2007 Oregon Code - Chapter 63 :: Chapter 63 - Limited Liability Companies
Chapter 63 Limited
Liability Companies
2007 EDITION
LIMITED LIABILITY COMPANIES
CORPORATIONS AND PARTNERSHIPS
GENERAL PROVISIONS
(Definitions)
63.001 Definitions
63.002 Inclusion
of limited liability companies and managers and members of limited liability
companies in definitions
(Filing Documents)
63.004 Filing
requirements
63.007 Filing,
service, copying and certification fees
63.011 Effective
time and date of document
63.014 Correcting
filed document
63.016 Forms;
rules
63.017 Filing
duty of Secretary of State
63.021 Appeal
from Secretary of States refusal to file document
63.024 Evidentiary
effect of copy of filed document
63.027 Certificate
of existence or authorization
(Secretary of State)
63.031 Powers
(Notice)
63.034 Knowledge
and notice
ORGANIZATION
63.044 Formation
63.047 Articles
of organization
63.051 Organization
63.054 Liability
for preorganization transactions
63.057 Operating
agreements
PURPOSES AND POWERS
63.074 Purposes
63.077 General
powers
NAME
63.094 Limited
liability company name
63.097 Reserved
name
63.101 Registered
name
OFFICE AND AGENT
63.111 Registered
office and registered agent
63.114 Change
of registered office or registered agent
63.117 Resignation
of registered agent
63.121 Service
on limited liability company
MANAGEMENT AND MANAGEMENT RIGHTS OF MEMBERS
63.130 Rights
of members and managers; matters requiring consent of all or majority of
members
63.140 Agency
power of managers and members; interest in real property
63.155 Duties
and standard of conduct
63.160 Limitation
of liability and indemnification
63.165 Liability
of members and managers
63.170 Liability
of limited liability company for acts, omissions or conduct of member or
manager
FINANCES
63.175 Contributions
63.180 Liability
for contributions
63.185 Allocation
of profits and losses
DISTRIBUTIONS AND WITHDRAWAL
63.195 Allocation
of interim distributions
63.200 Right
to interim distributions
63.205 Voluntary
withdrawal of member
63.209 Expulsion
of member
63.219 Distribution
in kind
63.225 Right
to distribution
63.229 Limitations
on distribution
63.235 Liability
for wrongful distribution
MEMBERSHIP INTEREST
63.239 Nature
of membership interest
63.245 Admission
of members
63.249 Assignment
of membership interest; effect of assignment
63.255 Rights
of assignee who becomes member
63.259 Rights
of judgment creditor against member
63.265 Cessation
of membership
AMENDMENT OF ARTICLES OF ORGANIZATION AND
OPERATING AGREEMENT
63.431 Operating
agreement
63.434 Amendment
to articles of organization
63.437 Restated
articles of organization
63.441 Amendment
by managers
63.444 Amendment
by members
CONVERSIONS AND MERGERS
63.467 Definitions
for ORS 63.467 to 63.497
63.470 Conversion
63.473 Action
on plan of conversion
63.476 Articles
of conversion
63.479 Effect
of conversion; entity existence continues; assumed business name
63.481 Merger
63.487 Action
on plan of merger
63.494 Articles
of merger
63.497 Effect
of merger
DISSOLUTION
(In General)
63.621 Dissolution
63.625 Distribution
of assets upon dissolution
63.629 Agency
power of members and managers after dissolution
63.631 Articles
of dissolution
63.637 Effect
of dissolution; winding up
63.641 Known
claims against dissolved limited liability company
63.644 Unknown
claims against dissolved limited liability company
63.645 Enforcement
of claims against dissolved limited liability company
(Administrative Dissolution)
63.647 Grounds
for administrative dissolution
63.651 Procedure;
effect of administrative dissolution
63.654 Reinstatement
following administrative dissolution
63.657 Appeal
from denial of reinstatement
(Judicial Dissolution)
63.661 Grounds
for judicial dissolution
63.664 Procedure
for judicial dissolution
63.671 Judgment
of dissolution
(Disposition of Assets)
63.674 Deposit
with Department of State Lands
FOREIGN LIMITED LIABILITY COMPANIES
(Authority to Transact Business)
63.701 Authority
to transact business required
63.704 Consequences
of transacting business without authority
63.707 Application
for authority to transact business
63.711 Amendment
to application for authority
63.714 Effect
of authority
63.717 Name
of foreign limited liability company
63.721 Registered
office and registered agent of foreign limited liability company
63.724 Change
of registered office or registered agent of foreign limited liability company
63.727 Resignation
of registered agent of a foreign limited liability company
63.731 Service
on a foreign limited liability company
(Withdrawal)
63.734 Withdrawal
of foreign limited liability company
(Revocation of Authority)
63.737 Grounds
for revocation
63.741 Procedure
for and effect of revocation
63.744 Appeal
from revocation
63.747 Reinstatement
of authority
RECORDS AND REPORTS
(Records)
63.771 Limited
liability company records
63.777 Scope
of inspection right
63.781 Court-ordered
inspection
(Reports)
63.784 Certain
expense reports to members
63.787 Annual
report; rules
DERIVATIVE PROCEEDINGS
63.801 Derivative
proceedings
STATE TAXATION
63.810 Taxation
of limited liability companies and members
MISCELLANEOUS
63.951 Short
title
63.955 Interstate
application
63.960 Applicability
of chapter to practice of dentistry
63.965 Reservation
of power to amend or repeal; effect of amendment or repeal
PENALTY
63.990 Penalty
for signing false document
GENERAL PROVISIONS
(Definitions)
63.001
Definitions. As used in this
chapter:
(1) Anniversary means that day each year
exactly one or more years after:
(a) The date of filing by the Secretary of
State of the articles of organization in the case of a domestic limited
liability company.
(b) The date of filing by the Secretary of
State of an application for authority to transact business in the case of a
foreign limited liability company.
(2) Articles of organization means the
document described in ORS 63.047 for the purpose of forming a limited liability
company, including articles of organization as they may be amended or restated,
articles of conversion and articles of merger.
(3) Bankruptcy means:
(a) Assignment by a member for the benefit
of creditors;
(b) Commencement of a voluntary bankruptcy
case by a member;
(c) Adjudication of a member as bankrupt
or insolvent;
(d) Filing by a member of a petition or
answer seeking for the member any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any statute, law
or rule;
(e) Filing by a member of an answer or
other pleading admitting or failing to contest the material allegations of a
petition filed against the member in any proceeding of this nature;
(f) Seeking, consenting to or acquiescing
in the appointment of a trustee, receiver or liquidator of the member or of all
or any substantial part of the members properties;
(g) Commencement of an involuntary
bankruptcy case against a member that has not been dismissed on or before the
120th day after the commencement of the case;
(h) Appointment, without the members
consent, of a trustee, receiver or liquidator either of the member or of all or
any substantial part of the members properties that is not vacated or stayed
on or before the 90th day after appointment; or
(i) Appointment described in paragraph (h)
of this subsection that is not vacated on or before the 90th day after
expiration of the stay under paragraph (h) of this subsection.
(4) Contribution means anything of value
which a person contributes to the limited liability company as a prerequisite
for or in connection with membership including cash, property or services
rendered or a promissory note or other binding obligation to contribute cash or
property or to perform services.
(5) Corporation or domestic corporation
means a corporation for profit incorporated under ORS chapter 60.
(6) Distribution means a direct or
indirect transfer of money or other property, except of a limited liability
companys own interests, or incurrence of indebtedness by a limited liability
company to or for the benefit of its members in respect of any of its members
interests. A distribution may be in the form of a declaration or payment of
profits, a purchase, retirement or other acquisition of interests, a
distribution of indebtedness, or otherwise.
(7) Domestic nonprofit corporation means
a corporation not for profit incorporated under ORS chapter 65.
(8) Domestic professional corporation
means a corporation organized under ORS chapter 58 for the purpose of rendering
professional services and for the purposes provided under ORS chapter 58.
(9) Entity includes a domestic or
foreign limited liability company, corporation, professional corporation,
foreign corporation, domestic or foreign nonprofit corporation, domestic or
foreign cooperative corporation, profit or nonprofit unincorporated
association, business trust, estate, domestic or foreign general or limited
partnership, trust, two or more persons having a joint or common economic
interest, any state, the United States or any foreign government.
(10) Foreign corporation means a
corporation for profit incorporated under a law other than the law of this
state.
(11) Foreign limited liability company
means an entity that is an unincorporated association organized under the laws
of a state other than this state, under the laws of a federally recognized
Indian tribe or under the laws of a foreign country and that is organized under
a statute under which an association may be formed that affords to each of its
members limited liability with respect to the liabilities of the entity.
(12) Foreign limited partnership means a
limited partnership formed under the laws of any jurisdiction other than this
state and having as partners one or more general partners and one or more
limited partners.
(13) Foreign nonprofit corporation means
a corporation not for profit organized under the laws of a state other than
this state.
(14) Foreign professional corporation
means a professional corporation organized under the laws of a state other than
this state.
(15) Incompetency means the entry of a
judgment by a court of competent jurisdiction adjudicating the member
incompetent to manage the members person or estate.
(16) Individual means a natural person.
(17) Limited liability company or domestic
limited liability company means an entity that is an unincorporated association
having one or more members that is organized under this chapter.
(18) Limited partnership or domestic
limited partnership means a partnership formed by two or more persons under
ORS chapter 70 and having one or more general partners and one or more limited
partners.
(19) Manager or managers means a
person or persons, who need not be members, designated by the members of a
manager-managed limited liability company to manage the limited liability
companys business and affairs.
(20) Manager-managed limited liability
company means a limited liability company that is designated as a
manager-managed limited liability company in its articles of organization or
whose articles of organization otherwise expressly provide that the limited
liability company will be managed by a manager or managers.
(21) Member or members means a person
or persons with both an ownership interest in a limited liability company and
all the rights and obligations of a member specified under this chapter. Member
does not include an assignee of an ownership interest who has not also acquired
the voting and other rights appurtenant to membership.
(22) Member-managed limited liability
company means a limited liability company other than a manager-managed limited
liability company.
(23) Membership interest or interest
means a members collective rights in a limited liability company, including
the members share of profits and losses of the limited liability company, the
right to receive distributions of the limited liability companys assets and
any right to vote or participate in management.
(24) Office, when used to refer to the
administrative unit directed by the Secretary of State, means the office of the
Secretary of State.
(25) Operating agreement means any valid
agreement, written or oral, of the member or members as to the affairs of a
limited liability company and the conduct of its business.
(26) Organizer means one of the signers
of the initial articles of organization.
(27) Party includes an individual who
was, is or is threatened to be made a named defendant or respondent in a
proceeding.
(28) Person means an individual or
entity.
(29) Proceeding means any threatened,
pending or completed action, suit or proceeding whether civil, criminal,
administrative or investigatory and whether formal or informal.
(30) State, when referring to a part of
the
(31)
63.002
Inclusion of limited liability companies and managers and members of limited
liability companies in definitions. Unless the context otherwise requires, throughout Oregon Revised
Statutes:
(1) Wherever the term person is defined
to include both a corporation and a partnership, the term person shall also
include a limited liability company.
(2) Wherever a section of Oregon Revised
Statutes applies to both partners and directors, the section shall also
apply:
(a) In a limited liability company with one
or more managers, to the managers of the limited liability company.
(b) In a limited liability company without
managers, to the members of the limited liability company.
(3) Wherever a section of Oregon Revised
Statutes applies to both partners and shareholders, the section shall also
apply to members of a limited liability company. [1995 c.93 §25]
(Filing
Documents)
63.004
Filing requirements. (1) A
document must satisfy the requirements of this section, as modified by any
other provision of this chapter, to be entitled to filing by the Secretary of
State.
(2) This chapter must require or permit
filing the document with the office.
(3) The document shall contain the
information required by this chapter. It may contain other information as well.
(4) The document must be legible.
(5) The document must be in the English
language. The certificate of existence required of foreign limited liability
companies under ORS 63.707 need not be in English if accompanied by a
reasonably authenticated English translation.
(6) Unless otherwise specified in this
chapter, each document or report required by this chapter to be filed with the
office shall be executed in the following manner:
(a) Articles of organization shall be
signed by or on behalf of one or more persons wishing to form the limited
liability company.
(b) Articles of amendment shall be signed
by at least one member or manager.
(c) Each annual report shall be signed by
one member or manager.
(d) If the limited liability company is in
the hands of a receiver, trustee or other court-appointed fiduciary, a document
or report shall be signed by that receiver, trustee or fiduciary.
(7) The person executing the document
shall state beneath or opposite the signature the name of the person and the
capacity in which the person signs. The document may, but is not required to,
contain an acknowledgment, verification or proof.
(8) If the Secretary of State has
prescribed a mandatory form for the document under ORS 63.016, the document
must be in or on the prescribed form.
(9) The document must be delivered to the
office accompanied by the required fees.
(10) Delivery of a document to the office
is accomplished only when the document is actually received by the office. [1993
c.173 §3]
63.007
Filing, service, copying and certification fees. The Secretary of State shall collect the
fees described in ORS 56.140 for each document delivered for filing under this
chapter and for process served on the secretary under this chapter. The
secretary may collect the fees described in ORS 56.140 for copying any public
record under this chapter, certifying the copy or certifying to other facts of
record under this chapter. [1993 c.173 §4; 1995 c.93 §2; 1999 c.362 §§29,29a]
63.010 [Repealed by 1959 c.580 §104]
63.011
Effective time and date of document. (1) Except as provided in subsection (2) of this section and ORS
63.014 (3), a document accepted for filing is effective on the date it is filed
by the Secretary of State and at the time, if any, specified in the document as
its effective time or at 12:01 a.m. on that date if no effective time is
specified.
