Prairie Band Potawatomi Nation
Title 25. Limited Liability Company Code
Chapter 25-1. General Provisions
Section 25-1-1. Short Title
This Title shall be known as the “Prairie Band Potawatomi Nation Limited Liability Company Code.”
Chapter 25-1. General Provisions
Section 25-1-2. Purposes; Sovereign Immunity
(A) The purpose of this Code is to provide for economic development of the Prairie Band Potawatomi Nation and its Members by:
(1) Providing the legal framework for organizing individually-owned business entities in order to expand the private business sector on the Reservation; and
(2) Authorizing the formation of wholly-owned Tribal business entities for managing the Nation's economic activities separate from the general affairs of its Tribal Council, with the ability to enter into legally-binding contracts and commercial relationships without the need for formal Tribal Council action.
(B) By the adoption of this Code, the Nation does not waive its sovereign immunity or consent to suit in any court, federal, tribal or state, and neither the adoption of this Code, nor the incorporation of any limited liability company hereunder, shall be construed to be a waiver of the sovereign immunity of the Nation or a consent to suit against the Nation in any court.
Chapter 25-1. General Provisions
Section 25-1-3. Scope
This Code shall apply to all limited liability companies organized under its provisions or which elect to accept the provisions of this Code.
Chapter 25-1. General Provisions
Section 25-1-4. Applicable Law
The companies organized and created under this Code shall be subject to this Code, and all other laws of the Nation. By organizing and creating a company under this Code, the company and its Owners shall be considered to have entered into a consensual relationship with the Nation and agree to be subject to the full extent of the Nation's legislative, regulatory and adjudicatory jurisdiction. Unless displaced by particular provisions of this Code or other Tribal law, the principles of law and equity supplement this Code.
Chapter 25-1. General Provisions
Section 25-1-5. Definitions
Terms used in this Code have the following meaning:
(A) “Articles of Organization” means the articles filed under Section 25-2-1 and those articles as amended or restated.
(B) “Corporation” means a domestic corporation for profit organized under the law of the Nation or a foreign corporation formed under the laws of any other jurisdiction.
(C) “Distribution” means a direct or indirect transfer by a limited liability company of money or other property to or for the benefit of its Owners in respect of their interests.
(D) “Entity” includes an individual, a general partnership, limited partnership, a domestic or foreign limited liability company, a trust, an estate, an association, a corporation or any other legal or commercial entity.
(E) “Foreign” refers to limited liability companies, corporations and limited partnerships organized under the laws of a jurisdiction other than the Nation.
(F) “Limited Liability Company” or “Domestic Limited Liability Company” means an organization formed under this Code, except as provided for in Section 25-8-1(A).
(G) “Limited Liability Company Interest” or “Interest in the Limited Liability Company” or “Owner's Interest” means an Owner's rights in the limited liability company, including rights to distributions, profits and losses, and to participate in management, as specified in the Operating Agreement.
(H) “LLC” means a limited liability company.
(I) “Majority in Interest” means an Owner or Owners holding more than fifty percent (50%) of the total voting interests in the limited liability company excluding any interest which is not to be counted as voting on a matter as described elsewhere in this Code.
(J). “Manager” or “Managers” means the person(s) or entity(ies) designated to manage the LLC pursuant to the Articles of Organization and Operating Agreement.
(K) “Nation” means the Prairie Band Potawatomi Nation.
(L) “Office of the Secretary” means the Office of the Secretary of the Tribal Council as provided by Article VIII, Section 3 of the Tribal Constitution, or that individual's designee.
(M) “Operating Agreement” means an agreement in writing among all of the Owners as to the conduct of the business of a limited liability company and its relationships with its Owners.
(N) “Organizer(s)” means the person(s) or entity(ies) which signs and delivers the Articles of Organization for filing to the Office of the Secretary.
(O) “Owner” means a Person that is a member of a limited liability company or has ownership interest in a limited liability company. The term does not include a person that has dissociated as a member under Section 25-3-7.
(P) “Person” includes a natural person, Tribal Entity and an organization such as a general partnership, limited partnership, a domestic or foreign limited liability company, a trust, an estate, an association, or a corporation.
(Q) “Reservation” means all lands under the jurisdiction of the Nation, including all lands within the boundaries of the Nation's Reservation, individual Tribal member allotments, whether located on or off the Reservation, and all lands held in trust by the United States of America for the benefit of the Nation.
(R) “State” includes a state, territory, or possession of the United States and the District of Columbia.
(S) “Tribal Entity” includes the Nation, the Tribal Council, a general partnership, limited partnership, a domestic or foreign limited liability company, a trust, an estate, an association, a corporation, a program, a department, an administrative agency or any other legal, commercial or governmental entity of the Nation.
(T) “Tribal Council” means the Tribal Council as established by Article IV, Section 3 of the Tribal Constitution as the governing body of the Nation.
(U) “Tribal Constitution” means the Constitution of the Prairie Band Potawatomi Nation.
(V) “Tribal Corporation” means a corporation wholly-owned by the Nation and duly formed pursuant to the Nation's Business Corporation Code, Title 24.
(W) “Tribal Court” means the Judicial Council as established by Article VI of the Tribal Constitution.
(X) “Tribally-owned LLC” means a limited liability company wholly-owned by the Nation with the Nation as its sole Owner.
(Y) “Trust Land” means land held in trust by the United States for the benefit of the Nation or its Members.
Chapter 25-1. General Provisions
Section 25-1-6. Name
(A) The name of a limited liability company as set forth in its Articles of Organization must contain the words “limited liability company” or end with the abbreviation “L.L.C.” or “LLC.” The name may not contain language stating or implying that the limited liability company is organized for any purpose other than that permitted under Section 25-1-9, below.
(B) The name of a domestic LLC shall be distinguishable from any LLC or corporation previously organized under the laws of the Nation.
Chapter 25-1. General Provisions
Section 25-1-7. Registered Office and Registered Agent
(A) A limited liability company's registered agent is the company's agent for receiving service of process, notice, or demand required or permitted by law to be served on the company under the laws of the Nation.
(B) Each LLC shall continuously maintain a registered office and a registered agent. The registered office may, but need not, be the same as any of its places of business. The agent may be the same person then serving in a designated office of the Nation rather than a specified person if the Nation is an Owner in the LLC of which the Nation's officer is the appointed agent.
(C) An LLC may change its registered office or registered agent, or both, by filing a written notice of change containing the name of its registered agent and the street address of its registered office, as changed, with the Office of the Secretary and paying the filing fee.
(D) The registered agent of an LLC may resign as a registered agent by delivering to the Office of the Secretary for filing a written statement of resignation and the appointment by the LLC of another registered agent.
Chapter 25-1. General Provisions
Section 25-1-8. Nation as Owner
(A) The Nation shall form or become an Owner of a Tribally-owned LLC formed under this Code only upon approval of such action by the Tribal Council.
(B) If the Nation or a Tribal Entity is an Owner of an LLC formed under this Code, any action which the Nation is required or permitted to take with respect to any vote, approval, consent, appointment, direction, or other matter shall be taken as specified in Section 25-9-4(A) of this Code or, as to actions related to the managers of a manager-managed LLC, as stated in the LLC's Operating Agreement approved by the Tribal Council.
(C) If the Nation is the sole Owner of an LLC formed under this Code, such Tribally-owned LLC shall possess all of the privileges and immunities of the Nation, including the Nation's sovereign immunity from suit except to the extent otherwise provided in its Operating Agreement.
(D) If the Nation or a Tribal Entity is an Owner with a Majority in Interest in an LLC formed under this Code, such LLC may possess the privileges and immunities of the Nation, including sovereign immunity from suit, to the extent allowed by Federal law, this Code or its Operating Agreement.
(E) In no event shall any manager not an Owner of an LLC in which the Nation is an Owner, bind the Nation in any manner; provided that the Nation's interest as an Owner may be bound by manager or Owner actions as stated in this Code and the Operating Agreement of the LLC.
