organization or application for authority designates the Nation Clerk as such agent. (c) Any designated post office address to which the Nation Clerk shall mail a copy of process served upon him or her as agent of a domestic limited liability company or a foreign limited liability company shall continue until the filing of a certificate under this Code directing the mailing to a different post office address. (d) The change authorized by subdivision (c) of this section may be accomplished by (i) preparing a certificate entitled "Certificate of change of address of ... (name of limited liability company) under subdivision (d) of section three hundred one of the Limited Liability Company Code," (ii) executing such certificate in accordance with section two hundred seven of this Code and (iii) filing such certificate of change of address in accordance with section two hundred nine of this Code. (e) Every limited liability company to which this Code applies, shall biennially in the calendar month during which its articles of organization or application for authority were filed, or effective date thereof if stated, file on forms prescribed by the Nation Clerk, a statement setting forth the post office address within or without the Nation to which the Nation Clerk shall mail a copy of any process accepted against it served upon him or her. Such address shall supersede any previous address on file with the Nation Clerk for this purpose.
(a) In addition to the designation of the Nation Clerk, each domestic limited liability company or authorized foreign limited liability company may designate a registered agent upon whom process against the limited liability company may be served. (b) The agent must be either:
(c) The registered agent may change such registered agent's address provided the address being changed is the address of the person who had previously been designated as registered agent for the limited liability company or authorized foreign limited liability company. The registered agent shall file with the Nation Clerk, a certificate entitled "Certificate of change of address of registered agent of ... (name of limited liability company) under subdivision (c) of section three hundred two of the Limited Liability Company Code" and executed by such registered agent. Such certificate shall set forth:
(d) The registered agent of a limited liability company may resign as such agent. The registered agent shall file a certificate with the Nation Clerk entitled "Certificate of resignation of registered agent of ... (name of limited liability company) under subdivision (d) of section three hundred two of the Limited Liability Company Law" and executed by such registered agent. Such certificate shall set forth:
(e) The designation of a registered agent shall terminate thirty days after the filing with the Nation Clerk of the certificate of resignation. A certificate designating a new registered agent may be delivered to the Nation Clerk by the limited liability company within thirty days for thereafter.
(a) Service of legal process on any domestic or authorized foreign limited liability company (or foreign limited liability company required to be authorized to do business in the Nation) shall be made by delivering a copy personally to (i) any member of the limited liability company in this Nation, if the management of the limited liability company is vested in its members, (ii) any manager of the limited liability company within the territorial jurisdiction of the Nation, if the management of the limited liability company is vested in one or more managers or (iii) the registered agent of the limited liability company in this Nation, in the manner provided by law for the service of a summons, as if such person was a defendant. (b) Service of process on the Nation Clerk as agent of a domestic limited liability company or authorized foreign limited liability company shall be made by personally delivering to and leaving with the Nation Clerk or his or her deputy, or with any person authorized by the Nation Clerk to receive such service, at the office of the Nation Clerk, duplicate copies of such process together with the statutory fee, which fee shall be a taxable disbursement. Service of process on such limited liability company shall be complete when the Nation Clerk is so served. The Nation Clerk shall promptly send one of such copies by certified mail, return receipt requested, to such limited liability company at the post office address on file in the Nation Clerk specified for that purpose. (c) Nothing in this section shall limit or affect the right to serve any process required or permitted by law to be served upon a limited liability company in any other manner now or hereafter permitted by law or applicable rules of procedure.
