[HISTORY: Adopted by the Legislature of the Menominee Indian
Tribe as indicated in article histories. Amendments noted where applicable.]
GENERAL REFERENCES
Enrollment — See Ch. 69.
Charters — See Part IV.
[Adopted 10-21-2010 by Ord. No. 10-25]
This article is enacted pursuant to Article XIII, Section 2,
of the Constitution and Bylaws of the Menominee Indian Tribe of Wisconsin.
The purpose of this article is to establish certain uniform
rules governing the establishment and operation of tribal businesses.
Any tribal business chartered pursuant to Article XIII of the
Constitution and Bylaws of the Menominee Indian Tribe of Wisconsin
("tribal business"), in addition to any powers granted to such tribal
business in its charter, has the power to acquire, create, act through
and control special purpose legal entities ("SPE") created under the
laws of the Menominee Indian Tribe of Wisconsin, the laws of the United
States of America or the laws of any state. Such SPEs shall include,
but not be limited to: partnerships, limited partnerships, corporations
and limited-liability companies.
A.
Any tribal business is authorized to borrow money or other assets
from the Menominee Indian Tribe of Wisconsin, and the Menominee Indian
Tribe of Wisconsin is authorized to lend money or other assets to
any tribal business. The transfer of any money or assets pursuant
to such borrowing shall not be deemed a transfer of tribal assets
pursuant to Article XIII, Section 1, but shall be deemed an acquisition
of property by said tribal business in its own name.
B.
Any pledge, mortgage, lien or other security interest granted to
the Menominee Indian Tribe of Wisconsin by any tribal business in
consideration of borrowing money or assets shall not be deemed an
encumbrance prohibited by Article XIII, Section 1, as enforcement
of such pledge, mortgage, lien or other security interest would not
result in a transfer of any such asset outside the control of the
Menominee Indian Tribe of Wisconsin.
C.
Any transfer of money or assets from the Menominee Indian Tribe of Wisconsin to any tribal business, regardless of the form of such transfer, shall be deemed to be borrowed for the purposes of § 18-4A of this article, so long as the tribal business has agreed to any pledge, mortgage, lien or other security interest in favor of the Tribe in consideration of such transfer; however, the tribal business shall have all rights of ownership of any such money or other asset subject only to the terms of any such pledge, mortgage, lien or other security interest created in favor of the Menominee Indian Tribe of Wisconsin.
D.
Nothing in this article creates any obligation of the Menominee Indian
Tribe of Wisconsin to loan money or other assets to any tribal business.
Tribal businesses and SPEs shall be deemed members of the Menominee
Indian Tribe for the purposes of Article X, Section 2(b), of the Constitution
and Bylaws of the Menominee Indian Tribe of Wisconsin and eligible
to lease tribal lands pursuant to that section as long as such tribal
business or SPE is ultimately either wholly owned or wholly controlled
by enrolled members of the Menominee Indian Tribe of Wisconsin.
[Adopted 4-18-2019 by Ord. No. 19-04]
A.
Short title. This code shall be known as the "Menominee Tribal Limited
Liability Company Code."
B.
Authority; purposes; sovereign immunity.
(1)
The Tribe enacts the Menominee Tribal Limited Liability Company Code
pursuant to the legislative powers of the Tribal Legislature as enumerated
in Article III, Section 1, of the Constitution and Bylaws of the Menominee
Indian Tribe of Wisconsin.
(2)
The purpose of this code is to provide for economic development of
the Menominee Tribe ("the Tribe") and its citizens by providing the
legal framework for organizing individually owned and tribally owned
business entities in order to expand economic activity on the Reservation
and generate revenue for the tribal government.
(3)
By the adoption of this code, the Tribe 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 any tribally chartered entity.
C.
Scope. This code shall apply to all limited liability companies organized
under its provisions.
D.
Applicable law. The LLCs organized and created under this code shall
be subject to this code, and all other laws of the Tribe. By organizing
and creating a LLC under this code, the LLC and its members and managers
shall be considered to have entered into a consensual relationship
with the Tribe and agree to be subject to the full extent of the Tribe's
legislative, regulatory and adjudicatory jurisdiction. To the extent
not inconsistent with this code, in its interpretation and application
this code may be supplemented by principles of law and equity.
