Tribal Code

Limited Liability Companies

WARM SPRINGS TRIBAL CODE CHAPTER 701

LIMITED LIABILITY COMPANIES

Table of Contents

I. GENERAL PROVISIONS
701.002 Filing Requirements
701.004 Filing Fee
701.006 Effective Date of Document
701.008 Forms
701.020 Formation
701.022 Articles of Organization
701.024 Organization
701.026 Operating Agreements

II. PURPOSES AND POWERS
701.030 Purposes
701.032 General Powers

III. OFFICE AND AGENT
701.040 Registered Office and Registered Agent
701.042 Service on Limited Liability Company

IV. MEMBERS
701.050 Membership
701.051 License Fee
701.052 Management by Members
701.054 Agency Power of Members
701.056 Voting
701.058 Duties and Standard of Conduct
701.060 Limitation of Liability and Indemnification
701.062 Liability of Members

V. FINANCES
701.070 Contributions
701.072 Liability for Contributions
701.074 Allocation of Profits and Losses

VI. DISTRIBUTIONS AND WITHDRAWAL
701.080 Allocation of Interim Distributions
701.082 Voluntary Withdrawal of Member Prohibited; Exceptions
701.084 Expulsion of Member
701.086 Distribution Upon Withdrawal or Expulsion
701.088 Distribution in Kind
701.090 Right to Distribution
701.092 Limitations on Distribution
701.094 Liability for Wrongful Distribution

VII. ASSIGNMENT OF MEMBER’S INTEREST
701.100 Nature of Membership Interest
701.102 Admission of Members
701.104 Assignment of Membership Interest; Effective Date of Assignment
701.106 Right of Assignee of Membership Interest to Become a Member
701.108 Deceased or Incompetent Members Who Are Individuals; Dissolved or Terminated Members Who Are Legal Entities

VIII. AMENDMENT OF ARTICLES OF ORGANIZATION AND OPERATING AGREEMENT
701.110 Operating Agreement
701.112 Amendment to Articles of Organization
701.114 Amendment by Members
701.116 Merger

IX. DISSOLUTION
701.120 Dissolution
701.122 Distribution of Assets Upon Dissolution
701.124 Agency Power of Members After Dissolution
701.126 Articles of Dissolution
701.128 Effect of Dissolution; Winding Up
701.130 Enforcement of Claims Against Dissolved Limited Liability Company
701.140 Grounds for Administrative Dissolution
701.142 Procedure; Effect of Administrative Dissolution
701.150 Hearings Officer
701.152 Grounds for Judicial Dissolution
701.154 Procedure for Judicial Dissolution
701.156 Decree of Dissolution
X. RECORDS AND REPORTS
701.160 Limited Liability Company Records
701.162 Court-Ordered Inspection
701.164 Certain Expense Reports to Members

XI. MISCELLANEOUS
701.170 Partnership Treatment
701.172 Preservation of Exemptions and Immunities
701.174 Regulations
701.176 Tribal Courts
701.178 Definitions

WARM SPRINGS TRIBAL CODE CHAPTER 701

LIMITED LIABILITY COMPANIES

I. GENERAL PROVISIONS

701.002 Filing Requirements. A document must satisfy the requirements of this chapter to be entitled to filing by the Secretary-Treasurer. Articles of organization shall be signed by or on behalf of one or more persons wishing to form the limited liability company. Articles of amendment shall be signed by at least one member.

701.004 Filing Fee. The Secretary-Treasurer shall collect a fee of $10 for documents filed under this chapter.

701.006 Effective Date of Document. A document accepted for filing is effective on the date it is filed.

701.008 Forms. Upon request, the Secretary-Treasurer may furnish forms for documents required or permitted to be filed by this chapter. The Secretary-Treasurer may require the use of the forms.

701.020 Formation. One or more individuals 18 years of age or older or other entities may form a limited liability company by executing and delivering articles of organization to the office for filing. Organizers need not be members of the limited liability company.

701.22 Articles of Organization

  1. The articles of organization shall set forth: (a) The name of the limited liability company which shall 1) contain the words “limited liability company” or the abbreviation “L.L.C.” or “LLC,” and 2) be distinguishable upon the records of the office from any other limited liability company name of active record with the office; (b) The address, including street and number, if any, and mailing address, if different, of the limited liability company’s initial registered office and the name of its initial registered agent at that office; (c) A mailing address to which notices may be mailed; (d) The name and address of at least one member of the limited liability company who is a member of the Tribe; (e) The name and address of each organizer; and (f) The latest date on which the limited liability company is to dissolve or a statement that its existence is perpetual.
  2. The articles of organization may set forth any other provisions, not inconsistent with law, for the regulation of the internal affairs of the limited liability company, including any provision that is required or permitted to be included in any operating agreement of the limited liability company under this chapter.