(a) In any case in which a non-domiciliary would be subject to the personal or other jurisdiction of the Oneida Nation Court, a foreign limited liability company not authorized to do business in the Nation is subject to a like jurisdiction. In any such case, process against such foreign limited liability company may be served upon the Nation Clerk as its agent. Such process may issue in the Oneida Nation Court. (b) Service of such process upon the Nation Clerk shall be made by personally delivering to and leaving with the Nation Clerk or his or her deputy, or with any person authorized by the Nation Clerk to receive such service, at the office of the Nation Clerk, a copy of such process together with the statutory fee. (c) Such service shall be sufficient if notice thereof and a copy of the process are:
(d) When service of a copy of process was effected by personal service, proof of service shall be by affidavit of compliance with this section filed, together with the process, within thirty days after such service, with the clerk of the court. Service of process shall be complete ten days after such papers are filed with the clerk of the court. (e) Where service of a copy of process was effected by mailing in accordance with this section, proof of service shall be by affidavit of compliance with this section filed, together with the process, within thirty days after receipt of the return receipt signed by the foreign limited liability company or other official proof of delivery or of the original envelope mailed. If a copy of the process is mailed in accordance with this section, there shall be filed with the affidavit of compliance either the return receipt signed by such foreign limited liability company or other official proof of delivery or, if acceptance was refused by it, the original envelope with a notation by the postal authorities that acceptance was refused. If acceptance was refused, a copy of the notice and process together with notice of the mailing by registered mail and refusal to accept shall be promptly sent to such foreign limited liability company at the same address by ordinary mail and the affidavit of compliance shall so state. Service of process shall be complete ten days after such papers are filed with the clerk of the court. The refusal to accept delivery of the registered mail or to sign the return receipt shall not affect the validity of the service and such foreign limited liability company refusing to accept such registered mail shall be charged with knowledge of the contents thereof. (f) Service made as provided in this section shall have the same force as personal service made within the Nation. (g) Nothing in this section shall limit or affect the right to serve any process required or permitted by law to be served upon a foreign limited liability company in any other manner now or hereafter permitted by law or applicable rules of procedure.
The Nation Clerk shall keep a record of each process served upon the Nation Clerk under this Code, including the date of such service and the action of the Nation Clerk with reference thereto.
(a) Unless the articles of organization provides for management of the limited liability company by a manager or managers or a class or classes of managers, management of the limited liability company shall be vested in its members who shall manage the limited liability company in accordance with this Code, subject to any provisions in the articles of organization or the operating agreement and section four hundred eighteen of this Code granting or withholding the management powers or responsibilities of one or more members or classes of members. (b) If management of a limited liability company is vested in its members, then (i) any such member exercising such management powers or responsibilities shall be deemed to be a manager for purposes of applying the provisions of this Code, unless the context otherwise requires, and (ii) any such member shall have and be subject to all of the duties and liabilities of a manager provided in this Code.
(a) Except as provided in the operating agreement, in managing the affairs of the limited liability company, electing managers or voting on any other matter that requires the vote at a meeting of the members pursuant to this Code, the articles of organization or the operating agreement, each member of a limited liability company shall vote in proportion to such member's share of the current profits of the limited liability company in accordance with section five hundred three of this Code. (b) Except as provided in the operating agreement, any member may vote in person or by proxy (c) Except as provided in the operating agreement, whether or not a limited liability company is managed by the members or by one or more managers, the vote of a majority in interest of the members entitled to vote thereon shall be required to:
(d) Except as provided in the operating agreement, whether or not a limited liability company is managed by the members or by one or more managers, the vote of at least two-thirds in interest of the members entitled to vote thereon shall be required to:
(e) Notwithstanding anything to the contrary in this section or section four hundred seventeen of this Code, no applicable provision in either this Code, the articles of organization or operating agreement, as the case may be, that provides for the vote or consent of a percentage in interest of the members or class of members shall be amended without the vote or consent of at least such percentage in interest of the members or such class of members. (f) Whenever any action is to be taken under this Code by the members or a class of members, it shall, except as otherwise required or specified by this Code or the articles of organization or the operating agreement as permitted by this Code, be authorized by a majority in interest of the members' votes cast at a meeting of members by members or such class of members entitled to vote thereon.
Except as provided in the operating agreement, a limited liability company shall hold meetings of members annually. Meetings of members may be held at a place, either within or outside the Nation, as may be fixed by or in accordance with the operating agreement, or if not so fixed, at the office of the limited liability company. Except as provided in the operating agreement, members of a limited liability company may participate in a meeting by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Such participation shall constitute presence in person at the meeting.