E.
ARTICLES OF ORGANIZATION
CITIZEN
CODE
CORPORATION
DEPARTMENT
DISTRIBUTION
ENTITY
FOREIGN
LIMITED LIABILITY COMPANY INTEREST OR INTEREST IN THE LIMITED
LIABILITY COMPANY OR MEMBER'S INTEREST
LIMITED LIABILITY COMPANY, DOMESTIC LIMITED LIABILITY COMPANY,
OR DOMESTIC LLC
LLC
MAJORITY IN INTEREST
MANAGER OR MANAGERS
MEMBER
OPERATING AGREEMENT
ORGANIZER(S)
PERSON
RESERVATION
SECTION 17 CORPORATION
STATE
TRIBAL CONSTITUTION
TRIBAL COURT
TRIBAL ENTITY
TRIBAL LEGISLATURE
TRIBAL-ENTITY-OWNED LLC
TRIBAL-ENTITY-OWNED SUBSIDIARY LLC
TRIBALLY CHARTERED BUSINESS
TRIBE
TRUST LAND
Definitions. Terms used in this code have the following meanings:
The articles filed under this Article II and those articles as amended or restated.
An enrolled member of the Menominee Indian Tribe of Wisconsin.
A domestic corporation for profit organized under the laws
of the Tribe or a foreign corporation formed under the laws of any
other jurisdiction.
The Lending and Tribal Tax Department of the Menominee Indian
Tribe of Wisconsin.
A direct or indirect transfer by a limited liability company
of money or other property to or for the benefit of its members in
respect of their interests.
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.
Refers to limited liability companies, corporations and limited
partnerships organized under the laws of a jurisdiction other than
the Tribe.
A member'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.
An organization formed under this code.
A limited liability company.
A member or members holding more than 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.
The person(s) or entity(ies) designated to manage the LLC
pursuant to the articles of organization and operating agreement.
A person that is a member of a limited liability company or has membership interest in a limited liability company. The term does not include a person that has dissociated as a member under § 18-12.
An agreement in writing among all of the members as to the
conduct of the business of a limited liability company and its relationships
with its members.
The person(s) or entity(ies) which signs and delivers the
articles of organization for filing to the Department.
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.
All lands, water and airspace within the exterior boundaries
of the Menominee Indian Reservation and any land which may hereafter
be added to the Reservation under any law of the United States and
any lands title to which is held by the United States for the benefit
of the Menominee Indian Tribe of Wisconsin.
A federally chartered corporation pursuant to Section 17
of the Indian Reorganization Act of 1934, 25 U.S.C. § 477
et seq.
Includes a state, territory, or possession of the United
States and the District of Columbia.
The Constitution of the Menominee Indian Tribe of Wisconsin.
The Menominee Tribal Court.
The Tribe, a tribally chartered business, a tribal-entity-owned
LLC, or a tribal-entity-owned subsidiary LLC.
The Menominee Tribal Legislature as established by the Tribal
Constitution as the governing body of the Tribe.
A limited liability company owned by the Tribe or a tribally
chartered business.
A limited liability company wholly owned by a Tribal-Entity-Owned
LLC.
A tribal business chartered pursuant to Article XIII of the
Constitution, and Menominee Tribal Enterprises, and College of the
Menominee Nation.
The Menominee Indian Tribe of Wisconsin.
Land held in trust by the United States for the benefit of
the Tribe.
F.
Name.
(1)
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 § 18-10H below.
(2)
The name of a domestic LLC shall be distinguishable from any LLC
or corporation previously organized under the laws of the Tribe.
G.
Registered office and registered agent.
(1)
A LLC'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 LLC under the laws of the Tribe.
(2)
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 Tribe or tribal business rather than
a specified person if the Tribe or tribal business is a member in
the LLC of which the Tribe or tribal business' officer is the
appointed agent.
(3)
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 Department and paying the filing fee.
H.
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:
(1)
Consent to be used, complain and defend in its name;
(2)
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.
(3)
Sell, convey, mortgage, pledge, create a security interest in, lease,
exchange, or otherwise dispose of all or any part of its property.
(4)
Lend money, property, and services to, and otherwise assist, its
members and managers, if any.
(5)
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.
(6)
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.
