N.D. Cent. Code § 10-32.1-02

10-32.1-02. Definitions

For purposes of this chapter, unless the context otherwise requires:

1. "Acquiring organization" means the domestic or foreign organization that acquires the

ownership interests of another foreign or domestic organization in an exchange.

2. "Address" means:

a. In the case of a registered office or principal executive office, the mailing address,

which may not be only a post-office box, including a zip code, or the actual office

location; and

b. In all other cases, the mailing address, including a zip code.

3. "Board" means the board of governors, however designated, of a board-managed

limited liability company.

4. "Board-managed limited liability company" means a limited liability company that

qualifies as such under subsection 1 of section 10-32.1-39.

5. "Bylaws" means any rule, resolution, or other provision, regardless how designated,

that:

a. Relates to the management of the business or the regulation of the affairs of the

limited liability company; and

b. Was expressly part of the bylaws by the action, taken from time to time under

section 10-32.1-39 by the board or the members.

6. "Class", when used with reference to membership interests, means a category of

membership interests which differs in one or more rights or preferences from another

category of membership interests of the limited liability company.

7. "Closely held limited liability company" means a limited liability company that does not

have more than thirty-five members.

8. "Contribution" means any benefit provided by a person to a limited liability company:

a. In order to become a member upon formation of the company and in accordance

with an agreement between or among the persons that have agreed to become

the initial members of the company;

b. In order to become a member after formation of the company and in accordance

with an agreement between the person and the company; or

c. In the capacity of the person as a member and in accordance with the operating

agreement or an agreement between the member and the company.

9. "Corporation" or "domestic corporation" means a corporation, other than a foreign

corporation, organized for profit and incorporated under chapter 10-19.1.

10. "Debtor in bankruptcy" means a person that is the subject of:

a. An order for relief under United States Code, title 12, or a successor statute of

general application; or

b. A comparable order under federal, state, or foreign law governing insolvency.

11. "Dissolution" means that the limited liability company incurred an event under

subsection 1 of section 10-32.1-50 that obligates the limited liability company to wind

up the affairs of the limited liability company and to terminate the existence of the

limited liability company as a legal entity.

12. "Distribution", except as otherwise provided in subsection 7 of section 10-32.1-31,

means a transfer of money or other property from a limited liability company to another

person on account of a transferable interest.

13. "Effective", with respect to a record required or permitted to be filed with the secretary

of state under this chapter, means effective under subsection 3 of section 10-32.1-86.

14. "Electronic" means relating to technology having electrical, digital, magnetic, wireless,

optical, electromagnetic, or similar capabilities.

15. "Electronic communication" means any form of communication, not directly involving

the physical transmission of paper:

a. That creates a record that may be retained, retrieved, and reviewed by a recipient

of the communication; or

b. That may be directly reproduced in paper form by the recipient through an

automated process.

16. "Electronic record" means a record created, generated, sent, communicated, received,

or stored by electronic means.

17. "Electronic signature" means an electronic sound, symbol, or process attached to or

logically associated with a record and executed or adopted by a person with the intent
or

b. That may be directly reproduced in paper form by the recipient through an

automated process.

16. "Electronic record" means a record created, generated, sent, communicated, received,

or stored by electronic means.

17. "Electronic signature" means an electronic sound, symbol, or process attached to or

logically associated with a record and executed or adopted by a person with the intent

to sign the record.

18. "Filed documents" means:

a. In the case of a limited liability company organized under this chapter, articles of

organization, articles of amendment, a statement of correction, restated articles of

organization, a statement of change of registered office, registered agent, or

name of registered agent, a statement establishing or fixing the rights and

preferences of a class or series of membership interests, articles of merger,

articles of abandonment, articles of conversion, articles of domestication,

statement of authority or a statement amending or canceling a statement of

authority, and articles of dissolution and termination.

b. In the case of a foreign limited liability company, the term includes all records

serving a similar function required to be filed with the secretary of state or other

state office of the state of organization of the foreign limited liability company.