(2) If a document specifies a delayed
effective time and date, the document becomes effective at the time and date
specified. If a document specifies a delayed effective date but no time, the
document becomes effective at 12:01 a.m. on that date. A delayed effective date
for a document may not be later than the 90th day after the date it is filed. [1993
c.173 §5]
63.014
Correcting filed document.
(1) A domestic or foreign limited liability company may correct a document
filed by the Secretary of State, other than an annual report, if the document
contains an incorrect statement or was defectively executed, attested, sealed,
verified or acknowledged.
(2) A domestic or foreign limited
liability company shall correct a document by delivering articles of correction
to the office. The articles shall include the following:
(a) A description of the document,
including its filing date, or a copy of the document.
(b) The incorrect statement and the reason
it is incorrect, or a description of the manner in which the execution,
attestation, seal, verification or acknowledgment is defective.
(c) A correction of the incorrect
statement or defective execution, attestation, seal, verification or
acknowledgment.
(3) Articles of correction are effective
on the effective date of the document they correct except as to persons relying
on the uncorrected document and adversely affected by the correction. As to
those persons, articles of correction are effective when filed. [1993 c.173 §6]
63.016
Forms; rules. Upon request,
the Secretary of State may furnish forms for documents required or permitted to
be filed by this chapter. The Secretary of State may by rule require the use of
the forms. [1993 c.173 §7; 1995 c.215 §10]
63.017
Filing duty of Secretary of State. (1) If a document delivered to the Office of the Secretary of State
for filing satisfies the requirements of ORS 63.004, the Secretary of State
shall file it.
(2) The Secretary of State files a
document by indicating thereon that it has been filed by the Secretary of State
and the date of filing. After filing a document, the Secretary of State shall
return an acknowledgment of filing to the domestic or foreign limited liability
company or its representative.
(3) If the Secretary of State refuses to
file a document, the Secretary of State shall return it to the domestic or
foreign limited liability company or its representative within 10 business days
after the document was delivered together with a brief written explanation of
the reason for the refusal.
(4) The Secretary of States duty to file
documents under this section is ministerial. The Secretary of State is not
required to verify or inquire into the legality or truth of any matter included
in any document delivered to the office for filing. The Secretary of States
filing or refusing to file a document does not:
(a) Affect the validity or invalidity of
the document in whole or part; or
(b) Relate to the correctness or
incorrectness of information contained in the document.
(5) The Secretary of States refusal to
file a document does not create a presumption that the document is invalid or
that information contained in the document is incorrect. [1993 c.173 §8; 1999
c.486 §9]
63.020 [Repealed by 1959 c.580 §104]
63.021
Appeal from Secretary of States refusal to file document. If the Secretary of State refuses to file a
document delivered to the office for filing, the domestic or foreign limited
liability company, in addition to any other legal remedy which may be
available, shall have the right to appeal from such order pursuant to the
provisions of ORS chapter 183. [1993 c.173 §9]
63.024
Evidentiary effect of copy of filed document. (1) A certificate attached to a copy of a document filed by the
Secretary of State, bearing the Secretary of States signature, which may be in
facsimile, is conclusive evidence that the document or a facsimile thereof is
on file with the office.
(2) The provisions of ORS 56.110 shall
apply to all documents filed pursuant to this chapter. [1993 c.173 §10]
63.027
Certificate of existence or authorization. (1) Anyone may apply to the Secretary of State to furnish a
certificate of existence for a domestic limited liability company or a
certificate of authorization for a foreign limited liability company.
(2) A certificate of existence or
authorization when issued means that:
(a) The domestic limited liability companys
name or the foreign limited liability companys name is registered in this
state;
(b) The domestic limited liability company
is duly organized under the laws of this state or the foreign limited liability
company is authorized to transact business in this state;
(c) All fees payable to the Secretary of
State under this chapter have been paid, if nonpayment affects the existence or
authorization of the domestic or foreign limited liability company;
(d) An annual report required by ORS
63.787 has been filed by the Secretary of State within the preceding 14 months;
and
(e) Articles of dissolution or an
application for withdrawal have not been filed by the Secretary of State.
(3) 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. [1993 c.173 §11]
63.030 [Repealed by 1959 c.580 §104]
(Secretary of
State)
63.031
Powers. The Secretary of
State has the power reasonably necessary to perform the duties required of the
Secretary of State by this chapter. [1993 c.173 §12]
(Notice)
63.034
Knowledge and notice. (1) A
person knows a fact if the person has actual knowledge of it.
(2) A person has notice of a fact if the
person:
(a) Knows of it;
(b) Has received a notification of it; or
(c) Has reason to know it exists from all
the facts known to the person at the time in question.
(3) A person notifies or gives
notification to another by taking steps reasonably required to inform the other
person in the ordinary course, whether or not the other person learns of it.
(4) A person receives a notification when
the notification:
(a) Comes to the persons attention; or
(b) Is addressed to the person and is duly
delivered at the persons place of business or at any other place held out by
the person as a place for receiving communications.
(5) A person other than an individual
knows, has notice or receives a notification of a fact for purposes of a
particular transaction when the individual conducting the transaction knows,
has notice or receives a notification of the fact, or in any event when the
fact would have been brought to the individuals attention if the person had
exercised reasonable diligence.
(6) Written notice to a domestic limited
liability company or to a foreign limited liability company authorized to
transact business in this state may be addressed to its registered agent at its
registered office or to the domestic or foreign limited liability company or
its manager or managers at its principal office or mailing address as shown in
the records of the office. [1993 c.173 §13; 1995 c.79 §17; 1999 c.86 §2]
63.040 [Repealed by 1959 c.580 §104]
ORGANIZATION
63.044
Formation. One or more
individuals 18 years of age or older or other entities may form a limited
liability company by executing and delivering articles of organization to the
office for filing. Organizers need not be members of the limited liability
company. [1993 c.173 §14]
63.047
Articles of organization.
(1) The articles of organization shall set forth:
(a) The name of the limited liability
company which satisfies the requirements of ORS 63.094;
(b) The address, including street and
number, and mailing address, if different, of the limited liability companys
initial registered office and the name of its initial registered agent at that
office;
(c) A mailing address to which notices, as
required by this chapter, may be mailed until an address has been designated by
the limited liability company in its annual report;
(d) If the limited liability company is to
be manager-managed, a statement that the limited liability company will be
manager-managed or a statement that the limited liability company is to be
managed by a manager or managers;
(e) The name and address of each
organizer;
(f) The latest date on which the limited
liability company is to dissolve or a statement that its existence is
perpetual; and
(g) If a limited liability company is to
render professional service or services, as defined in ORS 58.015, the
professional service or services to be rendered through the limited liability
company.
(2) The articles of organization may set
forth any other provisions, not inconsistent with law, for the regulation of
the internal affairs of the limited liability company, including any provision
that is required or permitted to be included in any operating agreement of the
limited liability company under this chapter.
(3) The articles of organization need not
set forth any of the powers enumerated in this chapter. [1993 c.173 §15; 1997
c.774 §10; 1999 c.86 §3; 2001 c.315 §51]
63.050 [Repealed by 1959 c.580 §104]
63.051
Organization. (1) Unless a
delayed effective date is specified in the articles of organization, the
limited liability companys existence begins when the articles of organization
are filed by the Secretary of State.
(2) The Secretary of States filing of the
articles of organization is conclusive proof that all conditions precedent to organization
were satisfied except in a proceeding by the state to cancel or revoke the
organization or involuntarily dissolve the limited liability company. [1993
c.173 §16]
63.054
Liability for preorganization transactions. All persons purporting to act as or on behalf of a limited liability
company, knowing the limited liability company was not then in existence, are
jointly and severally liable for all liabilities created while so acting. [1993
c.173 §17]
63.057
Operating agreements. The
operating agreement, if any, may provide for the regulation and management of
the affairs of the limited liability company in any manner not inconsistent
with law or the articles of organization and may be in writing or oral. [1993
c.173 §18; 1995 c.93 §3]
63.060 [Repealed by 1959 c.580 §104]
63.070 [Repealed by 1959 c.580 §104]
PURPOSES AND
POWERS
63.074
Purposes. (1) Except as
otherwise provided by the laws of this state and in this section, a limited
liability company formed under this chapter may conduct or promote any lawful
business or purpose which a partnership, corporation or professional
corporation as defined in ORS 58.015 may conduct or promote, unless a more
limited purpose is set forth in the articles of organization.
(2) Subject to the laws of this state, the
rules and regulations of the regulatory board of the profession, if any, and
the standards of professional conduct of the profession, if any, a limited
liability company or its members may render professional service in this state.
Notwithstanding any other law, members, including members who are managers, of
a limited liability company who are also professionals, as defined in ORS
58.015, shall be personally liable as members of the limited liability company
to the same extent and in the same manner as provided for shareholders of a
professional corporation in ORS 58.185 and 58.187 and as otherwise provided in
this chapter.
(3) A business that is subject to
regulation under another statute of this state may not be organized under this
chapter if the business is required to be organized only under the other
statute. [1993 c.173 §19; 1995 c.93 §4; 1995 c.327 §4a; 1997 c.774 §11]
63.077
General powers. (1) Unless
its articles of organization provide otherwise, the duration of a limited
liability company shall be perpetual.
(2) Unless its articles of organization
provide otherwise, and subject to the provisions of ORS 63.074 (2), each
limited liability company organized under this chapter may:
(a) Sue and be sued, and complain and
defend in all courts in its own name;
(b) Purchase, take, receive, lease, or
otherwise acquire, own, hold, improve, use and otherwise deal in or with real
or personal property or any interest in real or personal property, wherever
situated;
(c) Sell, convey, mortgage, pledge, create
a security interest in, lease, exchange or transfer, and otherwise dispose of
all or any part of its property or assets;
(d) Purchase, take, receive, subscribe for
or otherwise acquire, own, hold, vote, use, employ, sell, mortgage, lend, pledge,
otherwise dispose of, and otherwise use or deal in or with other interests in
or obligations of any other entity;
(e) Make contracts or guarantees, incur
liabilities, borrow money, issue its notes or other obligations that may be
convertible into other securities of the limited liability company or include
the option to purchase other securities of the limited liability company, or
secure any of its obligations by mortgage or pledge of any of its property,
franchises or income;
(f) Lend money, invest or reinvest its
funds, or receive and hold real or personal property as security for repayment
of funds so loaned, invested or reinvested;
(g) Be a promoter, incorporator, general
partner, limited partner, member, associate or manager of any partnership,
joint venture, trust or other entity;
(h) Conduct its business, locate offices
and exercise the powers granted by this chapter within or without this state;
(i) Elect or appoint managers, employees
or agents of the limited liability company, define their duties, fix their
compensation and lend them money and credit;
(j) Make and alter an operating agreement,
not inconsistent with its articles of organization or with the laws of this
state, for managing its business and regulating its affairs;
(k) Pay pensions and establish pension
plans, profit-sharing plans, and benefit or incentive plans for any or all of
its current or former managers, members, employees and agents;
(L) Make donations for the public welfare
or for charitable, scientific or educational purposes;
(m) Transact any lawful business that will
aid governmental policy;
(n) Indemnify a member or manager or any
other person as and to the extent not inconsistent with the provisions of this
chapter;
(o) Cease its activities and dissolve; and
(p) Have and exercise all powers and do
every other act not inconsistent with law which is necessary or convenient to
promote and effect any or all of the purposes for which the limited liability
company is organized. [1993 c.173 §20; 1997 c.646 §2]
NAME
63.094
Limited liability company name.
(1) The name of the limited liability company shall contain the words limited
liability company or the abbreviation L.L.C. or LLC.
(2) A limited liability company name shall
not contain the word or abbreviation cooperative, corporation, corp., incorporated,
Inc., limited partnership, L.P., LP, Ltd., limited liability
partnership, L.L.P., LLP or partnership or any derivation of any of the
foregoing.
(3) A limited liability company name shall
be written in the alphabet used to write the English language and may include
Arabic and Roman numerals and incidental punctuation.
(4) A limited liability company name shall
be distinguishable upon the records of the office from any other limited
liability company name, corporate name, professional corporate name, nonprofit
corporate name, cooperative name, limited partnership name, business trust
name, reserved name, registered corporate name or assumed business name of
active record with the office.
(5) The limited liability company name
need not satisfy the requirement of subsection (4) of this section if the
applicant delivers to the office a certified copy of a final judgment of a
court of competent jurisdiction that finds that the applicant has a prior or
concurrent right to use the limited liability company name in this state.
(6) The provisions of this section do not
prohibit a limited liability company from transacting business under an assumed
business name.
(7) The provisions of this section do not:
(a) Abrogate or limit the law governing
unfair competition or unfair trade practices; or
(b) Derogate from the common law, the
principles of equity or the statutes of this state or of the
63.097
Reserved name. (1) A person
may apply to the office to reserve a limited liability company name. The
application must set forth the name and address of the applicant and the name
proposed to be reserved.
(2) If the Secretary of State finds that
the limited liability company name applied for conforms to ORS 63.094, the
Secretary of State shall reserve the name for the applicant for a 120-day
period.
(3) A person may transfer the reservation
of a limited liability company name to another person by delivering to the
office a notice of the transfer executed by the person for whom the name was
reserved and specifying the name and address of the transferee. [1993 c.173 §22]
63.101
Registered name. (1) A
foreign limited liability company may apply to the office to register its name.
(2) The application must set forth the
limited liability company name, the state or country of its organization, the
date of its organization and a brief description of the nature of the business
in which it is engaged and a statement that it is not carrying on or doing
business in the State of Oregon. The application must be accompanied by a
certificate of existence or a document of similar import current within 60 days
of delivery, duly authenticated by the official having custody of the limited
liability company records in the state or country under whose law it is
organized.
(3) If the Secretary of State finds that
the name conforms to ORS 63.094, the Secretary of State shall register the name
effective for one year. [1993 c.173 §23]
63.110 [Repealed by 1959 c.580 §104]
OFFICE AND
AGENT
63.111
Registered office and registered agent. (1) Each limited liability company shall continuously maintain in this
state a registered agent and registered office that may be, but need not be,
the same as any of its places of business.