701.024 Organization. The limited liability company’s existence begins when the articles of organization are filed by the Secretary-Treasurer.

701.026 Operating Agreements. The operating agreement, if any, may provide for the regulation and management of the affairs of the limited liability company in any manner not inconsistent with law or the articles of organization and may be in writing or oral.

II. PURPOSES AND POWERS

701.030 Purposes. Except as otherwise provided by the laws of the Tribe and in this section, a limited liability company formed under this chapter may conduct or promote any lawful business or purpose unless a more limited purpose is set forth in the articles of organization.

701.32 General Powers.

  1. Unless its articles of organization provide otherwise, the duration of a limited liability company shall be perpetual.
  2. Unless its articles of organization provide otherwise, and subject to the provisions of WSTC 701.030, each limited liability company organized under this chapter may:  (a) Sue and be sued, and complain and defend in all courts of competent jurisdiction; (b) Purchase, take, receive, lease, or otherwise acquire, own, hold, improve, use and otherwise deal in or with real or personal property or any interest in real or personal property, wherever situated; (c) Sell, convey, mortgage, pledge, create a security interest in, lease, exchange or transfer, and otherwise dispose of all or any part of its property or assets; (d) Purchase, take, receive, subscribe for or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge, otherwise dispose of, and otherwise use or deal in or with other interests in or obligations of any other entity; (e) Make contracts or guarantees, incur liabilities, borrow money, issue its notes or other obligations that may be convertible into other securities of the limited liability company or include the option to purchase other securities of the limited liability company, or secure any of its obligations by mortgage or pledge of any of its property, franchises or income; (f) Lend money, invest or reinvest its funds, or receive and hold real or personal property as security for repayment of funds so loaned, invested or reinvested; (g) Be a promoter, incorporator, general partner, limited partner, member, associate or manager of any partnership, joint venture, trust or other entity; (h) Conduct its business, locate offices and exercise the powers granted by this chapter within or without this Reservation; (i) Elect or appoint employees or agents of the limited liability company, define their duties, fix their compensation and lend them money and credit; (j) Make and alter an operating agreement, not inconsistent with its articles of organization or with the laws of this reservation, for managing its business and regulating its affairs; (k) Pay pensions and establish pension plans, profit-sharing plans, and benefit or incentive plans for any or all of its current or former members, employees and agents; (l) Make donations for the public welfare or for charitable, scientific or educational purposes; (m) Transact any lawful business that will aid tribal policy; (n) Indemnify a member or any other person as and to the extent not inconsistent with the provisions of this chapter; (o) Cease its activities and dissolve; and (p) Have and exercise all powers and do every other act not inconsistent with law which is necessary or convenient to promote and effect any or all of the purposes for which the limited liability company is organized.

III. OFFICE AND AGENT

701.040 Registered Office and Registered. Agent Each limited liability company shall continuously maintain, on the Reservation, a registered agent and registered office that may be, but need not be, the same as any of its places of business. A registered agent shall be: an individual who resides on the Reservation and whose business office is identical to the registered office or an entity whose business office is located on the Reservation and whose business office is identical to the registered office. The tribal Small Business Development Center may serve as the registered office and any person designated therein by the Secretary-Treasurer may serve as registered agent. All addresses must be kept current with the Secretary-Treasurer’s office. If a limited liability company’s registered agent resigns or is changed the limited liability company must provide the above information regarding the new registered agent to the Secretary- Treasurer’s office.

701.042 Service on Limited Liability Company. The registered agent appointed by a limited liability company shall be an agent of the limited liability company upon whom any process, notice or demand required or permitted by law to be served upon the limited liability company may be served. The Secretary-Treasurer may be served if there is no registered agent.

IV. MEMBERS

701.050 Membership. At least one member of any limited liability company organized under this chapter must be a Qualified Entity. Qualified Entities include a member of the Tribe, the Tribe, a Tribal enterprise, other entity formed pursuant to Tribal law. Qualified entities may also include persons or organizations specifically designated as such by Tribal Council resolution. In the event the Qualified Entity or Entities named in a limited liability company’s articles of organization cease to be members of the limited liability company, the company shall immediately amend its articles to set forth another Qualified Entity who is also a member of the limited liability company. If there is no Qualified Entity who is a member of the limited liability company, the limited liability company shall dissolve as provided by WSTC 701.120.1

701.051 License Fee. Any limited liability company with any member who is not also a member of the Tribe must register under Chapter 701 and pay the fee set forth therein.

