§ 18-2054.4 — Series of members, managers or membership interests

Oklahoma § 18-2054.4

• Jurisdiction: Oklahoma
• Title 18: Corporations

Text

having separate rights - Personal obligation of member or manager. SERIES OF MEMBERS, MANAGERS, OR MEMBERSHIP INTERESTS HAVING SEPARATE RIGHTS - PERSONAL OBLIGATION OF MEMBER OR MANAGER A. An operating agreement may establish or provide for the establishment of one or more designated series of members, managers, membership interests or assets. Any such series may have separate rights, powers or duties with respect to specified property or obligations of the limited liability company or profits and losses associated with specified property or obligations, and any such series may have a separate business purpose or investment objective. No provision of subsection B of this section or Section 14 of this act shall be construed to limit the application of the principle of freedom of contract to a series that is not a protected or registered series. Other than under Sections 15, 16, and 17 of this act, a series may not merge, consolidate, or convert under any section of this title or any other statute of this state. B. A series established in accordance with this subsection is a protected series. Notwithstanding anything to the contrary set forth in the Oklahoma Limited Liability Company Act or under other applicable law, if an operating agreement establishes or provides for the establishment of one or more series, and to the extent the records maintained for any such series account for the assets associated with such series separately from the other assets of the limited liability company, or any other series thereof, and if the operating agreement so provides, and if notice of the limitation on liabilities of a series as referenced in this subsection is set forth in the articles of organization of the limited liability company, then the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to such series shall be enforceable against the assets of such series only, and not against the assets of the limited liability company generally or any other series thereof, and, unless otherwise provided in the operating agreement, none of the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to the limited liability company generally or any other series thereof shall be enforceable against the assets of the series. Neither the provisions of this subsection nor any provision pursuant thereto in an operating agreement or articles of organization shall (i) restrict a protected series or limited liability company on behalf of a protected series from agreeing in the operating agreement or otherwise that any or all of the debts, liabilities, obligations, and expenses incurred, contracted for, or otherwise existing with respect to the limited liability company generally or any other series thereof shall be enforceable against the assets of such protected series; or (ii) restrict a limited liability company from agreeing in the operating agreement or otherwise that any or all of the debts, liabilities, obligations, and expenses incurred, contracted for, or otherwise existing with respect to a protected series shall be enforceable against the assets of the limited liability company generally. Assets associated with a protected series may be held directly or indirectly, including in the name of such series, in the name of the limited liability company, through a nominee or otherwise. Records maintained for a protected series that reasonably identify its assets, including by specific listing, category, type, quantity, computational or allocational formula or procedure including a percentage or share of any asset or assets, or by any other method where the identity of such assets is objectively determinable, will be deemed to account for the assets associated with such series separately from the other assets of the limited liability company, or any other series thereof. Notice in articles of organization of the limitation on liabilities of a protected series as referenced in this subsection shall be sufficient for all purposes regardless of whether the limited liability company has established any protected series when the notice is included in the articles of organization, and there shall be no requirement that any specific protected series of the limited liability company be referenced in the notice or that the notice use the term “protected”. The fact that articles of organization containing the foregoing notice of the limitation on liabilities of a protected series are on file in the Office of the Secretary of State shall constitute notice of the limitation on liabilities of a protected series. As used in this act, a reference to assets of a protected series includes assets associated with such series, and a reference to assets associated with a protected series includes assets of such series. A reference to members or managers of a protected series includes members or managers associated with such series, and a reference to members or managers associated with a protected series includes members or managers of such series. The following shall apply to a protected series: 1. A protected series may carry on any lawful business, purpose or activity, regardless of whether for profit, that a limited liability company may conduct in this state. Unless otherwise provided in an operating agreement, a protected series shall have the power and capacity to, in its own name, contract, hold title to assets, including real, personal and intangible property, grant liens and security interests, and sue and be sued; 2. Except as otherwise provided by this act, no member or manager of a protected series shall be obligated personally for any debt, obligation, or