(2) A registered agent shall be:
(a) An individual who resides in this
state and whose business office is identical to the registered office;
(b) A domestic limited liability company,
a domestic corporation, a domestic professional corporation or a domestic
nonprofit corporation whose business office is identical to the registered
office; or
(c) A foreign limited liability company,
foreign corporation, foreign professional corporation or foreign nonprofit
corporation authorized to transact business in this state whose business office
is identical to the registered office. [1993 c.173 §24; 2001 c.315 §27]
63.114
Change of registered office or registered agent. (1) A limited liability company may change
its registered office or registered agent by delivering to the office of the
Secretary of State for filing a statement of change that sets forth:
(a) The name of the limited liability
company;
(b) If the registered office is to be
changed, the address including street and number of the new registered office;
(c) If the registered agent is to be
changed, the name of the new registered agent and that the new agent has
consented to the appointment; and
(d) That after the change or changes are
made, the street addresses of its registered office and the business office of
its registered agent will be identical.
(2) If a registered agent changes the
street address of the agents business office, the registered agent shall
change the street address of the registered office of the limited liability
company for which the agent is the registered agent by notifying the limited
liability company in writing of the change and signing, either manually or in
facsimile, and delivering to the office of the Secretary of State a statement
that complies with the requirements of subsection (1) of this section and
recites that the limited liability company has been notified of the change.
(3) The filing of the statement by the
Secretary of State shall terminate the existing registered office or agent, or
both, on the effective date of the filing and establish the newly appointed
registered office or agent, or both, as that of the limited liability company. [1993
c.173 §25]
63.117
Resignation of registered agent. (1) A registered agent may resign as agent upon delivering a signed
statement to the office and giving notice in the form of a copy of the
statement to the limited liability company. The statement may include a
statement that the registered office is also discontinued.
(2) Upon delivery of the signed statement,
the Secretary of State shall file the resignation statement. The copy of the
statement given to the limited liability company under subsection (1) of this
section shall be addressed to the limited liability company at its mailing
address or its principal office as shown by the records of the office of the
Secretary of State.
(3) The agency appointment is terminated
and the registered office discontinued, if so provided, on the 31st day after
the date on which the statement was filed by the Secretary of State, unless the
limited liability company shall sooner appoint a successor registered agent as
provided in ORS 63.114 thereby terminating the capacity of such agent. [1993
c.173 §26; 1993 c.173 §105]
63.121
Service on limited liability company. (1) The registered agent appointed by a limited liability company
shall be an agent of the limited liability company upon whom any process,
notice or demand required or permitted by law to be served upon the limited
liability company may be served.
(2) The Secretary of State shall be an
agent of a limited liability company including a dissolved limited liability
company upon whom any such process, notice or demand may be served whenever the
limited liability company fails to appoint or maintain a registered agent in
this state or whenever the limited liability companys registered agent cannot
with reasonable diligence be found at the registered office.
(3) Service shall be made on the Secretary
of State by:
(a) Serving on the Secretary of State or a
clerk on duty at the office a copy of the process, notice or demand, with any
papers required by law to be delivered in connection with the service, and the
required fee for each party being served or by mailing to the office a copy of
the process, notice or demand and the required fee for each party being served
by certified or registered mail.
(b) Transmittal by the person instituting
the proceedings of notice of the service on the Secretary of State and copy of
the process, notice or demand and accompanying papers to the limited liability
company being served by certified or registered mail:
(A) At the last registered office of the
limited liability company as shown by the records on file in the office of the
Secretary of State; and
(B) At such address of the use of which
the person initiating the proceedings knows or, on the basis of reasonable
inquiry, has reason to believe is most likely to result in actual notice.
(c) Filing with the appropriate court or
other body, as part of the return of service, the return receipt of mailing and
an affidavit of the person initiating the proceedings stating that this section
has been complied with.
(4) The Secretary of State shall keep a
record of all processes, notices and demands served upon the Secretary of State
under this section.
(5) After completion of initial service
upon the Secretary of State, no additional documents need be served upon the
Secretary of State to maintain jurisdiction in the same proceeding or to give
notice of any motion or provisional process.
(6) Nothing contained in this section
shall limit or affect the right to serve any process, notice or demand required
or permitted by law to be served upon a limited liability company in any other
manner now or hereafter permitted by law, or enlarge the purposes for which
service on the Secretary of State is permitted where such purposes are limited
by other provisions of law. [1993 c.173 §27]
MANAGEMENT
AND MANAGEMENT RIGHTS OF MEMBERS
63.130
Rights of members and managers; matters requiring consent of all or majority of
members. (1) In a
member-managed limited liability company, unless otherwise provided in the
articles of organization or any operating agreement:
(a) Each member has equal rights in the
management and conduct of the limited liability companys business; and
(b) Except as otherwise provided in
subsection (3) of this section, any matter relating to the business of the
limited liability company may be decided by a majority of the members.
(2) In a manager-managed limited liability
company, unless otherwise provided in the articles of organization or any
operating agreement:
(a) Each manager has equal rights in the
management and conduct of the limited liability companys business;
(b) Except as otherwise provided in
subsections (3) and (4) of this section, any matter relating to the business of
the limited liability company may be exclusively decided by the manager or, if
there is more than one manager, by a majority of the managers; and
(c) A manager:
(A) Must be designated, appointed,
elected, removed or replaced by a vote, approval or consent of a majority of
the members; and
(B) Holds office until a successor has
been elected and qualified, unless the manager sooner resigns or is removed.
(3) Unless otherwise provided in the
articles of organization or any operating agreement, the following matters of a
member-managed or a manager-managed limited liability company require the consent
of all of the members:
(a) The amendment of the operating
agreement or the articles of organization under ORS 63.444;
(b) The compromise, as among the members,
of an obligation to make a contribution under ORS 63.180 (4) or to return money
or other property paid or distributed in violation of any provision of this
chapter; and
(c) The consent to dissolve the limited
liability company under ORS 63.621 (3).
(4) Unless otherwise provided in the
articles of organization or any operating agreement, the following matters of a
member-managed or a manager-managed limited liability company require the
consent of a majority of the members:
(a) The making of interim distributions
under ORS 63.200, including the redemption of an interest;
(b) The admission of a new member;
(c) The use of the limited liability
companys property to redeem an interest subject to a charging order;
(d) The sale, lease, exchange, mortgage,
pledge or other transfer or disposition of all, or substantially all, of the
limited liability companys property, with or without goodwill;
(e) The merger of the limited liability
company with any other entity;
(f) The conversion of the limited
liability company into any other type of entity;
(g) The incurring of indebtedness by the
limited liability company other than in the ordinary course of the business of
the limited liability company;
(h) A transaction involving an actual or a
potential conflict of interest between a member or a manager and the limited
liability company;
(i) A change in the nature of the limited
liability companys business; and
(j) Any other matter specified in the
articles of organization or any operating agreement as requiring member
approval if no number or percentage of members is otherwise stated.
(5) Unless otherwise provided in the
articles of organization or any operating agreement, action requiring the
consent of members or managers under this chapter may be taken without a
meeting.
(6) Unless otherwise provided in the
articles of organization or any operating agreement, 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 members or managers
attorney-in-fact.
(7) Unless the context clearly requires otherwise,
references in this chapter to managers apply both to managers of a
manager-managed limited liability company and to members of a member-managed
limited liability company. [1993 c.173 §28; 1999 c.86 §4]
63.135 [1993 c.173 §29; repealed by 1999 c.86 §23]
63.140
Agency power of managers and members; interest in real property. (1) Subject to subsections (2) and (3) of
this section:
(a) 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 limited liability companys name,
for apparently carrying on in the ordinary course the business of the limited
liability company, or business of the kind carried on by the limited liability
company, binds the limited liability company unless the member had no authority
to act for the limited liability company in the particular matter and the
person with whom the member was dealing knew or had notice that the member
lacked authority.
(b) An act of a member that is not
apparently for carrying on in the ordinary course the business of the limited
liability company, or business of the kind carried on by the limited liability
company, binds the limited liability company only if the act was authorized by
the other members.
(2) Subject to subsection (3) of this
section, in a manager-managed limited liability company:
(a) A member is not an agent of the
limited liability company for the purpose of its business solely by reason of
being a member. Each manager is an agent of the limited liability company for
the purpose of its business, and an act of a manager, including the signing of
an instrument in the limited liability companys name, for apparently carrying
on in the ordinary course the business of the limited liability company, or
business of the kind carried on by the limited liability company, binds the
limited liability company unless the manager had no authority to act for the
limited liability company in the particular matter and the person with whom the
manager was dealing knew or had notice that the manager lacked authority.
(b) An act of a manager that is not
apparently for carrying on in the ordinary course the business of the limited
liability company, or business of the kind carried on by the limited liability
company, binds the limited liability company only if the act was authorized
under ORS 63.130.
(3) Unless the articles of organization
limit their authority, any member of a member-managed limited liability company
or manager of a manager-managed limited liability company may sign and deliver
any instrument transferring or affecting the limited liability companys
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. [1993 c.173 §30; 1999 c.86 §5]
63.145 [1993 c.173 §31; repealed by 1999 c.86 §23]
63.150 [1993 c.173 §32; 1995 c.93 §6; repealed by
1999 c.86 §23]
63.155
Duties and standard of conduct.
(1) The only fiduciary duties a member owes to a member-managed limited
liability company and its other members are the duty of loyalty and the duty of
care set forth in subsections (2) and (3) of this section.
(2) A members duty of loyalty to a
member-managed limited liability company and its other members includes the
following:
(a) To account to the limited liability
company and hold for it any property, profit or benefit derived by the member
in the conduct and winding up of the limited liability companys business or
derived from a use by the member of limited liability company property,
including the appropriation of a limited liability company opportunity;
(b) Except as provided in subsections (5)
and (6) of this section, to refrain from dealing with the limited liability
company in a manner adverse to the limited liability company and to refrain
from representing a person with an interest adverse to the limited liability
company, in the conduct or winding up of the limited liability companys
business; and
(c) To refrain from competing with the
limited liability company in the conduct of the business of the limited
liability company before the dissolution of the limited liability company.
(3) A members duty of care to a
member-managed limited liability company and the other members in the conduct
and winding up of the business of the limited liability company is limited to
refraining from engaging in grossly negligent or reckless conduct, intentional
misconduct or a knowing violation of law.
(4) A member shall discharge the duties to
a member-managed limited liability company and the other members under this
chapter or under any operating agreement of the limited liability company and
exercise any rights consistent with the obligation of good faith and fair
dealing.
(5) A member of a member-managed limited
liability company does not violate a duty or obligation under this chapter or
under any operating agreement of the limited liability company merely because
the members conduct furthers the members own interest.
(6) A member of a member-managed limited
liability company may lend money to or transact other business with the limited
liability company, provided that any loan or transaction between the member and
the limited liability company must be:
(a) Fair to the limited liability company;
(b) Authorized by an operating agreement;
or
(c) Authorized or ratified by a majority
of the disinterested members or by a number or percentage of members specified
in the operating agreement after full disclosure of all material facts.
(7) Loans and other transactions between a
member-managed limited liability company and a member are binding on the
parties in the same manner as transactions between the limited liability
company and persons who are not members, subject to other applicable law.
(8) This section also applies to a person
who is not a member and who is winding up the limited liability companys
business.
(9) In a manager-managed limited liability
company:
(a) A member who is not also a manager
owes no duties to the limited liability company or the other members solely by
reason of being a member;
(b) A manager is held to the same
standards of conduct prescribed for members in subsections (2) to (8) of this
section;
(c) A member who, pursuant to an operating
agreement, exercises some or all of the rights of a manager in the management
and conduct of the limited liability companys business is held to the
standards of conduct described in subsections (2) to (8) of this section to the
extent that the member exercises the managerial authority vested in a manager
by this chapter; and
(d) A manager is relieved of liability
imposed by law for violation of the standards prescribed by this section to the
extent, if any, of the managerial authority delegated to the members who are
not also managers by an operating agreement.
(10) The articles of organization or an
operating agreement of a limited liability company may not:
(a) Eliminate completely the duty of
loyalty under subsection (2) of this section, but the articles of organization
or an operating agreement may:
(A) Identify specific types or categories
of activities that do not violate the duty of loyalty, if not unconscionable;
and
(B) Specify the number or percentage of
members, whether interested or disinterested, 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.
(b) Unreasonably reduce the duty of care
under subsection (3) of this section.
(c) Eliminate completely the obligation of
good faith and fair dealing under subsection (4) of this section, but the
articles of organization or an operating agreement may determine the standards
by which performance of the obligation of good faith and fair dealing is to be
measured, if the standards are not unconscionable.
(11) For the purposes of subsection
(10)(a) of this section, specific types or categories of activities that may be
identified as not violating the duty of loyalty include, but are not limited
to:
(a) Competing with the limited liability
company in the conduct of the business of the limited liability company before
the dissolution of the limited liability company; and
(b) Entering into or engaging in, for a
members own account, an investment, business, transaction or activity that is
similar to the investments, businesses, transactions or activities of the
limited liability company without:
(A) First offering the limited liability
company or the other members an opportunity to participate in the investment,
business, transaction or activity; or
(B) Having any obligation to account to
the limited liability company or the other members for the investment,
business, transaction or activity or the profits from the investment, business,
transaction or activity. [1993 c.173 §33; 1999 c.86 §8; 2001 c.315 §23]
63.160
Limitation of liability and indemnification. The articles of organization or any operating agreement may provide
for indemnification of any person for acts or omissions as a member, manager,
employee or agent and may eliminate or limit the liability of a member,
manager, employee or agent to the limited liability company or its members for
damages from such acts or omissions. However, no such provision shall eliminate
or limit the liability or provide for indemnification of a member of a
member-managed limited liability company or a manager of a manager-managed
limited liability company for any act or omission occurring prior to the date
when such provision became effective, and no such provision shall eliminate or
limit the liability or provide for indemnification of a member or manager for:
(1) Any breach of the members or managers
duty of loyalty to the limited liability company or its members;
(2) Acts or omissions not in good faith
which involve intentional misconduct or a knowing violation of law;
(3) Any unlawful distribution under ORS
63.235; or
(4) Any transaction from which the member
or manager derives an improper personal benefit. [1993 c.173 §34; 1995 c.93 §7;
1997 c.646 §16; 1999 c.86 §9]
63.165
Liability of members and managers. (1) 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 limited liability company. A member or
manager is not personally liable for a debt, obligation or liability of the
limited liability company solely by reason of being or acting as a member or
manager.