701.052 Management by Members. The business and affairs of a limited liability company shall be managed by its members, subject to any provisions of the articles of organization or any operating agreement restricting or enlarging the management rights and duties of any member, or group or class of members.

701.054 Agency Power of Members. Every member is an agent of the limited liability company for the purpose of its business or affairs. The act of every member, including the execution on behalf of the limited liability company of any instrument, for apparently carrying on in the usual way the business or affairs of the limited liability company binds the limited liability company, unless the member so acting lacks the authority to act for the limited liability company and the person with whom the member is dealing has knowledge of the fact that the member has no such authority.

701.056 Voting.

  1. Except as otherwise provided in this chapter, the articles of organization or any operating agreement: (a) Each member shall have one vote; and (b) All decisions of the members shall be made by majority vote.
  2. Unless otherwise provided in this chapter, the articles of organization or any operating agreement, a majority vote of the members shall be required to approve matters which are not part of usual business or affairs of the limited liability company, including, but not limited to, the following: (a) The sale, lease, exchange, mortgage, pledge or other transfer or disposition of all or substantially all the assets of the limited liability company; (b) The merger of the limited liability company with another entity; (c) An amendment to the articles of organization or any operating agreement; (d) The incurrence of indebtedness by the limited liability company other than in the ordinary course of business; (e) A transaction involving an actual or potential conflict of interest between a member and the limited liability company; or (f) A change in the nature of the business of the limited liability company.
  3. The articles of organization or any operating agreement may provide for other voting rights for members.
  4. Unless the articles of organization or any operating agreement provide otherwise, action requiring a vote of members may be taken at a meeting, which may include a telephonic meeting, or without a meeting. Action taken without a meeting may be effected by the written consent of all the members or, if the articles of organization or any operating agreement so provide, by the written consent of the proportion of members specified in the articles of organization or any operating agreement.

701.058 Duties and Standard of Conduct.

  1. A member shall discharge the duties of a member, including the duties as a member of a committee, in good faith, with the care an ordinarily prudent person in a like position would exercise under similar circumstances and in a manner the member reasonably believes to be in the best interests of the limited liability company.
  2. A member has no personal liability for any action taken as a member, or any failure to take any action, if the member performs the duties of a member as described in this section.
  3. Except as otherwise provided in the articles of organization or any operating agreement, every member must account to the limited liability company for and hold as trustee for it any benefit or any profits derived by the member from any transaction connected with the formation, conduct or winding up of the limited liability company or from any use by the member of its property unless such benefit or profit expressly is approved or ratified by a majority vote of the members as provided in WSTC 701.056.

701.060 Limitation of Liability and Indemnification. The articles of organization or any operating agreement may provide for indemnification or may eliminate or limit the liability of any person who is acting or failing to act as a member, employee or agent. However, no such provision shall eliminate or limit the liability or provide for indemnification of a member for any act or omission occurring prior to the date when such provision became effective, and no such provision shall eliminate or limit the liability or provide for indemnification of a member for:

  1. Any breach of a member’s duty of loyalty to the limited liability company or its members;
  2. Acts or omissions not in good faith which involve intentional misconduct or a knowing violation of law;
  3. Any unlawful distribution under WSTC 701.094; or
  4. Any transaction from which the member derives an improper personal benefit.

701.062 Liability of Members. A member of the limited liability company is not personally liable for any debt, obligation or liability of the limited liability company merely by reason of being a member.

V. FINANCES

701.070 Contributions. The contributions of a member to the limited liability company may consist of cash, property, services rendered, a promissory note or other obligation to contribute cash or property or to perform services.

701.072 Liability for Contributions.

  1. A promise by a member to contribute to the limited liability company is not enforceable unless it is set out in writing and signed by the member.
  2. Except as provided in the articles of organization or any operating agreement, a member is obligated to the limited liability company to perform any enforceable promise to contribute cash or property or to perform services, even if the member is unable to perform because of death, disability or any other reason.
  3. If a member does not make a required contribution of property or services, the member is obligated, at the option of the limited liability company, to contribute cash equal to the portion of the value of the contribution, as stated in the limited liability company records required to be kept pursuant to WSTC 701.160, that has not been made.
  4. Unless otherwise provided in the articles of organization or any operating agreement, the obligation of a member to make a contribution may be compromised only by consent of all members. Notwithstanding the compromise, a creditor of the limited liability company may enforce the original obligation if the creditor acted in reliance on that obligation before the amendment or cancellation of the obligation to reflect the compromise.