19. "Filed with the secretary of state" means except as otherwise permitted by law or rule:

a. That a record meeting the applicable requirements of this chapter, together with

the fees provided in section 10-32.1-92, has been delivered or communicated to

the secretary of state by a method or medium of communication acceptable by

the secretary of state, and has been determined by the secretary of state to

conform to law.

b. That the secretary of state did then:

(1) Record the actual date on which the record was filed, and if different, the

effective date of the filing which may not be later than ninety days after the

date on which the record was accepted; and

(2) Record the record in the office of the secretary of state.

20. "Foreign corporation" means a corporation organized for profit that is incorporated

under laws other than the laws of this state for a purpose for which a corporation may

be incorporated under chapter 10-19.1.

21. "Foreign limited liability company" means a limited liability company which is organized

under or governed by laws other than the laws of this state for a purpose for which a

limited liability company may be organized under this chapter.

22. "Foreign organization" means an organization created under laws other than the laws

of this state for a purpose for which an organization may be created under the laws of

this state.

23. "Good faith" means honesty in fact in the conduct of the act or transaction concerned.

24. "Governing body" means for an organization that is:

a. A corporation, its board of directors;

b. A limited liability company that is:

(1) Member-managed, its members;

(2) Board-managed, its board of governors; or
for a purpose for which an organization may be created under the laws of

this state.

23. "Good faith" means honesty in fact in the conduct of the act or transaction concerned.

24. "Governing body" means for an organization that is:

a. A corporation, its board of directors;

b. A limited liability company that is:

(1) Member-managed, its members;

(2) Board-managed, its board of governors; or

(3) Manager-managed, its managers; or

c. Any other organization, the body selected by its owners that has the ultimate

power to determine the policies of the organization and to control its policies.

25. "Governor" means a member of the board, however designated, of a board-managed

limited liability company.

26. "Intentionally" means that the person referred to either has a purpose to do or fail to do

the act or cause the result specified or believes that the act or failure to act, if

successful, will cause that result and as such a person "intentionally" violates a

statute:

a. If the personal intentionally does the act or causes the result prohibited by the

statute; or

b. If the person intentionally fails to do the act or cause the result required by the

statute, even though the person may not know of the existence or constitutionality

of the statute or the scope or meaning of the terms used in the statute.

27. "Legal representative" means a person empowered to act for another person,

including an agent, manager, officer, partner, or associate of an organization; a trustee

of a trust; a personal representative; a trustee in bankruptcy; and a receiver, guardian,

custodian, or conservator.

28. "Limited liability company", or "domestic limited liability company" means a limited

liability company, other than a foreign limited liability company, organized under or

governed by this chapter excluding a nonprofit limited liability company organized

under or governed by chapter 10-36.

29. "Manager" means an individual who is eighteen years of age or more who under the

operating agreement of a manager-managed limited liability company is responsible,

alone or in concert with others, for performing the management functions stated in

subsection 3 of section 10-32.1-39.

30. "Manager-managed limited liability company" means a limited liability company that

qualifies as such under subsection 1 of section 10-32.1-39.

31. "Member" means a person that has become a member of a limited liability company

under section 10-32.1-27 and has not dissociated under section 10-32.1-48.

32. "Membership interest" means one of the units, however designated, of which the

proprietary interests of a member in a limited liability company is divided.

33. "Member-managed limited liability company" means a limited liability company that is

not a manager-managed limited liability company or a board-managed limited liability

company.

34. "Nonprofit limited liability company" means a limited liability company organized under

or governed by chapter 10-36.

35. "Notice" has the meaning provided in section 10-32.1-04.

36. "Operating agreement" means the agreement, whether or not referred to as an

operating agreement and whether oral, in a record, implied, or in any combination

thereof, of all the members of a limited liability company, including a sole member,

concerning the matters described in subsection 1 of section 10-32.1-13 and includes

the operating agreement as amended or restated.