(7)
Lend money, invest and reinvest its funds, and receive and hold real
or personal property as security for repayment.
(8)
Conduct its business, locate offices, and exercise the powers granted
by this code inside or outside of the Reservation.
(9)
Be a promoter, incorporator, partner, member, associate, or manager
of any enterprise or entity.
(10)
Elect or appoint managers, agents, and employees, define their
duties, and fix their compensation.
(11)
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 members, managers, employees, and agents.
(12)
Make donations to and otherwise devote its resources for the
public welfare or for charitable, scientific, educational, humanitarian,
philanthropic, or religious purposes.
(13)
Indemnify a member, manager, employee, officer or agent, or
any other person.
(14)
Provide benefits or payments to members, managers, employees,
and agents of the LLC, and to their estates, families, dependents
or beneficiaries in recognition of the past services of the members,
managers, employees, and agents of the LLC.
(15)
Make payments, or do any other act not prohibited by law, that
furthers the business of the LLC.
(16)
Transact any lawful business that the members or the managers
find to be appropriate to promote and further the business and affairs
of the limited liability company.
I.
Execution of documents.
(1)
Except as otherwise provided in this code, any document required
or permitted by this code to be delivered for filing with the Department
shall be executed by any of the following:
(a)
Any manager, if management of the LLC is vested in a manager
or managers, or by a member, if management of the LLC is reserved
to the members.
(b)
All organizers of the LLC if the LLC has not been organized.
The name and address of each organizer shall be provided.
(c)
The name of the drafter of the document.
(2)
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.
(3)
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 Department.
J.
Filing.
(1)
The Department 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 LLCs, the operating
agreement and amendments thereto, and other reports required by this
code.
(2)
Upon receipt of a document for filing under this code, the Department
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.
(3)
If the Department refuses to file a request, the Department shall
return it to the person tendering the document for filing within five
business days after the date on which the document is received by
the Department for filing, together with a specific written explanation
of the reason for refusal.
(4)
Any document accepted by the Department shall be effective at the
time of receipt unless a delayed effective date and/or time not more
than 90 days after receipt by the Department is specified in the document.
(5)
The Department shall impose a reasonable filing fee for each document
filed, initially not to exceed the sum of $100 per document, subject
to any uniform schedule of fees as may hereafter be adopted by the
Department from time to time.
(6)
All LLCs formed pursuant to this code shall annually file a report
with the Department on a form provided by the Department listing the
name of its agent and office. Said report shall be filed on or before
February 1 each year, except that an LLC formed after September 30
the preceding year need not file a report in the year immediately
succeeding its formation.
K.
Certificate of status. Any person may obtain from the Department,
upon request, a certificate of status for either a domestic or a foreign
LLC.
L.
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 Tribe's or any other tribal entity's sovereign immunity.
M.
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.
A.
Articles of organization.
(1)
One or more citizens may organize a limited liability company by
signing and delivering the articles of organization to the Department
for filing. The organizer(s) need not be members of the LLC at the
time of organization or thereafter.
(2)
A limited liability company shall have one or more members.
(3)
The articles of organization shall contain all of the following information:
(a)
A statement that the LLC is organized under this code.
(b)
A name for the LLC that satisfies the provisions of this code.
(c)
The street address of the registered office and the name of
the registered agent at that office. For all LLCs formed pursuant
to this code such office and agent shall be located within the exterior
boundaries of the Reservation or other trust lands.
(d)
If management of the LLC is vested in one or more managers,
a statement to that effect.
(e)
The name and address of each person organizing the LLC.
(f)
Whether the LLC is a tribal-entity-owned LLC or tribal-entity-owned
subsidiary LLC.
(4)
The Department shall assign each article of organization an identification
number.
(5)
An LLC may amend its articles of organization at any time by delivering
an amendment, with filing fee, for filing to the Department.
B.
Agency power of members and managers.
(1)
Except as provided in Subsection B(2), below:
(a)
Each member is an agent of the LLC, but not of any of the other
members, for the purpose of its business.
(b)
The act of any member, including the execution in the name of
the LLC of any instrument for apparently carrying on in the ordinary
course of business of the LLC, binds the LLC in the particular matter,
unless the person with whom the member is dealing has knowledge that
the member has no authority to act in this matter.