(2) The failure of a limited liability
company to observe the usual limited liability company formalities or
requirements relating to the exercise of its limited liability company powers
or management of its business is not a ground for imposing personal liability
on the members or managers for liabilities of the limited liability company. [1993
c.173 §35; 1999 c.86 §10]
63.170
Liability of limited liability company for acts, omissions or conduct of member
or manager. 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 the
business of the limited liability company or with authority of the limited
liability company. [1999 c.86 §7]
FINANCES
63.175
Contributions. The
contributions of a member to the limited liability company may consist of cash,
property, services rendered, a promissory note or other obligation to
contribute cash or property or to perform services. [1993 c.173 §36]
63.180
Liability for contributions.
(1) A promise by a member to contribute to the limited liability company is not
enforceable unless it is set out in writing and signed by the member.
(2) Except as provided in the articles of
organization or any operating agreement, a member is obligated to the limited
liability company to perform any enforceable promise to contribute cash or
property or to perform services, even if the member is unable to perform
because of death, disability or any other reason.
(3) If a member does not make a required
contribution of property or services, the member is obligated, at the option of
the limited liability company, to contribute cash equal to the portion of the
value of the contribution, as stated in the limited liability company records
required to be kept pursuant to ORS 63.771, that has not been made.
(4) Unless otherwise provided in the
articles of organization or any operating agreement, the obligation of a member
to make a contribution may be compromised only by consent of all members.
Notwithstanding the compromise, a creditor of the limited liability company may
enforce the original obligation if the creditor acted in reliance on that
obligation before the amendment or cancellation of the obligation to reflect
the compromise. [1993 c.173 §37]
63.185
Allocation of profits and losses. (1) The profits and losses of a limited liability company shall be
allocated among the members, and among classes of members, in the manner
provided in the articles of organization or any operating agreement.
(2) If neither the articles of
organization nor any operating agreement provides for an allocation of profits
and losses, then profits and losses shall be allocated among all the members
equally.
(3) If profits, but not losses, are
allocated in the articles of organization or any operating agreement, then
losses shall be deemed allocated in the same proportion as profits. If losses,
but not profits, are allocated in the articles of organization or any operating
agreement, then profits shall be deemed allocated in the same proportion as
losses.
(4) Except as otherwise provided in the
articles of organization or any operating agreement, if after formation of the
limited liability company a member is admitted to the limited liability company
as described in ORS 63.245 (2)(a), then the profits and losses of the limited
liability company shall be allocated among the members as follows:
(a) Profits and losses that would have
been realized on the date of admission of the additional member if all the
assets of the limited liability company were then sold at their fair value
shall be allocated among only the members of the limited liability company who
are members immediately prior to the new members admission based on the
respective shares of profits and losses of such preexisting members before such
admission. Thereafter the amount of profits or losses so allocated shall be
treated as an adjustment to the contributions made by the preexisting members
to the limited liability company; except that if the provisions of this
subsection have been applied previously by the limited liability company in
connection with the admission of a new member, the profits and losses allocated
pursuant to this subsection shall be only those profits and losses realized
since the most recent admittance of a new member; and
(b) Profits and losses realized by the
limited liability company subsequent to the date of admission of the additional
member shall be allocated among all the members, including the additional
member, based on the respective shares of profits and losses of all the members
after such admission. [1993 c.173 §38; 1995 c.93 §8]
DISTRIBUTIONS
AND WITHDRAWAL
63.195
Allocation of interim distributions. Distributions of cash or other assets of a limited liability company
before the dissolution and winding up of the limited liability company shall be
allocated among the members, and among classes of members, in the manner
provided in the articles of organization or any operating agreement. If neither
the articles of organization nor any operating agreement provides for such
allocations, such distributions shall be allocated among the members in
proportion to their right to share in the profits of the limited liability
company. [1993 c.173 §39]
63.200
Right to interim distributions.
Except as provided in ORS 63.205 to 63.235, a member is entitled to receive
distributions from a limited liability company before the members withdrawal
from the limited liability company and before the dissolution and winding up of
the limited liability company to the extent and at the times or upon the
occurrence of the events specified in the articles of organization or any
operating agreement. [1993 c.173 §40]
63.205
Voluntary withdrawal of member.
(1) A member may voluntarily withdraw from a limited liability company:
(a) At the time or upon the occurrence of
events specified in the articles of organization or any operating agreement; or
(b) Upon not less than six months prior
written notice to the limited liability company, unless the articles of
organization or any operating agreement expressly provide that a member has no
power to withdraw voluntarily from the limited liability company or otherwise
expressly limit or condition such power.
(2) If a member with the power to withdraw
voluntarily from a limited liability company exercises that power, but the
withdrawal is in breach of any provision of the articles of organization or any
operating agreement, then, unless otherwise provided in the articles of
organization or any operating agreement, the limited liability company, in
addition to any other remedy available at law or in equity, may recover from
the withdrawing member damages incurred by the limited liability company as a
result of the breach and may offset the damages against any amounts otherwise
distributable or payable to the withdrawing member.
(3) Unless otherwise provided in the
articles of organization or any operating agreement, in the case of a limited
liability company for a definite term or particular undertaking, a voluntary
withdrawal by a member before the expiration of that term or completion of that
undertaking is a breach of the applicable articles of organization or any
operating agreement. [1993 c.173 §41; 1995 c.93 §9; 1997 c.646 §3]
63.209
Expulsion of member. (1) A
member may be expelled from a limited liability company:
(a) In accordance with a written provision
in the articles of organization or any operating agreement; or
(b) Except as otherwise provided in writing
in the articles of organization or any operating agreement, by a court, upon
application of any member, if the court determines that:
(A) The member has been guilty of wrongful
conduct that adversely and materially affects the business or affairs of the
limited liability company; or
(B) The member has willfully or
persistently committed a material breach of the articles of organization or any
operating agreement or otherwise breached a duty owed to the limited liability
company or the other members to the extent that it is not reasonably
practicable to carry on the business or affairs of the limited liability
company with that member.
(2) The power of a limited liability
company to expel a member pursuant to this section does not limit or adversely
affect any right or power of the limited liability company to recover any
damages or to pursue any other remedies provided for in the articles of
organization or any operating agreement or permitted under applicable law or at
equity. The limited liability company, in addition to any of its other
remedies, may offset any such damages against any amounts otherwise
distributable or payable to the expelled member. [1993 c.173 §42; 1995 c.93 §10]
63.210 [1959 c.660 §1; repealed by 1981 c.68 §1]
63.215 [1993 c.173 §43; 1995 c.93 §11; repealed by
1997 c.646 §18]
63.219
Distribution in kind. Except
as provided in the articles of organization or any operating agreement:
(1) No member, regardless of the nature of
the members contribution, has any right to demand and receive any distribution
from a limited liability company in any form other than cash; and
(2) No member may be compelled to accept a
distribution of any asset in kind from a limited liability company to the
extent that the percentage of the asset distributed to the member exceeds a
percentage of that asset that is equal to the percentage in which the member
shares in operating or liquidating distributions, as the case may be, from the
limited liability company. [1993 c.173 §44]
63.220 [1959 c.660 §2; repealed by 1981 c.68 §1]
63.225
Right to distribution. When
a member becomes entitled to receive a distribution, the member has the status
of and is entitled to all remedies available to a creditor of the limited
liability company with respect to the distribution. [1993 c.173 §45]
63.229
Limitations on distribution.
(1) A distribution may be made by a limited liability company to any member
only if, after giving effect to the distribution, in the judgment of the
members, for a member-managed limited liability company, or the managers, for a
manager-managed limited liability company:
(a) The limited liability company would be
able to pay its debts as they become due in the ordinary course of business;
and
(b) The fair value of the total assets of
the limited liability company would at least equal the sum of:
(A) Its total liabilities; plus
(B) Unless the articles of organization
permit otherwise, the amount that would be needed, if the limited liability
company were to be dissolved at the time of the distribution, to satisfy the
preferential rights upon dissolution, if any, of other members that are
superior to the rights of the members receiving the distribution.
(2) The members or managers of a limited
liability company may base a determination that a distribution is not
prohibited under subsection (1) of this section either on:
(a) Financial statements that the members
or managers reasonably believe have been prepared on the basis of accounting
practices and principles that are reasonable in the circumstances; or
(b) A fair valuation or other method that
the members or managers reasonably believe is reasonable in the circumstances.
(3) For purposes of this section, the
amount, if any, by which a liability as to which the recourse of creditors is
limited to specific property of the limited liability company exceeds the fair
value of such specific property shall be disregarded as a liability of the
limited liability company.
(4) The effect of a distribution under
subsection (1) of this section is measured for purposes of this section:
(a) In the case of distribution by
purchase, retirement or other acquisition of all or a portion of a members
interest in the limited liability company, as of the earlier of the date the
money or other property is transferred or debt incurred by the limited
liability company or the date the member ceases to be a member with respect to
the membership interest purchased, retired or otherwise acquired;
(b) In the case of any other distribution
of indebtedness, as of the date the indebtedness is distributed; and
(c) In all other cases, as of the date a
distribution is authorized if the payment occurs within 120 days after the date
of authorization or the date the payment is made if it occurs more than 120
days after the date of authorization.
(5) A limited liability companys
indebtedness to a member incurred by reason of a distribution made in
accordance with this section is at parity with the limited liability companys
indebtedness to its general unsecured creditors, unless the member agrees to
subordination or the limited liability company grants the member a security
interest or other lien against limited liability company assets to secure the
indebtedness. [1993 c.173 §46; 1999 c.86 §11]
63.230 [1959 c.660 §3; repealed by 1981 c.68 §1]
63.235
Liability for wrongful distribution. (1) A member of a member-managed limited liability company or a member
or manager of a manager-managed company who votes for or assents to a
distribution made in violation of ORS 63.229, the articles of organization or
any operating agreement, is personally liable to the limited liability company
for the amount of the distribution that exceeds the amount that could have been
distributed without violating ORS 63.229, the articles of organization or any
operating agreement, if it is established that the member or manager did not
perform the members or managers duties in compliance with ORS 63.155.
(2) A member of a manager-managed limited
liability company who receives a distribution knowing that it was made in
violation of ORS 63.229 is personally liable to the limited liability company,
but only to the extent that the distribution received by the member exceeded
the amount that could have been properly paid under ORS 63.229.
(3) A member or manager against whom an
action is brought under subsection (1) of this section may implead in the
action all:
(a) Other members or managers who voted
for or assented to the distribution in violation of subsection (1) of this
section and may compel contribution from them; and
(b) Members who received a distribution in
violation of subsection (2) of this section and may compel contribution from
them in the amount received in violation of subsection (2) of this section.
(4) A proceeding under this section is
barred unless it is commenced within two years after the distribution. [1993
c.173 §47; 1995 c.93 §12; 1999 c.86 §12]
MEMBERSHIP
INTEREST
63.239
Nature of membership interest.
A membership interest is personal property. A member is not a coowner of and
has no interest in specific limited liability company property. [1993 c.173 §48]
63.240 [1959 c.660 §4; repealed by 1981 c.68 §1]
63.245
Admission of members. (1) A
person becomes a member of a limited liability company on the later of:
(a) The date the initial articles of
organization are filed; or
(b) The date stated in the records of the
limited liability company as the date the person becomes a member.
(2) After the filing of the limited
liability companys initial articles of organization, a person may be admitted
as a member of the limited liability company upon compliance with the articles
of organization or any operating agreement, or, if neither the articles of
organization nor any operating agreement so provide:
(a) In the case of a person acquiring a
membership interest directly from the limited liability company, upon the
consent of a majority of the members;
(b) In the case of an assignee of a
limited liability company membership interest not governed by paragraph (c) of
this section, upon the consent of a majority of the members other than the
assignor; or
(c) In the case of an assignee of a
membership interest in a limited liability company in which, immediately
following the assignment, the limited liability company otherwise would have no
members, simultaneously with and upon the assignment of the membership
interest. [1993 c.173 §49; 1995 c.93 §13; 1997 c.646 §4]
63.249
Assignment of membership interest; effect of assignment. Except as provided in the articles of
organization or any operating agreement:
(1) A membership interest is assignable in
whole or in part.
(2) An assignment of a membership interest
does not itself dissolve the limited liability company.
(3) Until the assignee of a membership
interest becomes a member with respect to the interest, the assignee shall have
the assignors right to receive and retain, to the extent assigned, the
distributions, as and when made, and allocations of profits and losses to which
the assignor would be entitled, but shall not exercise any other rights of a
member, including without limitation the right to vote or otherwise participate
in the management and affairs of the limited liability company.
(4) Except as otherwise provided in ORS
63.229 and 63.235, until the assignee of a membership interest becomes a
member, the assignee has no liability, duty or obligation as a member solely as
a result of the assignment.
(5) The assignor of all or a portion of a
membership interest ceases to be a member with respect to the interest assigned,
but is not released from liability as a member accruing or arising prior to
assignment solely as a result of the assignment, and is not relieved of any
fiduciary duties the assignor otherwise may continue to owe the limited
liability company or its remaining members.