701.74 Allocation of Profits and Losses.

  1. Unless the articles of organization or any operating agreement provides otherwise, profits and losses shall be allocated among all the members equally.
  2. If profits, but not losses, are allocated in the articles of organization or any operating agreement, then losses shall be deemed allocated in the same proportion as profits. If losses, but not profits, are allocated in the articles of organization or any operating agreement, then profits shall be deemed allocated in the same proportion as losses.

VI. DISTRIBUTIONS AND WITHDRAWAL

701.080 Allocation of Interim Distributions. Distributions of cash or other assets of a limited liability company before the dissolution and winding up of the limited liability company shall be allocated among the members, and among classes of members, in the manner provided in the articles of organization or any operating agreement. If neither the articles of organization nor any operating agreement provides for such allocations, such distributions shall be allocated among the members in proportion to their right to share in the profits of the limited liability company.

701.082 Voluntary Withdrawal of Member Prohibited; Exceptions. Unless the articles of organization or any operating agreement provides otherwise, a member does not have the power voluntarily to withdraw from a limited liability company.

701.084 Expulsion of Member.

  1. A member may be expelled from a limited liability company: (a) In accordance with a written provision in the articles of organization or any operating agreement; or (b) Except as otherwise provided in writing in the articles of organization or any operating agreement, by a tribal court, upon application of any member, if the court determines that: (i) The member has been guilty of wrongful conduct that adversely and materially affects the business or affairs of the limited liability company; or (ii) The member has willfully or persistently committed a material breach of the articles of organization or any operating agreement or otherwise breached a duty owed to the limited liability company or the other members to the extent that it is not reasonably practicable to carry on the business or affairs of the limited liability company with that member.
  2. The power of a limited liability company to expel a member pursuant to this section does not limit or adversely affect any right or power of the limited liability company to recover any damages or to pursue any other remedies provided for in the articles of organization or any operating agreement or permitted under applicable law or at equity. The limited liability company, in addition to any of its other remedies, may offset any such damages against any amounts otherwise distributable or payable to the expelled member.

701.086 Distribution Upon Withdrawal or Expulsion.

  1. Except as otherwise provided in this chapter, any withdrawing or expelled member is entitled to receive: (a) Any distribution to which the withdrawing or expelled member is then entitled under the articles of organization or any operating agreement but that has not yet been made; and (b) Unless otherwise provided in the articles of organization or any operating agreement, the fair value of the withdrawing or expelled member’s interest in the limited liability company as of the date of withdrawal or expulsion based upon the withdrawing or expelled member’s right thereafter to share in distributions from the limited liability company when and as made. (c) For purposes of this section, the fair value of the withdrawing or expelled member’s interest in the limited liability company shall be determined by assuming that any distribution to which the withdrawing or expelled member is otherwise entitled by reason of subsection (1)(a) of this section has been made.

701.088 Distribution in Kind. Except as provided in the articles of organization or any operating agreement:

  1. No member, regardless of the nature of the member’s contribution, has any right to demand and receive any distribution from a limited liability company in any form other than cash; and
  2. No member may be compelled to accept a distribution of any asset in kind from a limited liability company to the extent that the percentage of the asset distributed to the member exceeds a percentage of that asset that is equal to the percentage in which the member shares in operating or liquidating distributions, as the case may be, from the limited liability company.

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

701.092 Limitations on Distribution. A distribution may be made by a limited liability company to any member only if, after giving effect to the distribution, in the judgment of the members:

  1. The limited liability company would be able to pay its debts as they become due in the ordinary course of business; and
  2. The fair value of the total assets of the limited liability company would at least equal the sum of: (a) Its total liabilities; plus (b) Unless the articles of organization permit otherwise, the amount that would be needed, if the limited liability company were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution, if any, of other members that are superior to the rights of the members receiving the distribution.

701.94 Liability for Wrongful Distribution.

  1. A member who votes for or assents to a distribution in violation of this chapter, the articles of organization or any operating agreement is personally liable to the limited liability company for the amount of the distribution that exceeds what could have been distributed without violating this chapter, the articles of organization or any operating agreement, if it is established that such member did not act in compliance with WSTC 701.058.
  2. Each member held liable under this section for an unlawful distribution is entitled to contribution: (a) From each other member who could be held liable under this section for the unlawful distribution; and (b) From each member for the amount the member received knowing that the distribution was made in violation of this chapter, the articles of organization or any operating agreement.

VII. ASSIGNMENT OF MEMBER’S INTEREST

701.100 Nature of Membership Interest. A membership interest is personal property. A member is not a co-owner of and has no interest in specific limited liability company property.