(F) Nothing contained in this Code shall be construed as creating any liability or waiving of sovereign immunity of the Nation in any manner; provided that the assets of the LLC in which the Nation holds an interest may be subject to liabilities and claims unless otherwise provided herein. In no event shall any action taken by the Nation as Owner concerning the exercise of any right or privilege or discharge of any duty with respect to an interest in an LLC be construed as a waiver of immunity or creation of a liability on the part of the Nation separate and apart from its interests as an Owner of the LLC.
(G) For all Tribally-owned limited liability companies, the additional provisions of Section 25-9 of this Code shall apply.
Chapter 25-1. General Provisions
Section 25-1-9. Nature of Business
A limited liability company may be organized under this Code for any lawful purpose. Unless otherwise provided in its Operating Agreement, an LLC organized and existing under this Code has the same powers as an individual to do all things necessary and convenient to carry out its business, including but not limited to all of the following:
(A) Consent to be sued, complain and defend in its name; provided, however, that if an LLC is Tribally-owned, or wholly-owned by another entity which itself is wholly-owned by the Nation, it shall be entitled to and shall enjoy the Nation's sovereign immunity from suit unless the Operating Agreement otherwise provides.
(B) Purchase, take, receive, lease, or otherwise acquire and own, hold, improve, use, and otherwise deal in or with real, or personal property or any legal or equitable interest in real or personal property, wherever situated.
(C) Sell, convey, mortgage, pledge, create a security interest in, lease, exchange, or otherwise dispose of all or any part of its property.
(D) Lend money, property, and services to, and otherwise assist, its Owners and managers, if any.
(E) Purchase, take, receive, subscribe for, or otherwise acquire and own, hold, vote, use, employ, sell, mortgage, lend, pledge, or otherwise dispose of and deal in and with shares or other interests in, or obligations of, any other enterprise or entity.
(F) Make contracts and guarantees; incur liabilities; borrow money; issue notes, bonds, and other obligations; and secure any of its obligations by mortgage or pledge of all or part of its property, franchises, and income.
(G) Lend money, invest and reinvest its funds, and receive and hold real or personal property as security for repayment.
(H) Conduct its business, locate offices, and exercise the powers granted by this Code inside or outside of the Reservation.
(I) Be a promoter, incorporator, partner, Owner, associate, or manager of any enterprise or entity.
(J) Elect or appoint managers, agents, and employees, define their duties, and fix their compensation.
(K) Pay pensions and establish pension plans, pension trusts, profit-sharing plans, and benefit or incentive plans for any or all of its current or former Owners, managers, employees, and agents.
(L) Make donations to and otherwise devote its resources for the public welfare or for charitable, scientific, educational, humanitarian, philanthropic, or religious purposes.
(M) Indemnify an Owner, manager, employee, officer or agent, or any other person.
(N) Provide benefits or payments to Owners, managers, employees, and agents of the LLC, and to their estates, families, dependents or beneficiaries in recognition of the past services of the Owners, managers, employees, and agents of the LLC.
(O) Make payments or donations, or do any other act not prohibited by law, that furthers the business of the LLC.
(P) Transact any lawful business that the Owners or the managers find to be appropriate to promote and further the business and affairs of the limited liability company.
Chapter 25-1. General Provisions
Section 25-1-10. Execution of Documents
(A) Except as otherwise provided in this Code, any document required or permitted by this Code to be delivered for filing in accordance with Section 25-1-11 shall be executed by any of the following:
(1) Any manager, if management of the LLC is vested in a manager or managers, or by an Owner, if management of the LLC is reserved to the Owners.
(2) All organizers of the LLC if the LLC has not been organized. The name and address of each organizer shall be provided.
(3) The name of the drafter of the document.
(B) The person executing the document shall sign it and state beneath or opposite the signature the person's name and capacity in which the person signs.
(C) The person executing the document may do so as an attorney-in-fact. Powers of attorney relating to the executing of the document need not be shown to nor filed with the Office of the Secretary.
Chapter 25-1. General Provisions
Section 25-1-11. Filing
(A) The Office of the Secretary shall receive all filings required under this Code and maintain the records of such filings pursuant to this Section, including but not limited to the Articles of Organization, amended or restated articles, annual reports, names and addresses of registered offices and agents, and, in the case of Tribally-owned LLC's, the Operating Agreement and amendments thereto, and other reports required by this Code.
(B) Upon receipt of a document for filing under this Code, the Office of the Secretary shall ensure it meets the requirements herein and then shall stamp or otherwise endorse the date and time of receipt of the original, the duplicate copy, and, upon request, any additional copy received.
(C) If the Office of the Secretary refuses to file a request, the Office shall return it to the person tendering the document for filing within five (5) business days after the date on which the document is received by the Office for filing, together with a brief written explanation of the reason for refusal.
(D) Any document accepted by the Office of the Secretary shall be effective at the time of receipt unless a delayed effective date and/or time not more than ninety (90) days after receipt by the Office of the Secretary is specified in the document.
(E) Fees. The Office of the Secretary shall impose a reasonable filing fee for each document filed, initially not to exceed the sum of $100.00, and an annual renewal fee initially not to exceed the sum of $25.00 during the life of the LLC. Tribal Council is authorized to make regulations providing for reasonable fees for other services not specifically stated in this code or to make changes in any and all fees for services set out in this title. These changes shall be available through the Office of the Secretary.
Chapter 25-1. General Provisions
Section 25-1-12. Certificate of Status
Any person may obtain from the Office of the Secretary, upon request, a certificate of status for either a domestic or a foreign LLC.
Chapter 25-1. General Provisions
Section 25-1-13. Execution by Judicial Act
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 Code may petition the Tribal Court to direct the execution and filing of the articles or other document. Nothing in this Code, however, serves to waive any aspect of the Nation's sovereign immunity, and any waiver thereof must be provided explicitly in the LLC's Articles of Organization and/or Operating Agreement.
Chapter 25-1. General Provisions
Section 25-1-14. Interstate Application
An LLC may conduct its business, carry on its operations and have and exercise the powers granted by this Code, in any sovereign Native Nation, any state, territory, district or possession of the United States, or in any foreign jurisdiction.
Chapter 25-2. Operating Agreement and Dealing with Llc
Section 25-2-1. Articles of Organization
(A) One or more persons may organize a limited liability company by signing and delivering the Articles of Organization to the Office of the Secretary for filing. The organizer(s) need not be Owners of the LLC at the time of organization or thereafter.
(B) A limited liability company shall have one or more Owners.
(C) The Articles of Organization shall contain all of and only the following information:
(1) A statement that the LLC is organized under this Code.
(2) A name for the LLC that satisfies the provisions of this Code.
(3) The street address of the registered office and the name of the registered agent at that office. For all LLC's formed pursuant to this Code and for all foreign LLC's operating within the Reservation, such office and agent shall be located within the exterior boundaries of the Reservation.
(4) If management of the LLC is vested in one or more managers, a statement to that effect.
(5) The name and address of each person organizing the LLC.
(6) Whether the LLC is Tribally-owned.
(7) If Tribally-owned, whether the LLC is to enjoy Tribal sovereign immunity and the scope of any waiver of that immunity.
(D) The Office of the Secretary shall assign each Articles of Organization an identification number.
(E) Amendment. An LLC may amend its Articles of Organization at any time by delivering an amendment, with filing fee, for filing to the Office of the Secretary.
(F) Effect of Delivery or Filing.
(1) An LLC is formed when the Articles of Organization become effective under Section 24-1-11(D).
(2) The Office of the Secretary's filing of the Articles of Organization is conclusive proof that the LLC is organized and formed under this Code.
Chapter 25-2. Operating Agreement and Dealing with Llc
Section 25-2-2. Agency Power of Owners and Managers
(A) Except as provided in subsection B, below:
(1) Each Owner is an agent of the LLC, but not of any of the other Owners, for the purpose of its business.
(2) The act of any Owner, including the execution in the name of the LLC of any instrument for apparently carrying on in the ordinary course of business the business of the LLC, binds the LLC in the particular matter, unless the person with whom the Owner is dealing has knowledge that the Owner has no authority to act in this matter.
(3) If the Nation is an Owner, the Nation's authority shall be exercised pursuant to Section 25-9-4(A).
(B) If management of the LLC is vested in one or more managers:
(1) No Owner, solely by being an Owner, is an agent of the LLC or of the other Owners.
