Codified Laws


Text Search


Enter the text to search for and click Search to get a list of statutes containing the text you entered. Tips:
  • Multiple words will be searched as a phrase. Entering Property Tax will return statutes that contain the complete phrase Property Tax.
  • Logical Operators are allowed. Hunting and Fishing will return statutes that containing both hunting and fishing. Hunting or Fishing will return statutes that contain hunting, fishing, or both.
  • Wild cards(*) are allowed. Entering Approp* will return statutes that contain Appropriation, Appropriate, Appropriated, etc..
  • Punctuation can also be used as operators. + = and, , = or. Searching for phrases that have , and will result in error unless you enclose the entire phrase in quotes.
The Filter option allows you to narrow your search results to a specific Title or Chapter. Here is a tip for using the filter option.
  • Use a dash (-) as the last character of your filter to refine searches. For example the filter "1-1" returns sections in 1-1, 1-10, 1-11, 1-12, etc. The filter "1-1-" returns only sections in Chapter 1-1.

Quick Find


Type the Statute number you are looking for in the form Title-Chapter-Section . Examples(1-1-1.1, 27A-11A-12, etc.)

The Get Statute button can be used to locate a specific statute. You may type in a title, chapter, or section number. Example: typing 1 will return the chapter list for Title 1, typing 1-1 will return the section list for chapter 1-1, typing 1-1-1 will return section 1-1-1 of the statutes.

The Get Chapter button can be used to load a complete chapter of the statutes. This function requires a title and a chapter number. Examples: 1-1, 57A-1, 1-3

 
CHAPTER 47-34A

UNIFORM LIMITED LIABILITY COMPANY ACT

ARTICLE 1. GENERAL PROVISIONS.

47-34A-101      Definitions.
47-34A-102      Reserved.
47-34A-103      Operating agreement--Scope--Limitations.
47-34A-103.1      Effect of records that conflict with § 47-34A-103 or operating agreement.
47-34A-104      Supplemental principles of law.
47-34A-105      Name.
47-34A-106      Reserved name.
47-34A-107      Registration of name--Procedure.
47-34A-108 to 47-34A-111. Repealed.
47-34A-112      Nature of business and powers.
47-34A-113      Governing Law.
47-34A-114      Freedom of contract.
ARTICLE 2. ORGANIZATION.

47-34A-201      Limited liability company as legal entity.
47-34A-202.1      Organization.
47-34A-202.2      Certificate of organization.
47-34A-203      Articles of organization.
47-34A-204      Amendment or restatement of articles of organization.
47-34A-205      Signing of records.
47-34A-206      Filing in Office of Secretary of State.
47-34A-207      Correcting filed record.
47-34A-208      Certificate of existence or authorization.
47-34A-209      Reserved.
47-34A-210      Failure or refusal to sign record.
47-34A-211      Annual report for secretary of state.
47-34A-212      Fees.
ARTICLE 3. RELATIONS OF MEMBERS AND MANAGERS TO PERSONS DEALING
WITH LIMITED LIABILITY COMPANY.
47-34A-301      Agency of members and managers.
47-34A-302      Limited liability company liable for member's or manager's actionable conduct.
47-34A-303      Liability of members and managers.
ARTICLE 4. RELATIONS OF MEMBERS TO EACH OTHER AND TO LIMITED
LIABILITY COMPANY.
47-34A-401      Becoming a member.
47-34A-401.1      Form of contribution.
47-34A-402      Liability for contributions.
47-34A-403      Member's and manager's rights to payments and reimbursement.
47-34A-404.1      Management of limited liability company.
47-34A-404.2      Classes and voting.
47-34A-405      Sharing of and right to distributions.
47-34A-406      Limitations on distributions.
47-34A-407      Liability for improper distributions.
47-34A-408      Members' and managers' right to information.
47-34A-409      General standards of member's and manager's conduct.
47-34A-410      Actions by members.
47-34A-411      Good faith reliance upon information.
ARTICLE 5. TRANSFEREES AND CREDITORS OF MEMBER.

47-34A-501      Member's distributional interest.
47-34A-502      Transfer of distributional interest.
47-34A-503      Rights of a transferee.
47-34A-504      Rights of creditor.
ARTICLE 6. MEMBER'S DISSOCIATION.

47-34A-601      Events causing a member's dissociation.
47-34A-602      Member's power to dissociate; wrongful dissociation.
47-34A-603      Effect of a member's dissociation.
47-34A-604      Dissociated member's power to bind limited liability company.
47-34A-605      State of dissociation.
ARTICLE 7. RESERVED.

ARTICLE 8. WINDING UP COMPANY'S BUSINESS.

47-34A-801      Events causing dissolution and winding up of company's business.
47-34A-802      Limited liability company continues after dissolution.
47-34A-803      Right to wind up the limited liability company's business.
47-34A-804      Member's or manager's power and liability as agent after dissolution.
47-34A-805      Articles of termination.
47-34A-806      Distribution of assets in winding up the limited liability company's business.
47-34A-807      Known claims against dissolved limited liability company.
47-34A-808      Notice--Other claims against dissolved limited liability company.
47-34A-809      Grounds for administrative dissolution.
47-34A-810      Procedure for and effect of administrative dissolution.
47-34A-811      Reinstatement following administrative dissolution.
47-34A-812      Appeal from denial of reinstatement.
ARTICLE 9. MERGER, CONVERSION, AND DOMESTICATION.

47-34A-901      Definitions.
47-34A-902      Merger.
47-34A-903      Action on plan of merger by constituent limited liability company.
47-34A-904      Filings required for merger--Effective date.
47-34A-905      Effect of merger.
47-34A-906      Conversion.
47-34A-907      Action on plan of conversion by converting limited liability company.
47-34A-908      Filings required for conversion--Effective date.
47-34A-909      Effect of conversion.
47-34A-910      Domestication.
47-34A-911      Action on plan of domestication by domesticating limited liability company.
47-34A-912      Filings required for domestication--Effective date.
47-34A-913      Effect of domestication.
47-34A-914      Restrictions on approval of mergers, conversions, and domestications.
47-34A-915      Article not exclusive.
ARTICLE 10. FOREIGN LIMITED LIABILITY COMPANIES.

47-34A-1001      Law governing foreign limited liability companies.
47-34A-1002      Application for certificate of authority.
47-34A-1003      Activities not constituting transacting business.
47-34A-1004      Filing of certificate of authority.
47-34A-1005      Noncomplying name of foreign limited liability company.
47-34A-1006      Revocation of certificate of authority.
47-34A-1007      Cancellation of certificate of authority.
47-34A-1008      Effect of failure to obtain certificate of authority.
47-34A-1009      Action by attorney general.
47-34A-1010      Domestication.
47-34A-1011      Plan of domestication.
47-34A-1012      Action on plan of domestication by a domestic limited liability company.
47-34A-1013      Articles of domestication.
47-34A-1014      Surrender of articles of organization upon domestication.
47-34A-1015      Effect of domestication.
47-34A-1016      Abandonment of domestication.
ARTICLE 11. DERIVATIVE ACTIONS.

47-34A-1101      Direct action by member.
47-34A-1102      Derivative action.
47-34A-1103      Proper plaintiff.
47-34A-1104      Pleading.
47-34A-1105      Special litigation committee.
47-34A-1106      Proceeds and expenses.
ARTICLE 12. MISCELLANEOUS PROVISIONS.

47-34A-1201      Uniformity of application and construction.
47-34A-1202      Short title.
47-34A-1203, 47-34A-1204. Reserved.
47-34A-1205      Limited liability company--Organization--Effective date.
47-34A-1206      Fees.
47-34A-1206.1      Filing of documents with secretary of state.
47-34A-1207      Savings clause.


     47-34A-101.   Definitions. Terms used in this chapter:
             (1)      "Articles of organization" means initial, amended, and restated articles of organization and articles of merger. In the case of a foreign limited liability company, the term includes all records serving a similar function required to be filed in the Office of the Secretary of State or other official having custody of company records in the state or country under whose law it is organized;
             (2)      "Business" includes every trade, occupation, profession, and other lawful purpose, whether or not carried on for profit;
             (3)      "Contribution" means any benefit provided by a person to a limited liability company:
             (A)      In order to become a member upon formation of the company and in accordance with an agreement between or among the persons that have agreed to become the initial members of the company;
             (B)      In order to become a member after the formation of the company and in accordance with an agreement between the person and the company; or
             (C)      In the person's capacity as a member and in accordance with the operating agreement or an agreement between the member and the company;
             (4)      "Debtor in bankruptcy" means a person who is the subject of an order for relief under Title 11 of the United States Code or a comparable order under a successor statute of general application or a comparable order under federal, state, or foreign law governing insolvency;
             (5)      "Distribution" means a transfer of money, property, or other benefit from a limited liability company to a member in the member's capacity as a member or to a transferee of the member's distributional interest;
             (6)      "Distributional interest" means all of a member's interest in distributions by the limited liability company;
             (7)      "Entity" means a person other than an individual;
             (8)      "Foreign limited liability company" means an unincorporated entity formed under the law of a jurisdiction other than this state and denominated by that law as a limited liability company;
             (9)      "Limited liability company" except in the phrase "foreign limited liability company" means an entity formed under this chapter;
             (10)      "Manager" means a person, whether or not a member of a manager-managed company, who is vested with authority under section 301;
             (11)      "Manager-managed company" means a limited liability company which is so designated in its articles of organization;
             (12)      "Member" means a person that:
             (A)      Prior to formation of the limited liability company, becomes a member as agreed by that person and the organizer of the limited liability company;
             (B)      After formation of the limited liability company, becomes a member:
             (1)      As provided in the operating agreement;
             (2)      As a result of a transaction effective under Article IX;
             (3)      With the consent of all the members; and
             (C)      After having become a member, has not dissociated under Article VI;
             (13)      "Member-managed company" means a limited liability company other than a manager-managed company;
             (14)      "Operating agreement" means any valid agreement, either written or oral, under § 47-34A-103 concerning the relations among the members, managers, and limited liability company; however, an integration clause contained in a written operating agreement may be given effect under other law. The term includes amendments to and restatements of the operating agreement. The operating agreement of a limited liability company having only one member shall not be unenforceable by reason of there being only one person who is a party to the operating agreement;
             (15)      "Person" means an individual, corporation, business trust, cooperative corporation, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, or any other legal or commercial entity;
             (16)      "Principal office" means the office, whether or not in this state, where the principal executive office of a domestic or foreign limited liability company is located;
             (17)      "Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form;
             (18)      "Sign" means, with the present intent to authenticate or adopt a record by any means including an electronic signature:
             (A)      To execute or adopt a tangible symbol; or
             (B)      To attach to or logically associate with a record an electronic symbol, sound, or process;
             (19)      "State" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States;
             (20)      "Transfer" includes an assignment, conveyance, deed, bill of sale, lease, mortgage, security interest, encumbrance, gift, and transfer by operation of law;
             (21)      "Transferee" means a person to which all or part of a distributional interest has been transferred, whether or not the transferor is a member.

Source: SL 1998, ch 272, § 101; SL 2013, ch 233, § 1.


     47-34A-102.   Reserved


     47-34A-103.   Operating agreement--Scope--Limitations. (a) Except as otherwise provided in subsection (b), all members of a limited liability company may enter into an operating agreement, which need not be in writing, to regulate the affairs of the company and the conduct of its business, and to govern relations among the members, managers, and company. A person that becomes a member of a limited liability company is deemed to assent to the operating agreement. To the extent the operating agreement does not otherwise provide, this chapter governs relations among the members, managers, and company.
     (b) The operating agreement may not:
             (1)      Eliminate the duty of loyalty under § 47-34A-409(b) or § 47-34A-603(b)(3), but the agreement may, if not manifestly unreasonable:
             (i)      Identify specific types or categories of activities that do not violate the duty of loyalty; and
             (ii)      Specify the number or percentage of members or disinterested managers that may authorize or ratify, after full disclosure of all material facts, a specific act or transaction that otherwise would violate the duty of loyalty;
             (2)      Eliminate the obligation of good faith and fair dealing under § 47-34A-409(d), but the operating agreement may determine the standards by which the performance of the obligation is to be measured, if the standards are not manifestly unreasonable;
             (3)      Vary the right to expel a member in an event specified in § 47-34A-601(6);
             (4)      Vary the requirement to wind up the limited liability company's business in a case specified in § 47-34A-801(a)(3) or (4); or
             (5)      Restrict rights of a person, other than a manager, member, and transferee of a member's distributional interest, under this chapter.
     (c) If not manifestly unreasonable, the operating agreement may:
             (1)      Restrict a right to information or access to records under § 47-34A-408;
             (2)      Reduce the duty of care under § 47-34A-409(c) or § 47-34A-603(b)(3);
             (3)      Alter any other fiduciary duty, including eliminating particular aspects of that duty.
     (d) The court shall decide any claim under this section that a term of an operating agreement is manifestly unreasonable. The court:
             (1)      Shall make its determination as of the time the challenged term became part of the operating agreement and by considering only circumstances existing at that time; and
             (2)      May invalidate the term only if, in light of the purposes and activities of the limited liability company, it is readily apparent that:
             (i)      The objective of the term is unreasonable; or
             (ii)      The term is an unreasonable means to achieve the provision's objective.

Source: SL 1998, ch 272, § 103; SL 2013, ch 233, § 2.


     47-34A-103.1.   Effect of records that conflict with § 47-34A-103 or operating agreement. (a) If a record that has been delivered by a limited liability company to the Office of the Secretary of State for filing and has become effective under this chapter, contains a provision that would be ineffective under § 47-34A-103 if contained in the operating agreement, the provision is likewise ineffective in the record.
     (b) Subject to subsection (a) of this section, if a record that has been delivered by a limited liability company to the Office of the Secretary of State for filing, and which has become effective under this chapter, conflicts with a provision of the operating agreement:
             (1)      The operating agreement prevails as to members, dissociated members, transferees, and managers; and
             (2)      The record prevails as to other persons to the extent they reasonably rely on the record.