(2)
If management of the LLC is vested in one or more managers:
(a)
No member, solely by being a member, is an agent of the LLC
or of the other members.
(b)
Each manager is an agent of the LLC, but not for the other members,
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.
(3)
No act of a member 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.
C.
Admissions of members and managers.
(1)
Except as provided in Subsection C(2)(b) below an admission or representation made by any member concerning the business of an LLC within the scope of the member's actual authority may be used as evidence against the LLC in any legal proceeding.
(2)
If management of the LLC is vested in one or more managers:
(a)
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.
(b)
The admission or representation of any member, acting solely
in the member's capacity as a member, is not evidence against
the LLC in any legal proceeding.
D.
Knowledge of or notice to member or manager.
(1)
Except as provided in Subsection D2(b) notice to any member of any
matter relating to the business of an LLC, and the knowledge of a
member acting in the particular matter, acquired while a member or
known by the person at the time of becoming a member, and the knowledge
of any member who reasonably could and should have communicated it
to the acting member, operate as notice to or knowledge of the LLC.
(2)
If management of the LLC is vested in one or more managers:
(a)
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.
(b)
Notice to or knowledge of any member while the member is acting
solely in the capacity of a member is not notice to or knowledge of
the LLC.
E.
Liability of members 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, a member or
manager of an LLC is not personally liable for any debt, obligation,
or liability of an LLC.
F.
Parties to action. A member of an LLC is not a proper party to a
proceeding by or against an LLC solely by reason of being a member
of the LLC, except if any of the following exist:
G.
Authority to sue.
(1)
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 members of the LLC, if authorized by a majority
in interest of members, excluding the vote of any member who has an
interest in the outcome of the action that is averse 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 members.
(2)
Nothing contained herein shall be construed as authorizing actions
of any kind whatsoever against the Tribe or tribal entity as member
unless otherwise provided in the operating agreement.
A.
Management.
(1)
Unless the articles of organization vest management in one or more
managers, management of the LLC shall be vested in the members subject
to any provision in the operating agreement or this code restricting
or enlarging the management rights and duties of any member or group
of members.
In a member-managed liability company, the following rules shall
apply, unless otherwise provided in the operating agreement or this
code:
(a)
A difference arising among members as to a matter in the ordinary
course of the activities of the LLC may be decided by a majority in
membership interests.
(b)
An act outside the ordinary course of activities of a limited
liability company may be undertaken only with the consent of all the
members.
(2)
If the articles of organization vest management in one or more managers,
management of the business or affairs of the LLC shall be vested 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:
B.
Duties. Unless otherwise provided in the operating agreement:
(1)
No member or manager shall act or fail to act in a manner that constitutes
any of the following:
(a)
A willful failure to deal fairly with the LLC or its members
in connection with a matter in which the member or manager has a material
conflict of interest.
(b)
A violation of criminal law involving moral turpitude or affecting
the interests of the LLC.
(c)
A transaction from which the member or manager derived an improper
personal profit.
(d)
Willful misconduct.
(2)
Every member and manager shall account to the LLC and hold as trustee
for it any improper personal profit derived by that member or manager
without the consent of a majority in interest of the disinterested
members or managers, or other persons participating in the management
of the LLC, from any of the following:
C.
Limitation of liability and indemnification.
(1)
In this Section, "expenses" mean expenses of defending a lawsuit,
including attorneys' fees, and any civil judgment or penalty,
or settlement payment in lieu thereof, paid in connection with a lawsuit
against a member or manager in such capacity.
(2)
An LLC shall indemnify or allow expenses to each member and each
manager for all reasonable expenses incurred with respect to a proceeding
if that member or manager was a party to the proceeding in the capacity
of a member or manager.
(3)
The operating agreement may alter or provide additional rights to
indemnification or allowance of expenses to members and managers.
(5)
Unless otherwise provided in the operating agreement:
(a)
A member or manager shall be conclusively presumed not to have
breached or failed to perform a duty to the LLC to the extent that
the member or manager has been successful on the merits or otherwise
in the defense of the proceeding.
(b)
In situations not described in Subsection C(5)(a), above, the determination of whether a member 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 members, excluding any member who is a party to the same or related proceeding unless all members are parties.
D.