liability of such series, whether arising in contract, tort, or otherwise, solely by reason of being a member or acting as manager of such series. Notwithstanding this paragraph, under an operating agreement or under another agreement, a member or manager may agree to be obligated personally for any or all of the debts, obligations and liabilities of one or more protected series; 3. An operating agreement may provide for classes or groups of members or managers associated with a protected series having such relative rights, powers and duties as the operating agreement may provide, and may make provision for the future creation in the manner provided in the operating agreement of additional classes or groups of members or managers associated with the series having such relative rights, powers and duties as may from time to time be established, including rights, powers and duties senior to existing classes and groups of members or managers associated with the series. An operating agreement may provide for the taking of an action, including the amendment of the operating agreement, without the vote or approval of any member or manager or class or group of members or managers, including an action to create under the provisions of the operating agreement a class or group of a protected series of membership interests that was not previously outstanding. An operating agreement may provide that any member or class or group of members associated with a protected series shall have no voting rights; 4. An operating agreement may grant to all or certain identified members or managers or a specified class or group of the members or managers associated with a protected series the right to vote separately or with all or any class or group of the members or managers associated with the series, on any matter. Voting by members or managers associated with a protected series may be on a per capita, number, financial interest, class, group or any other basis; 5. Unless otherwise provided in an operating agreement, the management of a protected series shall be vested in the members associated with the series in proportion to their membership interest, with the decision of members owning a majority of the membership interest controlling; provided, however, that if an operating agreement provides for the management of a protected series, in whole or in part, by a manager, the management of the series, to the extent so provided, shall be vested in the manager who shall be chosen in the manner provided in the operating agreement. The manager of a protected series shall also hold the offices and have the responsibilities accorded to the manager as set forth in an operating agreement. A protected series may have more than one manager. Subject to paragraph 3 of Section 2014 of this title, a manager shall cease to be a manager with respect to a protected series as provided in an operating agreement. Except as otherwise provided in an operating agreement, any event under this chapter or in an operating agreement that causes a manager to cease to be a manager with respect to a protected series shall not, in itself, cause the manager to cease to be a manager of the limited liability company or with respect to any other series thereof; 6. Subject to paragraphs 7 and 10 of this subsection, and unless otherwise provided in an operating agreement, at the time a member of a protected series becomes entitled to receive a distribution with respect to the series, the member has the status of, and is entitled to all remedies available to, a creditor of the series, with respect to the distribution. An operating agreement may provide for the establishment of a record date with respect to allocations and distributions with respect to a protected series; 7. Notwithstanding Section 2040 of this title, a limited liability company may make a distribution with respect to a protected series. A limited liability company shall not make a distribution with respect to a protected series to a member to the extent that at the time of the distribution, after giving effect to the distribution, all liabilities of the series, other than liabilities to members on account of their membership interests with respect to the series and liabilities for which the recourse of creditors is limited to specified property of the series, exceed the fair value of the assets associated with the series, except that the fair value of property of the series that is subject to a liability for which the recourse of creditors is limited shall be included in the assets associated with the series only to the extent that the fair value of that property exceeds that liability. For purposes of the immediately preceding sentence, the term “distribution” shall not include amounts constituting reasonable compensation for present or past services or reasonable payments made in the ordinary course of business pursuant to a bona fide retirement plan or other benefits program. A member who receives a distribution in violation of this paragraph, and who knew or should have known at the time of the distribution that the distribution violated this paragraph, shall be liable to the protected series for the amount of the distribution. A member who receives a distribution in violation of this paragraph, and who did not know and had no reason to know at the time of the distribution that the distribution violated this paragraph, shall not be liable for the amount of the distribution. Subject to subsection C of Section 2040 of this title, which shall apply to any distribution made with respect to a protected series under this paragraph, this paragraph shall not affect any obligation or liability of a member under an agreement or other applicable law for the amount of