Source: SL 2013, ch 233, § 3.


     47-34A-104.   Supplemental principles of law. (a) Unless displaced by particular provisions of this chapter the principles of law and equity supplement this chapter.
     (b) If an obligation to pay interest arises under this chapter and the rate is not specified, the rate is that specified in subdivision 54-3-16(1).

Source: SL 1998, ch 272, § 104.


     47-34A-105.   Name. (a) The name of a limited liability company must contain, limited liability company, or limited company, or the abbreviation, L.L.C., LLC, L.C., or LC. Limited may be abbreviated as Ltd. and company may be abbreviated as Co.
     (b) Except as authorized by subsections (c) and (d), the name of a limited liability company must be distinguishable upon the records of the secretary of state from:
             (1)      The name of any corporation, limited partnership, or company incorporated, organized or authorized to transact business, in this state;
             (2)      A name reserved or registered under § 47-34A-106 or 47-34A-107;
             (3)      A fictitious name approved under § 47-34A-1005 for a foreign company authorized to transact business in this state because its real name is unavailable.
     (c) A limited liability company may apply to the secretary of state for authorization to use a name that is not distinguishable upon the records of the secretary of state from one or more of the names described in subsection (b). The secretary of state shall authorize use of the name applied for if:
             (1)      The present user, registrant, or owner of a reserved name consents to the use in a record and submits an undertaking in form satisfactory to the secretary of state to change the name to a name that is distinguishable upon the records of the secretary of state from the name applied for; or
             (2)      The applicant delivers to the secretary of state a certified copy of the final judgment of a court of competent jurisdiction establishing the applicant's right to use the name applied for in this state.
     (d) A limited liability company may use the name, including a fictitious name, of another domestic or foreign company which is used in this state if the other company is organized or authorized to transact business in this state and the company proposing to use the name has:
             (1)      Merged with the other company;
             (2)      Been formed by reorganization with the other company; or
             (3)      Acquired substantially all of the assets, including the name, of the other company.

Source: SL 1998, ch 272, § 105.


     47-34A-106.   Reserved name. The exclusive right to the use of a name may be reserved by:
             (1)      Any person intending to organize a limited liability company under this chapter and to adopt that name;
             (2)      Any domestic limited liability company or any foreign limited liability company registered in this state which, in either case, intends to adopt that name;
             (3)      Any foreign limited liability company intending to register in this state and adopt that name; and
             (4)      Any person intending to organize a foreign limited liability company and intending to have it registered in this state and adopt that name.
     The reservation shall be made by filing with the secretary of state an application, executed by the applicant, to reserve a specified name. If the secretary of state finds that the name is available for use by a domestic or foreign limited liability company, the secretary of state shall reserve the name for the exclusive use of the applicant for a period of one hundred twenty days. Once having so reserved a name, the same applicant may not again reserve the same name until more than sixty days after the expiration of the last one hundred twenty-day period for which that applicant reserved that name. The right to the exclusive use of a reserved name may be transferred to any other person by filing in the Office of the Secretary of State a notice of the transfer, executed by the applicant for whom the name was reserved and specifying the name and address of the transferee.

Source: SL 1998, ch 272, § 106.


     47-34A-107.   Registration of name--Procedure. (a) A foreign limited liability company may register its name subject to the requirements of § 47-34A-1005, if the name is distinguishable upon the records of the secretary of state from names that are not available under § 47-34A-105(b).
     (b) A foreign limited liability company registers its name, or its name with any addition required by § 47-34A-1005, by delivering to the secretary of state for filing an application:
             (1)      Setting forth its name, or its name with any addition required by § 47-34A-1005, the state or country and date of its organization, and a brief description of the nature of the business in which it is engaged; and
             (2)      Accompanied by a certificate of existence, or a record of similar import, from the state or country of organization.
     (c) A foreign limited liability company whose registration is effective may renew it for successive years by delivering for filing in the office of the secretary of state a renewal application complying with subsection (b) between October first and December thirty-first of the preceding year. The renewal application renews the registration for the following calendar year.
     (d) A foreign limited liability company whose registration is effective may qualify as a foreign company under its name or consent in writing to the use of its name by a limited liability company later organized under this chapter or by another foreign company later authorized to transact business in this state. The registered name terminates when the limited liability company is organized or the foreign company qualifies or consents to the qualification of another foreign company under the registered name.

Source: SL 1998, ch 272, § 107.


     47-34A-108 to 47-34A-111.   Repealed by SL 2008, ch 275, § 74.


     47-34A-112.   Nature of business and powers. (a) A limited liability company may be organized under this chapter for any lawful purpose, subject to any law of this state governing or regulating business including regulation of professional service firms. Limited liability companies may not engage in activities proscribed by chapter 47-9A unless the ownership restrictions are met by the membership of the limited liability company by substitution of members for shareholders in that chapter.
     (b) Unless its articles of organization provide otherwise, a limited liability company has the same powers as an individual to do all things necessary or convenient to carry on its business or affairs, including power to:
             (1)      Sue and be sued, and defend in its name;
             (2)      Purchase, receive, lease, or otherwise acquire, and own, hold, improve, use, and otherwise deal with real or personal property, or any legal or equitable interest in property, wherever located;
             (3)      Sell, convey, mortgage, grant a security interest in, lease, exchange, and otherwise encumber or dispose of all or any part of its property;
             (4)      Purchase, receive, subscribe for, or otherwise acquire, own, hold, vote, use, sell, mortgage, lend, grant a security interest in, or otherwise dispose of and deal in and with, shares or other interests in or obligations of any other entity;
             (5)      Make contracts and guarantees, incur liabilities, borrow money, issue its notes, bonds, and other obligations, which may be convertible into or include the option to purchase other securities of the limited liability company, and secure any of its obligations by a mortgage on or a security interest in any of its property, franchises, or income;
             (6)      Lend money, invest and reinvest its funds, and receive and hold real and personal property as security for repayment;
             (7)      Be a promoter, partner, member, associate, or manager of any partnership, joint venture, trust, or other entity including but not limited to limited partnerships and limited liability companies;
             (8)      Conduct its business, locate offices, and exercise the powers granted by this chapter within or without this state;
             (9)      Elect managers and appoint officers, employees, and agents of the limited liability company, define their duties, fix their compensation, and lend them money and credit, or otherwise assist its members;
             (10)      Pay pensions and establish pension plans, pension trusts, profit sharing plans, bonus plans, option plans, and benefit or incentive plans for any or all of its current or former members, managers, officers, employees, and agents;
             (11)      Make donations for the public welfare or for charitable, scientific, or educational purposes; and
             (12)      Make payments or donations, or do any other act, not inconsistent with law, that furthers the business of the limited liability company.

Source: SL 1998, ch 272, § 112.


     47-34A-113.   Governing Law. The law of this state governs:
             (1)      The internal affairs of a limited liability company; and
             (2)      The liability of a member as member and a manager as manager for the debts, obligations, or other liabilities of a limited liability company.

Source: SL 2013, ch 233, § 4.


     47-34A-114.   Freedom of contract. It is the policy of this chapter and this state to give maximum effect to the principles of freedom of contract and to the enforceability of operating agreements.

Source: SL 2013, ch 233, § 5.


     47-34A-201.   Limited liability company as legal entity. A limited liability company is a legal entity distinct from its members. A member of a limited liability company is not a proper party to proceedings by or against a limited liability company.

Source: SL 1998, ch 272, § 201.


     47-34A-202.1.   Organization. (a) One or more persons may organize a limited liability company, consisting of one or more members, by delivering articles of organization to the Office of the Secretary of State for filing.
     (b) Unless a delayed effective date is specified in accordance with § 47-34A-206(d), the existence of a limited liability company begins when the articles of organization are filed.
     (c) The original articles of organization shall be delivered to the secretary of state. Delivery may be made by electronic transmission if and to the extent permitted by the Office of the Secretary of State. If the document is filed in typewritten or printed form and not transmitted electronically, the Office of the Secretary of State may require one exact or conformed copy to be delivered with the document. If the secretary of state finds that the articles of organization conform to law, the secretary of state shall, when all fees have been paid as prescribed:
             (1)      Endorse the original with the word, Filed, and the month, date, and year of the filing;
             (2)      File the original;
             (3)      Issue a certificate of organization and affix to the certificate, the exact or conforming copy.
     The certificate of organization, together with the exact or conforming copy of the articles of organization affixed to it by the secretary of state, shall be returned to the principal office of the limited liability company or to its representative.

Source: SL 1998, ch 272, § 202.1; SL 2005, ch 241, § 1; SL 2012, ch 222, § 14.


     47-34A-202.2.   Certificate of organization. Upon the issuance of the certificate of organization, the limited liability company shall be considered organized, and such certificate of organization shall be conclusive evidence that all conditions precedent required to be performed by the members have been complied with and that the limited liability company has been legally organized under this chapter, except as against this state in a proceeding to cancel or revoke the certificate of organization or for involuntary dissolution of the limited liability company.
     No limited liability company may transact business or incur indebtedness, except that which is incidental to its organization, or except for obtaining subscriptions for or payment of contributions, until the secretary of state has issued a certificate of organization.

Source: SL 1998, ch 272, § 202.2.


     47-34A-203.   Articles of organization. (a) Articles of organization of a limited liability company must set forth:
             (1)      The name of the company;
             (2)      The address of the initial designated office;
             (3)      The information required by § 59-11-6;
             (4)      The name and address of each organizer;
             (5)      The duration of the company if other than perpetual;
             (6)      Whether the company is to be manager-managed, and, if so, the name and address for each initial manager; and
             (7)      Whether one or more of the members of the company are to be liable for its debts and obligations under § 47-34A-303(c).
     (b) Articles of organization of a limited liability company may set forth:
             (1)      Provisions permitted to be set forth in an operating agreement; or
             (2)      Other matters not inconsistent with law.
     (c) Articles of organization of a limited liability company may not vary the nonwaivable provisions of § 47-34A-103(b). As to all other matters, if any provision of an operating agreement is inconsistent with the articles of organization:
             (1)      The operating agreement controls as to managers, members, and members' transferees; and
             (2)      The articles of organization control as to persons, other than managers, members and their transferees, who reasonably rely on the articles to their detriment.

Source: SL 1998, ch 272, § 203; SL 2006, ch 228, § 8; SL 2008, ch 275, § 75.


     47-34A-204.   Amendment or restatement of articles of organization. (a) Articles of organization of a limited liability company may be amended at any time by delivering articles of amendment to the secretary of state for filing. The articles of amendment must set forth the:
             (1)      Name of the limited liability company;
             (2)      Date of filing of the articles of organization; and
             (3)      Amendment to the articles.
     (b) A limited liability company may restate its articles of organization at any time. Restated articles of organization must be signed and filed in the same manner as articles of amendment. Restated articles of organization must be designated as such in the heading and state in the heading or in an introductory paragraph the limited liability company's present name and, if it has been changed, all of its former names and the date of the filing of its initial articles of organization.

Source: SL 1998, ch 272, § 204.


     47-34A-205.   Signing of records. (a) Except as otherwise provided in this chapter a record to be filed by or on behalf of a limited liability company in the Office of the Secretary of State must be signed in the name of the company by a:
             (1)      Manager of a manager-managed company;
             (2)      Member of a member-managed company;
             (3)      Person organizing the company, if the company has not been formed; or
             (4)      Fiduciary, if the company is in the hands of a receiver, trustee, or other court-appointed fiduciary.
     (b) A record signed under subsection (a) must state adjacent to the signature the name and capacity of the signer.
     (c) Any person may sign a record to be filed under subsection (a) by an attorney-in-fact. Powers of attorney relating to the signing of records to be filed under subsection (a) by an attorney-in-fact need not be filed in the Office of the Secretary of State as evidence of authority by the person filing but must be retained by the company.

Source: SL 1998, ch 272, § 205.


     47-34A-206.   Filing in Office of Secretary of State. (a) Articles of organization or any other record authorized to be filed under this chapter must be in a medium permitted by the secretary of state and must be delivered to the Office of the Secretary of State. Unless the secretary of state determines that a record fails to comply as to form with the filing requirements of this chapter, and if all filing fees have been paid, the secretary of state shall file the record and send a receipt for the record and the fees to the limited liability company or its representative.
     (b) Upon request and payment of a fee, the secretary of state shall send to the requester a certified copy of the requested record.
     (c) Except as otherwise provided in subsection (d), §§ 47-34A-202.1 and 47-34A-202.2, and § 47-34A-207(c), a record accepted for filing by the secretary of state is effective:
             (1)      At the time of filing on the date it is filed, as evidenced by the secretary of state's date and time endorsement on the original record; or
             (2)      At the time specified in the record as its effective time on the date it is filed.
     (d) A record, including the articles of organization, may specify a delayed effective time and date, and if it does so the record becomes effective at the time and date specified subject to the other requirements of this chapter. If a delayed effective date but no time is specified, the record is effective at the close of business on that date. If a delayed effective date is later than the ninetieth day after the record is filed, the record is effective on the ninetieth day.

Source: SL 1998, ch 272, § 206.