Voting.
(1)
Unless otherwise provided in the operating agreement or this Section, and subject to Subsection D(2) below, an affirmative vote, approval, or consent as follows shall be required to decide any matter connected with the business of an LLC.
(2)
Unless otherwise provided in the operating agreement or this code,
the affirmative vote, approval, or consent of all members shall be
required to do any of the following:
(a)
Amend the articles of organization.
(b)
Issue an interest in an LLC to any person.
(c)
Adopt, amend, or revoke the operating agreement.
(d)
Allow an LLC to accept any additional contribution from a member.
(e)
Allow a partial redemption of an interest in an LLC.
(f)
Value contributions of members.
(g)
Authorize a manager, member, or other person to do any act on
behalf of the LLC that contravenes the operating agreement.
(3)
Unless otherwise provided in the operating agreement, if any member
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 member 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 threshold for that matter.
(4)
Unless otherwise provided in the operating agreement or this section,
if all or part of an interest in the LLC is assigned, the assigning
member shall be considered the member of the assigned interest for
purposes of determining the fifty-percent threshold until the assignee
of the interest in the LLC becomes a member.
E.
Records and information.
(1)
An LLC shall keep at its principal place of business all of the following:
(a)
A list, in alphabetical order, of each past and present member
and, if applicable, manager.
(b)
A copy of the executed articles of organization and all amendments
to the articles, together with executed copies of any powers-of-attorney
under which any articles were executed.
(c)
A copy of the executed operating agreement and all amendments
thereto; together with executed copies of any powers-of-attorney under
which any operating agreement was executed.
(d)
A record of all matters referred to in this code as maintained
in such records which are not otherwise specified in the operating
agreement.
(2)
Upon reasonable request, a member may, at the member's own expense,
inspect and copy during ordinary business hours any LLC record unless
otherwise provided in the operating agreement.
(3)
Members 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 members to any member or to the legal representative
of any member upon reasonable request of the member or the legal representative.
(4)
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.
F.
Admission of members.
(1)
In connection with the formation of an LLC, a person acquiring an
LLC interest is admitted as a member upon formation unless the operating
agreement otherwise provides.
(2)
After the formation of an LLC, a person acquiring an LLC interest
is admitted as a member of the LLC as specified in the operating agreement
or, if not so specified, by consent of all the other members or, if
the person is an assignee of another person's LLC interest, only
pursuant to the provisions of this code.
G.
Dissociation.
(1)
A person ceases to be a member of an LLC upon the simultaneous occurrence
of and at the same time of any of the following events:
(a)
The member withdraws by voluntary act.
(b)
The member is removed as a member in accordance with the operating
agreement or this code.
(c)
Unless otherwise provided in the operating agreement or by the
written consent of all members at the time of the event, the member
does any of the following:
[1]
Makes an assignment for the benefit of the creditors.
[2]
Files a petition in bankruptcy.
[3]
Becomes the subject of an order for relief under the federal
bankruptcy laws or state or tribal insolvency laws.
[4]
Fails to gain dismissal of any federal bankruptcy or state or
tribal insolvency proceeding within 120 days of commencement of an
involuntary proceeding.
(d)
Unless provided in the operating agreement or by the written
consent of all members, if the member is an individual, either of
the following occurs:
(e)
Unless otherwise provided in the operating agreement or by written
agreement or by the written consent of all members at the time, if
the member is a trust, corporation, partnership, or limited liability
company upon liquidation, dissolution, or termination.
(2)
The members may provide in the operating agreement for other events
the occurrence of which result in a person ceasing to be a member
of the LLC.
(3)
Unless the operating agreement provides that a member does not have
the power to withdraw by voluntary act from an LLC, the member may
do so at any time by giving written notice to the other members or
as provided in the operating agreement. If the member 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 member, in addition to pursuing any remedies provided for in
the operating agreement or otherwise available under applicable law.
A.
Contributions.
(1)
A member'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.
(2)
The value of a member'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 members, shall
be properly reflected in the records and information kept by the LLC.
The value of contributions so determined shall be binding and conclusive
on the LLC and its members.
B.
Liability for contribution.
(1)
An obligation of a member to provide cash or property or to perform
services as a contribution to an LLC is not enforceable unless specified
in writing signed by the member.