(6) Any otherwise permissible assignment
of a membership interest shall be effective as to and binding on the limited
liability company only after reasonable notice of and proof of the assignment
have been provided to the managers of the limited liability company.
(7) The pledge of, or granting of a
security interest, lien, or other encumbrance in or against all or any portion
of the membership interest of a member is not an assignment of the members
interest. [1993 c.173 §50; 1997 c.646 §5]
63.250 [1959 c.660 §5; repealed by 1981 c.68 §1]
63.255
Rights of assignee who becomes member. (1) An assignee who becomes a member as to the assigned interest has
the rights and powers, and is subject to the restrictions and liabilities, of a
member under this chapter, the articles of organization and any operating
agreement. An assignee who becomes a member also is liable for any obligations
of the assignees assignor to make contributions under ORS 63.180. However, the
assignee is not obligated merely by becoming a member for any other liabilities
for which the assignor was liable that were unknown to the assignee at the time
the assignee became a member and that could not be ascertained from the
articles of organization.
(2) Whether or not an assignee of a
membership interest becomes a member, the assignor is not released from the
assignors liability to the limited liability company to make contributions
under ORS 63.180. [1993 c.173 §51; 1995 c.93 §14; 1997 c.646 §6]
63.259
Rights of judgment creditor against member. On application to a court of competent jurisdiction by any judgment
creditor of a member, the court may charge the membership interest of the
member with payment of the unsatisfied amount of the judgment with interest. To
the extent so charged, the judgment creditor has only the rights of an assignee
of the membership interest. This chapter shall not deprive any member of the
benefit of any exemption laws applicable to the members membership interest. [1993
c.173 §52]
63.260 [1959 c.660 §6; repealed by 1981 c.68 §1]
63.265
Cessation of membership.
Except as otherwise provided in the articles of organization or any operating
agreement:
(1) A member shall cease to be a member in
a limited liability company upon the members death, incompetency, bankruptcy,
dissolution, withdrawal, expulsion or assignment of the members entire
membership interest.
(2)(a) Except as otherwise provided in
paragraph (b) of this subsection, following the cessation of the members
interest, the holder of the former members interest shall be considered an
assignee of such interest and shall have all the rights, duties and obligations
of an assignee under this chapter.
(b) If the member who ceases to be a
member is the only member of the limited liability company, the holder of the
former members interest shall become a member simultaneously with and upon the
cessation of the former members interest. [1993 c.173 §53; 1995 c.93 §15; 1997
c.646 §7]
63.270 [1959 c.660 §8; repealed by 1981 c.68 §1]
63.280 [1959 c.660 §7; 1967 c.359 §675; repealed by
1981 c.68 §1]
63.290 [1959 c.660 §9; repealed by 1981 c.68 §1]
63.300 [1959 c.660 §10; repealed by 1981 c.68 §1]
63.310 [1959 c.660 §11; repealed by 1981 c.68 §1]
63.320 [1959 c.660 §12; repealed by 1981 c.68 §1]
63.330 [1959 c.660 §13; repealed by 1981 c.68 §1]
63.340 [1959 c.660 §15; repealed by 1981 c.68 §1]
63.350 [1959 c.660 §16; repealed by 1981 c.68 §1]
AMENDMENT OF
ARTICLES OF ORGANIZATION AND OPERATING AGREEMENT
63.431
Operating agreement. (1) An
operating agreement of a limited liability company may provide for the
regulation and management of the affairs of the limited liability company in
any manner not inconsistent with law or the articles of organization.
(2) The power to adopt, alter, amend or
repeal an operating agreement of a limited liability company shall be vested in
the members of the limited liability company, or for a single member limited
liability company, in the sole member of the limited liability company, unless
otherwise vested in a manager or managers of the limited liability company by
the articles of organization or any operating agreement.
(3) The members may amend or repeal any
operating agreement even if the articles of organization or any operating agreement
provide that a manager or managers may amend or repeal an operating agreement. [1993
c.173 §70; 1997 c.646 §8]
63.434
Amendment to articles of organization. (1) Consistent with the provisions of this chapter, a limited
liability company may amend its articles of organization at any time to add,
change or delete any provision, provided that the articles of organization as
amended contain only such provisions as are required or permitted in initial
articles of organization under this chapter as of the effective date of the
amendment.
(2) A limited liability company amending
its articles of organization shall deliver articles of amendment to the office
for filing.
(3) Articles of amendment shall contain:
(a) The name of the limited liability
company;
(b) The text of each amendment adopted;
(c) The date of each amendments adoption;
(d) If an amendment was adopted by the
managers without member action, a statement to that effect and a statement that
member action was not required; and
(e) If an amendment was approved by the
members, a statement that the member approval required under ORS 63.444, the
articles of organization or any operating agreement has been obtained and a
statement of the percentage of such members approval. [1993 c.173 §71]
63.437
Restated articles of organization. (1) The managers of a manager-managed limited liability company may
restate its articles of organization at any time with or without member action.
(2) The restatement may include one or
more amendments to the articles of organization. If the restatement includes an
amendment requiring member approval, it must be adopted as provided in ORS
63.444.
(3) A limited liability company restating
its articles of organization shall deliver to the office for filing articles of
restatement setting forth the name of the limited liability company and the
text of the restated articles of organization together with a certificate
setting forth:
(a) Whether the restatement contains an
amendment to the articles of organization requiring member approval and, if it
does not, that the managers adopted the restatement; or
(b) If the restatement contains an
amendment to the articles of organization requiring member approval, the
information required by ORS 63.434.
(4) Restated articles of organization
shall contain all statements required to be included in the initial articles of
organization except that no statement is required to be made with respect to:
(a) The names and addresses of the
organizers or the initial or present registered office or agent; or
(b) The mailing address of the limited
liability company if an annual report has been filed with the office of the
Secretary of State.
(5) Duly adopted restated articles of
organization supersede the initial articles of organization and all amendments
to them. [1993 c.173 §72; 1999 c.86 §13]
63.441
Amendment by managers.
Except as provided in the articles of organization, the manager or managers of
a manager-managed limited liability company may adopt without member action one
or more amendments to the articles of organization to:
(1) Delete the names and addresses of the
initial managers, if named in the initial articles of organization;
(2) Delete the name and address of the
initial registered agent or registered office, if a statement of change is
filed with the office of the Secretary of State;
(3) Delete the mailing address of the
limited liability company if a report reflecting the mailing address has been
filed with the office of the Secretary of State;
(4) Change the limited liability companys
name by substituting limited liability company for the abbreviation L.L.C.
or LLC, substituting the abbreviation L.L.C. for limited liability company
or LLC, or substituting the abbreviation LLC for limited liability company
or L.L.C.; or
(5) Make any other changes expressly
permitted by this chapter to be made without member action. [1993 c.173 §73;
1995 c.93 §16; 1999 c.86 §14]
63.444
Amendment by members. Except
as otherwise provided in ORS 63.441 or in the articles of organization or any
operating agreement, all amendments to the articles of organization or any
operating agreement must be approved unanimously by the members. Unless
otherwise provided in the articles of organization or any operating agreement, the
managers, if any, of the limited liability company may, but need not, propose
or take a position recommending or disapproving any such proposed amendment. [1993
c.173 §74; 1995 c.93 §17; 1997 c.646 §9]
CONVERSIONS
AND MERGERS
63.467
Definitions for ORS 63.467 to 63.497. As used in ORS 63.467 to 63.497:
(1) Business entity means:
(a) Any of the following for-profit
entities:
(A) A professional corporation organized
under ORS chapter 58, predecessor law or comparable law of another
jurisdiction;
(B) A corporation organized under ORS
chapter 60, predecessor law or comparable law of another jurisdiction;
(C) A limited liability company organized
under this chapter or comparable law of another jurisdiction;
(D) A partnership organized in Oregon after
January 1, 1998, or that is registered as a limited liability partnership, or
that has elected to be governed by ORS chapter 67, and a partnership governed
by law of another jurisdiction that expressly provides for conversions and
mergers; and
(E) A limited partnership organized under
ORS chapter 70, predecessor law or comparable law of another jurisdiction; and
(b) A cooperative organized under ORS
chapter 62, predecessor law or comparable law of another jurisdiction.
(2) Organizational document means the
following for an
(a) In the case of a corporation,
professional corporation or cooperative, articles of incorporation;
(b) In the case of a limited liability
company, articles of organization;
(c) In the case of a partnership, a
partnership agreement and, for a limited liability partnership, its
registration; and
(d) In the case of a limited partnership,
a certificate of limited partnership.
(3) Owner means a:
(a) Shareholder of a corporation or of a
professional corporation;
(b) Member or shareholder of a
cooperative;
(c) Member of a limited liability company;
(d) Partner of a partnership; and
(e) General partner or limited partner of
a limited partnership. [1999 c.362 §31; 2003 c.80 §27]
63.470
Conversion. (1) A business
entity other than a limited liability company may be converted to a limited
liability company organized under this chapter, and a limited liability company
organized under this chapter may be converted to another business entity
organized under the laws of this state, if conversion is permitted by the
statutes governing the other business entity, by approving a plan of conversion
and filing articles of conversion. A limited liability company organized under
this chapter may be converted to a business entity organized under the laws of
another jurisdiction if:
(a) The conversion is permitted by the
laws of that jurisdiction;
(b) A plan of conversion is approved by
the converting limited liability company;
(c) Articles of conversion are filed in
this state;
(d) The converted business entity submits
an application to transact business as a foreign business entity of that type
to the Secretary of State for filing and meets all other requirements
prescribed under the laws of this state for authorization to transact business
as a foreign business entity of that type; and
(e) The limited liability company complies
with any requirements imposed under the laws of the other jurisdiction with
respect to the conversion.
(2) The plan of conversion shall set
forth:
(a) The name and type of the business
entity prior to conversion;
(b) The name and type of the business
entity after conversion;
(c) A summary of the material terms and conditions
of the conversion;
(d) The manner and basis of converting the
ownership interests of each owner into ownership interests or obligations of
the converted business entity or any other business entity, or into cash or
other property in whole or in part; and
(e) Any additional information required in
the organizational document of the converted business entity by the statutes
governing that type of business entity.
(3) The plan of conversion may set forth
other provisions relating to the conversion. [1999 c.362 §32; 2001 c.315 §16;
2003 c.80 §20]
63.473
Action on plan of conversion.
(1) A plan of conversion shall be approved as follows:
(a) In the case of a limited liability
company, by a majority vote of its members, or by a greater vote if required by
its articles of organization or any operating agreement.
(b) In the case of a business entity other
than a limited liability company, as provided by the statutes governing that
business entity.
(2) After a conversion is approved, and at
any time before articles of conversion are filed, the planned conversion may be
abandoned, subject to any contractual rights:
(a) By a limited liability company,
without further action by the members, in accordance with the procedure set
forth in the plan of conversion or, if none is set forth, in the manner
determined by the managers.
(b) By a converting business entity that
is not a limited liability company, in accordance with the procedure set forth
in the plan of conversion or, if none is set forth, in the manner permitted by
the statutes governing that business entity. [1999 c.362 §33]
63.476
Articles of conversion. (1)
After conversion is approved by the owners, the converting business entity
shall file articles of conversion, which shall state the name and type of
business entity prior to conversion and the name and type of business entity
after conversion, and shall include the plan of conversion.
(2) The conversion takes effect at the
later of the date and time determined pursuant to ORS 63.011 or the date and
time determined pursuant to the statutes governing the business entity that is
not a limited liability company. [1999 c.362 §34; 2001 c.315 §9]
63.479
Effect of conversion; entity existence continues; assumed business name. (1) When a conversion to or from a limited
liability company pursuant to ORS 63.470 takes effect:
(a) The business entity continues its
existence despite the conversion;
(b) Title to all real estate and other
property owned by the converting business entity is vested in the converted
business entity without reversion or impairment;
(c) All obligations of the converting
business entity including, without limitation, contractual, tort, statutory and
administrative obligations are obligations of the converted business entity;
(d) An action or proceeding pending
against the converting business entity or its owners may be continued as if the
conversion had not occurred, or the converted business entity may be
substituted as a party to the action or proceeding;
(e) The ownership interests of each owner
that are to be converted into ownership interests or obligations of the
converted business entity or any other business entity, or into cash or other
property, are converted as provided in the plan of conversion;
(f) Liability of an owner for obligations
of the business entity shall be determined:
(A) As to liabilities incurred by the
business entity prior to conversion, according to laws applicable prior to
conversion; and
(B) As to liabilities incurred by the
business entity after conversion, according to laws applicable after
conversion, except as provided in paragraph (g) of this subsection;
(g) If prior to conversion an owner of a
business entity was a partner of a partnership or general partner of a limited
partnership and was personally liable for the business entitys liabilities,
and after conversion is an owner normally protected from personal liability,
then such owner shall continue to be personally liable for the business entitys
liabilities incurred during the 12 months following conversion, if the other
party or parties to the transaction reasonably believed that the owner would be
personally liable and had not received notice of the conversion; and
(h) Unless the converted business entity
is a partnership, the registration of an assumed business name of a business
entity under ORS chapter 648 shall continue as the assumed business name of the
converted business entity. If the converted business entity is a partnership,
the converting business entity shall amend or cancel the registration of the
assumed business name under ORS chapter 648, and the partners of the
partnership shall register the name as an assumed business name under ORS
chapter 648.