(a) Except as provided in the operating agreement, a majority in interest of the members entitled to vote shall constitute a quorum at a meeting of members for the transaction of any business, provided that when a specified item of business is required to be voted on by a class of members voting as a class, a majority in interest of the members of such class shall constitute a quorum for the transaction of such specified item of business. (b) The operating agreement may provide for a greater quorum or a lesser quorum, provided that such lesser quorum shall not be less than one-third in interest of the members entitled to vote. (c) When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any members. (d) The members present may adjourn the meeting despite the absence of a quorum.
(a) Except as provided in the operating agreement, whenever under the provisions of this Code members are required or permitted to take any action by vote at a meeting, written notice shall be given stating the place, date and hour of the meeting, indicating that it is being issued by or at the direction of the person or persons calling the meeting and, in the case of a special meeting, stating the purpose or purposes for which the meeting is called. (b) Except as provided in the operating agreement, a copy of the notice of any meeting shall be given, personally or by first class mail, not less than ten or more than sixty days before the date of the meeting, provided, however, that a copy of such notice may be given by third class mail not less than twenty-four nor more than sixty days before the date of the meeting, to each member entitled to vote at such meeting. If mailed, such notice is given when deposited in the United States mail, with postage thereon prepaid, directed to the member at his or her address as it appears in the records of the limited liability company. An affidavit of a manager, if any, or other person giving the notice that the notice required by this section has been given and shall, in the absence of fraud, be prima facie evidence of the facts therein stated. (c) Except as provided in the operating agreement, when a meeting is adjourned to another time or place, it shall not be necessary to give any notice of the adjourned meeting if the time and place to which the meeting is adjourned are announced at the meeting at which the adjournment is taken, and at the adjourned meeting any business may be transacted that might have been transacted at the original date of the meeting.
Except as provided in the operating agreement, notice of meeting need not be given to any member who submits a signed waiver of notice, in person or by proxy, whether before or after the meeting. The attendance of any member at the meeting, in person or by proxy, without protesting prior to the conclusion of the meeting the lack of notice of such meeting, shall constitute a waiver of notice by him or her.
(a) Whenever under this Code members of a limited liability company are required or permitted to take any action by vote, except as provided in the operating agreement, such action may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken shall be signed by the members who hold the voting interests having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting which all of the members entitled to vote therein were present and voted and shall be delivered to the office of the limited liability company, its principal place of business or a manager, employee or agent of the limited liability company having custody of the records of the limited liability company. Delivery made to the office of the limited liability company shall be by hand or by certified or registered mail, return receipt requested. (b) Every written consent shall bear the date of signature of each member who signs the consent, and, except as provided in the operating agreement, no written consent shall be effective to take the action referred to therein unless, within sixty days of the earliest dated consent delivered in the manner required by this section to the limited liability company, written consents signed by a sufficient number of members to take the action are delivered to the office of the limited liability company, its principal place of business or a manager, employee or agent of the limited liability company. Delivery made to such office, principal place of business or manager, employee or agent shall be by hand or by certified or registered mail, return receipt requested. (c) Prompt notice of the taking of the action without a meeting by less than unanimous written consent shall be given to those members who have not consented in writing but who would have been entitled to vote thereon had such action been taken at a meeting. In the event that the action that is consented to is such as would have required the filing of articles or a certificate under any other section of this Code, if such action had been voted on by members at a meeting thereof, such articles or certificate filed under such other section shall state, in lieu of any statement required by such section concerning any vote of members, that written consent has been given in accordance with this section and that written notice has been given as provided in this section.
(a) If the articles of organization provides that the management of the limited liability company shall be vested in a manager or managers or class or classes of managers, then the management of the limited liability company shall be vested in one or more managers or classes of managers in accordance with this Code, subject to any provisions in the articles of organization or the operating agreement and section four hundred nineteen of this Code granting or withholding the management powers or responsibilities of one or more managers or class or classes of managers. A manager shall hold such offices and have such responsibilities accorded to him or her by the members as provided in the operating agreement. (b) Except as provided in the operating agreement and in accordance with section four hundred nineteen of this Code, the managers shall manage the limited liability company by the affirmative vote of a majority of the managers. (c) Except as provided in the operating agreement, any action required or permitted to be taken by a vote of the managers or a class of managers may be taken without a vote if all of the managers or all of the managers in such class, as the case may be, consent thereto in writing, and the writing is filed with the records of the limited liability company. (d) Except as otherwise provided in the operating agreement, managers of a limited liability company may participate in a meeting by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Such participation shall constitute presence in person at the meeting.