     47-34A-207.   Correcting filed record. (a) A limited liability company or foreign limited liability company may correct a record filed by the secretary of state if the record contains a false or erroneous statement or was defectively signed.
     (b) A record is corrected:
             (1)      By preparing articles of correction that:
             (i)      Describe the record, including its filing date, or attach a copy of it to the articles of correction;
             (ii)      Specify the incorrect statement and the reason it is incorrect or the manner in which the signing was defective; and
             (iii)      Correct the incorrect statement or defective signing; and
             (2)      By delivering the corrected record to the secretary of state for filing.
     (c) Articles of correction are effective retroactively on the effective date of the record they correct except as to persons relying on the uncorrected record and adversely affected by the correction. As to those persons, articles of correction are effective when filed.

Source: SL 1998, ch 272, § 207.


     47-34A-208.   Certificate of existence or authorization. (a) Any person may request the secretary of state to furnish a certificate of existence for a limited liability company or a certificate of authorization for a foreign limited liability company.
     (b) A certificate of existence for a limited liability company must set forth:
             (1)      The company's name;
             (2)      That it is duly organized under the laws of this state, the date of organization, whether its duration is at-will or for a specified term, and, if the latter, the period specified;
             (3)      If payment is reflected in the records of the secretary of state and if nonpayment affects the existence of the company, that all fees, taxes, and penalties owed to this state have been paid;
             (4)      Whether its most recent annual report required by § 47-34A-211 has been filed with the secretary of state;
             (5)      That articles of termination have not been filed; and
             (6)      Other facts of record in the Office of the Secretary of State which may be requested by the applicant.
     (c) A certificate of authorization for a foreign limited liability company must set forth:
             (1)      The company's name used in this state;
             (2)      That it is authorized to transact business in this state;
             (3)      If payment is reflected in the records of the secretary of state and if nonpayment affects the authorization of the company, that all fees, taxes, and penalties owed to this state have been paid;
             (4)      Whether its most recent annual report required by § 47-34A-211 has been filed with the secretary of state;
             (5)      That a certificate of cancellation has not been filed; and
             (6)      Other facts of record in the Office of the Secretary of State which may be requested by the applicant.
     (d) Subject to any qualification stated in the certificate, a certificate of existence or authorization issued by the secretary of state may be relied upon as conclusive evidence that the domestic or foreign limited liability company is in existence or is authorized to transact business in this state.

Source: SL 1998, ch 272, § 208.


     47-34A-209.   Reserved


     47-34A-210.   Failure or refusal to sign record. If a person required by § 47-34A-205 to sign any record fails or refuses to do so, any other person who is adversely affected by the failure or refusal may petition the state circuit court to direct the signing of the record. If the court finds that it is proper for the record to be signed and that a person so designated has failed or refused to sign the record, it shall order the secretary of state to sign and file an appropriate record.

Source: SL 1998, ch 272, § 210.


     47-34A-211.   Annual report for secretary of state. A limited liability company, and a foreign limited liability company authorized to transact business in this state, except a bank organized pursuant to § 51A-3-1.1, shall deliver to the secretary of state for filing an annual report pursuant to §§ 59-11-24 to 59-11-26, inclusive.

Source: SL 1998, ch 272, § 211; SL 2004, ch 289, § 5; SL 2005, ch 241, § 2; SL 2008, ch 275, § 76.


     47-34A-212.   Fees. The secretary of state shall charge and collect for:
             (a)      Filing the articles of organization in the case of a domestic limited liability company, a filing fee of one hundred fifty dollars. Filing the articles of organization in the case of a foreign limited liability company, a filing fee of seven hundred fifty dollars;
             (b)      A reporting fee of fifty dollars, due and payable with the filing of each annual report. Each entity that does not file or refuses to file its annual report within the time prescribed is subject to a penalty of fifty dollars to be assessed by the secretary of state.

Source: SL 1998, ch 272, § 212; SL 1999, ch 221, § 1; SL 2003, ch 8, § 23; SL 2004, ch 279, § 2; SL 2005, ch 241, § 3; SL 2009, ch 4, § 18; SL 2016, ch 2, § 2.


     47-34A-301.   Agency of members and managers. (a) Subject to subsections (b) and (c):
             (1)      Each member is an agent of the limited liability company for the purpose of its business, and an act of a member, including the signing of an instrument in the company's name, for apparently carrying on in the ordinary course the company's business or business of the kind carried on by the company binds the company, unless the member had no authority to act for the company in the particular matter and the person with whom the member was dealing knew or had notice that the member lacked authority.
             (2)      An act of a member which is not apparently for carrying on in the ordinary course the company's business or business of the kind carried on by the company binds the company only if the act was authorized by the other members.
     (b) Subject to subsection (c), in a manager-managed company:
             (1)      A member is not an agent of the company for the purpose of its business solely by reason of being a member. Each manager is an agent of the company for the purpose of its business, and an act of a manager, including the signing of an instrument in the company's name, for apparently carrying on in the ordinary course the company's business or business of the kind carried on by the company binds the company, unless the manager had no authority to act for the company in the particular matter and the person with whom the manager was dealing knew or had notice that the manager lacked authority.
             (2)      An act of a manager which is not apparently for carrying on in the ordinary course the company's business or business of the kind carried on by the company binds the company only if the act was authorized under § 47-34A-404.1.
     (c) Unless the articles of organization limit their authority, any member of a member-managed company or manager of a manager-managed company may sign and deliver any instrument transferring or affecting the company's interest in real property. The instrument is conclusive in favor of a person who gives value without knowledge of the lack of the authority of the person signing and delivering the instrument.

Source: SL 1998, ch 272, § 301.


     47-34A-302.   Limited liability company liable for member's or manager's actionable conduct. A limited liability company is liable for loss or injury caused to a person, or for a penalty incurred, as a result of a wrongful act or omission, or other actionable conduct, of a member or manager acting in the ordinary course of business of the company or with authority of the company.

Source: SL 1998, ch 272, § 302.


     47-34A-303.   Liability of members and managers. (a) Except as otherwise provided in subsection (c), the debts, obligations, and liabilities of a limited liability company, whether arising in contract, tort, or otherwise, are solely the debts, obligations, and liabilities of the company. A member or manager is not personally liable for a debt, obligation, or liability of the company solely by reason of being or acting as a member or manager.
     (b) The failure of a limited liability company to observe the usual company formalities or requirements relating to the exercise of its company powers or management of its business is not a ground for imposing personal liability on the members or managers for liabilities of the company.
     (c) All or specified members of a limited liability company are liable in their capacity as members for all or specified debts, obligations, or liabilities of the company if:
             (1)      A provision to that effect is contained in the articles of organization; and
             (2)      A member so liable has consented in writing to the adoption of the provision or to be bound by the provision.

Source: SL 1998, ch 272, § 303.


     47-34A-401.   Becoming a member. (a) If a limited liability company is to have only one member upon formation, the person becomes a member as agreed by that person and the organizer of the company. That person and the organizer may be, but need not be, different persons. If different, the organizer acts on behalf of the initial member.
     (b) If a limited liability company is to have more than one member upon formation, those persons become members as agreed by the persons before the formation of the company. The organizer acts on behalf of the persons in forming the company and may be, but need not be, one of the persons.
     (c) After formation of a limited liability company, a person becomes a member:
             (1)      As provided in the operating agreement;
             (2)      As the result of a transaction effective under Article 9;
             (3)      With the consent of all the members; or
             (4)      If, within 90 consecutive days after the company ceases to have any members:
             (A)      The last person to have been a member, or the legal representative of that person, designates a person to become a member; and
             (B)      The designated person consents to become a member.
     (d) A person may become a member without acquiring a distributional interest and without making or being obligated to make a contribution to the limited liability company.

Source: SL 1998, ch 272, § 401; SL 2013, ch 233, § 6.


     47-34A-401.1.   Form of contribution. A contribution of a member of a limited liability company may consist of tangible or intangible property or other benefit to a limited liability company, including money, promissory notes, services performed, other agreements to contribute money or property, or contracts for services to be performed.

Source: SL 2013, ch 233, § 7.


     47-34A-402.   Liability for contributions. (a) A person's obligation to make a contribution to a limited liability company is not excused by the person's death, disability, or other inability to perform personally. If a person does not make the required contribution, the person or person's estate is obligated to contribute money equal to the value of that part of the contribution which has not been made at the option of the company.
     (b) A creditor of a limited liability company which extends credit or otherwise acts in reliance on an obligation described in subsection (a), and without notice of any compromise under § 47-34A-404.1(c)(5), may enforce the obligation.

Source: SL 1998, ch 272, § 402; SL 2013, ch 233, § 8.


     47-34A-403.   Member's and manager's rights to payments and reimbursement. (a) A limited liability company shall reimburse a member or manager for payments made and indemnify a member or manager for liabilities incurred by the member or manager in the ordinary course of the business of the company or for the preservation of its business or property.
     (b) A limited liability company shall reimburse a member for an advance to the company beyond the amount of contribution the member agreed to make.
     (c) A payment or advance made by a member which gives rise to an obligation of a limited liability company under subsection (a) or (b) constitutes a loan to the company upon which interest accrues from the date of the payment or advance.
     (d) A member is not entitled to remuneration for services performed for a limited liability company, except for reasonable compensation for services rendered in winding up the business of the company.
     (e) A limited liability company may purchase and maintain insurance on behalf of a member or manager of the limited liability company against liability asserted against or incurred by the member or manager in that capacity or arising from that status even if the operating agreement could not eliminate or limit the person's liability to the company for the conduct giving rise to the liability.

Source: SL 1998, ch 272, § 403; SL 2013, ch 233, § 9.


     47-34A-404.1.   Management of limited liability company. (a) In a member-managed company:
             (1)      Each member has equal rights in the management and conduct of the company's business; and
             (2)      Except as otherwise provided in subsection (c), any matter relating to the business of the company may be decided by a majority of the members.
     (b) In a manager-managed company:
             (1)      Each manager has equal rights in the management and conduct of the company's business;
             (2)      Except as otherwise provided in subsection (c), any matter relating to the business of the company may be exclusively decided by the manager or, if there is more than one manager, by a majority of the managers; and
             (3)      A manager:
             (i)      Must be designated, appointed, elected, removed, or replaced by a vote, approval, or consent of a majority of the members; and
             (ii)      Holds office until a successor has been elected and qualified, unless the manager sooner resigns or is removed.
     (c) The only matters of a member-or manager-managed company's business requiring the consent of all of the members are:
             (1)      The amendment of the operating agreement under § 47-34A-103;
             (2)      The authorization or ratification of acts or transactions under § 47-34A-103(b)(2)(ii) which would otherwise violate the duty of loyalty;
             (3)      An amendment to the articles of organization under § 47-34A-204;
             (4)      The compromise of an obligation to make a contribution under § 47-34A-402(b);
             (5)      The compromise, as among members, of an obligation of a member to make a contribution or return money or other property paid or distributed in violation of this chapter;
             (6)      The making of interim distributions under § 47-34A-405(a), including the redemption of an interest;
             (7)      The admission of a new member;
             (8)      The use of the company's property to redeem an interest subject to a charging order;
             (9)      The consent to dissolve the company under § 47-34A-801(a)(2);
             (10)      A waiver of the right to have the company's business wound up and the company terminated under § 47-34A-802(b);
             (11)      The consent of members to merge with another entity under § 47-34A-904(c)(1); and
             (12)      The sale, lease, exchange, or other disposal of all, or substantially all, of the company's property with or without goodwill.
     (d) Action requiring the consent of members or managers under this chapter may be taken without a meeting.
     (e) A member or manager may appoint a proxy to vote or otherwise act for the member or manager by signing an appointment instrument, either personally or by the member's or manager's attorney-in-fact.

Source: SL 1998, ch 272, § 404.1.


     47-34A-404.2.   Classes and voting. Nothing in this chapter prohibits the articles of organization from establishing classes or groups of one or more members having certain expressed relative rights, powers, or duties, including voting rights and the articles of organization may provide for the future creation, in the manner provided in the articles of organization, of additional classes or groups of members having certain relative rights, powers, or duties, including voting rights, expressed either in the regulations or at the time of creation. The rights, powers, or duties of a class or group may be senior to those of one or more existing classes or groups of members.

Source: SL 1998, ch 272, § 404.2.


     47-34A-405.   Sharing of and right to distributions. (a) Any distributions made by a limited liability company before its dissolution and winding up must be in equal shares.
     (b) A member has no right to receive, and may not be required to accept, a distribution in kind.
     (c) If 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.

Source: SL 1998, ch 272, § 405.


     47-34A-406.   Limitations on distributions. (a) A distribution may not be made if, after the distribution is made:
             (1)      The limited liability company would not be able to pay its debts as they become due in the ordinary course of business; or
             (2)      The company's total assets would be less than the sum of its total liabilities plus the amount that would be needed, if the company were to be dissolved, wound up, and terminated at the time of the distribution, to satisfy the preferential rights upon dissolution, winding up, and termination of members whose preferential rights are superior to those receiving the distribution.
     (b) A limited liability company may base a determination that a distribution is not prohibited under subsection (a) on financial statements prepared on the basis of accounting practices and principles that are reasonable in the circumstances or on a fair valuation or other method that is reasonable in the circumstances.
     (c) Except as otherwise provided in subsection (e), the effect of a distribution under subsection (a) is measured:
             (1)      In the case of distribution by purchase, redemption, or other acquisition of a distributional interest in a limited liability company, as of the date money or other property is transferred or debt incurred by the company; and
             (2)      In all other cases, as of the date the:
             (i)      Distribution is authorized if the payment occurs within one hundred twenty days after the date of authorization; or
             (ii)      Payment is made if it occurs more than one hundred twenty days after the date of authorization.
     (d) A limited liability company's indebtedness to a member incurred by reason of a distribution made in accordance with this section is at parity with the company's indebtedness to its general, unsecured creditors.
     (e) Indebtedness of a limited liability company, including indebtedness issued in connection with or as part of a distribution, is not considered a liability for purposes of determinations under subsection (a) if its terms provide that payment of principal and interest are made only if and to the extent that payment of a distribution to members could then be made under this section. If the indebtedness is issued as a distribution, each payment of principal or interest on the indebtedness is treated as a distribution, the effect of which is measured on the date the payment is made.
     (f) In subsection (a), "distribution" does not include amounts (i) constituting reasonable compensation for present or past services or (ii) reasonable payments made in the ordinary course of business under a bona fide retirement plan or other benefits program.