(2) Each manager is an agent of the LLC, but not for the other Owners, for the purpose of its business. The act of any manager, including the execution in the name of the LLC of any instrument for apparently carrying on the ordinary course of business of the LLC, binds the LLC unless the manager has, in fact, no authority to act for the LLC in the particular matter, and the person with whom the manager is dealing has knowledge that the manager has no authority to act in the matter.
(C) No act of an Owner or, if management of the LLC is vested in one or more managers, of a manager that is not apparently authorized for the carrying on in the ordinary course of business the business of the LLC, shall bind the LLC unless in fact authorized at the time of the transaction or at any other time.
Chapter 25-2. Operating Agreement and Dealing with Llc
Section 25-2-3. Admissions of Owners and Managers
(A) Except as provided in Section 25-2-3(B)(2), an admission or representation made by any Owner concerning the business of an LLC within the scope of the Owner's actual authority may be used as evidence against the LLC in any legal proceeding.
(B) If management of the LLC is vested in one or more managers:
(1) An admission or representation made by a manager concerning the business of an LLC within the scope of the manager's authority may be used as evidence against the LLC in any legal proceeding.
(2) The admission or representation of any Owner, acting solely in the Owner's capacity as an Owner, is not evidence against the LLC in any legal proceeding.
Chapter 25-2. Operating Agreement and Dealing with Llc
Section 25-2-4. Knowledge of or Notice to Owner or Manager
(A) Except as provided in Section 25-2-4(B)(2), notice to any Owner of any matter relating to the business of an LLC, and the knowledge of an Owner acting in the particular matter, acquired while an Owner or known by the person at the time of becoming an Owner, and the knowledge of any Owner who reasonably could and should have communicated it to the acting Owner, operate as notice to or knowledge of the LLC.
(B) If management of the LLC is vested in one or more managers:
(1) Notice to any manager of any matter relating to the business of the LLC, and the knowledge of the manager acting in the particular matter acquired while a manager or known by the person at the time of becoming a manager and the knowledge of any other manager who reasonably could and should have communicated it to the acting manager, operate as notice to or knowledge of the LLC.
(2) Notice to or knowledge of any Owner while the Owner is acting solely in the capacity of an Owner is not notice to or knowledge of the LLC.
Chapter 25-2. Operating Agreement and Dealing with Llc
Section 25-2-5. Liability of Owners to Third Parties
The debts, obligations, and liabilities of an LLC, whether arising in contract, tort, or otherwise, shall be solely the debts, obligations, and liabilities of the LLC. Except as otherwise specifically provided in this Code, an Owner or manager of an LLC is not personally liable for any debt, obligation, or liability of an LLC, as defined in the Operating Agreement.
Chapter 25-2. Operating Agreement and Dealing with Llc
Section 25-2-6. Parties to Action
An Owner of an LLC is not a proper party to a proceeding by or against an LLC solely by reason of being an Owner of the LLC, except if any of the following exist:
(A) The object of the proceeding is to enforce an Owner's right against or liability to the LLC.
(B) The action is brought by an Owner under Section 25-2-7.
Chapter 25-2. Operating Agreement and Dealing with Llc
Section 25-2-7. Authority to Sue
Unless otherwise provided in the Operating Agreement, an action on behalf of an LLC may be brought in the name of the LLC by:
(A) One or more Owners of the LLC, if authorized by a Majority in Interest of Owners, excluding the vote of any Owner who has an interest in the outcome of the action that is adverse to the interest of the LLC.
(B) One or more managers of an LLC if the management of the LLC is vested in one or more managers, or if the managers are authorized to sue by a Majority in Interest of Owners.
Nothing contained herein shall be construed as authorizing actions of any kind whatsoever against the Nation as Owner unless otherwise provided in the Operating Agreement.
Chapter 25-3. Owners and Managers
Section 25-3-1. Management
(A) Unless the Articles of Organization vest management in one or more managers, management of the LLC shall be vested in the Owners subject to any provision in the Operating Agreement or this Code restricting or enlarging the management rights and duties of any Owner or group of Owners.
In an Owner-managed liability company, the following rules shall apply, subject to the provisions of the Operating Agreement or this Code:
(1) A difference arising among Owners as to a matter in the ordinary course of the activities of the LLC may be decided by a majority of the Owners.
(2) An act outside the ordinary course of activities of a limited liability company may be undertaken only with the consent of all the Owners.
(B) If the Articles of Organization vest management in one or more managers, management of the business or affairs of the LLC shall be invested in the manager or managers subject to any provisions in the Operating Agreement or this Code restricting or enlarging the management rights and duties of any manager or group of managers. Unless otherwise provided in the Operating Agreement, the manager or managers:
(1) Shall be designated, appointed, elected, removed, or replaced by a vote of a Majority in Interest of the Owners.
(2) Need not be Owners of the LLC nor individuals.
(3) Unless earlier removed or earlier resigned, shall hold office until a successor is elected and qualified.
Chapter 25-3. Owners and Managers
Section 25-3-2. Duties
Unless otherwise provided in the Operating Agreement:
(A) No Owner or manager shall act or fail to act in a manner that constitutes any of the following:
(1) A willful failure to deal fairly with the LLC or its Owners in connection with a matter in which the Owner or manager has a material conflict of interest.
(2) A violation of criminal law involving moral turpitude.
(3) A transaction from which the Owner or manager derived an improper personal profit.
(4) Willful misconduct.
(B) Every Owner and manager shall account to the LLC and hold as trustee for it any improper personal profit derived by that Owner or manager without the consent of a majority of the disinterested Owners or managers, or other persons participating in the management of the LLC, from any of the following:
(1) A transaction connected with the organization, conduct, or winding up of the LLC.
(2) A use by an Owner or manager of the property of an LLC, including confidential or proprietary information or other matters entrusted to the person as a result of the person's status as Owner or manager.
(3) Operating Agreement may impose duties on its Owners and managers that are in addition to, but not in abrogation of, those provided in subsection (A) above.
Chapter 25-3. Owners and Managers
Section 25-3-3. Limitation of Liability and Indemnification
(A) In this Section, “expenses” mean expenses of defending a lawsuit, including attorney's fees, and any civil judgment or penalty, or settlement payment in lieu thereof, paid in connection with a lawsuit against an Owner or manager in such capacity.
(B) An LLC shall indemnify or allow expenses to each Owner and each manager for all reasonable expenses incurred with respect to a proceeding if that Owner or manager was a party to the proceeding in the capacity of an Owner or manager.
(C) The Operating Agreement may alter or provide additional rights to indemnification or allowance of expenses to Owners and managers.
(D) Notwithstanding subsections (B) and (C) above, an LLC may not indemnify an Owner or manager unless it is determined that the Owner or manager did not breach or fail to perform a duty to the LLC as provided in Section 24-3-2.
(E) Unless otherwise provided in the Operating Agreement:
(1) An Owner or manager shall be conclusively presumed not to have breached or failed to perform a duty to the LLC to the extent that the Owner or manager has been successful on the merits or otherwise in the defense of the proceeding.
(2) In situations not described in paragraph (a), above, the determination of whether Owner or manager has breached or failed to perform a duty to the LLC shall be made by the vote of a Majority in Interest of the Owners, excluding any Owner who is a party to the same or related proceeding unless all Owners are parties.
Chapter 25-3. Owners and Managers
Section 25-3-4. Voting
(A) Unless otherwise provided in the Operating Agreement or this Section, and subject to subsection (B) below, an affirmative vote, approval, or consent as follows shall be required to decide any matter connected with the business of an LLC.
(1) If management of an LLC is reserved to the Owners, an affirmative vote, approval, or consent by a Majority in Interest of Owners.
(2) If the management of an LLC is vested in one or more managers, the affirmative vote, consent, or approval of more than fifty percent (50%) of the managers.
(B) Unless otherwise provided in the Operating Agreement or this Code, the affirmative vote, approval, or consent of all Owners shall be required to do any of the following:
(1) Amend the Articles of Organization.
(2) Issue an interest in an LLC to any person.
(3) Adopt, amend, or revoke Operating Agreement.
(4) Allow an LLC to accept any additional contribution from an Owner.