701.102 Admission of Members.

  1. A person becomes a member of a limited liability company on the later of: (a) the date the initial articles of organization are filed; or (b) the date stated in the records of the limited liability company as the date the person becomes a member.
  2. After the filing of the limited liability company’s initial articles of organization, a person may be admitted as a member of the limited liability company upon compliance with the articles of organization or any operating agreement, or, if neither the articles of organization nor any operating agreement so provide, upon the consent of all members.

701.104 Assignment of Membership Interest; Effective Date of Assignment. Except as provided in the articles of organization or any operating agreement:

  1. A membership interest is assignable in whole or in part.
  2. An assignment of a membership interest does not itself dissolve the limited liability company or entitle the assignee to become or to exercise any rights of a member, including without limitation the right to participate in the management and affairs of the limited liability company.
  3. An assignment entitles the assignee to receive, to the extent assigned, only the distributions to which the assignor would be entitled.
  4. Until the assignee of a membership interest becomes a member: (a) The assignor continues to be a member and to have the power to exercise any rights of a member; and assignment. (b) The assignee has no liability as a member solely as a result of the
  5. The assignor of a membership interest is not released from liability as a member solely as a result of the assignment.
  6. Any otherwise permissible assignment of a membership interest shall be effective as to and binding on the limited liability company only after reasonable notice of and proof of the assignment have been provided to the members of the limited liability company.
  7. The pledge of, or granting of a security interest, lien, or other encumbrance in or against all or any portion of the membership interest of a member is not an assignment of the member’s interest.

701.106 Right of Assignee of Membership Interest to Become a Member.

  1. Except as otherwise provided in the articles of organization or any operating agreement, an assignee of a member’s interest may become a member only upon the consent of all members other than the assignor.
  2. An assignee who becomes a member has, to the extent assigned, the rights and powers, and is subject to the restrictions and liabilities, of a member under this chapter, the articles of organization and any operating agreement. An assignee who becomes a member also is liable for any obligations of the assignee’s assignor to make contributions under WSTC
    701.072. However, the assignee is not obligated merely by becoming a member for any other liabilities for which the assignor was liable that were unknown to the assignee at the time the assignee became a member and that could not be ascertained from the articles of organization.
  3. Whether or not an assignee of a membership interest becomes a member, the assignor is not released from the assignor’s liability to the limited liability company to make contributions under WSTC 701.072.
  4. Except as otherwise provided in the articles of organization or any operating agreement, a member who assigns all or a portion of the member’s membership interest in the limited liability company ceases to be a member with respect to the assigned interest only when and to the extent the assignee of the member’s interest becomes a member with respect to such interest.

701.108 Deceased or Incompetent Members Who Are Individuals; Dissolved or Terminated Members Who Are Legal Entities. If a member who is an individual dies or the individual member’s incompetency is determined, the member’s executor, administrator, guardian, conservator or other legal representative may exercise all of the member’s rights for the purpose of settling the member’s estate or administering the member’s property other than the right to consent to continue the business of the limited liability company as provided in WSTC
701.120 (2).

VIII. AMENDMENT OF ARTICLES OF ORGANIZATION AND OPERATING AGREEMENT

701.110 Operating Agreement.

  1. An operating agreement of a limited liability company may provide for the regulation and management of the affairs of the limited liability company in any manner not inconsistent with law or the articles of organization.
  2. The power to adopt, alter, amend or repeal an operating agreement of a limited liability company shall be vested in the members of the limited liability company unless otherwise vested in a member or members of the limited liability company by the articles of organization or any operating agreement. The members may amend or repeal any operating agreement even if the articles of organization or any operating agreement provide that a member or members may not amend or repeal an operating agreement.

701.112 Amendment to Articles of Organization.

  1. Consistent with the provisions of this chapter, a limited liability company may amend its articles of organization at any time to add, change or delete any provision, provided that the articles of organization as amended contain only such provisions as are required or permitted in initial articles of organization under this chapter as of the effective date of the amendment.
  2. A limited liability company amending its articles of organization shall deliver articles of amendment to the office for filing.
  3. Articles of amendment shall contain: (a) The name of the limited liability company; (b) The text of each amendment adopted; (c) The date of each amendment’s adoption; and (d) If an amendment was approved by the members, a statement that the member approval required under WSTC 701.114, the articles of organization or any operating agreement has been obtained and a statement of the percentage of such members’ approval.

701.114 Amendment by Members. Except as otherwise provided in the articles of organization or any operating agreement, all amendments to the articles of organization or any operating agreement must be approved by the members. Unless this chapter, the articles of organization or any operating agreement requires a greater vote, all other amendments to the articles of organization or any operating agreement to be adopted must be approved by a majority vote of the members as provided in WSTC 701.056.