(2)
Unless otherwise provided in the operating agreement, a member is
obligated to an LLC to perform any enforceable promise to provide
cash or property or to perform services, even if the member is unable
to perform because of death, disability, or any other reason. If a
member does not provide cash, property, or services as promised, the
member 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.
(3)
Unless otherwise provided in the operating agreement, a member'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 members.
C.
Allocation of profits and losses. The profits and losses of an LLC
shall be allocated among the members in the manner provided in the
operating agreement. If the members 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 member.
A.
Interim distributions. Except as provided in this article, a member
is entitled to receive distributions from an LLC before the member'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 members or managers.
B.
Allocation of distributions. Distributions of cash or other assets
of an LLC shall be allocated among the members as provided in the
operating agreement or, if the operating agreement does not so provide,
on the basis of the value of the contributions made by each member.
C.
Distribution upon partial redemption. Except as provided in this
article, upon the distribution in partial liquidation of a member's
interest, the redeeming member is entitled to receive the amount to
which the member 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 member's right to share
in distributions from the LLC.
D.
Distribution upon dissociation. Except as otherwise provided in this
article, upon an event of dissociation that does not cause dissolution
of the LLC, a dissociating member is entitled to receive any distribution
to which the member is entitled under the operating agreement and,
if not otherwise provided in the operating agreement, the fair market
value of the member's interest in the LLC based on the member's
rights to share in distributions from the LLC.
E.
Distribution in kind. Unless otherwise provided in the operating
agreement:
F.
Right to distribution. At the time that a member becomes entitled
to receive a distribution from an LLC, the member 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 member
under any other provision of applicable law of the operating agreement.
G.
Limitations of distributions.
(1)
An LLC may not declare or make a distribution to any of its members
if, after giving effect to the distribution, any of the following
would occur:
(a)
The LLC would be unable to pay its debts as they become due
in the usual course of business.
(b)
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 members, if any.
(2)
An LLC may base a determination that a distribution is not prohibited by Subsection A, above, on any of the following:
(3)
An LLC's indebtedness to a member 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 member.
H.
Liability for wrongful distribution.
(1)
Except as provided in Subsection H(2) below, a member (other than the Tribe or tribal entity) or manager who votes or assents to a distribution in violation of this code 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 members participating in such action.
(2)
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 years after the date of the distribution.
(3)
Nothing in this code serves to waive any aspect of the Tribe or tribal
entity's sovereign immunity, and any waiver thereof must be provided
explicitly in the LLC's operating agreement.
B.
Transfer of property. The property of an LLC may be transferred by
an instrument of transfer executed by any member 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.
C.
Nature of interest. An LLC interest is personal property.
D.
Assignment of LLC interest.
(1)
Unless otherwise provided in the operating agreement:
(a)
An LLC interest is assignable in whole or in part.
(b)
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.
(c)
An assignment of an LLC interest does not dissolve the LLC.
(d)
Unless and until the assignee becomes a member of the LLC the
assignment of an LLC interest does not entitle the assignee to participate
in the management or exercise rights of a member.
(e)
Unless and until the assignee of an LLC interest becomes a member
of the LLC the assignor continues to be a member.
(f)
The assignor of an LLC interest is not released from any personal
liability arising under this code as a member of the LLC solely as
a result of the assignment.
(2)
Unless otherwise provided in the operating agreement, the granting
of a security interest, lien, or other encumbrance in or against any
or all of a member's LLC interest is not assignable and shall
not cause the member to cease to have the power to exercise any rights
or powers of a member.
E.
Rights of judgment creditor. Upon application to a court of competent
jurisdiction, including a court other than the Tribal Court having
valid jurisdiction over a member, by any judgment creditor of the
member, the court may charge the LLC interest of any member (other
than the Tribe or a tribal entity) 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 member's LLC interest
in distributions made by the LLC to members and other assigned interest
holders in the usual course of business. This section does not deprive
any of the benefit of any exemption laws applicable to the LLC interest.
In no event shall the Tribe's or a tribal entity's interest
be attachable in abrogation of its sovereign immunity, except as expressly
waived in accordance with applicable law.
F.
Right of assignee to become a member.
(1)
Unless otherwise provided in the operating agreement, an assignee
of an LLC interest may become a member only if the other members unanimously
consent.