(2) Owners of the business entity that
converted are entitled to:
(a) In the case of limited liability
companies, only the rights provided in the plan of conversion; and
(b) In the case of owners of business
entities other than limited liability companies, the rights provided in the
plan of conversion and in the statutes applicable to the business entity prior
to conversion, including, without limitation, any rights to dissent, to
dissociate, to withdraw, to recover for breach of any duty or obligation owed
by the other owners, and to obtain an appraisal or payment for the value of an
owners interest. [1999 c.362 §35; 2001 c.315 §4]
63.481
Merger. (1) One or more
business entities may merge into a limited liability company organized under
this chapter if the merger is permitted by the statutes governing each other
business entity that is a party to the merger, a plan of merger is approved by
each business entity that is a party to the merger and articles of merger are
filed. A limited liability company organized under this chapter may be merged
into a business entity organized under the laws of this state or under the laws
of another jurisdiction if:
(a) The merger is permitted by the laws of
this state or by the laws of the other jurisdiction that govern the other
business entity;
(b) A plan of merger is approved by each
business entity that is a party to the merger;
(c) Articles of merger are filed in this
state; and
(d) The limited liability company complies
with any requirements imposed under the laws of this state and, if applicable,
the laws of the other jurisdiction with respect to the merger.
(2) The plan of merger shall set forth:
(a) The name and type of each business
entity planning to merge;
(b) The name and type of the business
entity that will survive;
(c) A summary of the material terms and
conditions of the merger;
(d) The manner and basis of converting the
ownership interests of each owner into ownership interests or obligations of
the surviving business entity or any other business entity, or into cash or
other property in whole or in part; and
(e) If any party is a business entity
other than a limited liability company, any additional information required for
a merger by the statutes governing that business entity.
(3) The plan of merger may set forth:
(a) Amendments to the articles of
organization of a limited liability company, if that company is the surviving
business entity; and
(b) Other provisions relating to the
merger. [1993 c.173 §90; 1999 c.362 §36; 2001 c.315 §17; 2003 c.80 §21]
63.487
Action on plan of merger.
(1) A plan of merger shall be approved by each business entity that is a party
to the merger, as follows:
(a) In the case of a limited liability
company, by a majority vote of its members, or by a greater vote if required by
its articles of organization or any operating agreement.
(b) In the case of a business entity other
than a limited liability company, as provided by the statutes governing that
business entity.
(2) After a merger is authorized, and at
any time before articles of merger are filed, the planned merger may be abandoned,
subject to any contractual rights:
(a) By the limited liability company,
without further action by the members, in accordance with the procedure set
forth in the plan of merger or, if none is set forth, in the manner determined
by the managers.
(b) By a party to the merger that is not a
limited liability company, in accordance with the procedure set forth in the
plan of merger or, if none is set forth, in the manner permitted by the
statutes governing that business entity. [1993 c.173 §91; 1999 c.362 §37]
63.494
Articles of merger. (1)
After a plan of merger is approved by each business entity that is a party to
the merger, the surviving business entity shall deliver to the office of the
Secretary of State, for filing, articles of merger setting forth:
(a) The plan of merger; and
(b) A statement that the plan of merger
was duly authorized and approved by each business entity that is a party to the
merger in accordance with ORS 63.487.
(2) The merger takes effect on the later
of the date and time determined pursuant to ORS 63.011 or the date and time
determined pursuant to the statutes governing any party to the merger that is a
business entity other than a limited liability company. [1993 c.173 §92; 1999
c.362 §38]
63.497
Effect of merger. (1) When a
merger involving a limited liability company takes effect:
(a) Every other business entity that is a
party to the merger merges into the surviving business entity, and the separate
existence of every other party ceases;
(b) Title to all real estate and other
property owned by each of the business entities that were parties to the merger
is vested in the surviving business entity without reversion or impairment;
(c) All obligations of each of the
business entities that were parties to the merger, including, without
limitation, contractual, tort, statutory and administrative obligations, are
obligations of the surviving business entity;
(d) An action or proceeding pending
against each of the business entities or its owners that were parties to the
merger may be continued as if the merger had not occurred, or the surviving
business entity may be substituted as a party to the action or proceeding;
(e) If a limited liability company is the
surviving business entity, its articles of organization are amended to the
extent provided in the plan of merger;
(f) The ownership interests of each owner
that are to be converted into ownership interests or obligations of the
surviving business entity or any other business entity, or into cash or other
property, are converted as provided in the plan of merger;
(g) Liability of an owner for obligations
of a business entity that is a party to the merger shall be determined:
(A) As to liabilities incurred by the
business entity prior to merger, according to the laws applicable prior to
merger; and
(B) As to liabilities incurred by the
business entity after merger, according to the laws applicable after merger,
except as provided in paragraph (h) of this subsection;
(h) If prior to merger an owner of a
business entity was a partner of a partnership or general partner of a limited
partnership and was personally liable for the business entitys liabilities,
and after merger is an owner normally protected from personal liability, then
such owner shall continue to be personally liable for the business entitys
liabilities incurred during the 12 months following merger, if the other party
or parties to the transaction reasonably believed that the owner would be
personally liable and had not received notice of the merger; and
(i) The registration of an assumed
business name of a business entity under ORS chapter 648 shall not be affected
by the merger.
(2) Owners of the business entities that
are parties to the merger are entitled to:
(a) In the case of members of limited
liability companies, only the rights provided in the articles of merger; and
(b) In the case of owners of business
entities other than limited liability companies, the rights provided in the
statutes applicable to the business entity prior to merger, including, without
limitation, any rights to dissent, to dissociate, to withdraw, to recover for
breach of any duty or obligation owed by the other owners, and to obtain an
appraisal or payment for the value of an owners interest. [1993 c.173 §93;
1999 c.362 §39]
63.501 [1993 c.173 §94; repealed by 1999 c.362 §67]
DISSOLUTION
(In General)
63.621
Dissolution. A limited
liability company is dissolved and its affairs shall be wound up upon the first
to occur of the following:
(1) Upon reaching the time for
dissolution, if any, specified in the articles of organization.
(2) Upon the occurrence of events
specified in the articles of organization or any operating agreement.
(3) By the vote or such other action of
the members as provided in the articles of organization or any operating
agreement or, if neither the articles of organization nor any operating
agreement so provides, by the consent of all the members.
(4) At such time as the limited liability
company has no members.
(5) Upon administrative dissolution by the
Secretary of State under ORS 63.651.
(6) Upon entry of a judgment of judicial
dissolution under ORS 63.671. [1993 c.173 §54; 1995 c.93 §18; 1997 c.646 §10;
2003 c.576 §327]
63.625
Distribution of assets upon dissolution. Upon the winding up of a limited liability company, the assets shall
be distributed as follows:
(1) To the extent permitted by law, to
creditors, including members and former members who are creditors, in
satisfaction of liabilities of the limited liability company other than
liabilities for distributions to members under ORS 63.200 or 63.249;
(2) Except as provided in the articles of
organization or any operating agreement, to members and former members of the
limited liability company in satisfaction of the limited liability companys
obligations for distributions due and owing under ORS 63.200 or 63.249; and
(3) Except as provided in the articles of
organization or any operating agreement, to members of the limited liability
company first for the return of their previously unreturned contributions and
thereafter in the proportions in which the members share in profits. [1993
c.173 §59; 1997 c.646 §11]
63.629
Agency power of members and managers after dissolution. (1) Except as provided in subsections (2)
and (3) of this section, and except as otherwise provided in the articles of
organization or any operating agreement, after dissolution of the limited
liability company, each member of a member-managed limited liability company
and each manager of a manager-managed limited liability company can bind the
limited liability company:
(a) By any act or omission appropriate for
winding up the limited liability companys affairs or completing transactions
unfinished at dissolution; and
(b) By any transaction that would have
bound the limited liability company if it had not been dissolved, if the other
party to the transaction does not have actual notice of the dissolution.
(2) An act or omission of a member or
manager that would not be binding on the limited liability company pursuant to
subsection (1) of this section is binding if it is otherwise authorized or
ratified by the limited liability company.
(3) An act or omission of a member or
manager that would be binding on the limited liability company under subsection
(1) of this section or that otherwise would be authorized, but that is in
contravention of a restriction on the authority of the member or manager shall
not bind the limited liability company to persons having knowledge of the
restriction. [1993 c.173 §61; 1995 c.93 §19; 1997 c.646 §12; 1999 c.86 §15]
63.631
Articles of dissolution. At
any time following dissolution of the limited liability company, the limited
liability company may deliver to the office of the Secretary of State articles
of dissolution setting forth:
(1) The name of the limited liability
company; and
(2) The date the dissolution occurred. [1993
c.173 §60; 1995 c.93 §20]
63.637
Effect of dissolution; winding up. (1) A dissolved limited liability company continues its existence, but
may not carry on any business except that which is appropriate to wind up and
liquidate its business and affairs, including the actions specified in ORS
60.637 for a dissolved corporation. The limitation on personal liability
otherwise provided in this chapter for members and managers shall continue
following dissolution for actions appropriate to the winding up and
liquidation.
(2) Dissolution of a limited liability
company does not:
(a) Transfer title to the limited
liability companys property;
(b) Subject its members, managers or
employees to standards of conduct different from those prescribed in this
chapter;
(c) Prevent commencement of a proceeding
by or against the limited liability company in its limited liability company
name;
(d) Abate or suspend a proceeding by or
against the limited liability company on the effective date of the dissolution;
or
(e) Terminate the authority of the
registered agent of the limited liability company.
(3) Except as otherwise provided in the
articles of organization or any operating agreement, the manager or managers
or, if the articles of organization do not provide for managers, the members
who have not wrongfully dissolved a limited liability company may wind up the
limited liability companys affairs. However, the circuit court, upon cause
shown, may wind up the limited liability companys affairs upon application of
any member or the members legal representative or assignee. [1993 c.173 §55;
1995 c.93 §21]
63.641
Known claims against dissolved limited liability company. (1) A dissolved limited liability company
may dispose of the known claims against it by the procedure described in this
section.
(2) The dissolved limited liability
company shall notify its known claimants in writing of the dissolution at any
time after the dissolution. The written notice must:
(a) Describe information that must be
included in a claim;
(b) Provide a mailing address where a
claim may be sent;
(c) State the deadline, which may not be
fewer than 120 days from the effective date of the written notice, by which the
dissolved limited liability company must receive the claim; and
(d) State that the claim will be barred if
not received by the deadline.
(3) A claim against the dissolved limited
liability company is barred:
(a) If a claimant who is given written
notice under subsection (2) of this section does not deliver the claim to the
dissolved limited liability company by the deadline; or
(b) If a claimant whose claim was rejected
by the dissolved limited liability company does not commence a proceeding to
enforce the claim within 90 days from the effective date of the rejection
notice.
(4) 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. [1993 c.173 §56]
63.644
Unknown claims against dissolved limited liability company. (1) A dissolved limited liability company
which has filed articles of dissolution in accordance with ORS 63.631 may also
publish notice of its dissolution and request that persons with claims against
the limited liability company present them in accordance with the notice.
(2) The notice must:
(a) Be published one time in a newspaper
of general circulation in the county where the dissolved limited liability
companys principal office is located or, if the principal office is not in
this state, where its registered office is or was last located;
(b) Describe the information that must be
included in a claim and provide a mailing address where the claim may be sent;
and
(c) State that a claim against the limited
liability company will be barred unless a proceeding to enforce the claim is
commenced within five years after the publication of the notice.
(3) If the dissolved limited liability
company publishes a newspaper notice in accordance with subsection (2) of this
section, the claim of each of the following claimants is barred unless the
claimant commences a proceeding to enforce the claim against the dissolved
limited liability company within five years after the publication date of the
newspaper notice:
(a) A claimant who did not receive written
notice under ORS 63.641;
(b) A claimant whose claim was sent in a
timely manner to the dissolved limited liability company but not acted on; or
(c) A claimant whose claim is contingent
or based on an event occurring after the effective date of dissolution. [1993
c.173 §57]
63.645
Enforcement of claims against dissolved limited liability company. A claim against a dissolved limited
liability company that is not barred under ORS 63.641 or 63.644 may be
enforced:
(1) Against the dissolved limited
liability company to the extent of its undistributed assets; or
(2) If the assets have been distributed in
liquidation, against each member of the dissolved limited liability company for
the amount by which such members liquidation distributions would have been
reduced if the claim had been paid by the limited liability company. A members
total liability for all claims under this section may not exceed the total
value of assets distributed to the member, as of the date or dates of
distribution, less any liability of the limited liability company paid on
behalf of the limited liability company by that member after the date of the
distribution. [1993 c.173 §58]
(Administrative
Dissolution)
63.647
Grounds for administrative dissolution. The Secretary of State may commence a proceeding under ORS 63.651 to
administratively dissolve a limited liability company if:
(1) The limited liability company does not
pay when due any fees imposed by this chapter;
(2) The limited liability company does not
deliver its annual report to the Secretary of State when due;
(3) The limited liability company is
without a registered agent or registered office in this state;
(4) The limited liability company does not
notify the Secretary of State that its registered agent or registered office
has been changed, that its registered agent has resigned or that its registered
office has been discontinued; or
(5) The limited liability companys period
of duration stated in its articles of organization expires. [1993 c.173 §62]
63.651
Procedure; effect of administrative dissolution. (1) If the Secretary of State determines
that one or more grounds exist under ORS 63.647 for dissolving a limited liability
company, the Secretary of State shall give the limited liability company
written notice of the determination.
(2) If the limited liability company does
not correct each ground for dissolution or demonstrate to the reasonable
satisfaction of the Secretary of State, within 45 days after notice is given,
that each ground determined by the Secretary of State does not exist, the
Secretary of State shall dissolve the limited liability company.
(3) A limited liability company
administratively dissolved continues its existence but may not carry on any
business except that necessary to wind up and liquidate its business and
affairs under ORS 63.637 and notify claimants under ORS 63.641 and 63.644.
(4) The administrative dissolution of a
limited liability company does not terminate the authority of its registered
agent. [1993 c.173 §63; 1993 c.173 §106]
63.654
Reinstatement following administrative dissolution. (1) A limited liability company
administratively dissolved under ORS 63.651 may apply to the Secretary of State
for reinstatement within five years from the date of dissolution. The
application shall:
(a) State the name of the limited
liability company and the effective date of its administrative dissolution; and
(b) State that the ground or grounds for
dissolution either did not exist or have been eliminated.