(5) Allow a partial redemption of an interest in an LLC under Section 25-5-3.
(6) Value contributions of Owners under Section 25-4-1.
(7) Authorize a manager, Owner, or other person to do any act on behalf of the LLC that contravenes the Operating Agreement.
(C) Unless otherwise provided in the Operating Agreement, if any Owner is precluded from voting with respect to a given matter, the value of the contribution represented by the interest in the LLC with respect to which the Owner would otherwise have been entitled to vote shall be excluded from the total contributions made to the LLC for purposes of determining the fifty percent (50%) threshold under Section 25-1-5(I) for that matter.
(D) Unless otherwise provided in Operating Agreement or this Section, if all or part of an interest in the LLC is assigned under Section 25-6-4, the assigning Owner shall be considered the owner of the assigned interest for purposes of determining the 50% threshold under Section 25-1-5(I) until the assignee of the interest in the LLC becomes an Owner under Section 25-6-6.
Chapter 25-3. Owners and Managers
Section 25-3-5. Records and Information
(A) An LLC shall keep at its principal place of business all of the following:
(1) A list, in alphabetical order, of each past and present Owner and, if applicable, manager.
(2) A copy of the Articles of Organization and all amendments to the articles, together with executed copies of any powers of attorney under which any articles were executed.
(3) A copy of the Operating Agreement and all amendments thereto.
(4) A record of all matters referred to in this Code as maintained in such records which are not otherwise specified in the Operating Agreement.
(B) Upon reasonable request, an Owner may, at the Owner's own expense, inspect and copy during ordinary business hours any LLC record unless otherwise provided in the Operating Agreement.
(C) Owners or, if the management of the LLC is vested in one or more managers, managers shall provide true and full information of all things affecting the Owners to any Owner or to the legal representative of any Owner upon reasonable request of the Owner or the legal representative.
(D) Failure of an LLC to keep or maintain any of the records of information required under this Section shall not be grounds for imposing liability on any person for the debts and obligations of the LLC.
Chapter 25-3. Owners and Managers
Section 25-3-6. Admission of Owners
(A) In connection with the formation of an LLC, a person acquiring an LLC interest is admitted as an Owner upon formation unless the Operating Agreement otherwise provides.
(B) After the formation of an LLC, a person acquiring an LLC interest is admitted as an Owner of the LLC as specified in the Operating Agreement or, if not so specified, by consent of all the other Owners, or, if the person is an assignee of another person's LLC interest, only pursuant to Section 25-6-6.
Chapter 25-3. Owners and Managers
Section 25-3-7. Dissociation
(A) A person ceases to be an Owner of an LLC upon the simultaneous occurrence of and at the same time of any of the following events:
(1) The Owner withdraws by voluntary act.
(2) The Owner is removed as an Owner in accordance with the Operating Agreement or this Code.
(3) Unless otherwise provided in the Operating Agreement or by the written consent of all Owners at the time of the event, the Owner does any of the following:
(a) Makes an assignment for the benefit of the creditors.
(b) Files a petition in bankruptcy.
(c) Becomes the subject of an order for relief under the federal bankruptcy laws or state or tribal insolvency laws.
(d) Fails to gain dismissal of any federal bankruptcy or state or tribal insolvency proceeding within one hundred twenty (120) days of commencement of an involuntary proceeding.
(4) Unless provided in the Operating Agreement or by the written consent of all Owners, if the Owner is an individual, either of the following occurs:
(a) The Owner's death.
(b) The entry of an order by a court of competent jurisdiction adjudicating the Owner incompetent to manage the Owner's person or estate.
(5) Unless otherwise provided in the Operating Agreement or by written agreement or by the written consent of all Owners at the time, if the Owner is a trust, corporation, partnership, or limited liability company upon liquidation, dissolution, or termination.
(B) The Owners may provide in the Operating Agreement for other events the occurrence of which result in a person ceasing to be an Owner of the LLC.
(C) Unless the Operating Agreement provides that an Owner does not have the power to withdraw by voluntary act from an LLC, the Owner may do so at any time by giving written notice to the other Owners or as provided in the Operating Agreement. If the Owner has the power to withdraw but the withdrawal is a breach of the Operating Agreement, the LLC may offset the damages against the amount otherwise distributable to the Owner, in addition to pursuing any remedies provided for in the Operating Agreement or otherwise available under applicable law.
Chapter 25-4. Finance
Section 25-4-1. Contributions
(A) An Owner's contributions to an LLC may consist of cash, property, or services rendered, or promissory notes or other written obligations to provide cash or property or to perform services.
(B) The value of an Owner's contribution shall be determined in the manner provided in the Operating Agreement. If the Operating Agreement does not fix a value to a contribution, the value of a contribution shall be approved by a Majority in Interest of the Owners, shall be properly reflected in the records and information kept by the LLC under Section 25-3-5(A). The value of contributions so determined shall be binding and conclusive on the LLC and its Owners.
Chapter 25-4. Finance
Section 25-4-2. Liability for Contribution
(A) An obligation of an Owner to provide cash or property or to perform services as a contribution to an LLC is not enforceable unless specified in a writing signed by the Owner.
(B) Unless otherwise provided in the Operating Agreement, an Owner is obligated to an LLC to perform any enforceable promise to provide cash or property or to perform services, even if the Owner is unable to perform because death, disability, or any other reason. If an Owner does not provide cash, property, or services as promised, the Owner is obligated at the option of the LLC to provide cash equal to that portion of the value of the stated contribution that has not been fulfilled.
(C) Unless otherwise provided in the Operating Agreement, an Owner's obligation to provide cash or property or perform services as a contribution to the LLC may be compromised only by the written consent of all of the Owners.
Chapter 25-4. Finance
Section 25-4-3. Allocation of Profits and Losses
The profits and losses of an LLC shall be allocated among the Owners in the manner provided in the Operating Agreement. If the Owners do not enter into an Operating Agreement or the Operating Agreement does not provide otherwise, profits and losses shall be allocated on the basis of value of the contributions made by each Owner.
Chapter 25-5. Non-Liquidating Distributions
Section 25-5-1. Interim Distributions
Except as provided in this Part, an Owner is entitled to receive distributions from an LLC before the Owner's dissociation from the LLC and before its dissolution and winding up to the extent and at the times or upon the events specified in the Operating Agreement, or to the extent and at the times determined by the Owners or managers.
Chapter 25-5. Non-Liquidating Distributions
Section 25-5-2. Allocation of Distributions
Distributions of cash or other assets of an LLC shall be allocated among the Owners as provided in Operating Agreement, or if the Operating Agreement does not so provide, on the basis of the value of the contributions made by each Owner.
Chapter 25-5. Non-Liquidating Distributions
Section 25-5-3. Distribution Upon Partial Redemption
Except as provided in this Part, upon the distribution in partial liquidation of an Owner's interest, the redeeming Owner is entitled to receive the amount to which the Owner is entitled under the Operating Agreement and, if not otherwise provided in the Operating Agreement, the fair value of the redeemed interest based on the Owner's right to share in distributions from the LLC.
Chapter 25-5. Non-Liquidating Distributions
Section 25-5-4. Distribution Upon Dissociation
Except as otherwise provided in this Part, upon an event of dissociation under Section 25-3-7 that does not cause dissolution of the LLC, a dissociating Owner is entitled to receive any distribution to which Owner is entitled under the Operating Agreement and, if not otherwise provided in the Operating Agreement, the fair market value of the Owner's interest in the LLC based on the Owner's rights to share in distributions from the LLC.
Chapter 25-5. Non-Liquidating Distributions
Section 25-5-5. Distribution in Kind
Unless otherwise provided in the Operating Agreement:
(A) An Owner may not demand and receive any distribution from an LLC in any form other than cash.
(B) An Owner may not be compelled to accept a distribution of any asset in kind except for a liquidating distribution made proportionately.
Chapter 25-5. Non-Liquidating Distributions
Section 25-5-6. Right to Distribution
At the time that an Owner becomes entitled to receive a distribution from an LLC, the Owner has the status of and is entitled to all remedies available to a creditor of the LLC with respect to the distribution; provided, however, that such right shall not in any way limit any other remedy available to such Owner under any other provision of applicable law of the Operating Agreement.
