2019 Mississippi Code
Title 79 - Corporations, Associations, and Partnerships
Chapter 29 - Revised Mississippi Limited Liability Company Act
Article 1 - General Provisions.
§ 79-29-105. Definitions
- As used in this chapter, unless the context otherwise requires:
(a) “Bankruptcy” means an event that causes a member to cease to be a member as provided in Section 79-29-313 of this chapter.
(b) “Certificate of formation” means the certificate referred to in Section 79-29-201, the certificate as amended or restated, and the certificate of merger. In the case of a foreign limited liability company, the term includes all documents serving a similar function that are required to be filed to form the limited liability company in the state or other jurisdiction where it is organized.
(c) “Contribution” means any cash, property, services rendered, or a promissory note or other obligation to contribute cash or property or to perform services, which a person contributes to a limited liability company in the person’s capacity as a member.
(d) “Deliver” or “delivery” means any method of delivery used in conventional commercial practice, including delivery by hand, mail, commercial delivery and electronic transmission. If delivery is to the Secretary of State, delivery may be made by electronic transmission, if, to the extent, and in the manner permitted by the Secretary of State.
(e) “Derivative proceeding” means a civil suit in the right of a limited liability company or, to the extent provided in Article 10 of this chapter, in the right of a foreign limited liability company.
(f) “Electronic transmission” or “electronically transmitted” means any process of communication not directly involving the physical transfer of paper that is suitable for the retention, retrieval and reproduction of information by the recipient.
(g) “Entity” means any association or legal entity organized to conduct business, whether domestic or foreign, including, without limitation, for profit and nonprofit corporations, limited partnerships, general partnerships, limited liability partnerships, limited liability companies, joint ventures, joint-stock companies, business trusts and estates; and states, the United States, foreign governments, governmental subdivisions or governmental agencies.
(h) “Financial interests” and “financial rights” means (i) rights to share in profits and losses as provided in Section 79-29-505; (ii) rights to share in distributions as provided in Section 79-29-507; (iii) rights to receive interim distributions as provided in Section 79-29-601; (iv) rights to receive distributions upon withdrawal as provided in Section 79-29-603; (v) rights to receive allocations of income, loss, deduction, credit or similar items; (vi) appraisal rights as provided in Section 79-29-231; and (vii) any other rights granted in the certificate of formation or the operating agreement that are in addition to the above and are designated as “financial interests” or “financial rights” by the limited liability company. Financial interests may be owned by members of a limited liability company and may be owned by persons who are not members of a limited liability company. Financial interests are assignable in whole or in part, except as otherwise provided by a limited liability company’s certificate of formation or operating agreement.
(i) “Foreign,” with reference to any entity, means such entity that is formed or organized under laws other than the laws of this state or under the laws of any foreign country or other foreign jurisdiction and denominated as such under the laws of such state or foreign country or other foreign jurisdiction.
(j) “Formation document” means the document that creates an entity which document is duly executed and delivered to a public official or office in the state or other foreign jurisdiction of the entity’s formation pursuant to the laws under which the entity is organized or formed.
(k) “Governance interests” or “governance rights” means all of a member’s rights as a member in the limited liability company other than financial rights and the right to assign financial rights, including without limitation: (i) the rights to participate in the management of the limited liability company; (ii) rights to bind the limited liability company as provided in Sections 79-29-307 and 79-29-811; (iii) the right to vote for or consent to matters requiring the vote of or consent of the members, as specified in this chapter or in the certificate of formation or operating agreement; and, unless the context otherwise requires; and (iv) rights to enjoy any privileges bestowed on members of the limited liability company. Only members shall have governance rights or own governance interests in a limited liability company.
(l) “Individual” means a natural person.
(m) “Interests” means the proprietary interests in an entity and, with respect to a member of a limited liability company, “interests” or “membership interests” are used interchangeably and shall each mean all of the governance interests and financial interests in the limited liability company held by such member or members.
(n) “Knowledge” means a person’s actual knowledge, rather than the person’s constructive knowledge.
(o) “Limited liability company” or “domestic limited liability company” means an entity having one or more members that is an unincorporated company or unincorporated association formed and existing under this chapter and is not subject to Section 97-13-15.