701.116 Merger. One or more limited liability companies may merge into another limited liability company if each limited liability company that is a party to the merger approves a plan of merger. The plan of merger must be filed with the Secretary-Treasurer on or before the effective date of the merger.

IX. DISSOLUTION

(In General)

701.120 Dissolution.

  1. A limited liability company is dissolved and its affairs shall be wound up upon the first to occur of the following:  (a) Upon reaching the time for dissolution, if any, specified in the articles of organization. (b) Upon the occurrence of events specified in writing in the articles of organization or any operating agreement. (c) By the vote or such other action of the members as provided in writing in the articles of organization or any operating agreement or, if neither the articles of organization nor any operating agreement so provides in writing, by the written consent of all the members. (d) Upon administrative dissolution by the Secretary-Treasurer under WSTC 701.142. (e) Upon entry of a decree of judicial dissolution under WSTC 701.154. (f) Upon the withdrawal, for any reason, of a member of the Tribe from membership in the limited liability company, if the limited liability company no longer has any member who is also a member of the Tribe following such withdrawal.
  2. Except as otherwise provided in writing in the articles of organization or any operating agreement, a limited liability company is dissolved and its affairs shall be wound up upon the death, incompetency, withdrawal, expulsion, bankruptcy or dissolution of a member, or the occurrence of any other event that terminates the continued membership of a member in the limited liability company, unless the remaining member or all the remaining members, other than the member to whom the event described in this subsection has occurred, consent to continue the business and affairs of the limited liability company within 120 days after the event. For purposes of this subsection, except as otherwise provided in the articles of organization or any operating agreement, the admission as a member of an assignee of a membership interest pursuant to WSTC 701.106 shall constitute the requisite consent of the remaining member or members to continue the business of the limited liability company notwithstanding the termination of the membership of the assignor pursuant to WSTC 701.106 (4).

701.122 Distribution of Assets Upon Dissolution. Upon the winding up of a limited liability company, the assets shall be distributed as follows:

  1. To the extent permitted by law, to creditors, including members who are creditors, in satisfaction of liabilities of the limited liability company other than liabilities for distributions to members under WSTC 701.086;
  2. Except as provided in the articles of organization or any operating agreement, to members and former members of the limited liability company in satisfaction of the limited liability company’s obligations for distributions due and owing under WSTC 701.086; and
  3. Except as provided in the articles of organization or any operating agreement, to members of the limited liability company first for the return of their previously unreturned contributions and thereafter in the proportions in which the members share in profits.

701.124 Agency Power of Members After Dissolution.

  1. Except as provided in subsection (2) of this section, and except as otherwise provided in the articles of organization or any operating agreement, after dissolution of the limited liability company and until such time, if any, as the limited liability company is continued in accordance with WSTC 701.120 (2), each member can bind the limited liability company: (a) By any act or omission appropriate for winding up the limited liability company’s affairs or completing transactions unfinished at dissolution; and (b) By any transaction that would have bound the limited liability company if it had not been dissolved, if the other party to the transaction does not have actual notice of the dissolution.
  2. An act or omission of a member which would not be binding on the limited liability company pursuant to subsection (1) of this section is binding if it is otherwise authorized or ratified by the limited liability company.

701.126 Articles of Dissolution. At any time following dissolution of the limited liability company, the limited liability company may deliver to the office of the Secretary-Treasurer articles of dissolution setting forth:

  1. The name of the limited liability company; and
  2. The date the dissolution occurred.

701.128 Effect of Dissolution; Winding Up.

  1. A dissolved limited liability company continues its existence, but may not carry on any business except that which is appropriate to wind up and liquidate its business and affairs. The limitation on personal liability otherwise provided in this chapter for members and members shall continue following dissolution for actions appropriate to the winding up and liquidation.
  2. Dissolution of a limited liability company does not: (a) Transfer title to the limited liability company’s property; (b) Subject its members, members or employees to standards of conduct different from those prescribed in this chapter; (c) Prevent commencement of a proceeding by or against the limited liability company in its limited liability company name; (d) Abate or suspend a proceeding by or against the limited liability company on the effective date of the dissolution; or company. (e) Terminate the authority of the registered agent of the limited liability
  3. Except as otherwise provided in the articles of organization or any operating agreement, the member or members or, if the articles of organization do not provide for members, the members who have not wrongfully dissolved a limited liability company may wind up the limited liability company’s affairs. However, the tribal court, upon cause shown, may wind up the limited liability company’s affairs upon application of any member or the member’s legal representative or assignee.