(a) A manager shall perform his or her duties as a manager, including his or her duties as a member of any class of managers, in good faith and with that degree of care that an ordinarily prudent person in a like position would use under similar circumstances. (b) In performing his or her duties, a manager shall be entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, in each case prepared or presented by:
(c) A person who so performs his or her duties in accordance with this section shall have no liability by reason of being or having been a manager of the limited liability company.
(a) Unless otherwise provided in the operating agreement, a manager may, but need not, be a member of the limited liability company. (b) The operating agreement may prescribe qualifications for managers.
(a) No contract or other transaction between a limited liability company and one or more of its managers, or between a limited liability company and any other limited liability company or other business entity in which one or more of its managers are managers, directors or officers, or have a substantial financial interest, shall be either void or voidable for this reason alone or by reason alone that such manager or managers are present at the meeting of the managers, or of a class thereof, which approves such contract or transaction, or that his or her or their votes are counted for such purpose:
(b) If such good faith disclosure of the material facts as to the managers interest in the contract or transaction and as to any such common managership, directorship, officership or financial interest is made to the managers or members, or known to the managers or class of managers or members approving such contract or transaction, asp provided in subdivision (a) of this section, the contract or transaction may not be avoided by the limited liability company for the reasons set forth in subdivision (a) of this section. If there was no such disclosure or knowledge, or if the vote of such interested manager was necessary for the approval of such contract or transaction at a meeting of the managers or class of managers at which it was approved, the limited liability company may avoid the contract or transaction unless the party or parties thereto shall establish affirmatively that the contract or transaction was fair and reasonable as to the limited liability company at the time it was approved by the managers, a class of managers or the members. (c) Common or interested managers may be counted in determining the presence of a quorum at a meeting of the managers or of a class of managers that approves such contract or transaction. (d) The operating agreement may contain additional restrictions on contracts or transactions between a limited liability company and its managers and may provide that contracts or transactions in violation of such restrictions shall be void or voidable by the limited liability company. (e) Unless otherwise provided in the operating agreement, the managers shall have authority to fix the compensation of managers for services in any capacity.
(a) Unless the articles of organization of a limited liability company provide that management shall be vested in a manager or managers, every member is an agent of the limited liability company for the purpose of its business, and the act of every member, including the execution in the name of the limited liability company of any instrument, for apparently carrying on in the usual way of business of the limited liability company, binds the limited liability company, unless (i) the member so acting has in fact no authority to act for the limited liability company in the particular matter and (ii) the person with whom he or she is dealing has knowledge of the fact that the member has no such authority. (b) If the articles of organization of a limited liability company provide that management shall be vested in one or more managers:
(c) An act of a member or manager that is not apparently for the carrying on of the business of the limited liability company in the usual way does not bind the limited liability company unless authorized in fact by the limited liability company in the particular matter. (d) No act of a member, manager or other agent of a limited liability company in contravention of a restriction on authority shall bind the limited liability company to persons having knowledge of the restriction.
(a) Except as provided in the operating agreement, if the articles of organization provides that management shall be vested in one or more managers, the members shall vote in accordance with section four hundred two of this Code to designate or elect annually the manager or managers of the limited liability company. (b) Each manager shall hold the office and have the terms (which may be unlimited) and responsibilities accorded to him or her by the members and set out in the operating agreement until his or her successor has been elected and qualified or until his or her earlier resignation or removal. (c) Except as provided in the operating agreement, the initial managers shall hold office until the first annual meeting and until their successors have been elected and qualified. (d) The number of managers may be increased or decreased by amendment to and in the manner provided in the operating agreement.
Except as provided in the operating agreement, any or all managers of a limited liability company may be removed or replaced with or without cause by a vote of majority in interest of the members entitled to vote thereon.
Except as provided in the operating agreement, a manager may resign at any time by giving written notice to the limited liability company; provided however, that if the resignation violates any provision contained in the operating agreement or the provision of any contractual agreement between the manager and the limited liability company, the limited liability company may recover from such manager damages for such breach as provided by such operating agreement or contract or by law. The election of a manager shall not of itself create contract rights.