Source: SL 1998, ch 272, § 406; SL 2013, ch 233, § 10.


     47-34A-407.   Liability for improper distributions. (a) Any member of a member-managed company, or a manager of a manager-managed company who votes for or assents to a distribution made in violation of § 47-34A-406, the articles of organization, or the operating agreement is personally liable to the company for the amount of the distribution which exceeds the amount that could have been distributed without violating § 47-34A-406, the articles of organization, or the operating agreement if it is established that the member or manager did not perform the member's or manager's duties in compliance with § 47-34A-409.
     (b) To the extent the operating agreement of a member-managed limited liability company expressly relieves a member of the authority and responsibility to consent to distributions and imposes that authority and responsibility on one or more other members, the liability stated in subsection (a) applies to the other members and not the member that the operating agreement relieves of authority and responsibility.
     (c) A member of a manager-managed company who knew a distribution was made in violation of § 47-34A-406, the articles of organization, or the operating agreement is personally liable to the company, but only to the extent that the distribution received by the member exceeded the amount that could have been properly paid under § 47-34A-406.
     (d) A member or manager against whom an action is brought under this section may implead in the action all:
             (1)      Other members or managers who voted for or assented to the distribution in violation of subsection (a) and may compel contribution from them; and
             (2)      Members who received a distribution in violation of subsection (b) and may compel contribution from the member in the amount received in violation of subsection (b).
     (e) A proceeding under this section is barred unless it is commenced within two years after the distribution.

Source: SL 1998, ch 272, § 407; SL 2013, ch 233, § 11.


     47-34A-408.   Members' and managers' right to information. (a) A limited liability company shall provide managers and members and the respective agents and attorneys of members access for proper purposes to its records, if any, at the company's principal office or other reasonable locations specified in the operating agreement. The company shall provide former members and their respective agents and attorneys access for proper purposes to records pertaining to the period during which they were members. The right of access provides the opportunity to inspect and copy records during ordinary business hours. The company may impose a reasonable charge, limited to the costs of labor and material, for copies of records furnished.
     (b) A limited liability company shall furnish to a manager:
             (1)      Without demand, information concerning the company's business or affairs reasonably required for the proper exercise of the manager's performance of the manager's duties under the operating agreement or this chapter; and
             (2)      On demand, other information concerning the company's business or affairs, except to the extent the demand or the information demanded is unreasonable or otherwise improper under the circumstances.
     (c) A limited liability company shall furnish to a member, and to the legal representative of a deceased member or member under legal disability:
             (1)      Without demand, information concerning the company's business or affairs reasonably required for the proper exercise of the member's rights and performance of the member's duties under the operating agreement or this chapter; and
             (2)      On demand, other information concerning the company's business or affairs, except to the extent the demand or the information demanded is unreasonable or otherwise improper under the circumstances.
     (d) A member has the right upon written demand given to the limited liability company to obtain at the company's expense a copy of any written operating agreement.

Source: SL 1998, ch 272, § 408; SL 2010, ch 218, § 1.


     47-34A-409.   General standards of member's and manager's conduct. (a) The only fiduciary duties a member owes to a member-managed company and, subject to § 47-34A-1101(b), its other members are the duty of loyalty and the duty of care imposed by subsections (b) and (c).
     (b) A member's duty of loyalty to a member-managed company and its other members is limited to the following:
             (1)      To account to the company and to hold as trustee for it any property, profit, or benefit derived by the member in the conduct or winding up of the company's business or derived from a use by the member of the company's property, including the appropriation of a company's opportunity;
             (2)      To refrain from dealing with the company in the conduct or winding up of the company's business as or on behalf of a party having an interest adverse to the company; and
             (3)      To refrain from competing with the company in the conduct of the company's business before the dissolution of the company.
     (c) A member's duty of care to a member-managed company and its other members in the conduct of and winding up of the company's business is limited to refraining from engaging in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law.
     (d) A member shall discharge the duties to a member-managed company and its other members under this chapter or under the operating agreement and exercise any rights consistently with the obligation of good faith and fair dealing.
     (e) A member of a member-managed company does not violate a duty or obligation under this chapter or under the operating agreement merely because the member's conduct furthers the member's own interest.
     (f) A member of a member-managed company may lend money to and transact other business with the company. As to each loan or transaction, the rights and obligations of the member are the same as those of a person who is not a member, subject to other applicable law.
     (g) This section applies to a person winding up the limited liability company's business as the personal or legal representative of the last surviving member as if the person were a member.
     (h) In a manager-managed company:
             (1)      A member who is not also a manager owes no duties to the company or to the other members solely by reason of being a member;
             (2)      A manager is held to the same standards of conduct prescribed for members in subsections (b) through (f);
             (3)      A member who pursuant to the operating agreement exercises some or all of the rights of a manager in the management and conduct of the company's business is held to the standards of conduct in subsections (b) through (f) to the extent that the member exercises the managerial authority vested in a manager by this chapter; and
             (4)      A manager is relieved of liability imposed by law for violation of the standards prescribed by subsections (b) through (f) to the extent of the managerial authority delegated to the members by the operating agreement.

Source: SL 1998, ch 272, § 409; SL 2013, ch 233, § 12.


     47-34A-410.   Actions by members. (a) A member may maintain an action against a limited liability company or another member for legal or equitable relief, with or without an accounting as to the company's business, to enforce:
             (1)      The member's rights under the operating agreement;
             (2)      The member's rights under this chapter; and
             (3)      The rights and otherwise protect the interests of the member, including rights and interests arising independently of the member's relationship to the company.
     (b) The accrual, and any time limited for the assertion, of a right of action for a remedy under this section is governed by other law. A right to an accounting upon a dissolution and winding up does not revive a claim barred by law.

Source: SL 1998, ch 272, § 410.


     47-34A-411.   Good faith reliance upon information. A member or manager of a limited liability company shall be fully protected in relying in good faith upon the records of the limited liability company and upon such information, opinions, reports, or statements presented to the limited liability company by any of its other managers, members, officers, employees, or committees of the limited liability company, or any other person, as to matters the member or manager reasonably believes are within such other person's professional or expert competence and who has been selected with reasonable care by or on behalf of the limited liability company, including information, opinions, reports, or statements as to the value and amount of the assets, liabilities, profits, or losses of the limited liability company or any other facts pertinent to the existence and amount of assets from which distributions to members might properly be paid.

Source: SL 2010, ch 218, § 14.


     47-34A-501.   Member's distributional interest. (a) A member is not a co-owner of, and has no transferable interest in, property of a limited liability company.
     (b) A distributional interest in a limited liability company is personal property and, subject to § 47-34A-502 and § 47-34A-503, may be transferred in whole or in part.
     (c) An operating agreement may provide that a distributional interest may be evidenced by a certificate of the interest issued by the limited liability company and, subject to § 47-34A-503, may also provide for the transfer of any interest represented by the certificate.

Source: SL 1998, ch 272, § 501.


     47-34A-502.   Transfer of distributional interest. A transfer of a distributional interest does not entitle the transferee to become or to exercise any rights of a member. A transfer entitles the transferee to receive, to the extent transferred, only the distributions to which the transferor would be entitled.

Source: SL 1998, ch 272, § 502.


     47-34A-503.   Rights of a transferee. (a) A transferee of a distributional interest may become a member of a limited liability company if and to the extent that the transferor gives the transferee the right in accordance with authority described in the operating agreement or all other members consent.
     (b) A transferee who has become a member, to the extent transferred, has the rights and powers, and is subject to the restrictions and liabilities, of a member under the operating agreement of a limited liability company and this chapter. A transferee who becomes a member also is liable for the transferor member's obligations to make contributions under § 47-34A-402 and for obligations under § 47-34A-407 to return unlawful distributions, but the transferee is not obligated for the transferor member's liabilities unknown to the transferee at the time the transferee becomes a member.
     (c) Whether or not a transferee of a distributional interest becomes a member under subsection (a), the transferor is not released from liability to the limited liability company under the operating agreement or this chapter.
     (d) A transferee who does not become a member is not entitled to participate in the management or conduct of the limited liability company's business, require access to information concerning the company's transactions, or inspect or copy any of the company's records.
     (e) A transferee who does not become a member is entitled to:
             (1)      Receive, in accordance with the transfer, distributions to which the transferor would otherwise be entitled;
             (2)      Receive, upon dissolution and winding up of the limited liability company's business:
             (i)      In accordance with the transfer, the net amount otherwise distributable to the transferor;
             (ii)      A statement of account only from the date of the latest statement of account agreed to by all the members.
     (f) A limited liability company need not give effect to a transfer until it has notice of the transfer.

Source: SL 1998, ch 272, § 503; SL 2009, ch 234, § 1.


     47-34A-504.   Rights of creditor. (a) On application by a judgment creditor of a member of a limited liability company or of a member's transferee, and following notice to the limited liability company of such application, a court having jurisdiction may charge the distributional interest of the judgment debtor to satisfy the judgment.
     (b) A charging order constitutes a lien on the judgment debtor's distributional interest.
     (c) A distributional interest in a limited liability company which is charged may be redeemed:
             (1)      By the judgment debtor;
             (2)      With property other than the company's property, by one or more of the other members; or
             (3)      With the company's property, but only if permitted by the operating agreement.
     (d) This chapter does not affect a member's right under exemption laws with respect to the member's distributional interest in a limited liability company.
     (e) This section provides the exclusive remedy that a judgment creditor of a member's distributional interest or a member's assignee may use to satisfy a judgment out of the judgment debtor's interest in a limited liability company. No other remedy, including foreclosure on the member's distributional interest or a court order for directions, accounts, and inquiries that the debtor, member might have made, is available to the judgment creditor attempting to satisfy the judgment out of the judgment debtor's interest in the limited liability company.
     (f) No creditor of a member or a member's assignee has any right to obtain possession of, or otherwise exercise legal or equitable remedies with respect to, the property of the company.
     (g) This section applies to single member limited liability companies in addition to limited liability companies with more than one member.

Source: SL 1998, ch 272, § 504; SL 2007, ch 262, § 1; SL 2009, ch 234, § 2; SL 2012, ch 226, § 1; SL 2013, ch 233, § 13.


     47-34A-601.   Events causing a member's dissociation. A member is dissociated from a limited liability company upon the occurrence of any of the following events:
             (1)      The company's having notice of the member's express will to withdraw upon the date of notice or on a later date specified by the member;
             (2)      An event agreed to in the operating agreement as causing the member's dissociation;
             (3)      Upon transfer of all of a member's distributional interest, other than a transfer for security purposes or a court order charging the member's distributional interest which has not been foreclosed;
             (4)      The member's expulsion pursuant to the operating agreement;
             (5)      The member's expulsion by unanimous vote of the other members if:
             (i)      It is unlawful to carry on the company's business with the member;
             (ii)      There has been a transfer of substantially all of the member's distributional interest, other than a transfer for security purposes or a court order charging the member's distributional interest which has not been foreclosed;
             (iii)      Within ninety days after the company notifies a corporate member that it will be expelled because it has filed a certificate of dissolution or the equivalent, its charter has been revoked, or its right to conduct business has been suspended by the jurisdiction of its incorporation, the member fails to obtain a revocation of the certificate of dissolution or a reinstatement of its charter or its right to conduct business; or
             (iv)      A corporation, partnership, limited liability company, or other entity that is a member has been dissolved and its business is being wound up;
             (6)      On application by the company or another member, the member's expulsion by judicial determination because the member:
             (i)      Engaged in wrongful conduct that adversely and materially affected the company's business;
             (ii)      Willfully or persistently committed a material breach of the operating agreement or of a duty owed to the company or the other members under § 47-34A-409; or
             (iii)      Engaged in conduct relating to the company's business which makes it not reasonably practicable to carry on the business with the member;
             (7)      The member's:
             (i)      Becoming a debtor in bankruptcy;
             (ii)      Executing an assignment for the benefit of creditors;
             (iii)      Seeking, consenting to, or acquiescing in the appointment of a trustee, receiver, or liquidator of the member or of all or substantially all of the member's property; or
             (iv)      Failing, within ninety days after the appointment, to have vacated or stayed the appointment of a trustee, receiver, or liquidator of the member or of all or substantially all of the member's property obtained without the member's consent or acquiescence, or failing within ninety days after the expiration of a stay to have the appointment vacated;
             (8)      In the case of a member who is an individual:
             (i)      The member's death;
             (ii)      The appointment of a guardian or general conservator for the member; or
             (iii)      A judicial determination that the member has otherwise become incapable of performing the member's duties under the operating agreement;
             (9)      In the case of a member that is a trust or is acting as a member by virtue of being a trustee of a trust, distribution of the trust's entire rights to receive distributions from the company, but not merely by reason of the substitution of a successor trustee;
             (10)      In the case of a member that is an estate or is acting as a member by virtue of being a personal representative of an estate, distribution of the estate's entire rights to receive distributions from the company, but not merely the substitution of a successor personal representative; or
             (11)      Termination of the existence of a member if the member is not an individual, estate, or trust other than a business trust.

Source: SL 1998, ch 272, § 601; SL 2013, ch 233, § 14.