(2) If the Secretary of State determines
that the application contains the information required by subsection (1) of
this section, that the information is correct and that the limited liability
companys name satisfies the requirements of ORS 63.094, the Secretary of State
shall reinstate the limited liability company.
(3) When the reinstatement is effective,
it relates back to and takes effect as of the effective date of the
administrative dissolution and the limited liability company resumes carrying
on its business as if the administrative dissolution had never occurred. [1993
c.173 §64; 1995 c.215 §11]
63.657
Appeal from denial of reinstatement. (1) If the Secretary of State denies a limited liability companys
application for reinstatement following administrative dissolution, the
Secretary of State shall give written notice to the limited liability company
that explains the reason or reasons for denial.
(2) The limited liability company may
appeal the denial of the reinstatement pursuant to the provisions of ORS
chapter 183. [1993 c.173 §65]
(Judicial
Dissolution)
63.661
Grounds for judicial dissolution. The circuit courts may dissolve a limited liability company:
(1) In a proceeding by the Attorney
General if it is established that:
(a) The limited liability company obtained
its articles of organization through fraud; or
(b) The limited liability company has
continued to exceed or abuse the authority conferred upon it by law.
(2) In a proceeding by or for a member if
it is established that it is not reasonably practicable to carry on the
business of the limited liability company in conformance with its articles of
organization or any operating agreement.
(3) In a proceeding by the limited
liability company to have its voluntary dissolution continued under court
supervision. [1993 c.173 §66]
63.664
Procedure for judicial dissolution. (1) Venue for a proceeding by the Attorney General to dissolve a
limited liability company lies in
(2) It is not necessary to make members
parties to a proceeding to dissolve a limited liability company unless relief
is sought against them individually.
(3) A court in a proceeding brought to
judicially dissolve a limited liability company may issue injunctions, appoint
a receiver or a custodian with all powers and duties the court directs, and
take other action required to preserve or liquidate the limited liability
companys assets wherever located or carry on the business of the limited
liability company. [1993 c.173 §67]
63.671
Judgment of dissolution. (1)
If after a hearing the court determines that one or more grounds for judicial
dissolution described in ORS 63.661 exist, it may enter a judgment dissolving
the limited liability company and specifying the effective date of the
dissolution. The clerk of the court shall deliver a certified copy of the
judgment to the office for filing. The Secretary of State shall file the
certified copy of the judgment.
(2) After entering the judgment of
dissolution, the court shall direct the winding up and liquidation of the
limited liability companys business and affairs in accordance with ORS 63.637,
the notification of claimants and enforcement of claims in accordance with ORS
63.641 and 63.644, and the distribution of limited liability company assets in
accordance with ORS 63.625. [1993 c.173 §68; 2003 c.576 §328]
(Disposition
of Assets)
63.674
Deposit with Department of State Lands. Assets of a dissolved limited liability company that should be
distributed to a creditor, claimant or member of the limited liability company
who cannot be found or who is not competent to receive them shall be reduced to
cash and, within six months after the final distribution of such liquidation or
winding up is payable, deposited with the Department of State Lands. The
receiver or other liquidating agent shall prepare in duplicate and under oath a
statement containing the names and last-known addresses of the persons entitled
to such funds. One of the statements shall be filed with the Department of
State Lands and another shall be delivered to the office for filing. The funds
shall then escheat to and become the property of the State of
FOREIGN
LIMITED LIABILITY COMPANIES
(Authority to
Transact Business)
63.701
Authority to transact business required. (1) A foreign limited liability company may not transact business in
this state until it has been authorized to do so by the Secretary of State.
(2) The following activities, among
others, do not constitute transacting business within the meaning of subsection
(1) of this section:
(a) Maintaining, defending or settling any
proceeding.
(b) Holding meetings of the managers or
members or carrying on other activities concerning internal affairs.
(c) Maintaining bank accounts.
(d) Maintaining offices or agencies for
the transfer, exchange and registration of the foreign limited liability
companys own securities or maintaining trustees or depositories with respect
to those securities.
(e) Selling through independent
contractors.
(f) Soliciting or obtaining orders,
whether by mail or through employees or agents or otherwise, if the orders
require acceptance outside this state before they become contracts.
(g) Creating or acquiring indebtedness,
mortgages and security interests in real or personal property.
(h) Securing or collecting debts or
enforcing mortgages and security interests in property securing the debts.
(i) Owning, without more, real or personal
property.
(j) Conducting an isolated transaction
that is completed within 30 days and is not one in the course of repeated
transactions of a like nature.
(k) Transacting business in interstate
commerce.
(3) The list of activities in subsection
(2) of this section is not exhaustive. [1993 c.173 §75]
63.704
Consequences of transacting business without authority. (1) A foreign limited liability company
transacting business in this state without authorization from the Secretary of
State may not maintain a proceeding in any court in this state until it obtains
authorization from the Secretary of State to transact business in this state.
(2) The successor to a foreign limited
liability company that transacted business in this state without authority to
transact business in this state and the assignee of a cause of action arising
out of that business may not maintain a proceeding based on that cause of
action in any court in this state until the foreign limited liability company
or its successor obtains authorization from the Secretary of State to transact
business in this state.
(3) A court may stay a proceeding
commenced by a foreign limited liability company or its successor or assignee
until it determines whether the foreign limited liability company or its
successor requires authorization from the Secretary of State to transact
business in this state. If it so determines, the court may further stay the
proceeding until the foreign limited liability company or its successor obtains
the authorization.
(4) A foreign limited liability company
that transacts business in this state without authority shall be liable to this
state for the years or parts thereof during which it transacted business in
this state without authority in an amount equal to all fees that would have
been imposed by this chapter upon the foreign limited liability company had it
duly applied for and received authority to transact business in this state as
required by this chapter and thereafter filed all reports required by this
chapter.
(5) Notwithstanding subsections (1) and
(2) of this section, the failure of a foreign limited liability company to
obtain authority to transact business in this state does not impair the
validity of its acts or prevent it from defending any proceeding in this state.
(6) A member of a foreign limited
liability company is not liable for the debts and obligations of the foreign
limited liability company solely by reason of the foreign limited liability
companys having transacted business in this state without authority. [1993
c.173 §76]
63.707
Application for authority to transact business. (1) A foreign limited liability company may
apply for authority to transact business in this state by delivering an
application to the office for filing. The application shall set forth:
(a) The name of the foreign limited liability
company or, if its name is unavailable for filing in this state, another name
that satisfies the requirements of ORS 63.717;
(b) The name of the state or country under
whose law it is organized;
(c) Its date of organization and either
the date on which the period of its duration expires or a statement that its
duration is perpetual;
(d) The address, including street and
number, and mailing address, if different, of its principal office;
(e) The address, including street and
number, of its registered office in this state and the name of its registered
agent at that office;
(f) A statement that the foreign limited
liability company satisfies the requirements of ORS 63.714 (3); and
(g) A statement whether the foreign
limited liability company is member-managed or manager-managed, or whether the
foreign limited liability company is managed by a manager or managers.
(2) The foreign limited liability company
shall deliver with the completed application a certificate of existence, or a
document of similar import, current within 60 days of delivery and
authenticated by the official having custody of limited liability company
records in the state or country under whose law it is organized. [1993 c.173 §77;
1999 c.86 §16; 2005 c.22 §43]
63.711
Amendment to application for authority. (1) A foreign limited liability company authorized to transact
business in this state shall deliver an amendment to the application for
authority to transact business in this state to the office for filing if it
changes:
(a) Its name as shown on the records of
the office; or
(b) The period of its duration.
(2) The amendment to the application for
authority to transact business in this state shall set forth its name shown on
the records of the office and the new name or the new period of duration. The
name as changed must satisfy the requirements of ORS 63.094. [1993 c.173 §78]
63.714
Effect of authority. (1) The
laws of the state or other jurisdiction under which a foreign limited liability
company is organized shall govern its organization and internal affairs and the
liability of its members.
(2) Except as provided in subsection (3)
of this section, a foreign limited liability company may not be denied
registration by reason of any difference between the laws of this state and the
laws of the state or other jurisdiction under which the foreign limited
liability company is organized.
(3) Notwithstanding subsections (1) and
(2) of this section, no foreign limited liability company shall be authorized
or permitted to exercise any powers or purposes or conduct any business or
affairs in this state that a domestic limited liability company is proscribed
from exercising, pursuing or undertaking in this state. [1993 c.173 §79; 1995
c.93 §22]
63.717
Name of foreign limited liability company. (1) Except as provided in subsections (2) and (3) of this section, the
Secretary of State shall not authorize a foreign limited liability company to
transact business in this state if the name of the foreign limited liability
company does not conform to ORS 63.094.
(2) The name of the foreign limited
liability company must contain a word or abbreviation required by ORS 63.094
unless the name contains some other word, phrase or abbreviation that the laws
of the place of organization require to denote a limited liability company.
(3) If a limited liability company name,
corporate name, professional corporate name, nonprofit corporate name,
cooperative name, limited partnership name, business trust name, reserved name,
registered name or assumed business name of active record with the office is
not distinguishable on the records of the office from the name of the applicant
foreign limited liability company, the Secretary of State shall not authorize
the applicant to transact business in this state unless the foreign limited
liability company states its name on the application for authority to transact
business in this state under ORS 63.707 as (name under which organized), a
limited liability company of (place of organization), the entirety of which shall
be the real and true name of the foreign limited liability company in this
state under ORS chapter 648.
(4) If a foreign limited liability company
authorized to transact business in this state changes its name to one that does
not satisfy the requirements of this section, it may not transact business in
this state under the changed name until it adopts a name satisfying the
requirements of this section and ORS 63.711. [1993 c.173 §80]
63.721
Registered office and registered agent of foreign limited liability company. Each foreign limited liability company
authorized to transact business in this state must continuously maintain in
this state:
(1) A registered office that may be, but
need not be, the same as any of its places of business; and
(2) A registered agent who may be:
(a) An individual who resides in this
state and whose business office is identical to the registered office;
(b) A domestic limited liability company,
a domestic corporation, a domestic professional corporation or a domestic nonprofit
corporation whose business office is identical to the registered office; or
(c) A foreign limited liability company, a
foreign corporation, a foreign professional corporation or a foreign nonprofit
corporation authorized to transact business in this state whose business office
is identical to the registered office. [1993 c.173 §81; 2001 c.315 §28]
63.724
Change of registered office or registered agent of foreign limited liability
company. (1) A foreign
limited liability company authorized to transact business in this state may
change its registered office or registered agent by delivering to the office of
the Secretary of State for filing a statement of change that sets forth:
(a) The name of the foreign limited
liability company;
(b) If the registered office is to be
changed, the street address, including street and number, of the new registered
office;
(c) If the registered agent is to be
changed, the name of the new registered agent and a statement that the new
agent has consented to the appointment; and
(d) That after the change or changes are
made, the street addresses of the registered office and the business office of
its registered agent will be identical.
(2) If a registered agent changes the
street address of the agents business office, the registered agent shall
change the street address of the registered office of the foreign limited
liability company for which the agent is the registered agent by notifying the
foreign limited liability company in writing of the change and signing, either
manually or in facsimile, and delivering to the office of the Secretary of
State a statement of change that complies with the requirement of subsection
(1) of this section and states that the foreign limited liability company has
been notified of the change.
(3) The filing of the statement by the
Secretary of State shall terminate the existing registered office or agent, or
both, on the effective date of the filing and establish the newly appointed
registered office or agent, or both, as that of the foreign limited liability
company. [1993 c.173 §82]
63.727
Resignation of registered agent of a foreign limited liability company. (1) The registered agent of a foreign
limited liability company may resign as agent upon delivering a signed
statement to the office and giving notice in the form of a copy of the
statement to the foreign limited liability company. The statement of
resignation may include a statement that the registered office is also
discontinued.
(2) Upon the delivery of the signed statement,
the Secretary of State shall file the resignation statement. The copy of the
statement given to the foreign limited liability company under subsection (1)
of this section shall be addressed to the foreign limited liability company at
its mailing address or its principal office as shown by the records of the
Secretary of State.
(3) The agency appointment is terminated,
and the registered office discontinued if so provided in the signed statement
under subsection (1) of this section, on the 31st day after the date on which
the statement was filed by the Secretary of State unless the foreign limited
liability company has previously appointed a successor registered agent, as
provided in ORS 63.724, thereby terminating the capacity of such agent. [1993
c.173 §83; 1993 c.173 §107]
63.731
Service on a foreign limited liability company. (1) The registered agent appointed by a
foreign limited liability company authorized to transact business in this state
shall be its agent upon whom any process, notice or demand required or
permitted by law to be served upon the foreign limited liability company may be
served.
(2) The Secretary of State shall be an
agent of a foreign limited liability company upon whom any process, notice or
demand may be served, if:
(a) The foreign limited liability company
is authorized to transact business in this state, and it fails to appoint or
maintain a registered agent in this state, or its registered agent cannot with
reasonable diligence be found at the registered office;
(b) The foreign limited liability companys
authority to transact business in this state has been revoked;
(c) The foreign limited liability company
is transacting business in this state without being authorized as provided in
this chapter;
(d) The foreign limited liability company
has been authorized to transact business in this state and has withdrawn; or
(e) The foreign limited liability company
has transacted business in this state without being authorized to do so and has
ceased to transact business.
(3) Service on the Secretary of State of
any such process, notice or demand shall be made in the same manner as provided
in ORS 63.121, except that when the foreign limited liability company served is
not authorized to transact business in this state and was not authorized to
transact business in this state at the time the transaction, event or
occurrence upon which the proceeding is based occurred, the copy of the
process, notice or demand shall be sent immediately by registered or certified
mail by the plaintiff or the attorney of the plaintiff to the principal office
or place of business of the foreign limited liability company, instead of the
last registered office of the foreign limited liability company.