Chapter 25-5. Non-Liquidating Distributions
Section 25-5-7. Limitations of Distributions
(A) An LLC may not declare or make a distribution to any of its Owners, if after giving effect to the distribution, any of the following would occur:
(1) The LLC would be unable to pay its debts as they become due in the usual course of business.
(2) The fair market value of the LLC's total assets would be less than the sum of its total liabilities plus, unless the Operating Agreement provides otherwise, the amount that would be needed for the preferential rights upon dissolution of Owners, if any.
(B) An LLC may base a determination that a distribution is not prohibited by subsection (A), above, on any of the following:
(1) Financial statements and other financial data prepared on the basis of accounting practices and principles that are reasonable under the circumstances.
(2) A fair market valuation or other method that is reasonable under the circumstances.
(C) An LLC's indebtedness to an Owner incurred by reason of a distribution made in accordance with this Section is at parity with the LLC's indebtedness to its general unsecured creditors, except to the extent subordinated by written agreement. This Section does not affect the validity or priority of a security interest in an LLC's property that is created to secure the indebtedness to the Owner.
Chapter 25-5. Non-Liquidating Distributions
Section 25-5-8. Liability for Wrongful Distribution
(A) Except as provided in subsection (B) below, an Owner (other than the Nation or Tribal Entity) or manager who votes or assents to a distribution in violation of Section 25-5-7 or of the Operating Agreement is personally liable to the LLC for the amount of the excess distribution, subject to contribution from all other managers or Owners participating in such action.
(B) An action to recover under this Section may be brought in the Tribal Court; however, a proceeding under this Section is barred unless it is brought within two (2) years after the date of the distribution.
(C) Nothing in this Code serves to waive any aspect of the Nation's sovereign immunity, and any waiver thereof must be provided explicitly in the LLC's Operating Agreement.
Chapter 25-6. Ownership and Transfer of Property
Section 25-6-1. Ownership of LLC Property
(A) All property originally transferred to or acquired by an LLC is property of the LLC and not the Owners individually.
(B) Property acquired with LLC funds is presumed to be LLC property.
(C) Property may be acquired, held, and conveyed in the name of the LLC.
Chapter 25-6. Ownership and Transfer of Property
Section 25-6-2. Transfer of Property
The property of an LLC may be transferred by an instrument of transfer executed by any Owner in the name of the LLC, unless management is vested in managers, in which case the document of transfer shall be executed by a manager, subject to any limitation that may be imposed by the Operating Agreement.
Chapter 25-6. Ownership and Transfer of Property
Section 25-6-3. Nature of Interest
An LLC interest is personal property.
Chapter 25-6. Ownership and Transfer of Property
Section 25-6-4. Assignment of LLC Interest
(A) Unless otherwise provided in the Operating Agreement:
(1) An LLC interest is assignable in whole or in part.
(2) An assignment of an LLC interest entitles the assignee to receive only the distributions and to share in the allocations of profits and losses to which the assignee would be entitled with respect to the assigned interest.
(3) An assignment of an LLC interest does not dissolve the LLC.
(4) Unless and until the assignee becomes an Owner of the LLC under Section 25-6-6, the assignment of an LLC interest does not entitle the assignee to participate in the management or exercise rights of an Owner.
(5) Unless and until the assignee of an LLC interest becomes an Owner of the LLC under Section 25-6-6, the assignor continues to be an Owner.
(6) The assignor of an LLC interest is not released from any personal liability arising under this Code as an Owner of the LLC solely as a result of the assignment.
(B) Unless otherwise provided in the Operating Agreement, the granting of a security interest, lien, or other encumbrance in or against any or all of an Owner's LLC interest is not assignable and shall not cause the Owner to cease to have the power to exercise any rights or powers of an Owner.
Chapter 25-6. Ownership and Transfer of Property
Section 25-6-5. Rights of Judgment Creditor
Upon application to a court of competent jurisdiction, including a court other than the Tribal Court having valid jurisdiction over an Owner, by any judgment creditor of the Owner, the court may charge the LLC interest of any Owner (other than the Nation) with payment of the unsatisfied amount of the judgment. To the extent so charged, the judgment creditor has only the rights of an assignee of the Owner's LLC interest in distributions made by the LLC to Owners and other assigned interest holders in the usual course of business. This Section does not deprive any Owner of the benefit of any exemption laws applicable to the LLC interest. In no event shall the Nation's interest be attachable in abrogation of its sovereign immunity.
Chapter 25-6. Ownership and Transfer of Property
Section 25-6-6. Right of Assignee to Become an Owner
(A) Unless otherwise provided in the Operating Agreement, an assignee of an LLC interest may become an Owner only if the other Owners unanimously consent.
(B) An assignee of an LLC interest who becomes an Owner has, to the extent assigned, the rights and powers and is subject to the restrictions and liabilities of the assignor under the Operating Agreement and this Code.
(C) Unless otherwise provided in the Operating Agreement, an assignor of an LLC interest is not released from any liability to the LLC without the written consent of all the Owners, whether or not the assignee becomes an Owner.
Chapter 25-6. Ownership and Transfer of Property
Section 25-6-7. Powers of Legal Representative
If an Owner who is an individual dies or a court of competent jurisdiction adjudges the Owner to be incompetent to manage his or her person or property, the Owner's personal representative, administrator, guardian, conservator, trustee, or other legal representative shall have all the rights of an assignee of the Owner's interest. If an Owner is a corporation, trust, partnership, limited liability company, or other entity and is dissolved or terminated, the powers of that Owner may be exercised by its legal representative or successor.
Chapter 25-7. Dissolution
Section 25-7-1. Dissolution
A limited liability company is dissolved and its affairs shall be wound up upon the happening of the first of the following:
(A) The occurrence of events specified in the Operating Agreement.
(B) The written consent of all Owners.
(C) An event of dissociation of an Owner, unless otherwise provided in the Operating Agreement or continuation is consented to by all remaining Owners.
(D) Entry of a decree of judicial dissolution under Section 25-7-2.
Chapter 25-7. Dissolution
Section 25-7-2. Judicial Dissolution
(A) In a proceeding by or for an Owner, the Tribal Court or court of competent jurisdiction may order dissolution of an LLC if any of the following is established:
(1) That it is not reasonably practicable to carry on the business of the LLC.
(2) That the LLC is not acting in conformity with its Operating Agreement.
(3) That one or more managers are acting or will act in a manner that is illegal, oppressive, or fraudulent.
(4) That one or more Owners in control of the LLC are acting or will act in a manner that is illegal, oppressive, or fraudulent.
(5) That LLC assets are being misapplied or wasted.
(B) If the Nation is an Owner of the LLC, any action under this Section must be brought in the Tribal Court, unless explicitly otherwise provided in the Operating Agreement. Nothing in this Section may be construed as a waiver of the Nation's sovereign immunity from suit, and any waiver thereof must be provided explicitly in the LLC's Operating Agreement.
Chapter 25-7. Dissolution
Section 25-7-3. Winding Up
(A) A dissolved LLC continues its legal existence but may not carry on any business except that which is appropriate to wind up and liquidate its business.
(B) Unless otherwise provided in its Operating Agreement:
(1) The business of the LLC may be wound up by any of the following:
(a) The Owners or managers who have authority to manage the LLC before dissolution.
(b) In a judicial dissolution, the person(s) designated by the Tribal Court or court of competent jurisdiction.
(2) The persons winding up the business of the LLC may do all of the following in the name of and on behalf of the LLC:
(a) Collect its assets.
(b) Prosecute and defend suits.
(c) Take any action necessary to settle and close the business of the LLC.
(d) Dispose of and transfer the property of the LLC.
(e) Discharge or make provision for discharging the liabilities of the LLC.
(f) Distribute to the Owners any remaining assets of the LLC.
(C) Dissolution of a LLC does not do any of the following:
(1) Transfer title to the LLC's property.
(2) Prevent transfer of all or part of an Owner's interest.
(3) Prevent commencement of a civil, criminal, administrative, or investigatory proceeding by or against the LLC.
(4) Abate or suspend a civil, criminal, administrative, or investigatory proceeding pending by or against the LLC at the time of dissolution.