     47-34A-602.   Member's power to dissociate; wrongful dissociation. (a) Unless otherwise provided in the operating agreement, a member has the power to dissociate from a limited liability company at any time, rightfully or wrongfully, by express will pursuant to § 47-34A-601(1).
     (b) If the operating agreement has not eliminated a member's power to dissociate, the member's dissociation from a limited liability company is wrongful only if:
             (1)      It is in breach of an express provision of the agreement; or
             (2)      Before the expiration of the term specified in the articles of organization if any:
             (i)      The member withdraws by express will;
             (ii)      The member is expelled by judicial determination under § 47-34A-601(6);
             (iii)      The member is dissociated by becoming a debtor in bankruptcy; or
             (iv)      In the case of a member who is not an individual, trust other than a business trust, or estate, the member is expelled or otherwise dissociated because it willfully dissolved or terminated its existence.
     (c) A member who wrongfully dissociates from a limited liability company is liable to the company and to the other members for damages caused by the dissociation. The liability is in addition to any other obligation of the member to the company or to the other members.

Source: SL 1998, ch 272, § 602.


     47-34A-603.   Effect of a member's dissociation. (a) A limited liability company does not dissolve and wind up its business as result of a member's dissociation.
     (b) Upon a member's dissociation from a limited liability company:
             (1)      The member's right to participate in the management and conduct of the company's business terminates, except as otherwise provided in § 47-34A-803, and the member ceases to be a member and is treated the same as a transferee of a member;
             (2)      The member's duty of loyalty under § 47-34A-409(b)(3) terminates; and
             (3)      The member's duty of loyalty under § 47-34A-409(b)(1) and (2) and duty of care under § 47-34A-409(c) continue only with regard to matters arising and events occurring before the member's dissociation.

Source: SL 1998, ch 272, § 603.


     47-34A-604.   Dissociated member's power to bind limited liability company. For two years after a member dissociates without the dissociation resulting in a dissolution and winding up of a limited liability company's business, the company, including a surviving company under Article 9, is bound by an act of the dissociated member which would have bound the company under § 47-34A-301 before dissociation only if at the time of entering into the transaction the other party:
             (1)      Reasonably believed that the dissociated member was then a member;
             (2)      Did not have notice of the member's dissociation; and
             (3)      Is not deemed to have had notice under § 47-34A-605.

Source: SL 1998, ch 272, § 604.


     47-34A-605.   State of dissociation. (a) A dissociated member or a limited liability company may file in the office of the secretary of state a statement of dissociation stating the name of the company and that the member is dissociated from the company. If the statement is filed by a dissociated member a copy of the statement must also be delivered to the company by the dissociated member.
     (b) For the purposes of §§ 47-34A-301 and 47-34A-604, a person not a member is deemed to have notice of the dissociation ninety days after the statement of dissociation is filed.

Source: SL 1998, ch 272, § 605.


     47-34A-801.   Events causing dissolution and winding up of company's business. (a) A limited liability company is dissolved, and its business must be wound up, upon the occurrence of any of the following events:
             (1)      An event specified in the operating agreement;
             (2)      Consent of the number or percentage of members specified in the operating agreement;
             (3)      An event that makes it unlawful for all or substantially all of the business of the company to be continued, but any cure of illegality within ninety days after notice to the company of the event is effective retroactively to the date of the event for purposes of this section;
             (4)      On application by a member or a dissociated member, upon entry of a judicial decree that:
             (i)      The economic purpose of the company is likely to be unreasonably frustrated;
             (ii)      Another member has engaged in conduct relating to the company's business that makes it not reasonably practicable to carry on the company's business with that member;
             (iii)      It is not otherwise reasonably practicable to carry on the company's business in conformity with the articles of organization and the operating agreement; or
             (iv)      The managers or members in control of the company have acted, are acting, or will act in a manner that is illegal or fraudulent.

Source: SL 1998, ch 272, § 801; SL 2009, ch 234, § 3.


     47-34A-802.   Limited liability company continues after dissolution. (a) Subject to subsection (b), a limited liability company continues after dissolution only for the purpose of winding up its business.
     (b) At any time after the dissolution of a limited liability company and before the winding up of its business is completed, the members may unanimously waive the right to have the company's business wound up and the company terminated. In that case:
             (1)      The limited liability company resumes carrying on its business as if dissolution had never occurred and any liability incurred by the company or a member after the dissolution and before the waiver is determined as if the dissolution had never occurred; and
             (2)      The rights of a third party accruing as a result of the dissolution, under § 47-34A-804(a), or arising out of conduct in reliance on the dissolution before the third party knew or received a notification of the waiver are not adversely affected.

Source: SL 1998, ch 272, § 802.


     47-34A-803.   Right to wind up the limited liability company's business. (a) After dissolution, a member who has not wrongfully dissociated may participate in winding up a limited liability company's business, but on application of any member, member's legal representative, or transferee, the circuit court, for good cause shown, may order judicial supervision of the winding up.
     (b) A legal representative of the last surviving member may wind up a limited liability company's business.
     (c) A person winding up a limited liability company's business may preserve the company's business or property as a going concern for a reasonable time, prosecute and defend actions and proceedings, whether civil, criminal, or administrative, settle and close the company's business, dispose of and transfer the company's property, discharge the company's liabilities, distribute the assets of the company pursuant to § 47-34A-806, settle disputes by mediation or arbitration, and perform other necessary acts.

Source: SL 1998, ch 272, § 803.


     47-34A-804.   Member's or manager's power and liability as agent after dissolution. (a) A limited liability company is bound by a member's or manager's act after dissolution that:
             (1)      Is appropriate for winding up the company's business; or
             (2)      Would have bound the company under § 47-34A-301 before dissolution, if the other party to the transaction did not have notice of the dissolution.
     (b) A member or manager who, with knowledge of the dissolution, subjects a limited liability company to liability by an act that is not appropriate for winding up the company's business is liable to the company for any damage caused to the company arising from the liability.

Source: SL 1998, ch 272, § 804.


     47-34A-805.   Articles of termination. (a) At any time after dissolution and winding up, a limited liability company may terminate its existence by filing with the secretary of state articles of termination stating:
             (1)      The name of the company;
             (2)      The date of the dissolution; and
             (3)      That the company's business has been wound up and the legal existence of the company has been terminated.
     (b) The existence of a limited liability company is terminated upon the filing of the articles of termination, or upon a later effective date, if specified in the articles of termination.
     (c) Delivery may be made by electronic transmission if and to the extent permitted by the Office of the Secretary of State. If the document is filed in typewritten or printed form and not transmitted electronically, the Office of the Secretary of State may require one exact or conformed copy to be delivered with the document.

Source: SL 1998, ch 272, § 805; SL 2012, ch 222, § 12.


     47-34A-806.   Distribution of assets in winding up the limited liability company's business. (a) In winding up a limited liability company's business, the assets of the company must be applied to discharge its obligations to creditors, including members who are creditors. Any surplus must be applied to pay in money the net amount distributable to members in accordance with their right to distributions under subsection (b).
     (b) Each member is entitled to a distribution upon the winding up of the limited liability company's business consisting of a return of all contributions which have not previously been returned and a distribution of any remainder in equal shares.

Source: SL 1998, ch 272, § 806.


     47-34A-807.   Known claims against dissolved limited liability company. (a) A dissolved limited liability company may dispose of the known claims against it by following the procedure described in this section.
     (b) A dissolved limited liability company shall notify its known claimants in writing of the dissolution. The notice must:
             (1)      Specify the information required to be included in a claim;
             (2)      Provide a mailing address where the claim is to be sent;
             (3)      State the deadline for receipt of the claim, which may not be less than one hundred twenty days after the date the written notice is received by the claimant; and
             (4)      State that the claim will be barred if not received by the deadline.
     (c) A claim against a dissolved limited liability company is barred if the requirements of subsection (b) are met, and:
             (1)      The claim is not received by the specified deadline; or
             (2)      In the case of a claim that is timely received but rejected by the dissolved company, the claimant does not commence a proceeding to enforce the claim within ninety days after the receipt of the notice of the rejection.
     (d) For purposes of this section, claim does not include a contingent liability or a claim based on an event occurring after the effective date of dissolution.

Source: SL 1998, ch 272, § 807.


     47-34A-808.   Notice--Other claims against dissolved limited liability company. (a) A dissolved limited liability company may publish notice of its dissolution and request persons having claims against the company to present them in accordance with the notice.
     (b) The notice must:
             (1)      Be published at least once in a newspaper of general circulation in the county in which the dissolved limited liability company's principal office is or was located or, if none in this state, in Hughes County;
             (2)      Describe the information required to be contained in a claim and provide a mailing address where the claim is to be sent; and
             (3)      State that a claim against the limited liability company is barred unless a proceeding to enforce the claim is commenced within five years after publication of the notice.
     (c) If a dissolved limited liability company publishes a notice in accordance with subsection (b), the claim of each of the following claimants is barred unless the claimant commences a proceeding to enforce the claim against the dissolved company within five years after the publication date of the notice:
             (1)      A claimant who did not receive written notice under § 47-34A-807;
             (2)      A claimant whose claim was timely sent to the dissolved company but not acted on; and
             (3)      A claimant whose claim is contingent or based on an event occurring after the effective date of dissolution.
     (d) A claim not barred under this section 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 a member of the dissolved company to the extent of the member's proportionate share of the claim or the company's assets 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 amount of assets distributed to the member.

Source: SL 1998, ch 272, § 808; SL 2008, ch 275, § 77.


     47-34A-809.   Grounds for administrative dissolution. The secretary of state may commence a proceeding to dissolve a limited liability company administratively if the company does not:
             (1)      Pay any fees, taxes, or penalties imposed by this chapter or other law within sixty days after they are due; or
             (2)      Deliver its annual report to the secretary of state within sixty days after it is due.

Source: SL 1998, ch 272, § 809.


     47-34A-810.   Procedure for and effect of administrative dissolution. (a) If the secretary of state determines that a ground exists for administratively dissolving a limited liability company, the secretary of state shall enter a record of the determination and serve the company with a copy of the record.
     (b) If the company does not correct each ground for dissolution or demonstrate to the reasonable satisfaction of the secretary of state that each ground determined by the secretary of state does not exist within sixty days after service of the notice, the secretary of state shall administratively dissolve the company by signing a certification of the dissolution that recites the ground for dissolution and its effective date. The secretary of state shall file the original of the certificate and serve the company with a copy of the certificate.
     (c) A company administratively dissolved continues its existence but may carry on only business necessary to wind up and liquidate its business and affairs under § 47-34A-802 and to notify claimants under §§ 47-34A-807 and 47-34A-808.
     (d) The administrative dissolution of a company does not terminate the authority of its agent for service of process.

Source: SL 1998, ch 272, § 810.


     47-34A-811.   Reinstatement following administrative dissolution. (a) A limited liability company administratively dissolved may apply to the secretary of state for reinstatement after the effective date of dissolution. Delivery may be made by electronic transmission if and to the extent permitted by the Office of the Secretary of State. If the document is filed in typewritten or printed form and not transmitted electronically, the Office of the Secretary of State may require one exact or conformed copy to be delivered with the document. The applicant shall submit with the application the appropriate filing fee. The secretary of state shall charge filing fees for any delinquent annual report and a fee for application of reinstatement in the amount of one hundred fifty dollars. The application must:
             (1)      Recite the name of the company and the effective date of its administrative dissolution;
             (2)      State that the ground for dissolution either did not exist or have been eliminated;
             (3)      State that the company's name satisfies the requirements of § 47-34A-105; and
             (4)      Contain a certificate from the appropriate state authority reciting that all taxes owed by the company have been paid.
     (b) If the secretary of state determines that the application contains the information required by subsection (a) and that the information is correct, the secretary of state shall cancel the certificate of dissolution and prepare a certificate of reinstatement that recites this determination and the effective date of reinstatement, file the original of the certificate, and serve the company with a copy of the certificate.
     (c) When reinstatement is effective, it relates back to and takes effect as of the effective date of the administrative dissolution and the company may resume its business as if the administrative dissolution had never occurred.

Source: SL 1998, ch 272, § 811; SL 2003, ch 8, § 24; SL 2005, ch 241, § 4; SL 2009, ch 4, § 19; SL 2012, ch 222, § 13.


     47-34A-812.   Appeal from denial of reinstatement. (a) If the secretary of state denies a limited liability company's application for reinstatement following administrative dissolution, the secretary of state shall serve the company with a record that explains the reason or reasons for denial.
     (b) The company may appeal the denial of reinstatement to the state circuit court within thirty days after service of the notice of denial is perfected. The company appeals by petitioning the court to set aside the dissolution and attaching to the petition copies of the secretary of state's certificate of dissolution, the company's application for reinstatement, and the secretary of state's notice of denial.
     (c) The court may summarily order the secretary of state to reinstate the dissolved company or may take other action the court considers appropriate.
     (d) The court's final decision may be appealed as in other civil proceedings.

Source: SL 1998, ch 272, § 812.