(4) The Secretary of State shall keep a
record of all processes, notices and demands served upon the Secretary of State
under this section.
(5) After completion of initial service
upon the Secretary of State, no additional documents need to be served upon the
Secretary of State to maintain jurisdiction in the same proceeding or to give
notice of any motion or provisional process.
(6) Nothing contained in this section
shall limit or affect the right to serve any process, notice or demand required
or permitted by law to be served upon a foreign limited liability company in
any other manner permitted by law, or enlarge the purposes for which service on
the Secretary of State is permitted where such purposes are limited by other
provisions of law. [1993 c.173 §84]
(Withdrawal)
63.734
Withdrawal of foreign limited liability company. (1) A foreign limited liability company
authorized to transact business in this state may withdraw from transacting
business in this state by applying to the office for withdrawal. The
application shall set forth:
(a) The name of the foreign limited
liability company and the name of the state or country under whose law it is
organized;
(b) That it is not transacting business in
this state and that it surrenders its authority to transact business in this
state;
(c) That it 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 authorized to transact business in this
state;
(d) A mailing address to which the person
initiating any proceeding may mail to the foreign limited liability company a
copy of any process served on the Secretary of State under paragraph (c) of
this subsection; and
(e) A commitment to notify the Secretary
of State for a period of five years from the date of withdrawal of any change
in its mailing address.
(2) Upon filing by the Secretary of State
of the application to withdraw, the authority of the foreign limited liability
company to transact business in this state shall cease. [1993 c.173 §85]
(Revocation
of Authority)
63.737
Grounds for revocation. The
Secretary of State may commence a proceeding under ORS 63.741 to revoke the
authority of a foreign limited liability company to transact business in this
state if:
(1) The foreign limited liability company
does not deliver its annual report to the Secretary of State within the time
prescribed by this chapter;
(2) The foreign limited liability company
does not pay within the time prescribed by this chapter any fees imposed by
this chapter;
(3) The foreign limited liability company
has failed to appoint or maintain a registered agent or registered office in
this state as prescribed by this chapter;
(4) The foreign limited liability company
does not inform the Secretary of State under ORS 63.724 or 63.727 that its
registered agent or registered office has changed, that its registered agent
has resigned or that its registered office has been discontinued;
(5) An organizer, manager, member or agent
of the foreign limited liability company signed a document knowing it was false
in any material respect with intent that the document be delivered to the
office for filing;
(6) The foreign limited liability company
no longer satisfies the requirements of ORS 63.714 (3);
(7) The Secretary of State receives a duly
authenticated certificate from the official having custody of the limited
liability company records in the state or country under whose law the foreign
limited liability company is organized stating that it has been dissolved or
has ceased to exist as the result of a merger or other reorganization
transaction; or
(8) The period of duration of the foreign
limited liability company expires. [1993 c.173 §86]
63.741
Procedure for and effect of revocation. (1) If the Secretary of State determines that one or more grounds
exist under ORS 63.737 for revocation of authority of a foreign limited
liability company to transact business in this state, the Secretary of State
shall give the foreign limited liability company written notice of the
determination.
(2) If the foreign limited liability
company does not correct each ground for revocation or demonstrate to the
reasonable satisfaction of the Secretary of State that each ground determined
by the Secretary of State does not exist within 45 days after notice is given,
the Secretary of State shall revoke the foreign limited liability companys
authority.
(3) The authority of a foreign limited
liability company to transact business in this state ceases as of the date of
revocation of its authority to transact business in this state.
(4) The Secretary of States revocation of
a foreign limited liability companys authority to transact business in this
state appoints the Secretary of State as the foreign limited liability companys
agent for service of process in any proceeding based on a cause of action which
arose during the time the foreign limited liability company was authorized to
transact business in this state.
(5) Revocation of a foreign limited
liability companys authority to transact business in this state terminates the
authority of the registered agent of the foreign limited liability company. [1993
c.173 §87; 1993 c.173 §108]
63.744
Appeal from revocation. In
addition to any other legal remedy which may be available, a foreign limited
liability company shall have the right to appeal the Secretary of States
revocation of its authority to transact business in this state pursuant to the
provisions of ORS chapter 183. [1993 c.173 §88]
63.747
Reinstatement of authority.
(1) A foreign limited liability company that has had its authority revoked
under ORS 63.741 may apply to the Secretary of State for reinstatement within
five years from the date of revocation. The application shall:
(a) State the name of the foreign limited
liability company and the effective date its authority was revoked; and
(b) State that the ground or grounds for
revocation of authority either did not exist or have been eliminated.
(2) If the Secretary of State determines
that the application contains the information required by subsection (1) of
this section, that the information is correct and that the foreign limited
liability companys name satisfies the requirements of ORS 63.717, the
Secretary of State shall reinstate the authority.
(3) When the reinstatement is effective,
it relates back to and takes effect as of the effective date of the
administrative revocation of authority and the foreign limited liability
company resumes carrying on its business as if the administrative revocation of
authority had never occurred. [1993 c.173 §89; 1995 c.215 §12]
RECORDS AND
REPORTS
(Records)
63.771
Limited liability company records. (1) Each limited liability company shall keep at an office specified
in the manner provided in any operating agreement or, if none, at the
registered office, the following:
(a) A current list of the full name and
last-known business, residence or mailing address of each member and manager,
both past and present.
(b) A copy of the articles of organization
and all amendments thereto, together with executed copies of any powers of
attorney pursuant to which any amendment has been executed.
(c) Copies of the limited liability
companys federal, state and local income tax returns and reports, if any, for
the three most recent years.
(d) Copies of any currently effective
written operating agreements and all amendments thereto, copies of any writings
permitted or required under this chapter, and copies of any financial
statements of the limited liability company for the three most recent years.
(e) Unless contained in a written
operating agreement or in a writing permitted or required under this chapter, a
statement prepared and certified as accurate by a manager of the limited
liability company which describes:
(A) The amount of cash and a description
and statement of the agreed value of other property or services contributed by
each member and which each member has agreed to contribute in the future;
(B) The times at which or events on the
occurrence of which any additional contributions agreed to be made by each
member are to be made; and
(C) If agreed upon, the time at which or
the events on the occurrence of which the limited liability company is
dissolved and its affairs wound up.
(2) Any limited liability company records
are subject to inspection and copying at the reasonable request, and at the
expense, of any member during ordinary business hours.
(3) Failure of the limited liability
company to keep or maintain any of the records or information required pursuant
to this section shall not be grounds for imposing liability on any person for
the debts and obligations of the limited liability company. [1993 c.173 §96;
1999 c.86 §22]
63.777
Scope of inspection right.
(1) A members agent or attorney has the same inspection and copying rights as
the member.
(2) The right to copy records includes, if
reasonable, the right to receive copies made by photographic, xerographic or
other means.
(3) The limited liability company may
impose a reasonable charge, covering the costs of labor and material, for
copies of any documents provided to the member. The charge may not exceed the
estimated cost of production or reproduction of the records.
(4) The limited liability company may
comply with a members demand to inspect the record of members by providing the
member with a list of members that was compiled no earlier than the date of the
members demand. [1993 c.173 §97]
63.781
Court-ordered inspection.
(1) If a limited liability company does not allow a member to inspect and copy
any records required to be available for inspection, the circuit court of the
county where the limited liability companys principal office is located, or,
if the principal office is not in this state, where its registered office is or
was last located, may summarily order inspection and copying of the records
demanded at the companys expense upon application of the member.
(2) If a limited liability company does
not within a reasonable time allow a member to inspect and copy any other
record, the member may apply to the circuit court in the county where the
companys principal office is located, or, if the principal office is not in
this state, where its registered office is or was last located, for an order to
permit inspection and copying of the records demanded.
(3) If the court orders inspection and
copying of the records demanded, it shall also order the limited liability
company to pay the members costs, including reasonable counsel fees, incurred
to obtain the order unless the company proves that it refused inspection in
good faith because it had a reasonable basis for doubt about the right of the
member to inspect the records demanded.
(4) If the court orders inspection and
copying of the records demanded, it may impose reasonable restrictions on the
use or distribution of the records by the demanding member.
(5) No order shall be issued under this
section without notice to the limited liability company at least five days in
advance of the time specified for the hearing unless a different period is
fixed by the court. The members request shall be set for hearing at the
earliest possible time and shall take precedence over all matters, except
matters of the same character and hearings on preliminary injunctions under
ORCP 79 B(3). [1993 c.173 §98]
(Reports)
63.784
Certain expense reports to members. If a limited liability company indemnifies or advances expenses to a
member or manager under ORS 63.160 in connection with a proceeding by or in the
right of the limited liability company, the limited liability company shall
report the indemnification or advance in writing to the members. [1993 c.173 §99;
1999 c.86 §17]
63.787
Annual report; rules. (1)
Each domestic limited liability company, and each foreign limited liability
company authorized to transact business in the state, shall by its anniversary
deliver to the office of the Secretary of State for filing an annual report
that sets forth:
(a) The name of the limited liability
company and the state or country under whose law it is organized;
(b) The street address of its registered
office and name of its registered agent at that office in this state;
(c) The address, including street and
number and mailing address, if different, of its principal office;
(d) The names and addresses of the
managers for a manager-managed limited liability company or the name and
address of at least one member for a member-managed limited liability company;
(e) The category of the classification
code established by rule of the Secretary of State most closely designating the
primary business activity of the limited liability company; and
(f) Additional identifying information
that the Secretary of State may require by rule.
(2) The information contained on the
annual report shall be current as of 30 days before the anniversary of the
limited liability company.
(3) The Secretary of State shall mail the
annual report form to any address shown for the limited liability company in
the current records of the office. The failure of the limited liability company
to receive the annual report form from the Secretary of State shall not relieve
the limited liability company of its duty to deliver an annual report to the
office as required by this section.
(4) If an annual report does not contain
the information required by this section, the Secretary of State shall notify
the reporting domestic or foreign limited liability company in writing and
return the report to it for correction. The domestic or foreign limited
liability company must correct the error within 45 days after the Secretary of
State gives such notice.
(5) A domestic or foreign limited
liability company may deliver to the office for filing an amendment to the
annual report if a change in the information set forth in the annual report
occurs after the report is delivered to the office for filing and before the
next anniversary. This subsection applies only to a change that is not required
to be made by an amendment to the articles of organization. The amendment to
the annual report must set forth:
(a) The name of the limited liability
company as shown on the records of the office; and
(b) The information as changed. [1993
c.173 §100; 1995 c.93 §23; 1999 c.86 §18; 2007 c.186 §7]
DERIVATIVE
PROCEEDINGS
63.801
Derivative proceedings. (1)
A member may not commence a proceeding in the right of a domestic or foreign
limited liability company unless the person was a member of the limited
liability company when the transaction complained of occurred or unless the
member became a member through transfer by operation of law from one who was a
member at that time.
(2) Except as otherwise provided in
writing in the articles of organization or any operating agreement, a complaint
in a proceeding brought in the right of a limited liability company must allege
with particularity the demand made, if any, to obtain action by the managers or
the members who would otherwise have the authority to cause the limited
liability company to sue in its own right, and either that the demand was
refused or ignored or the reason why a demand was not made. Whether or not a
demand for action was made, if the limited liability company commences an
investigation of the charges made in the demand or complaint, the court may
stay any proceeding until the investigation is completed.
(3) A proceeding commenced under this
section may not be discontinued or settled without the courts approval. If the
court determines that a proposed discontinuance or settlement will
substantially affect the interest of the members or a class of members, the
court shall direct that notice be given to the members affected. [1993 c.173 §95]
STATE
TAXATION
63.810
Taxation of limited liability companies and members. For purposes of ORS chapters 305 to 324, a
limited liability company formed under this chapter or qualified to do business
in this state as a foreign limited liability company shall be classified in the
same manner as it is classified for federal income tax purposes. For purposes
of ORS chapters 305 to 324, a member or an assignee of a member of a limited
liability company formed under this chapter or qualified to do business in this
state as a foreign limited liability company shall have the same status as the
member or assignee of a member has for federal income tax purposes. [1993 c.173
§101; 1997 c.646 §13; 1999 c.557 §1]
MISCELLANEOUS
63.951
Short title. This chapter
shall be known and may be cited as the Oregon Limited Liability Company Act. [1993
c.173 §1]
63.955
Interstate application. A
limited liability company organized and existing under this chapter may conduct
its business, carry on its operations and have and exercise the powers granted
by this chapter in any state, territory, district or possession of the
63.960
Applicability of chapter to practice of dentistry. Nothing in this chapter is intended to
supersede the provisions of ORS 679.020. [1997 c.774 §29]
63.965
Reservation of power to amend or repeal; effect of amendment or repeal. (1) All or part of this chapter may be
amended or repealed at any time and all domestic and foreign limited liability
companies subject to this chapter shall be governed by the amendment or repeal.
(2) The amendment or repeal of a statute
in this chapter does not affect:
(a) The operation of the statute or any
action taken under the statute before its amendment or repeal.
(b) Any ratification, right, remedy,
privilege, obligation or liability acquired, accrued or incurred under the
statute before its amendment or repeal.
(c) Any violation of the statute, or any
penalty, forfeiture or punishment incurred because of the violation, before its
amendment or repeal.
(d) Any proceeding, reorganization or
dissolution commenced under the statute before its amendment or repeal. The
proceeding, reorganization or dissolution may be completed in accordance with
the statute as if it had not been amended or repealed. [2001 c.315 §50]
PENALTY
63.990
Penalty for signing false document. (1) A person commits the crime of falsely signing a document for
filing under this chapter if the person signs a document knowing it is false in
any material respect with intent that the document be delivered to the office
for filing.
(2) Falsely signing a document for filing
is a Class B misdemeanor. [1993 c.173 §102]
_______________
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