37. With respect to "oppressive":

a. "Oppressive", with respect to an application brought by a member under

paragraph 2 of subdivision 3 of subsection 1 of section 10-32.1-50, means

conduct:

(1) Engaged in by one or more:

(a) Members in a member-managed limited liability company or who are

otherwise in control of any limited liability company;

(b) Managers in a manager-managed limited liability company; or
to "oppressive":

a. "Oppressive", with respect to an application brought by a member under

paragraph 2 of subdivision 3 of subsection 1 of section 10-32.1-50, means

conduct:

(1) Engaged in by one or more:

(a) Members in a member-managed limited liability company or who are

otherwise in control of any limited liability company;

(b) Managers in a manager-managed limited liability company; or

(c) Governors of a board-managed limited liability company;

(2) That occurs with respect to the capacity of the applicant member as:

(a) A member, manager, or governor of a limited liability company; or

(b) An employee of a limited liability company with thirty-five or fewer

members; and

(3) That is unfairly prejudicial to the applicant member in a capacity listed in

subdivision b, because the conduct frustrated an expectation of the

applicant member that:

(a) Is reasonable in light of the reasonable expectations of the other

members;

(b) Was material to the decision of the applicant to become a member of

the limited liability company or for a substantial time has been material

during the continuing membership of the member;

(c) Was known to other members or that the other members had reason

to know; and

(d) Is not contrary to the operating agreement as applied consistently with

the contractual obligation of good faith and fair dealing under

subsection 4 of section 10-32.1-41.

b. For the purposes of subdivision a, conduct:

(1) Includes words, action, inaction, and any combination of words, action, or

inaction; and

(2) Is not oppressive solely by reason of a good faith disagreement as to the

content, interpretation, or application of the operating agreement of the

company.

38. "Organization":

a. Means, whether domestic or foreign, a limited liability company, corporation,

general partnership, limited partnership, limited liability partnership, limited liability

limited partnership, or any other person having a governing statute; but

b. Excludes:

(1) Any nonprofit corporation, whether a domestic nonprofit corporation which is

incorporated under chapter 10-33 or a foreign nonprofit corporation which is

incorporated in another jurisdiction; or

(2) Any nonprofit limited liability company, whether a domestic nonprofit limited

liability company which is organized under chapter 10-36 or a foreign

nonprofit limited liability company which is organized in another jurisdiction.

39. "Organizer" means a person that acts under section 10-32.1-20 to form a limited

liability company.

40. "Originating records" means for an organization which is:

a. A corporation, its articles of incorporation;

b. A limited liability company, its articles of organization;

c. A limited partnership, its certificate of limited partnership;

d. A limited liability partnership, its registration; or

e. A limited liability limited partnership, its certificate of limited liability limited

partnership.

41. "Owners" means the holders of ownership interests in an organization.

42. "Ownership interests" means for a domestic or foreign organization that is:

a. A corporation, its shares;

b. A limited liability company, its transferable interests;

c. A limited partnership, its partnership interests or transferable interests;

d. A general partnership, its partnership interests or transferable interests;

e. A limited liability partnership, its partnership interests or transferable interests;

f. A limited liability limited partnership, its partnership interests or transferable

interests; or

g. Any other organization, its governance or transferable interests.

43. "Principal executive office" means:

a. If the limited liability company has an elected or appointed president, then an

office where the elected or appointed president of the limited liability company

has an office; or

b. If the limited liability company has no elected or appointed president, then the

registered office of the limited liability company.
overnance or transferable interests.

43. "Principal executive office" means:

a. If the limited liability company has an elected or appointed president, then an

office where the elected or appointed president of the limited liability company

has an office; or

b. If the limited liability company has no elected or appointed president, then the

registered office of the limited liability company.

44. "Record" means information that is inscribed on a tangible medium or that is stored in

an electronic or other medium and is retrievable in perceivable form.