     47-34A-901.   Definitions. Terms used in this article:
             (1)      "Constituent limited liability company" means a constituent organization that is a limited liability company;
             (2)      "Constituent organization" means an organization that is party to a merger;
             (3)      "Converted organization" means the organization into which a converting organization converts pursuant to §§ 47-34A-906 to 47-34A-909, inclusive;
             (4)      "Converting limited liability company" means a converting organization that is a limited liability company;
             (5)      "Converting organization" means an organization that converts into another organization pursuant to § 47-34A-906;
             (6)      "Domesticated company" means the company that exists after a domesticating foreign limited liability company or limited liability company effects a domestication pursuant to §§ 47-34A-910 to 47-34A-913, inclusive;
             (7)      "Domesticating company" means the company that effects a domestication pursuant to §§ 47-34A-910 to 47-34A-913, inclusive;
             (8)      "Governing statute" means the statute that governs an organization's internal affairs;
             (9)      "Organization" means a general partnership, including a limited liability partnership; limited partnership, including a limited liability limited partnership, limited liability company, business trust, corporation, or any other person having a governing statute. The term includes a domestic or foreign organization regardless of whether organized for profit;
             (10)      "Organizational documents" means:
             (a)      For a domestic or foreign general partnership, its partnership agreement;
             (b)      For a limited partnership or foreign limited partnership, its certificate of limited partnership and partnership agreement;
             (c)      For a domestic or foreign limited liability company, its certificate or articles of organization and operating agreement, or comparable records as provided in its governing statute;
             (d)      For a business trust, its agreement of trust and declaration of trust;
             (e)      For a domestic or foreign corporation for profit, its articles of incorporation, bylaws, and other agreements among its shareholders which are authorized by its governing statute, or comparable records as provided in its governing statute; and
             (f)      For any other organization, the basic records that create the organization and determine its internal governance and the relations among the persons that own it, have an interest in it, or are members of it;
             (11)      "Personal liability" means liability for a debt, obligation, or other liability of an organization which is imposed on a person that co-owns, has an interest in, or is a member of the organization:
             (a)      By the governing statute solely by reason of the person co-owning, having an interest in, or being a member of the organization; or
             (b)      By the organization's organizational documents under a provision of the governing statute authorizing those documents to make one or more specified persons liable for all or specified debts, obligations, or other liabilities of the organization solely by reason of the person or persons co-owning, having an interest in, or being a member of the organization;
             (12)      "Surviving organization" means an organization into which one or more other organizations are merged whether the organization preexisted the merger or was created by the merger.

Source: SL 1998, ch 272, § 901; SL 2013, ch 233, § 15.


     47-34A-902.   Merger. (a) A limited liability company may merge with one or more other constituent organizations pursuant to this section, §§ 47-34A-903 to 47-34A-905, inclusive, and a plan of merger, if:
             (1)      The governing statute of each of the other organizations authorizes the merger;
             (2)      The merger is not prohibited by the law of a jurisdiction that enacted any of the governing statutes; and
             (3)      Each of the other organizations complies with its governing statute in effecting the merger.
     (b) A plan of merger must be in a record and must include:
             (1)      The name and form of each constituent organization;
             (2)      The name and form of the surviving organization and, if the surviving organization is to be created by the merger, a statement to that effect;
             (3)      The terms and conditions of the merger, including the manner and basis for converting the interests in each constituent organization into any combination of money, interests in the surviving organization, and other consideration;
             (4)      If the surviving organization is to be created by the merger, the surviving organization's organizational documents that are proposed to be in a record; and
             (5)      If the surviving organization is not to be created by the merger, any amendments to be made by the merger to the surviving organization's organizational documents that are, or are proposed to be, in a record.

Source: SL 1998, ch 272, § 902; SL 2013, ch 233, § 16.


     47-34A-903.   Action on plan of merger by constituent limited liability company. (a) Subject to § 47-34A-914, a plan of merger must be consented to by all the members of a constituent limited liability company.
     (b) Subject to § 47-34A-914 and any contractual rights, after a merger is approved, and at any time before articles of merger are delivered to the secretary of state for filing under § 47-34A-904, a constituent limited liability company may amend the plan or abandon the merger:
             (1)      As provided in the plan; or
             (2)      Except as otherwise prohibited in the plan, with the same consent as was required to approve the plan.

Source: SL 1998, ch 272, § 903; SL 2013, ch 233, § 17.


     47-34A-904.   Filings required for merger--Effective date. (a) After each constituent organization has approved a merger, articles of merger must be signed on behalf of:
             (1)      Each constituent limited liability company, as provided in § 47-34A-205; and
             (2)      Each other constituent organization, as provided in its governing statute.
     (b) Articles of merger under this section must include:
             (1)      The name and form of each constituent organization and the jurisdiction of its governing statute;
             (2)      The name and form of the surviving organization, the jurisdiction of its governing statute, and, if the surviving organization is created by the merger, a statement to that effect;
             (3)      The date the merger is effective under the governing statute of the surviving organization;
             (4)      If the surviving organization is to be created by the merger:
             (A)      If it will be a limited liability company, the company's certificate of organization; or
             (B)      If it will be an organization other than a limited liability company, the organizational document that creates the organization that is in a public record;
             (5)      If the surviving organization preexists the merger, any amendments provided for in the plan of merger for the organizational document that created the organization that are in a public record;
             (6)      A statement as to each constituent organization that the merger was approved as required by the organization's governing statute;
             (7)      If the surviving organization is a foreign organization not authorized to transact business in this state, the street and mailing addresses of an office that the secretary of state may use for the purposes of § 47-34A-905(b); and
             (8)      Any additional information required by the governing statute of any constituent organization.
     (c) Each constituent limited liability company shall deliver the articles of merger for filing in the Office of the Secretary of State.
     (d) A merger becomes effective under this article:
             (1)      If the surviving organization is a limited liability company, upon the later of:
             (A)      Compliance with subsection (c); or
             (B)      Subject to § 47-34A-206, as specified in the articles of merger; or
             (2)      If the surviving organization is not a limited liability company, as provided by the governing statute of the surviving organization.

Source: SL 1998, ch 272, § 904; SL 2013, ch 233, § 18.


     47-34A-905.   Effect of merger. (a) When a merger becomes effective:
             (1)      The surviving organization continues or comes into existence;
             (2)      Each constituent organization that merges into the surviving organization ceases to exist as a separate entity;
             (3)      All property owned by each constituent organization that ceases to exist vests in the surviving organization;
             (4)      All debts, obligations, or other liabilities of each constituent organization that ceases to exist continue as debts, obligations, or other liabilities of the surviving organization;
             (5)      An action or proceeding pending by or against any constituent organization that ceases to exist may be continued as if the merger had not occurred;
             (6)      Except as prohibited by other law, all of the rights, privileges, immunities, powers, and purposes of each constituent organization that ceases to exist vest in the surviving organization;
             (7)      Except as otherwise provided in the plan of merger, the terms and conditions of the plan of merger take effect;
             (8)      Except as otherwise agreed, if a constituent limited liability company ceases to exist, the merger does not dissolve the limited liability company for the purposes of §§ 47-34A-801 to 47-34A-812, inclusive;
             (9)      If the surviving organization is created by the merger:
             (A)      If it is a limited liability company, the certificate of organization becomes effective; or
             (B)      If it is an organization other than a limited liability company, the organizational document that creates the organization becomes effective; and
             (10)      If the surviving organization preexisted the merger, any amendments provided for in the articles of merger for the organizational document that created the organization become effective.
     (b) A surviving organization that is a foreign organization consents to the jurisdiction of the courts of this state to enforce any debt, obligation, or other liability owed by a constituent organization, if before the merger the constituent organization was subject to suit in this state on the debt, obligation, or other liability. A surviving organization that is a foreign organization and not authorized to transact business in this state appoints the secretary of state as its agent for service of process for the purposes of enforcing a debt, obligation, or other liability under this subsection. Service on the secretary of state under this subsection must be made in the same manner as in § 47-34A-206.

Source: SL 1998, ch 272, § 905; SL 2013, ch 233, § 19.


     47-34A-906.   Conversion. (a) An organization other than a limited liability company or a foreign limited liability company may convert to a limited liability company, and a limited liability company may convert to an organization other than a foreign limited liability company pursuant to §§ 47-34A-907 to 47-34A-909, inclusive, and a plan of conversion, if:
             (1)      The other organization's governing statute authorizes the conversion;
             (2)      The conversion is not prohibited by the law of the jurisdiction that enacted the other organization's governing statute; and
             (3)      The other organization complies with its governing statute in effecting the conversion.
     (b) A plan of conversion must be in a record and must include:
             (1)      The name and form of the organization before conversion;
             (2)      The name and form of the organization after conversion;
             (3)      The terms and conditions of the conversion, including the manner and basis for converting interests in the converting organization into any combination of money, interests in the converted organization, and other consideration; and
             (4)      The organizational documents of the converted organization that are, or are proposed to be, in a record.

Source: SL 1998, ch 272, § 906; SL 2008, ch 275, § 78; SL 2013, ch 233, § 20.


     47-34A-907.   Action on plan of conversion by converting limited liability company. (a) Subject to § 47-34A-914, a plan of conversion must be consented to by all the members of a converting limited liability company.
     (b) Subject to § 47-34A-914 and any contractual rights, after a conversion is approved, and at any time before articles of conversion are delivered to the secretary of state for filing under § 47-34A-908, a converting limited liability company may amend the plan or abandon the conversion:
             (1)      As provided in the plan; or
             (2)      Except as otherwise prohibited in the plan, by the same consent as was required to approve the plan.

Source: SL 1998, ch 272, § 907; SL 2013, ch 233, § 21.


     47-34A-908.   Filings required for conversion--Effective date. (a) After a plan of conversion is approved:
             (1)      A converting limited liability company shall deliver to the secretary of state for filing articles of conversion, which must be signed as provided in § 47-34A-205 and must include:
             (A)      A statement that the limited liability company has been converted into another organization;
             (B)      The name and form of the organization and the jurisdiction of its governing statute;
             (C)      The date the conversion is effective under the governing statute of the converted organization;
             (D)      A statement that the conversion was approved as required by this chapter;
             (E)      A statement that the conversion was approved as required by the governing statute of the converted organization; and
             (F)      If the converted organization is a foreign organization not authorized to transact business in this state, the street and mailing addresses of an office which the secretary of state may use for the purposes of § 47-34A-909(c); and
             (2)      If the converting organization is not a converting limited liability company, the converting organization shall deliver to the secretary of state for filing a certificate of organization, which must include, in addition to the information required by § 47-34A-202.1(c):
             (A)      A statement that the converted organization was converted from another organization;
             (B)      The name and form of that converting organization and the jurisdiction of its governing statute; and
             (C)      A statement that the conversion was approved in a manner that complied with the converting organization's governing statute.
     (b) A conversion becomes effective:
             (1)      If the converted organization is a limited liability company, when the certificate of organization takes effect; and
             (2)      If the converted organization is not a limited liability company, as provided by the governing statute of the converted organization.

Source: SL 2010, ch 218, § 9; SL 2013, ch 233, § 22.


     47-34A-909.   Effect of conversion. (a) An organization that has been converted pursuant to this Article is for all purposes the same entity that existed before the conversion.
     (b) When a conversion takes effect:
             (1)      All property owned by the converting organization remains vested in the converted organization;
             (2)      All debts, obligations, or other liabilities of the converting organization continue as debts, obligations, or other liabilities of the converted organization;
             (3)      An action or proceeding pending by or against the converting organization may be continued as if the conversion had not occurred;
             (4)      Except as prohibited by law other than this chapter, all of the rights, privileges, immunities, powers, and purposes of the converting organization remain vested in the converted organization;
             (5)      Except as otherwise provided in the plan of conversion, the terms and conditions of the plan of conversion take effect; and
             (6)      Except as otherwise agreed, the conversion does not dissolve a converting limited liability company for the purposes of §§ 47-34A-801 to 47-34A-812, inclusive.
     (c) A converted organization that is a foreign organization consents to the jurisdiction of the courts of this state to enforce any debt, obligation, or other liability for which the converting limited liability company is liable if, before the conversion, the converting limited liability company was subject to suit in this state on the debt, obligation, or other liability. A converted organization that is a foreign organization and not authorized to transact business in this state appoints the secretary of state as its agent for service of process for purposes of enforcing a debt, obligation, or other liability under this subsection. Service on the secretary of state under this subsection must be made in the same manner and has the same consequences as set forth in this chapter.

Source: SL 2010, ch 218, § 10; SL 2013, ch 233, § 23.


     47-34A-910.   Domestication. (a) A foreign limited liability company may become a limited liability company pursuant to §§ 47-34A-911 to 47-34A-913, inclusive, and a plan of domestication, if:
             (1)      The foreign limited liability company's governing statute authorizes the domestication;
             (2)      The domestication is not prohibited by the law of the jurisdiction that enacted the governing statute; and
             (3)      The foreign limited liability company complies with its governing statute in effecting the domestication.
     (b) A limited liability company may become a foreign limited liability company pursuant to §§ 47-34A-911 to 47-34A-913, inclusive, and a plan of domestication, if:
             (1)      The foreign limited liability company's governing statute authorizes the domestication;
             (2)      The domestication is not prohibited by the law of the jurisdiction that enacted the governing statute; and
             (3)      The foreign limited liability company complies with its governing statute in effecting the domestication.
     (c) A plan of domestication must be in a record and must include:
             (1)      The name of the domesticating company before domestication and the jurisdiction of its governing statute;
             (2)      The name of the domesticated company after domestication and the jurisdiction of its governing statute;
             (3)      The terms and conditions of the domestication, including the manner and basis for converting interests in the domesticating company into any combination of money, interests in the domesticated company, and other consideration; and
             (4)      The organizational documents of the domesticated company that are, or are proposed to be, in a record.

Source: SL 2010, ch 218, § 11; SL 2013, ch 233, § 24.


     47-34A-911.   Action on plan of domestication by domesticating limited liability company. (a) A plan of domestication must be consented to:
             (1)      By all the members, subject to § 47-34A-912, if the domesticating company is a limited liability company; and
             (2)      As provided in the domesticating company's governing statute, if the company is a foreign limited liability company.
     (b) Subject to any contractual rights, after a domestication is approved, and at any time before articles of domestication are delivered to the secretary of state for filing under § 47-34A-912, a domesticating limited liability company may amend the plan or abandon the domestication:
             (1)      As provided in the plan; or
             (2)      Except as otherwise prohibited in the plan, by the same consent as was required to approve the plan.