(2)
An assignee of an LLC interest who becomes a member 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.
(3)
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 members, whether or not the assignee
becomes a member.
G.
Powers of legal representative. If a member who is an individual
dies or a court of competent jurisdiction adjudges the member to be
incompetent to manage his or her person or property, the member's
personal representative, administrator, guardian, conservator, trustee,
or other legal representative shall have all the rights of an assignee
of the member's interest. If a member is a corporation, trust,
partnership, limited liability company, or other entity and is dissolved
or terminated, the powers of that member may be exercised by its legal
representative or successor.
A.
Dissolution. A limited liability company is dissolved and its affairs
shall be wound up upon the happening of the first of the following:
(1)
The occurrence of events specified in the operating agreement.
(2)
The written consent of all members.
(3)
An event of dissociation of a member, unless otherwise provided in
the operating agreement or continuation is consented to by all remaining
members.
(4)
Entry of a decree of judicial dissolution.
B.
Judicial dissolution.
(1)
In a proceeding by or for a member, the Tribal Court may order dissolution
of an LLC if any of the following is established:
(a)
That it is not reasonably practicable to carry on the business
of the LLC.
(b)
That the LLC is not acting in conformity with its operating
agreement.
(c)
That one or more managers are acting or will act in a manner
that is illegal, oppressive, or fraudulent.
(d)
That one or more members in control of the LLC are acting or
will act in a manner that is illegal, oppressive, or fraudulent.
(e)
That LLC assets are being misapplied or wasted.
(2)
Nothing in this section may be construed as a waiver of the Tribe
or tribal entity's sovereign immunity from suit, and any waiver
thereof must be provided explicitly in the LLC's operating agreement.
C.
Winding up.
(1)
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.
(2)
Unless otherwise provided in its operating agreement:
(b)
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:
[1]
Collect its assets.
[2]
Prosecute and defend suits.
[3]
Take any action necessary to settle and close the business of
the LLC.
[4]
Dispose of and transfer the property of the LLC.
[5]
Discharge or make provision for discharging the liabilities
of the LLC.
[6]
Distribute to the members any remaining assets of the LLC.
(3)
Dissolution of an LLC does not do any of the following:
(a)
Transfer title to the LLC's property.
(b)
Prevent transfer of all or part of a member's interest.
(c)
Prevent commencement of a civil, criminal, administrative, or
investigatory proceeding by or against the LLC.
(d)
Abate or suspend a civil, criminal, administrative, or investigatory
proceeding pending by or against the LLC at the time of dissolution.
(e)
Terminate the authority of the registered agent of the LLC.
(f)
Alter the limited liability of a member.
D.
Distribution of assets. Upon the winding up of an LLC, the assets
shall be distributed in the following order:
(1)
To creditors, including to the extent permitted by law, members,
and former members in satisfaction of liabilities of the LLC.
(2)
Unless otherwise provided in the operating agreement, to members
and former members in satisfaction of liabilities for distributions.
(3)
Unless otherwise provided in the operating agreement, to members
and former members 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.
E.
Articles of dissolution. After the dissolution of an LLC the LLC
may file articles of dissolution with the Department that include
the following:
F.
Known claims against dissolved LLC.
(1)
A dissolved LLC may notify its known claimants in writing of the
dissolution and specify a procedure for making claims.
(2)
A claim against the LLC is barred if:
(a)
A claimant who was given written notice under Subsection F(1) above, does not deliver the claim, in writing, to the LLC by the deadline specified in the notice; or
(b)
A claimant whose claim is rejected by the LLC does not commence
a proceeding to enforce the claim within 90 days after receipt of
the rejection notice.
G.
Unknown or contingent claims. A claim not barred pursuant to this
code may be enforced:
(1)
Against the dissolved LLC, to the extent of its undistributed assets.
(2)
If the dissolved LLC's assets have been distributed in liquidation,
against a member of the LLC, other than the Tribe or tribal entity,
to the extent of the member's proportionate share of the claim
or of the assets of the LLC distributed to the member in liquidation,
whichever is less, but a member's total liability for all claims
under this section may not exceed the total value of assets at the
time distributed to the member.
A.