701.130 Enforcement of Claims Against Dissolved Limited Liability Company. A claim against a dissolved limited liability company may be enforced:

  1. Against the dissolved limited liability company to the extent of its undistributed assets; or
  2. If the assets have been distributed in liquidation, against each member of the dissolved limited liability company for the amount by which such member’s liquidation distributions would have been reduced if the claim had been paid by the limited liability company. A member’s total liability for all claims under this section may not exceed the total value of assets distributed to the member, as of the date or dates of distribution, less any liability of the limited liability company paid on behalf of the limited liability company by that member after the date of the distribution.

(Administrative Dissolution)

701.140 Grounds for Administrative Dissolution. The Secretary-Treasurer may commence a proceeding under WSTC 701.142 to administratively dissolve a limited liability company if the Secretary-Treasurer determines that:

  1. The limited liability company has failed to comply with the requirements of this chapter;
  2. The limited liability company obtained its articles of organization through fraud;
    or law.
  3. The limited liability company abused or exceeded the authority conferred on it by

701.142 Procedure; Effect of Administrative Dissolution.

  1. If the Secretary-Treasurer determines that one or more grounds exist under WSTC 701.140 for dissolving a limited liability company, the Secretary-Treasurer shall give the limited liability company written notice of the determination.
  2. If the limited liability company does not correct each ground for dissolution or demonstrate to the reasonable satisfaction of the Secretary-Treasurer, within 45 days after notice is given, that each ground determined by the Secretary-Treasurer does not exist, the Secretary- Treasurer shall dissolve the limited liability company.
  3. A limited liability company administratively dissolved continues its existence but may not carry on any business except that necessary to wind up and liquidate its business and affairs under WSTC 701.126.
  4. The administrative dissolution of a limited liability company does not terminate the authority of its registered agent.
  5. A limited liability company may appeal administrative dissolution to any hearings officer appointed to hear dissolution cases under this chapter.

701.150 Hearings Officer. The Secretary-Treasurer shall appoint a person who possesses expertise in business affairs, including but not limited to, taxation, accounting and an understanding of fiduciary relationships, as a hearings officer to preside over judicial dissolutions under this chapter. The decisions of any such hearings officer shall be final and binding.

701.152 Grounds for Judicial Dissolution. A hearings officer may dissolve a limited liability company:

  1. In a proceeding by or for a member if it is established that it is not reasonably practicable to carry on the business of the limited liability company in conformance with its articles of organization or any operating agreement.
  2. In a proceeding by the limited liability company to have its voluntary dissolution continued under a hearings officer’s supervision.

701.154 Procedure for Judicial Dissolution. A hearings officer, in a proceeding brought to judicially dissolve a limited liability company, may issue injunctions, appoint a receiver or a custodian with all powers and duties the hearings officer directs, and take other action required to preserve or liquidate the limited liability company’s assets wherever located or carry on the business of the limited liability company.

701.156 Decree of Dissolution.

  1. If after a hearing the hearings officer determines that one or more grounds for judicial dissolution described in WSTC 701.150 exist, the hearings officer may enter a decree dissolving the limited liability company and specifying the effective date of the dissolution. The office of the Secretary-Treasurer shall file the certified copy of the decree.
  2. After entering the decree of dissolution, the hearings officer shall direct the winding up and liquidation of the limited liability company’s business and affairs in accordance with WSTC 701.128 and the distribution of limited liability company assets in accordance with WSTC 701.122.

X. RECORDS AND REPORTS

701.160 Limited Liability Company Records.

  1. Each limited liability company shall keep at its office specified in any operating agreement or, if none, at any location agreed upon by the members, the following: a current list of the past and present members of the company, a current copy of the Articles of Organization and any operating agreement, tax returns for the most recent three years, copies of any financial statements for the most recent three years, minutes of any meeting of members, or written consents in lieu thereof, and a record of member contributions, including values, and any related agreements.
  2. Any limited liability company records are subject to inspection and copying at the reasonable request, and at the expense, of any member or member’s agent or attorney during ordinary business hours.
  3. Failure of the limited liability company to keep or maintain any of the records or information required pursuant to this section shall not be grounds for imposing liability on any person for the debts and obligations of the limited liability company.

701.162 Court-Ordered Inspection. If a limited liability company does not allow a member to inspect and copy any records required to be available for inspection, the tribal court may summarily order inspection and copying of the records demanded at the company’s expense upon application of the member; provided, however, no order shall be issued under this section without notice to the limited liability company at least five days in advance of the time specified for the hearing unless a different period is fixed by the court.