(a) Except as provided in the operating agreement, if management of the limited liability company is vested in a group of managers, and vacancies occurring in such group may be filled by the vote of a majority in interest of the members entitled to vote thereon. (b) Except as provided in the operating agreement, a manager chosen to fill a vacancy shall serve the unexpired term of his or her predecessor. (c) Except as provided in the operating agreement, any manager's position filled by reason of an increase in the number of managers shall be filled by the vote of a majority in interest of the members entitled to vote thereon. (d) Except as provided in the operating agreement, a manager chosen to fill a position resulting from an increase in the number of managers shall hold office until the next annual meeting of members or until a successor has been elected and qualified.
(a) Subject to the provisions of this Code, the members of a limited liability company shall adopt a written operating agreement that contains any provisions not inconsistent with law or its articles of organization relating to (i) the business of the limited liability company, (ii) the conduct of its affairs and (iii) the rights, powers, preferences, limitations or responsibilities of its members, managers, employees or agents, as the case may be. The operating agreement may set forth a provision eliminating or limiting the personal liability of managers to the limited liability company or its members for damages for any breach of duty in such capacity, provided that no such provision shall eliminate or limit:
(b) The operating agreement of a limited liability company may be amended from time to time as provided therein; provided, however, that, except as otherwise provided in the operating agreement or the articles of organization, without the written consent of each member adversely affected thereby, (i) no amendment of the operating agreement or (ii) to the extent any provision concerning (A) the obligations of any member to make contributions, (l3) the allocation for tax purposes of any items of income, gain, loss, deduction or credit, (C) the manner of computing the distributions of any member or (D) the compromise of an obligation of a member to make a contribution is contained in the articles of organization, no amendment of such provision in the articles of organization, shall be made that (i) increases the obligations of any member to make contributions, (ii) alters the allocation for tax purposes of any items of income, gain, loss, deduction or credit, (iii) alters the manner of computing the distributions of any member or (iv) allows the obligation of a member to make a contribution to be compromised by consent of less than all the members.
(a) The articles of organization of a limited liability company may provide for classes or groups of members having such relative rights, powers, preferences and limitations as the operating agreement of such limited liability company may provide. The articles of organization may make provision for the future creation, in the manner provided in the operating agreement, of additional classes of members having such relative rights, powers, preferences and limitations as may from time to time be established pursuant to the operating agreement, including rights, powers, preferences, limitations and duties senior to existing to existing classes of members. The operating agreement may grant to or withhold from all or one or more classes of members the right to vote upon any matter on the basis of capital contributions, capital commitments or capital accounts or on a per capita, class or other basis. (b) The operating agreement may set forth provisions relating to notice of the time, place or purpose of any meeting at which any matter is to be voted on by any members, waiver of any such notice, action by consent without a meeting, the establishment of a record date, quorum requirements, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote.
(a) The articles of organization of limited liability company may provide for classes or groups of managers having such relative rights, powers, preferences and limitations as the operating agreement may provide. The articles of organization may make provision for the future creation, in the manner provided in the operating agreement, of additional classes of managers having such relative rights, powers, preferences and limitations as may from time to time be established pursuant to the operating agreement, including rights, powers, preferences, limitations and duties senior to existing classes of managers. The operating agreement may provide for the classification of managers within classes of managers for the purpose of determining the terms of office of such managers and may grant to all or to one or more classes of managers the right to vote upon any matter on a per capita, class or other basis. (b) The operating agreement may set forth provisions relating to notice of the time, place or purpose of any meeting at which any matter is to be voted on by any managers, waiver of any such notice, action by consent without a meeting, the establishment of a record date, quorum requirements, voting in person or by proxy or any other matter with respect to the exercise of any such right to vote.
Subject to the standards and restrictions, if any, set forth in its operating agreement, a limited liability company may, and shall have the power to, indemnify and hold harmless, and advance expenses to, any member, manager or other person, or any testator or intestate of such member, manager or other person, from and against any and all claims and demands whatsoever; provided, however, that no indemnification may be made to or on behalf of any member, manager or other person if a judgment |