Tribal-entity-owned LLCs. There are hereby authorized to be created
LLCs wholly owned by the Tribe or tribally chartered business, with
the Tribe or tribally chartered business as the sole owner, or with
two or more tribally chartered businesses as joint owners. Tribal-entity-owned
companies created by the Tribe shall be created by a duly adopted
resolution of the Tribal Legislature. Tribal-entity-owned LLCs created
by a tribally chartered business shall be created by a duly adopted
resolution of the tribally chartered business. The organizer shall
file in accordance with this code. When the organizer files the articles
of organization and the operating agreement of a tribal-entity-owned
LLC, a certified copy of the resolution authorizing the formation
of the LLC and approving the articles shall be included. Tribal-entity-owned
LLCs shall be considered to be instrumentalities of the Tribe.
B.
Tribal-entity-owned subsidiary LLCs. There are hereby authorized
to be created by a tribal-entity-owned LLC, a wholly owned subsidiary
of such a tribal-entity-owned LLC. Such tribal-entity-owned subsidiary
LLCs to be wholly owned by the parent tribal-entity-owned LLC, which
shall be considered to be nstrumentalities of the Tribe. The organizer
of such a tribal-entity-owned subsidiary LLC shall file in accordance
with this code. When the organizer files the articles of organization
and the operating agreement of the tribal-entity-owned subsidiary
LLC, a certified copy of a resolution of the parent tribally chartered
business authorizing the formation of the subsidiary LLC and approving
the articles shall be included.
C.
Privileges and immunities. The limited liability companies established under § 18-17A and B shall be considered to be instrumentalities of the Tribe, and their agents and officers considered agents and officers of the Tribe, created for the purpose of carrying out authorities and responsibilities of economic development of the Tribe and the advancement of its tribal members. Such LLCs, their agents, directors, officers, managers and employees shall, therefore, be entitled to all of the privileges and immunities enjoyed by the Tribe, including but not limited to immunities from suit in federal, state and Tribal Courts and from federal, state, and local taxation or regulation.
E.
Project companies with nontribal members. Any LLC created pursuant to § 18-17A or B may form or own interests or shares in partnerships, corporations, or other limited liability companies with other governmental or nongovernmental entities or persons under the laws of the Tribe 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 tribal-entity-owned LLCs or tribal-entity-owned subsidiary LLCs created pursuant to this section.
F.
Purpose of tribal-entity-owned LLCs. All LLCs formed pursuant to § 18-17A and B, 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 Tribe'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 LLCs established under § 18-17A or B may only waive the privileges and immunities granted under § 18-17C 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
Tribe, or a tribally chartered business, nor shall it in any way be
deemed a waiver of any of the rights, privileges and immunities of
the Tribe or a tribally chartered business;
(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 Tribe or tribally chartered business
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 Tribe or the tribally chartered business in order to satisfy
the obligations of the LLC; including assets of the Tribe or tribally
chartered business 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.
(d)
Any waiver in order to be effective must be in writing and specifically
state that the writing is intended to waive immunity.
(2)
The sovereign immunity of the LLC shall not extend to actions against
the LLC by the Tribe or tribally chartered business or, in the case
of a subsidiary LLC created pursuant to this article, by the parent
LLC acting as owner.
H.
Distributions of income. A tribal entity-owned LLC owned by the Tribe
shall distribute the net income of the LLC to the Tribe as set forth
in its articles of organization or operating agreement. A tribal-entity-owned
LLC owned by a tribally chartered business shall distribute its net
income to the tribally chartered business in the same manner as the
tribally chartered business is required to distribute its net income
to the Tribe.
A.
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, 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, or part of this code as adjudged to
be invalid or unconstitutional.
B.
Effective date. This code shall be in full force and effect according
to its terms 30 days after enactment by the Tribal Legislature.
C.
Fees for filing documents and issuing certificates. The Department
is authorized to establish reasonable fees for services consistent
with the requirements of this code.
D.
Certificates and certified copies to be received into evidence. All
certificates or documents issued by the Department 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 Department 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 nonexistence of the facts
therein stated.
E.
Forms to be furnished by the department. The Department shall have
the authority to prescribe certain forms for documents required by
this code to be filed with the Department; such forms shall be furnished
by the Department and used by the public for such filing.