45. "Recorded in the real property records" means that a certified copy of a record

meeting the applicable requirements of this chapter, including containing a legal

description of the property affected by the record, as filed with the secretary of state,

has been recorded in the office of the county recorder in the county in which the real

property affected by the record is located.

46. "Registered office" means:

a. The office that a limited liability company is required to designate and maintain

under section 10-32.1-16; or

b. The office that a foreign limited liability company is required to designate and

maintain under section 10-32.1-78.

47. "Remote communication" means communication via electronic communication,

conference telephone, videoconference, the internet, or other means by which persons

not physically present in the same location may communicate with each other on a

substantially simultaneous basis.

48. "Series" means a category of membership interests, within a class of membership

interests, that has some of the same rights and preferences as other membership

interests within the same class, but that differ in one or more rights and preferences

from another category of membership interests within that class.

49. "Sign" or "Signed" means:

a. That the signature of a person, which may be a facsimile affixed, engraved,

printed, placed, stamped with indelible ink, transmitted by facsimile

telecommunication or electronically, or in any other manner reproduced on the

record, is placed on a record with the present intention to authenticate that

record.

b. With respect to a record required by this chapter to be filed with the secretary of

state, that:

(1) The record has been signed by a person authorized to do so by this chapter,

the articles or organization, a member-control agreement, or the bylaws or a

resolution approved by the governors as required by section 10-32.1-39 or

the members as required by section 10-32.1-39; and

(2) The signature and the record are communicated by a method or medium

acceptable by the secretary of state.

c. The initial articles of organization must be signed by at least one person acting as

an organizer.

d. A record filed on behalf of a dissolved limited liability company that has no

members must be signed:

(1) By the person winding up the activities of the company under subsection 3

of section 10-31.2-51; or
ecord are communicated by a method or medium

acceptable by the secretary of state.

c. The initial articles of organization must be signed by at least one person acting as

an organizer.

d. A record filed on behalf of a dissolved limited liability company that has no

members must be signed:

(1) By the person winding up the activities of the company under subsection 3

of section 10-31.2-51; or

(2) By a person appointed under subsection 4 of section 10-32.1-51, to wind up

those activities.

e. A statement of denial by a person under section 10-32.1-25 must be signed by

that person.

f. Any other record filed under this chapter may be signed by an agent pursuant to

chapters 3-01, 3-02, 3-03, and 3-04.

50. "State" means a state of the United States, the District of Columbia, Puerto Rico, the

United States Virgin Islands, or any territory or insular possession subject to the

jurisdiction of the United States.

51. "Termination" means the end of the existence of a limited liability company as a legal

entity and occurs when:

a. Articles of dissolution and termination are filed with the secretary of state under

section 10-32.1-51 together with the fees provided in section 10-32.1-92.

b. Articles of dissolution and termination are considered filed with the secretary of

state under subsection 3 of section 10-32.1-59, together with the fees provided in

section 10-32.1-92.

c. Notice of termination has been issued by the secretary of state as provided in

section 10-32.1-90.

52. "Transfer" includes an assignment, conveyance, deed, bill of sale, lease, mortgage,

security interest, encumbrance, gift, and transfer by operation of law.

53. "Transferable interest" or "membership interest" means the right, as originally

associated with the capacity of a person as a member, to receive distributions from a

limited liability company in accordance with the operating agreement, whether or not

the person remains a member or continues to own any part of the right.

54. "Transferee" means a person to which all or part of a transferable interest has been

transferred, whether or not the transferor is a member.

55. "Vote" includes authorization by written action.

56. "Winding up" means the period triggered by dissolution during which the limited liability

company ceases to carry on business, except to the extent necessary for concluding

affairs, and disposing of assets under section 10-32.1-51.

57. "Written action" means:

a. A written record signed by every person required to take the action described;

and

b. The counterparts of a written record signed by any person taking the action

described.

(1) Each counterpart constitutes the action of the persons signing it; and

(2) All the counterparts, taken together, constitute one written action by all of

the persons signing them.