(p) “Manager” or “managers” means a person or persons who are named in or selected or designated pursuant to, the certificate of formation or operating agreement as a manager to manage the limited liability company to the extent and as provided in the certificate of formation or operating agreement. A limited liability company whose management is vested in a manager or managers is referred to in this chapter as a manager-managed limited liability company.
(q) “Member” means a person who has been admitted to a limited liability company as provided in Section 79-29-301 or, in the case of a foreign limited liability company, in accordance with the laws under which the foreign limited liability company is organized. A member includes a member of a limited liability company who does not own a financial interest or who does not have an obligation to contribute capital to the limited liability company. A member may or may not have governance interests, including voting rights. A member may have other rights, powers or privileges as prescribed by the certificate of formation or the operating agreement. A limited liability company whose management is vested in the members is referred to in this chapter as a member-managed limited liability company.
(r) “Merger” means a business combination pursuant to Section 79-29-221.
(s) “Officer” means an individual who is named in or selected or designated pursuant to, the certificate of formation or operating agreement as an officer to manage the limited liability company to the extent and as provided in the certificate of formation or operating agreement.
(t) “Operating agreement” or “limited liability company agreement” means any agreement, whether referred to as a limited liability company agreement or otherwise, written, oral or implied, of the member or members as to the affairs of a limited liability company and the conduct of its business. A member or manager of a limited liability company or an assignee of a financial interest is bound by the operating agreement whether or not the member or manager or assignee executes the operating agreement. A limited liability company is not required to execute its operating agreement. A limited liability company is bound by its operating agreement whether or not the limited liability company executes the operating agreement. An operating agreement of a limited liability company having only one (1) member shall not be unenforceable by reason of there being only one (1) person who is a party to the operating agreement. An operating agreement may provide rights to any person, including a person who is not a party to the operating agreement, to the extent set forth therein. A written operating agreement or another written agreement or writing:
(i) May provide that a person shall be admitted as a member of a limited liability company, or shall become an assignee of a financial interest or of other rights or powers of a member to the extent assigned:
1. If the person, or a representative authorized by the person orally, in writing or by other action such as payment for a financial interest, executes the operating agreement or any other writing evidencing the intent of the person to become a member or assignee; or
2. Without such execution, if such person, or a representative authorized by such person orally, in writing or by other action such as payment for a financial interest, complies with the conditions for becoming a member or assignee as set forth in the operating agreement or any other writing; and
(ii) Shall not be unenforceable by reason of its not having been signed by a person being admitted as a member or becoming an assignee as provided in paragraph (t)(i) of this subsection, or by reason of its having been signed by a representative as provided in this chapter.
(u) “Organizational documents” means the document or documents that create, or determine the internal governance of, an entity. The organizational documents of a limited liability company are the certificate of formation and the operating agreement, if any.
(v) “Person” means an individual, entity, trust, or any other legal or commercial nominee or any personal representative.
(w) “Personal representative” means, as to an individual, the executor, administrator, guardian, conservator or other legal representative thereof or the successor of such executor, administrator, guardian, conservator or legal representative; and, as to a person other than an individual, the legal representative or the successor of the legal representative. The legal representative of a member which has been placed in bankruptcy shall be the bankruptcy trustee or other representative designated in accordance with the bankruptcy code.
(x) “Professional limited liability company” is a limited liability company formed and existing under Article 9 of this chapter.
(y) “Sign” or “signature” includes any manual, facsimile, conformed or electronic signature.
(z) “State” means the District of Columbia or the Commonwealth of Puerto Rico or any state, territory, possession or other jurisdiction of the United States.
(aa) “Survivor” of a merger means the entity into which one or more entities are merged. A survivor of a merger may preexist the merger or be created by the merger.
(bb) “Withdraw” or “withdrawal” means, with respect to a member of a limited liability company, any voluntary act by which, pursuant to the certificate of formation or written operating agreement, a member ceases to be a member of the limited liability company and ceases to have any governance rights. Withdrawal shall include retirement, resignation or withdrawal, but shall not include the death or expulsion of a member, any event described in Section 79-29-313, or the assignment of the member’s entire interest as provided in Section 79-29-703. Any use of the term “resignation” or “retirement” in an operating agreement or certificate of formation, with respect to a member which is not defined in such document, shall mean the withdrawal of the member from the limited liability company for purposes of this chapter.