a distribution; 8. Unless otherwise provided in the operating agreement, a member shall cease to be associated with a protected series and to have the power to exercise any rights or powers of a member with respect to the series upon the assignment of all of the member’s capital interest with respect to the series. Except as otherwise provided in an operating agreement, any event under this chapter or an operating agreement that causes a member to cease to be associated with a protected series shall not, in itself, cause the member to cease to be associated with any other series or terminate the continued membership of a member in the limited liability company or cause the termination of the protected series, regardless of whether the member was the last remaining member associated with the series; 9. Subject to Section 2037 of this title, except to the extent otherwise provided in the operating agreement, a protected series may be terminated and its affairs wound up without causing the dissolution of the limited liability company. The termination of a protected series shall not affect the limitation on liabilities of the series. A protected series is terminated and its affairs shall be wound up upon the dissolution of the limited liability company under Section 2037 of this title or otherwise upon the first to occur of the following: a. at the time specified in the operating agreement, b. upon the happening of events specified in the operating agreement, c. unless otherwise provided in the operating agreement, upon the affirmative vote or written consent of the members of the limited liability company associated with the series or, if there is more than one class or group of members associated with the series, then by each class or group of members associated with the series, in either case, by members associated with the series who own more than two-thirds (2/3) of the then- current membership interest owned by all of the members associated with the series or by the members in each class or group of the series, as appropriate, or d. the termination of the series under paragraph 11 of this subsection; 10. Unless otherwise provided in the operating agreement, a manager associated with a protected series who has not wrongfully terminated the series or, if none, the members associated with the series or a person approved by the members associated with the series or, if there is more than one class or group of members associated with the series, then by each class or group of members associated with the series, in either case, by a majority of the membership interest owned by all of the members associated with the series or by the members in each class or group associated with the series, as appropriate, may wind up the affairs of the series; but the district court, upon cause shown, may wind up the affairs of a protected series upon application of any member or manager associated with the series, or the member’s personal representative or assignee, and in connection therewith, may appoint a liquidating trustee. The persons winding up the affairs of a protected series may, in the name of the limited liability company and for and on behalf of the limited liability company and the series, take all actions with respect to the series as are permitted under subsection A of Section 2039 of this title. The persons winding up the affairs of a protected series shall provide for the claims and obligations of the series and distribute the assets of the series as provided in Section 2040 of this title, which section shall apply to the winding up and distribution of assets of a protected series. Actions taken in accordance with this subsection shall not affect the liability of members and shall not impose liability on a liquidating trustee; 11. On application by or for a member or manager associated with a protected series, the district court may decree termination of the series whenever it is not reasonably practicable to carry on the business of the series in conformity with an operating agreement; and 12. For all purposes of the laws of this state, a protected series is an association, regardless of the number of members or managers, if any, of such series. An operating agreement does not need to use the term “protected” when referencing series or to refer to this section. C. If a foreign limited liability company that is registering to do business in this state in accordance with Section 2043 of this title is governed by an operating agreement that establishes or provides for the establishment of designated series of members, managers, membership interests or assets having separate rights, powers or duties with respect to specified property or obligations of the foreign limited liability company or profits and losses associated with specified property or obligations, that fact shall be so stated on the application for registration as a foreign limited liability company. In addition, the foreign limited liability company shall state on the application whether the debts, liabilities and obligations incurred, contracted for or otherwise existing with respect to a particular series, if any, shall be enforceable against the assets of the series only, and not against the assets of the foreign limited liability company generally or any other series thereof, and whether any of the debts, liabilities, obligations and expenses incurred, contracted for or otherwise existing with respect to the foreign limited liability company generally or any other series thereof shall be enforceable against the assets of the series.

Legislative History

Added by Laws 2004, c. 255, § 55, eff. Nov. 1, 2004. Amended by Laws 2017, c. 323, § 54, eff. Nov. 1, 2017; Laws 2024, c. 121, § 13, eff. Nov. 1, 2024.