701.164 Certain Expense Reports to Members. If a limited liability company indemnifies or advances expenses to a member under WSTC 701.060 in connection with a proceeding by or in the right of the limited liability company, the limited liability company shall report the indemnification or advance in writing to the members.

XI. MISCELLANEOUS

701.170 Partnership Treatment. For purposes of taxation under local law, a limited liability company formed under this chapter shall be classified as a partnership unless classified otherwise for federal income tax purposes, in which case the limited liability company shall be classified in the same manner as it is classified for federal income tax purposes.

701.172 Preservation of Exemptions and Immunities. Nothing in this chapter shall be deemed to have waived or to permit a limited liability company to waive any individual tribal member’s immunity from suit or from any applicable immunity or exemption with regard to federal or local taxation; therefore, any member of the Tribe shall continue to maintain any applicable immunity or exemption from taxation under federal or local law upon becoming a member of any limited liability company organized under this chapter.

701.174 Regulations. The Secretary-Treasurer shall have the authority to make rules and regulations as may be necessary to implement the provisions of this chapter, including, but not limited to, enforcement procedures for decisions of the tribal courts or any hearings officers appointed under this chapter.

701.176 Tribal Courts. Except as otherwise specifically provided herein, the tribal courts shall have jurisdiction over limited liability companies organized under this chapter.

701.178 Definitions.

As used in this chapter:

  1. “Anniversary” means that day each year exactly one or more years after the date of filing by the Secretary-Treasurer of the articles of organization of a limited liability company.
  2. “Articles of organization” means the document described in WSTC 701.022 for the purpose of forming a limited liability company, including articles of organization as they may be amended or restated.
  3. “Contribution” means anything of value which a person contributes to the limited liability company as a prerequisite for or in connection with membership including cash, property or services rendered or a promissory note or other binding obligation to contribute cash or property or to perform services.
  4. “Distribution” means a direct or indirect transfer of money or other property, except of a limited liability company’s own interests, or incurrence of indebtedness by a limited liability company to or for the benefit of its members in respect of any of its member’s interests. A distribution may be in the form of a declaration or payment of profits, a purchase, retirement or other acquisition of interests, a distribution of indebtedness, or otherwise.
  5. “Entity” includes a domestic or foreign limited liability company, corporation, foreign corporation, domestic or foreign nonprofit corporation, domestic or foreign cooperative corporation, profit or nonprofit unincorporated association, business trust, estate, domestic or foreign general or limited partnership, trust, two or more persons having a joint or common economic interest, any state, any reservation, the United States or any foreign government.
  6. “Incompetency” means the entry of a judgment by a court of competent jurisdiction adjudicating the member incompetent to manage the member’s person or estate.
  7. “Individual” means a natural person.
  8. “Limited liability company” means an entity that is an unincorporated association having one or more members that is organized under this chapter.
  9. “Member” or “members” means a person or persons with both an ownership interest in a limited liability company and all the rights and obligations of a member specified under this chapter. “Member” does not include an assignee of an ownership interest who has not also acquired the voting and other rights appurtenant to membership.
  10. “Membership interest” or “interest” means a member’s collective rights in a limited liability company, including the member’s share of profits and losses of the limited liability company, the right to receive distributions of the limited liability company’s assets and any right to vote or participate in management.
  11. “Office,” when used to refer to the administrative unit directed by the Secretary- Treasurer, means the office of the Secretary-Treasurer.
  12. “Operating agreement” means any valid agreement, written or oral, of the members as to the affairs of a limited liability company and the conduct of its business.
  13. “Organizer” means one of the signers of the initial articles of organization.
  14. “Party” includes an individual who was, is or is threatened to be made a named defendant or respondent in a proceeding.
  15. “Person” means an individual or entity.
  16. “Proceeding” means any threatened, pending or completed action, suit or proceeding whether civil, criminal, administrative or investigatory and whether formal or informal.
  17. “Reservation” means the Warm Springs Indian Reservation.
  18. “Secretary-Treasurer” means the Secretary-Treasurer of the Tribe or any person or department to which the Secretary-Treasurer may delegate the Secretary-Treasurer’s duties under this chapter.
  19. “Tribe” means the Confederated Tribes of the Warm Springs Reservation of Oregon.

1 WSTC 701.050 was amended by Tribal Council Resolution No. 10240 on December 4, 2002. The original section provided only that each LLC had to have at least one tribal member. The requirement was expanded to include the notion of the Qualified Entity which could include a tribal member, the Tribe, a tribal enterprise or other designated entity.

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