(5) Terminate the authority of the registered agent of the LLC.
(6) Alter the limited liability of an Owner.
Chapter 25-7. Dissolution
Section 25-7-4. Distribution of Assets
Upon the winding up of an LLC, the assets shall be distributed in the following order:
(A) To creditors, including to the extent permitted by law, Owners, and former Owners in satisfaction of liabilities of the LLC.
(B) Unless otherwise provided in the Operating Agreement, to Owners and former Owners in satisfaction of liabilities for distributions under Sections 25-5-1, 25-5-3 and 25-5-4.
(C) Unless otherwise provided in the Operating Agreement, to Owners and former Owners first for the return of their contributions in proportion to their respective values and, thereafter, in proportion to their respective rights to share in distributions from the LLC before dissolution.
Chapter 25-7. Dissolution
Section 25-7-5. Articles of Dissolution
After the dissolution of an LLC under Section 25-7-1, the LLC may file articles of dissolution with the Office of the Secretary that include the following:
(A) The name of the LLC.
(B) The date of filing of its Articles of Organization.
(C) The statutory grounds under Section 25-7-1 for dissolution.
(D) The delayed effective date of the articles of dissolution under Section 25-1-11(C), if applicable.
Chapter 25-7. Dissolution
Section 25-7-6. Known Claims Against Dissolved LLC
(A) A dissolved LLC may notify its known claimants in writing of the dissolution and specify a procedure for making claims.
(B) A claim against the LLC is barred if:
(1) A claimant who was given written notice under subsection (A) above, does not deliver the claim, in writing, to the LLC by the deadline specified in the notice; or
(2) A claimant whose claim is rejected by the LLC does not commence a proceeding to enforce the claim within ninety (90) days after receipt of the rejection notice.
Chapter 25-7. Dissolution
Section 25-7-7. Unknown or Contingent Claims
A claim not barred under Section 25-7-6 may be enforced:
(A) Against the dissolved LLC, to the extent of its undistributed assets.
(B) If the dissolved LLC's assets have been distributed in liquidation, against an Owner of the LLC, other than the Nation, to the extent of the Owner's proportionate share of the claim or of the assets of the LLC distributed to the Owner in liquidation, whichever is less, but an Owner's total liability for all claims under this Section may not exceed the total value of assets at the time distributed to the Owner.
Chapter 25-8. Merger
Section 25-8-1. Definitions
(A) “Constituent Organization” in this Part means an organization, including a corporation, a limited liability company, an unincorporated cooperative or other tribally-formed entity, that is a party to a merger.
(B) Unless the context requires otherwise, in this Part “corporation” includes a domestic corporation and a foreign corporation.
(C) Unless the context requires otherwise, in this Part “LLC” includes a domestic LLC and a foreign LLC.
(D) “Organizational Documents” includes articles of organization, operating agreements, articles of incorporation, bylaws, partnership agreements, agreements of trust and declarations of trust, and any other basic records that create an entity's organization and determine its internal governance and relations among person that own it, have an interest in it, or are Owners of it.
Chapter 25-8. Merger
Section 25-8-2. Merger
(A) Unless otherwise provided in its Organizational Documents, one or more Constituent Organizations may merge with or into one or more LLC's or one or more other foreign LLC's as provided in the plan of merger.
(B) Interests or shares in a Constituent Organization that is a party to a merger may be exchanged for or converted into cash, property, obligations, or interest in the surviving LLC.
Chapter 25-8. Merger
Section 25-8-3. Approval of Merger
(A) Unless otherwise provided in the Operating Agreement, a domestic LLC that is a party to a proposed merger shall approve the plan of merger by an affirmative vote by all of the Owners.
(B) Unless otherwise provided in the Operating Agreement, the manager or managers of a domestic LLC may not approve a merger without also obtaining the approval of the LLC's Owners under subsection (A), above.
(C) All other Constituent Organizations shall approve the merger in the manner and by the vote required by the laws applicable to the Constituent Organizations and their respective Organizational Documents.
(D) Each Constituent Organization shall have any rights to abandon the merger as provided for in the plan of merger or in the laws applicable to the Constituent Organization or its Organizational Documents.
(E) Upon approval of a merger, the Constituent Organization shall notify its Owners, shareholders, and all others that have an ownership interest in it of the approval and of the effective date of the merger.
Chapter 25-8. Merger
Section 25-8-4. Plan of Merger
Each Constituent Organization shall enter into a written plan of merger to be approved under Section 25-8-3.
Chapter 25-8. Merger
Section 25-8-5. Articles of Merger
(A) The surviving LLC shall deliver to the Office of the Secretary articles of merger, executed by each party to the plan of merger, that include all of the following:
(1) The name and state or jurisdiction of organization for each Constituent Organization.
(2) The plan of merger.
(3) The name of the surviving or resulting LLC.
(4) A statement as to whether the management of the surviving LLC will be reserved to its Owners or vested in one or more managers.
(5) The delayed effective date of the merger under Section 25-1-11(D), if applicable.
(6) A statement as to whether the surviving LLC is Tribally-Owned.
(7) If Tribally-Owned, a statement as to whether the surviving LLC enjoys the Nation's sovereign immunity.
(8) A statement that the plan of merger was approved in accordance with Section 25-8-3.
(B) A merger takes effect upon the effective date of the articles of merger.
Chapter 25-8. Merger
Section 25-8-6. Effects of Merger
A merger has the following effects:
(A) The Constituent Organizations must become a single entity, which shall be the entity designated in the plan of merger as the surviving LLC.
(B) Each Constituent Organization, except the surviving LLC, ceases to exist.
(C) The surviving LLC possesses all of the rights, privileges, immunities, and powers of each merged Constituent Organization and is subject to all of the restrictions, disabilities, and duties of each merged Constituent Organization.
(D) All property and all debts, including contributions, and each interest belonging to or owed to each of the Constituent Organizations are vested in the surviving LLC without further act.
(E) Title to all real estate and any interest in real estate, vested in any Constituent Organization, does not revert and is not in any way impaired because of the merger.
(F) The surviving LLC has all the liabilities and obligations of each of the Constituent Organizations and any claim existing or action or proceedings pending by or against any merged Constituent Organization may be prosecuted as if the merger had not taken place, or the surviving LLC may be substituted in the action.
(G) The rights of creditors and any liens on the property of any Constituent Organization survive the merger.
(H) The interests in a Constituent Organization that are to be converted or exchanged into interest, cash, obligations, or other property under the terms of the plan of merger are converted and the former interest holders are entitled only to the rights provided in the plan of merger of the rights otherwise provided by law.
(I) The Articles of Organization of the surviving LLC is amended to the extent provided in the articles of merger.
Chapter 25-8. Merger
Section 25-8-7. Right to Object
Unless otherwise provided in the Operating Agreement, upon receipt of the notice required by Section 25-8-3(E), an Owner who did not vote in favor of the merger may, within twenty (20) days after the date of the notice, voluntarily dissociate from the LLC under Section 25-3-7(C) and receive fair value for the Owner's LLC interest under Section 25-5-4.
Chapter 25-9. Limited Liability Companies Wholly-Owned by the Nation
Section 25-9-1. General Provisions for Tribally-Owned LLC's
(A) Tribally-Owned Companies. There are hereby authorized to be created limited liability companies wholly-owned by the Nation, with the Nation as the sole Owner. Tribally-owned limited liability companies shall be created by a duly adopted resolution of the Tribal Council. The organizer shall file in accordance with Section 25-1-11.
When the organizer files the Articles of Organization and the Operating Agreement of a Tribally-owned LLC, a certified copy of the resolution authorizing the formation of the LLC and approving the articles shall be included. Tribally-owned LLC's shall be considered to be instrumentalities of the Nation.
(B) Tribally-Owned Subsidiary Companies. There are hereby authorized to be created by resolution of the Board of Directors of a Tribally-owned limited liability company or of a Tribal Corporation, or of a wholly-owned subsidiary of such a Tribally-owned LLC or Tribal Corporation, subsidiary LLC's to be wholly-owned by the parent Tribally-owned LLC or parent Tribal Corporation, which shall be instrumentalities of the Nation. The organizer of such a Tribally-owned subsidiary LLC shall file in accordance with Section 25-1-11. When the organizer files the Articles of Organization and the Operating Agreement of the Tribally-owned subsidiary LLC, a certified copy of a resolution of the Board of Directors of the parent Tribally-owned LLC or parent Tribal Corporation authorizing the formation of the subsidiary LLC and approving the articles shall be included.