Source: SL 2010, ch 218, § 12; SL 2013, ch 233, § 25.


     47-34A-912.   Filings required for domestication--Effective date. (a) After a plan of domestication is approved, a domesticating company shall deliver to the secretary of state for filing articles of domestication, which must include:
             (1)      A statement, as the case may be, that the company has been domesticated from or into another jurisdiction;
             (2)      The name of the domesticating company and the jurisdiction of its governing statute;
             (3)      The name of the domesticated company and the jurisdiction of its governing statute;
             (4)      The date the domestication is effective under the governing statute of the domesticated company;
             (5)      If the domesticating company was a limited liability company, a statement that the domestication was approved as required by this chapter;
             (6)      If the domesticating company was a foreign limited liability company, a statement that the domestication was approved as required by the governing statute of the other jurisdiction; and
             (7)      If the domesticated company was a foreign limited liability company not authorized to transact business in this state, the street and mailing addresses of an office that the secretary of state may use for the purposes of § 47-34A-913(b).
     (b) A domestication becomes effective:
             (1)      When the certificate of organization takes effect, if the domesticated company is a limited liability company; and
             (2)      According to the governing statute of the domesticated company, if the domesticated organization is a foreign limited liability company.

Source: SL 2010, ch 218, § 13; SL 2013, ch 233, § 26.


     47-34A-913.   Effect of domestication. (a) When a domestication takes effect:
             (1)      The domesticated company is for all purposes the company that existed before the domestication;
             (2)      All property owned by the domesticating company remains vested in the domesticated company;
             (3)      All debts, obligations, or other liabilities of the domesticating company continue as debts, obligations, or other liabilities of the domesticated company;
             (4)      An action or proceeding pending by or against a domesticating company may be continued as if the domestication had not occurred;
             (5)      Except as prohibited by other law, all of the rights, privileges, immunities, powers, and purposes of the domesticating company remain vested in the domesticated company;
             (6)      Except as otherwise provided in the plan of domestication, the terms and conditions of the plan of domestication take effect; and
             (7)      Except as otherwise agreed, the domestication does not dissolve a domesticating limited liability company for the purposes of §§ 47-34A-801 to 47-34A-812, inclusive.
     (b) A domesticated company that is a foreign limited liability company consents to the jurisdiction of the courts of this state to enforce any debt, obligation, or other liability owed by the domesticating company, if, before the domestication, the domesticating company was subject to suit in this state on the debt, obligation, or other liability. A domesticated company that is a foreign limited liability company and not authorized to transact business in this state appoints the secretary of state as its agent for service of process for purposes of enforcing a debt, obligation, or other liability under this subsection. Service on the secretary of state under this subsection must be made in the same manner and has the same consequences as set forth in this chapter.
     (c) If a limited liability company has adopted and approved a plan of domestication under § 47-34A-910 providing for the company to be domesticated in a foreign jurisdiction, a statement surrendering the company's certificate of organization must be delivered to the secretary of state for filing setting forth:
             (1)      The name of the company;
             (2)      A statement that the certificate of organization is being surrendered in connection with the domestication of the company in a foreign jurisdiction;
             (3)      A statement the domestication was approved as required by this chapter; and
             (4)      The jurisdiction of formation of the domesticated foreign limited liability company.

Source: SL 2013, ch 233, § 27.


     47-34A-914.   Restrictions on approval of mergers, conversions, and domestications. (a) If a member of a constituent, converting, or domesticating limited liability company will have personal liability with respect to a surviving, converted, or domesticated organization, approval or amendment of a plan of merger, conversion, or domestication is ineffective without the consent of the member, unless:
             (1)      The company's operating agreement provides for approval of a merger, conversion, or domestication with the consent of fewer than all the members; and
             (2)      The member has consented to the provision of the operating agreement.
     (b) A member does not give the consent required by subsection (a) merely by consenting to a provision of the operating agreement that permits the operating agreement to be amended with the consent of fewer than all the members.

Source: SL 2013, ch 233, § 28.


     47-34A-915.   Article not exclusive. The proceedings authorized under §§ 47-34A-901 to 47-34A-914, inclusive, do not preclude an entity from being merged, converted, or domesticated under law other than these provisions.

Source: SL 2013, ch 233, § 29.


     47-34A-1001.   Law governing foreign limited liability companies. (a) The law of the state or other jurisdiction under which a foreign limited liability company is formed governs:
             (1)      The internal affairs of the company; and
             (2)      The liability of a member as member and a manager as manager for the debts, obligations, or other liabilities of the company.
     (b) A foreign limited liability company may not be denied a certificate of authority by reason of any difference between the law of the jurisdiction under which the company is formed and the law of this state.
     (c) A certificate of authority does not authorize a foreign limited liability company to engage in any business or exercise any power that a limited liability company may not engage in or exercise in this state.

Source: SL 1998, ch 272, § 1001; SL 2013, ch 233, § 30.


     47-34A-1002.   Application for certificate of authority. (a) A foreign limited liability company may not do business in this state until it obtains a certificate of authority from the secretary of state.
     (b) A foreign limited liability company may apply for a certificate of authority to transact business in this state by delivering an application to the secretary of state for filing. Delivery may be made by electronic transmission if and to the extent permitted by the Office of the Secretary of State. If the document is filed in typewritten or printed form and not transmitted electronically, the Office of the Secretary of State may require one exact or conformed copy to be delivered with the document. The application must state:
             (1)      The name of the company and, if the name does not comply with § 47-34A-105, an alternate name adopted pursuant to § 47-34A-105;
             (2)      The name of the state or other jurisdiction under whose law the company is formed;
             (3)      The street and mailing addresses of the company's principal office and if the law of the jurisdiction under which the company is formed requires the company to maintain an office in that jurisdiction, the street and mailing address of the required office; and
             (4)      The name and street and mailing address of the company's initial agent for service of process in this state.
     (c) A foreign limited liability company shall deliver with a completed application under subsection (a) a certificate of existence or a record of similar import signed by the secretary of state or other official having custody of the company's publicly filed records in the state or other jurisdiction under whose law the company is formed together with the fees required by § 47-34A-212, and all other fees.

Source: SL 1998, ch 272, § 1002; SL 2008, ch 275, § 79; SL 2012, ch 222, § 15; SL 2013, ch 233, § 31.


     47-34A-1003.   Activities not constituting transacting business. (a) Activities of a foreign limited liability company which do not constitute transacting business in this state within the meaning of this article include:
             (1)      Maintaining, defending, or settling an action or proceeding;
             (2)      Carrying on any activity concerning its internal affairs, including holding meetings of its members or managers;
             (3)      Maintaining accounts in financial institutions;
             (4)      Maintaining offices or agencies for the transfer, exchange, and registration of the company's own securities or maintaining trustees or depositories with respect to those securities;
             (5)      Selling through independent contractors;
             (6)      Soliciting or obtaining orders, whether by mail or electronic means or through employees or agents or otherwise, if the orders require acceptance outside this state before they become contracts;
             (7)      Creating or acquiring indebtedness, mortgages, or security interests in real or personal property;
             (8)      Securing or collecting debts or enforcing mortgages or other security interests in property securing the debts and holding, protecting, or maintaining property so acquired;
             (9)      Conducting an isolated transaction that is completed within thirty days and is not in the course of similar transactions; and
             (10)      Transacting business in interstate commerce.
     (b) For purposes of this article, the ownership in this state of income-producing real property or tangible personal property, other than property excluded under subsection (a), constitutes transacting business in this state.
     (c) This section does not apply in determining the contacts or activities that may subject a foreign limited liability company to service of process, taxation, or regulation under any law of this state other than this chapter.

Source: SL 1998, ch 272, § 1003; SL 2013, ch 233, § 32.


     47-34A-1004.   Filing of certificate of authority. Unless the secretary of state determines that an application for a certificate of authority does not comply with the filing requirements of this chapter, the secretary of state, upon payment of all filing fees, shall file the application of a foreign limited liability company, prepare, sign, and file a certificate of authority to transact business in this state, and send a copy of the filed certificate, together with a receipt for the fees to the company or its representative.

Source: SL 1998, ch 272, § 1004; SL 2013, ch 233, § 33.


     47-34A-1005.   Noncomplying name of foreign limited liability company. (a) A foreign limited liability company whose name does not comply with § 47-34A-105 may not obtain a certificate of authority until it adopts, for the purpose of transacting business in this state, an alternate name that complies with § 47-34A-105. A foreign limited liability company that adopts an alternate name under this subsection and obtains a certificate of authority with the alternate name need not comply with chapter 37-11 or § 47-34A-105. After obtaining a certificate of authority with an alternate name, a foreign limited liability company shall transact business in this state under the alternate name unless the company is authorized under chapter 37-11 or § 47-34A-105 to transact business in this state under another name.
     (b) If a foreign limited liability company authorized to transact business in this state changes its name to one that does not comply with § 47-34A-105, it may not thereafter transact business in this state until it complies with subsection (a) and obtains an amended certificate of authority.

Source: SL 1998, ch 272, § 1005; SL 2013, ch 233, § 34.


     47-34A-1006.   Revocation of certificate of authority. (a) A certificate of authority of a foreign limited liability company to transact business in this state may be revoked by the secretary of state in the manner provided in subsections (b) and (c) if the company does not:
             (1)      Pay, within sixty days after the due date, any fee, tax, or penalty due to the secretary of state under this chapter or law other than this chapter;
             (2)      Deliver, within sixty days after the due date, its annual report required under § 47-34A-211;
             (3)      Appoint and maintain an agent for service of process as required by South Dakota law; or
             (4)      Deliver for filing a statement of a change within thirty days after a change has occurred in the name or address of the agent.
     (b) To revoke a certificate of authority of a foreign limited liability company, the secretary of state must prepare, sign, and file a notice of revocation and send a copy to the company's agent for service of process in this state, or if the company does not appoint and maintain a proper agent in this state, to the company's designated office. The notice must state:
             (1)      The revocation's effective date, which must be at least sixty days after the date the secretary of state sends the copy; and
             (2)      The grounds for revocation under subsection (a).
     (c) The authority of a foreign limited liability company to transact business in this state ceases on the effective date of the notice of revocation unless before that date the company cures each ground for revocation stated in the notice filed under subsection (b). If the company cures each ground, the secretary of state shall file a record so stating.

Source: SL 1998, ch 272, § 1006; SL 2008, ch 275, § 80; SL 2013, ch 233, § 35.


     47-34A-1007.   Cancellation of certificate of authority. To cancel its certificate of authority to transact business in this state, a foreign limited liability company must deliver to the secretary of state for filing a notice of cancellation stating the name of the company and that the company desires to cancel its certificate of authority. The certificate of authority is cancelled when the notice becomes effective.

Source: SL 1998, ch 272, § 1007; SL 2012, ch 222, § 16; SL 2013, ch 233, § 36.


     47-34A-1008.   Effect of failure to obtain certificate of authority. (a) A foreign limited liability company transacting business in this state may not maintain an action or proceeding in this state unless it has a certificate of authority to transact business in this state.
     (b) The failure of a foreign limited liability company to have a certificate of authority to transact business in this state does not impair the validity of a contract or act of the company or prevent the foreign limited liability company from defending an action or proceeding in this state.
     (c) A member or manager of a foreign limited liability company is not liable for the debt, obligations, or other liabilities of the company solely because the company transacted business in that state without a certificate of authority.
     (d) If a foreign limited liability company transacts business in this state without a certificate of authority or cancels its certificate of authority, it appoints the secretary of state as its agent for service of process for rights of actions arising out of the transaction of business in this state.

Source: SL 1998, ch 272, § 1008; SL 2013, ch 233, § 37.


     47-34A-1009.   Action by attorney general. The attorney general may maintain an action to enjoin a foreign limited liability company from transacting business in this state in violation of this article.

Source: SL 1998, ch 272, § 1009; SL 2013, ch 233, § 38.


     47-34A-1010.   Domestication. (a) A foreign limited liability company may become a domestic limited liability company only if the domestication is permitted by the organic law of the foreign limited liability company.
     (b) A domestic limited liability company not required by law to be a domestic limited liability company may become a foreign limited liability company if the domestication is permitted by the laws of the foreign jurisdiction. Regardless of whether the laws of the foreign jurisdiction require the adoption of a plan of domestication, the domestication shall be approved by the adoption of the limited liability company of a plan of domestication in the manner provided in this section and §§ 47-34A-1011 to 47-34A-1016, inclusive.

Source: SL 2010, ch 218, § 2.


     47-34A-1011.   Plan of domestication. (a) The plan of domestication shall include:
             (1)      A statement of the jurisdiction in which the limited liability company is presently domesticated; and
             (2)      A statement of the jurisdiction in which the limited liability company is to be domesticated.
     (b) The plan of domestication may include:
             (1)      As a referenced attachment, the articles of organization of the limited liability company upon its domestication; and
             (2)      Any other provision relating to the domestication.
     (c) The plan of domestication may also include a provision that the plan may be amended at any time prior to filing the document required by the laws of this state or the other jurisdiction to consummate the domestication.

Source: SL 2010, ch 218, § 3.


     47-34A-1012.   Action on plan of domestication by a domestic limited liability company. In the case of a domestic limited liability company:
             (a)      Unless the articles of organization or a written operating agreement of the limited liability company provides otherwise, the members of the limited liability company shall approve the plan of domestication by the members in the manner provided in the limited liability company's operating agreement for amendments to the operating agreement or, if no such provision is made in an operating agreement, by all the members.
             (b)      If an amendment to a plan of domestication is made in accordance with subsection 47-34A-1011(c), and articles of domestication already have been filed with the secretary of state, amended articles of domestication shall be filed with the secretary of state before the effective date of any certificate of domestication issued by the secretary of state for the articles of domestication which the amended articles are to supersede.