(C) Privileges and Immunities. The limited liability companies established under Sections 25-9-1(A) and 25-9-1(B) shall be considered to be instrumentalities of the Nation, and their agents and officers considered agents and officers of the Nation, created for the purpose of carrying out authorities and responsibilities of the Tribal Council for economic development of the Nation and the advancement of its Tribal members. Such LLC's, their agents, directors, officers, managers and employees shall, therefore, be entitled to all of the privileges and immunities enjoyed by the Nation, including but not limited to immunities from suit in Federal, State and Tribal courts and from Federal, State, and local taxation or regulation.
(D) Ownership.
(1) No Ownership interest in any LLC in which the Nation is an Owner may be alienated unless approved by the Tribal Council. Further, no Ownership interest in any Tribally-owned subsidiary LLC may be alienated unless approved by a duly adopted resolution of the Board of Directors of the parent Tribally-owned LLC or parent Tribal Corporation.
(2) All interests in any Tribally-owned LLC shall be held by and for a Nation, or in the case of a wholly-owned subsidiary LLC, by the parent Tribally-owned LLC or parent Tribal Corporation. No individual member of the Nation shall have any personal ownership interest in any LLC organized under this Part, whether by virtue of such person's status as a member of a Nation, as an officer of a Nation's Government, or otherwise.
(E) Project Companies with Non-Tribal members. Any LLC created pursuant to this Part, including subsidiary LLC's, may form or own interests or shares in partnerships, corporations, or other limited liability companies with other governmental or non-governmental entities or persons under the laws of the Nation or any other jurisdiction (“Project Companies”); provided, however, that the partial ownership interest in such Project Companies shall not diminish or affect the privileges and immunities of the Tribally-owned LLC's or Tribally-owned subsidiary LLC's created pursuant to this Part.
(F) Purpose of Tribally-Owned LLC's. All Tribally-owned LLC's, whether directly or indirectly owned, shall state in their Operating Agreement the purpose of the LLC that relates to the overall needs, priorities, goals, and objectives of the Nation's government, including how the LLC will contribute to tribal economic policy and further the goals of self-determination and economic self-sufficiency.
(G) Waiver of Sovereign Immunity. The limited liability companies established under Sections 25-9-1(A) and 25-9-1(B) may only waive the privileges and immunities granted under Section 25-9-1(C) in the following manner:
(1) The LLC may specifically grant limited waivers of its immunity from suit and consent to be sued in Tribal Court or another court of competent jurisdiction or consent to binding arbitration pursuant to the procedures and authorities set forth in the LLC's Operating Agreement; provided, however, that
(a) Any such waiver or consent to suit granted pursuant to the LLC's Operating Agreement shall in no way extend to any action against the Nation, nor shall it in any way be deemed a waiver of any of the rights, privileges and immunities of the Nation;
(b) Any recovery against the LLC shall be limited to the assets of the LLC (or such portion of the LLC's assets as further limited by the waiver or consent) and the Nation shall not be liable for the payment or performance of any of the obligations of the LLC, and no recourse shall be had against any assets or revenues of the Nation in order to satisfy the obligations of the LLC; including assets of the Nation leased, loaned, or assigned to the LLC for its use, without transfer of title, and
(c) Any waiver of the LLC's immunities granted pursuant to the LLC's Operating Agreement shall be further limited or conditioned by the terms of such waiver.
(2) The sovereign immunity of the LLC shall not extend to actions against the LLC by the Nation acting as Owner, or, in the case of a subsidiary LLC created pursuant to this Part, by the parent LLC acting as Owner, pursuant to Section 25-9-1(A).
(3) The LLC must follow the method mandated by Section 25-9-2(B).
Chapter 25-9. Limited Liability Companies Wholly-Owned by the Nation
Section 25-9-2. Special Formation Requirements for Tribally-Owned LLC'S
(A) Formation.
(1) Tribally-owned LLC's. The Chairperson of the Tribal Council shall be the organizer of any Tribally-owned limited liability company.
(2) Subsidiaries of Tribally-owned LLC's. A Board Member of the parent Tribally-owned LLC or parent Tribal Corporation shall be the organizer of any Tribally-owned subsidiary LLC. If practicable, such Board Member shall also be a member of the Nation.
(3) Unless a delayed effective date is specified:
(a) The existence of a Tribally-owned LLC begins when the Articles of Organization have been approved by resolution of the Tribal Council in accordance with Section 25-9-1(A) and have been filed with the Office of the Secretary in accordance with Section 25-1-11.
(b) The existence of a subsidiary LLC owned by a Tribally-owned LLC or Tribal Corporation begins when the Articles of Organization have been approved by a resolution of the Directors of the parent Tribally-owned LLC or Tribal Corporation and have been filed with the Office of the Secretary in accordance with Section 25-1-11.
(c) The Articles of Organization of any Tribally-owned LLC or subsidiary thereof, and any amendments thereto, shall be filed with the Office of the Secretary in accordance with Section 25-1-11, and shall state at a minimum the items set forth in Section 25-9-2(B) below.
(B) Additional Requirements for the Articles of Organization. As set forth in Section 25-9-1(G), Tribally-owned limited liability companies established under Sections 25-9-1(A) and 25-9-1(B) may grant a limited waiver of sovereign immunity in order to promote economic development through commercial transactions for which such a waiver is necessary and beneficial to the Nation. The method for granting a limited waiver of sovereign immunity through the above mentioned entities is as follows:
(1) The sovereign immunity of a Tribally-owned LLC may be waived only by:
(a) A resolution adopted by the Board of Directors of the Tribally-owned LLC for the specific purpose of granting a waiver, or in the case of Owner managed Tribally-owned subsidiary LLC, by the Owner's Board of Directors; and
(b) The language of the waiver must be explicit; and
(c) The waiver must be contained in a written contract or commercial document to which the LLC is a party.
(2) Waivers of sovereign immunity by resolution of the Board of Directors may be granted only when necessary to secure a substantial advantage or benefit to the Tribally-owned LLC. Waivers of sovereign immunity by resolution may not be general but must be specific and limited as to duration, grantee, transaction, property or funds of the Tribally-owned LLC subject to the waiver, court having jurisdiction and applicable law.
Chapter 25-9. Limited Liability Companies Wholly-Owned by the Nation
Section 25-9-3. Management of Tribally Owned LLC's
(A) Management.
(1) All Tribally-owned LLC's formed pursuant to Section 25-9-1(A) of this Code shall be managed by a Board of Directors in the manner described in the Company's Operating Agreement. The qualifications, number, terms and method for selecting and removing Directors of any Tribally-owned LLC shall be specified in the LLC's Operating Agreement.
(2) All Tribally-owned subsidiary LLC's formed pursuant to Section 25-9-1(B) of this Code may be Owner managed or managed by a Board of Directors. If managed by a Board of Directors, the Company's Operating Agreement shall set forth the qualifications, number, terms and method for selecting and removing the Directors. If Owner managed, the LLC shall have one or more persons exercising the functions of Chief Executive Officer.
(B) Board of Directors.
(1) Appointment of directors. The Tribal Council shall retain the power to appoint the board of directors for LLC's wholly owned by the Nation. For all such LLC's, including subsidiary tribal corporations, the board of directors shall be compromised of members of the Tribal Council, tribal members, and individuals experienced in business and tribal government.
(2) Removal of directors. A director of a LLC wholly owned by the Nation may be removed with cause by the Tribal Council.
(3) Loans to directors. A LLC wholly owned, directly or indirectly, by the Nation may not lend money to or guarantee the personal obligation of a director, officer or employee of the corporation under any circumstances.
Chapter 25-9. Limited Liability Companies Wholly-Owned by the Nation
Section 25-9-4. Decisions and Voting for Tribally-Owned LLC's
(A) Voting.