Source: SL 2010, ch 218, § 4.


     47-34A-1013.   Articles of domestication. (a) After the domestication of a foreign limited liability company is approved in the manner required by the laws of the jurisdiction in which the limited liability company is organized, the limited liability company shall file with the secretary of state articles of domestication setting forth:
             (1)      The name of the limited liability company immediately prior to the filing of the articles of domestication and, if that name is unavailable for use in this state or the limited liability company desires to change its name in connection with the domestication, a name that satisfies the requirements of § 47-34A-105;
             (2)      The plan of domestication; and
             (3)      The original jurisdiction of the limited liability company and the date the limited liability company was organized in that jurisdiction, and each subsequent jurisdiction and the date the limited liability company was domesticated in each such jurisdiction, if any, prior to the filing of the articles of domestication.
     (b) The articles of domestication shall have attached articles of organization that comply with the requirements contained in § 47-34A-203.
     (c) If the secretary of state finds that the articles of domestication comply with the requirements of law and that all required fees have been paid, the secretary of state shall issue a certificate of domestication.
     (d) The articles of domestication shall become effective pursuant to § 47-34A-206.
     (e) A foreign limited liability company's existence as a domestic limited liability company shall begin when the certificate of domestication is effective. Upon becoming effective, the certificate of domestication shall be conclusive evidence that all conditions precedent required to be performed by the foreign limited liability company have been complied with and that the limited liability company has been organized under this chapter.
     (f) If the foreign limited liability company is authorized to transact business in this state under § 47-34A-1004, its certificate of authority is canceled automatically on the effective date of the certificate of domestication issued by the secretary of state.

Source: SL 2010, ch 218, § 5.


     47-34A-1014.   Surrender of articles of organization upon domestication. (a) If a domestic limited liability company has approved, in the manner required by § 47-34A-1012, a plan of domestication providing for the limited liability company to be domesticated under the laws of another jurisdiction, the limited liability company shall file with the secretary of state articles of organization surrender setting forth:
             (1)      The name of the limited liability company;
             (2)      The limited liability company's new jurisdiction of organization;
             (3)      The plan of domestication;
             (4)      A statement that the articles of organization surrender are being filed in connection with the domestication of the limited liability company as a foreign limited liability company to be organized under the laws of another jurisdiction and that the limited liability company is surrendering its certificate of organization under the laws of this state;
             (5)      A statement that the limited liability company revokes the authority of its registered agent to accept service on its behalf and appoints the secretary of state as its agent for service of process in any proceeding based on a cause of action arising during the time it was organized in this state;
             (6)      A mailing address to which the secretary of state may mail a copy of any process served on the secretary of state under subdivision (5); and
             (7)      A commitment to notify the secretary of state in the future of any change in the mailing address of the limited liability company.
     (b) If the secretary of state finds that the articles of organization surrender comply with the requirements of law and that all required fees have been paid, the secretary of state shall issue a certificate of organization surrender.
     (c) The limited liability company shall automatically cease to be a domestic limited liability company when the certificate of organization surrender becomes effective.
     (d) If the former domestic limited liability company intends to continue to transact business in the state, within thirty days after the effective date of the certificate of organization surrender issued pursuant to subsection (b), the former domestic limited liability company shall deliver to the secretary of state an application for a certificate of authority to transact business in the state pursuant to § 47-34A-1002 together with a certificate of existence or a record of similar import authentication by the secretary of state or other official having custody of company records in the state or country under whose law it is organized together with any fee required by § 47-34A-1206 and any other required fee.

Source: SL 2010, ch 218, § 6.


     47-34A-1015.   Effect of domestication. (a) When a foreign limited liability company's certificate of domestication in this state becomes effective, with respect to that limited liability company:
             (1)      The title to all real estate and other property remains in the limited liability company without reversion or impairment;
             (2)      The liabilities remain the liabilities of the limited liability company;
             (3)      A proceeding pending may be continued by or against the limited liability company as if the domestication did not occur;
             (4)      The articles of organization attached to the articles of domestication constitute the articles of organization of the limited liability company; and
             (5)      The limited liability company is deemed to:
             (i)      Be organized under the laws of this state for all purposes;
             (ii)      Be the same limited liability company as the limited liability company that existed under the laws of the jurisdiction or jurisdictions in which it was originally organized or formerly domesticated; and
             (iii)      Have been organized on the date it was originally formed or organized.
     (b) Any member of a foreign limited liability company that domesticates into this state who, prior to the domestication, was liable for the liabilities or obligations of the limited liability company is not released from those liabilities or obligations by reason of the domestication.

Source: SL 2010, ch 218, § 7.


     47-34A-1016.   Abandonment of domestication. (a) Unless the domestic limited liability company's articles of organization, operating agreement, or the plan of domestication provides otherwise, after the domestication has been authorized and at any time before the effective date of the certificate of domestication issued by the Office of the Secretary of State, the domestication may be abandoned by majority vote of the members of the domestic limited liability company.
     (b) If a domestication is abandoned under subsection (a) after articles of organization surrender have been filed with the secretary of state but before the certificate of organization surrender has become effective, written notice that the domestication has been abandoned in accordance with this section shall be filed with the secretary of state prior to the effective date of the certificate of organization surrender. The notice shall take effect upon filing and the domestication shall be deemed abandoned and shall not become effective.
     (c) If the domestication of a foreign limited liability company into this state is abandoned in accordance with the laws of the foreign jurisdiction after articles of domestication have been filed with the secretary of state but before the certificate of domestication has become effective in this state, written notice that the domestication has been abandoned shall be filed with the secretary of state prior to the effective date of the certificate of domestication. The notice shall take effect upon filing and the domestication shall be deemed abandoned and shall not become effective.

Source: SL 2010, ch 218, § 8.


     47-34A-1101.   Direct action by member. (a) Subject to subsection (b), a member may maintain a direct action against another member, a manager, or the limited liability company to enforce the member's rights and otherwise protect the member's interests, including rights and interests under the operating agreement or this chapter or arising independently of the membership relationship.
     (b) A member maintaining a direct action under this section must plead an actual or threatened injury that is not solely the result of an injury suffered or threatened to be suffered by the limited liability company.

Source: SL 1998, ch 272, § 1101; SL 2013, ch 233, § 39.


     47-34A-1102.   Derivative action. A member may maintain a derivative action to enforce a right of a limited liability company if:
             (1)      The member first makes a demand on the other members in a member-managed limited liability company, or the managers of a manager-managed limited liability company, requesting that they cause the company to bring an action to enforce the right, and the managers or other members do not bring the action within a reasonable time; or
             (2)      A demand under paragraph (1) would be futile.

Source: SL 1998, ch 272, § 1102; SL 2013, ch 233, § 40.


     47-34A-1103.   Proper plaintiff. (a) Except as otherwise provided in subsection (b), a derivative action under § 47-34A-1102 may be maintained only by a person that is a member at the time the action is commenced and remains a member while the action continues.
     (b) If the sole plaintiff in a derivative action dies while the action is pending, the court may permit another member of the limited liability company to be substituted as plaintiff.

Source: SL 1998, ch 272, § 1103; SL 2013, ch 233, § 41.


     47-34A-1104.   Pleading. In a derivative action under § 47-34A-1102, the complaint must state with particularity:
             (1)      The date and content of the plaintiff's demand and the response to the demand by the managers or other members; or
             (2)      If a demand has not been made, the reasons a demand under § 47-34A-1102 would be futile.

Source: SL 1998, ch 272, § 1104; SL 2013, ch 233, § 42.


     47-34A-1105.   Special litigation committee. (a) If a limited liability company is named as or made a party in a derivative proceeding, the company may appoint a special litigation committee to investigate the claims asserted in the proceeding and determine whether pursuing the action is in the best interests of the company. If the company appoints a special litigation committee on motion by the committee made in the name of the company, except for good cause shown, the court shall stay discovery for the time reasonably necessary to permit the committee to make an investigation. The provisions of this subsection do not prevent the court from enforcing a person's right to information under § 47-34A-408 or, for good cause shown, granting extraordinary relief in the form of a temporary restraining order or preliminary injunction.
     (b) A special litigation committee may be composed of one or more disinterested and independent individuals, who may be members.
     (c) A special litigation committee may be appointed:
             (1)      In a member-managed limited liability company:
             (A)      By the consent of a majority of the members not named as defendants or plaintiffs in the proceeding; and
             (B)      If all members are named as defendants or plaintiffs in the proceeding, by a majority of the members named as defendants; or
             (2)      In a manager-managed limited liability company:
             (A)      By a majority of the managers not named as defendants or plaintiffs in the proceeding; and
             (B)      If all managers are named as defendants or plaintiffs in the proceeding, by a majority of the managers named as defendants.
     (d) After appropriate investigation, a special litigation committee may determine that it is in the best interests of the limited liability company that the proceeding:
             (1)      Continue under the control of the plaintiff;
             (2)      Continue under the control of the committee;
             (3)      Be settled on terms approved by the committee; or
             (4)      Be dismissed.
     (e) After making a determination under subsection (d), a special litigation committee shall file with the court a statement of the committees determination and the committee's report supporting the determination, giving notice to the plaintiff. The court shall determine whether the members of the committee were disinterested and independent and whether the committee conducted its investigation and made the recommendation in good faith, independently, and with reasonable care, with the committee having the burden of proof. If the court finds that the members of the committee were disinterested and independent and that the committee acted in good faith, independently, and with reasonable care, the court shall enforce the determination of the committee. Otherwise, the court shall dissolve the stay of discovery entered under subsection (a) and allow the action to proceed under the direction of the plaintiff.

Source: SL 2013, ch 233, § 43.


     47-34A-1106.   Proceeds and expenses. (a) Except as otherwise provided in subsection (b):
             (1)      Any proceeds or other benefits of a derivative action under § 47-34A-1102, whether by judgment, compromise, or settlement, belong to the limited liability company and not to the plaintiff; and
             (2)      If the plaintiff receives any proceeds, the plaintiff shall immediately remit the proceeds to the company.
     (b) If a derivative action under § 47-34A-1102 is successful in whole or in part, the court may award the plaintiff reasonable expenses, including reasonable attorney's fees and costs, from the recovery of the limited liability company.

Source: SL 2013, ch 233, § 44.


     47-34A-1201.   Uniformity of application and construction. This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.

Source: SL 1998, ch 272, § 1201.


     47-34A-1202.   Short title. This chapter may be cited as the South Dakota Limited Liability Company Act.

Source: SL 1998, ch 272, § 1202.


     47-34A-1203, 47-34A-1204.   Reserved.


     47-34A-1205.   Limited liability company--Organization--Effective date. (a) Before January 1, 1999, this chapter governs only a limited liability company organized:
             (1)      After the effective date of this chapter, unless the company is continuing the business of a dissolved limited liability company.;
             (2)      Before the effective date of this chapter, which elects, as provided by subsection (b), to be governed by this chapter.
     (b) Before January 1, 2004, a limited liability company existing before the effective date of this chapter may voluntarily elect, in the manner provided in its operating agreement or by law for amending the operating agreement, to be governed by this chapter.
     (c) On and after January 1, 2004, this chapter governs all limited liability companies.

Source: SL 1998, ch 272, § 1205.


     47-34A-1206.   Fees. The secretary of state may charge the following fees:
             (a)      For amending or restating the articles of organization in the case of a domestic limited liability company, a filing fee of sixty dollars. For amending the registration in the case of a foreign limited liability company, a filing fee of seven hundred fifty dollars;
             (b)      For filing articles of termination, ten dollars;
             (c)      For filing articles of merger, sixty dollars;
             (d)      For filing a statement of dissociation, ten dollars;
             (e)      For filing an application to reserve a name, twenty-five dollars;
             (f)      For issuing a certificate of existence, twenty dollars;
             (g)      For filing an application for registration of name, twenty-five dollars;
             (h)      For filing an annual renewal of registration, a limited liability company which has in effect a registration of its name, may renew such registration from year to year by annually filing an application for renewal setting forth the facts required to be set forth in an original application for registration and a certificate of good standing as required for the original registration and by paying a fee of fifteen dollars. A renewal application may be filed between the first day of October and the thirty-first day of December in each year and shall extend the registration for the following year. Delivery may be made by electronic transmission if and to the extent permitted by the Office of the Secretary of State. If the document is filed in typewritten or printed form and not transmitted electronically, the Office of the Secretary of State may require one exact or conformed copy to be delivered with the document;
             (i)      For acting as agent for service of process the secretary of state shall charge and collect at the time of such service thirty dollars which may be recoverable as taxable costs by the party to the suit or action causing the service to be made if the party prevails in the suit or action;
             (j)      For filing articles of domestication, one hundred fifty dollars;
             (k)      For filing articles of organization surrender, one hundred fifty dollars;
             (l)      For filing a plan of conversion, one hundred fifty dollars.

Source: SL 1998, ch 272, § 1206; SL 2003, ch 8, § 25; SL 2004, ch 279, § 3; SL 2008, ch 275, § 88; SL 2009, ch 4, § 20; SL 2010, ch 218, § 15; SL 2012, ch 222, § 17.


     47-34A-1206.1.   Filing of documents with secretary of state. Delivery of documents may be made by electronic transmission if and to the extent permitted by the Office of the Secretary of State. If the document is filed in typewritten or printed form and not transmitted electronically, the Office of the Secretary of State may require one exact or conformed copy to be delivered with the document.

Source: SL 2013, ch 233, § 45.


     47-34A-1207.   Savings clause. This chapter does not affect an action or proceeding commenced or right accrued before July 1, 1998.

Source: SL 1998, ch 272, § 1207.


Back to Title 47

Click message to listen