(1) The Ownership interests in all Tribally-owned LLC's shall be voted in the accordance with the Tribal Council's procedures for voting and passing Tribal resolutions.
(2) The Ownership interests in a Tribally-owned subsidiary LLC shall be voted as provided in the Company's Operating Agreement.
Chapter 25-9. Limited Liability Companies Wholly-Owned by the Nation
Section 25-9-5. Distributions for Tribally-Owned LLC's
(A) Distributions of Income.
(1) Subject to the Nation's ultimate ownership right to all income generated by its Tribally-owned LLCs, a Tribally-owned LLC shall distribute the net income of the LLC to the Nation as set forth in a dividend plan adopted in accordance with the Operating Agreement and duly approved by the Tribal Council, except that a Tribally-owned LLC may retain reserves necessary to carry on the LLC's business in a reasonably prudent manner and as recommended by the Board of Directors, subject to further limitations set forth in Section 25-5-7 and in the Operating Agreement.
(2) Subject to the parent Tribally-owned LLC's or parent Tribal Corporation's ultimate ownership right to all income generated by its subsidiary LLCs, a subsidiary LLC created pursuant to Section 25-9-1(B) shall distribute the net income of the LLC to the parent Tribally-owned LLC or parent Tribal Corporation as set forth in a dividend plan adopted in accordance with the Operating Agreement and duly approved by its Board of Directors, except that a Tribally-owned LLC may retain reserves necessary to carry on the LLC's business in a reasonably prudent manner and as recommended by the Board of Directors, subject to further limitations set forth in Section 25-5-7 and in the Operating Agreement.
Chapter 25-9. Limited Liability Companies Wholly-Owned by the Nation
Section 25-9-6. Additional Reports and Audits
(A) Audit. In addition to any Owner inspection rights provided in the Operating Agreement of a Tribally-owned LLC, the Tribal Council may at any time, by process in the manner required to be provided in the Operating Agreement, require that any LLC wholly-owned by the Nation, whether directly or indirectly, or an LLC in which the Nation owns the majority interest, be audited by an independent auditor hired by the Nation who shall have the absolute right to require access to all of the LLC's records and documents necessary for such an audit.
(B) Financial, Business, and Planning Information. In addition to any reports to the Owner required by the Operating Agreement, the Board of Directors of each Tribally-owned LLC, whether owned directly or indirectly, shall submit the following information to the Tribal Council:
(1) Copies of any periodic financial statements (including monthly or quarterly balance sheets, profit and loss statements, and cash flow statements) as may be prepared in the ordinary course of business, promptly after such statements are furnished to the LLC's Board of Directors;
(2) A full report of the business activities of the company within 120 days after the close of each fiscal year; and
(3) A proposed annual plan for the following year, including any proposed funding from the Nation or anticipated distributions to the Nation.
Chapter 25-9. Limited Liability Companies Wholly-Owned by the Nation
Section 25-9-7. Actions Against Tribally-Owned LLC's
(A) Court Actions By the Nation Authorized. The Nation, as Owner of any Tribally-owned limited liability company organized pursuant to this Code, or in the case of a subsidiary LLC created pursuant to this Part, the parent Tribally-owned LLC or Tribal Corporation acting as Owner, may bring a civil action against the LLC, its Board of Directors or its officers in the Tribal Court only pursuant to this Part to:
(1) Enjoin temporarily or permanently any action of the LLC that is an ultra vires act outside the authority of the LLC and that is either:
(a) Unlawful; or
(b) Has or could cause material harm to the assets of the LLC or the Nation if no immediate action is taken.
(c) Require the distribution of the LLC's surplus net income, to the extent permitted by Section 25-5-7.
(2) An action against a LLC pursuant to this Section by the Nation or by a parent LLC or Corporation, acting as Owner, shall not act as a waiver of the Nation's, or the parent LLC or parent Corporation's, sovereign immunity from suit of any kind, including a countersuit by the Tribally-owned LLC, its Board of Directors or its officers.
(3) In accordance with Section 25-9-1(C), the sovereign immunity of the LLC shall not extend to actions against the LLC by the Nation acting as Owner, or, in the case of a subsidiary LLC created pursuant to this Part, by the parent LLC acting as Owner.
(4) Nothing contained herein shall be construed as authorizing actions of any kind whatsoever against the Nation.
(B) Tribal Approval Required. The filing of any court action against a Tribally-owned LLC pursuant to this Part must be authorized by the Nation as Owner in the same manner as required in Section 25-9-4(A) for voting on any item properly coming before the Nation as Owner. The request for consideration of the proposed court action may be made by any member of the Tribal Council.
(C) Relief Available. In any action brought under this Part, the Tribal Court may, based on clear and convincing evidence set forth in its findings of fact and conclusions of law:
(1) Issue a temporary restraining order, preliminary injunction, and permanent injunctive relief pursuant to the procedures and standards applicable in the Tribal Court, except that no bond need be posted for any preliminary injunctive relief; or
(2) Order that funds of the LLC be distributed to the Nation to the extent permitted by the Operating Agreement and Section 25-5-7 of this Code.
Chapter 25-10. Effective Date and Authority
Section 25-10-1. Severability; Effect of Invalidity of Part of this Code
If the Tribal Court shall adjudge to be invalid or unconstitutional any clause, sentence, paragraph, section, article or part of this Code, such judgment or decree shall not affect, impair, invalidate or nullify the remainder of this Code, but the effect thereof shall be confined to the clause, sentence, paragraph, section, article or part of this Code as adjudged to be invalid or unconstitutional.
Chapter 25-10. Effective Date and Authority
Section 25-10-2. Effective Date
This Code shall be in full force and effect according to its terms upon adoption by the Tribal Council.
Chapter 25-10. Effective Date and Authority
Section 25-10-3. Authority
This Code is enacted by the Prairie Band Potawatomi Nation Tribal Council under the authority vested in the Tribal Council by the Nation pursuant to its inherent governmental power, fiscal authority and tribal sovereignty as recognized in the Nation's Constitution. The Tribal Council reserves the right to repeal or amend the provisions of this Code, subject to the limitation of Section 25-10-4.
Chapter 25-10. Effective Date and Authority
Section 25-10-4. No Impairment of Contracts
Otherwise lawful contracts and other obligations of any LLC shall not be impaired by any subsequent action of the Nation or the Tribal Council. Actions to restrain any attempts to impair contracts of tribal LLC's, or to declare such actions null and void, shall be available to any interested party before the Tribal Court. Nothing in this Section shall be construed to restrict the general application of law or of this Code to the acts and contracts of tribal LLC's.
Chapter 25-10. Effective Date and Authority
Section 25-10-5. Fees for Filing Documents and Issuing Certificates
The Tribal Council is authorized to make regulations providing for reasonable fees for other services not specifically stated in the title of this code or to make changes in any and allfees for services set out in this title. These changes shall be available through the Office of the Secretary.
Chapter 25-10. Effective Date and Authority
Section 25-10-6. Certificates and Certified Copies to be Received in Evidence
All certificates or documents issued by the Tribal Secretary in accordance with the provisions of this Code and all copies of documents filed in his or her office in accordance with the provisions of this Code, when certified by him or her, shall be taken and received in all Courts, public offices, and official bodies as prima facie evidence of the facts therein stated. A certificate by the Tribal Secretary under the seal of his or her office, as to the existence or non-existence of the facts relating to corporations which would not appear from a certified copy of any of the foregoing documents or certificates shall be taken and received in all courts, public offices and official bodies as prima facie evidence of the existence or non-existence of the facts therein stated.
Chapter 25-10. Effective Date and Authority
Section 25-10-7. Forms to be Furnished by the Tribal Secretary
In the event that the Tribal Secretary shall prescribe certain forms for documents required by this Chapter to be filed in the office of the Tribal Secretary, such forms shall be furnished by the Tribal Secretary and used by the corporation for such filing.
Chapter 25-10. Effective Date and Authority
Section 25-10-8. Franchise Taxes Established by Title 10
All tribal LLC's, including those wholly owned by the Nation, including subsidiary of another tribal LLC, shall not be required to pay any franchise taxes established in Title 10-7.
(Enacted by PBP TC No. 2010-071, March 22, 2010.)