Senate Bill sb1056c1
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Florida Senate - 2005 CS for SB 1056
By the Committee on Judiciary; and Senators Klein, Lynn and
Campbell
590-1856-05
1 A bill to be entitled
2 An act relating to business entities; creating
3 ss. 607.1112-607.1115, F.S.; providing
4 definitions, requirements, criteria, and
5 procedures for conversion of a domestic
6 corporation into another business entity;
7 providing for certificates of conversion;
8 providing for effect of conversion; providing
9 definitions, requirements, criteria, and
10 procedures for conversion of another business
11 entity into a domestic corporation; amending
12 ss. 607.1302, 608.407, and 608.4225, F.S., to
13 conform; creating ss. 608.4351-608.43595, F.S.;
14 providing for appraisals of interests in
15 certain limited liability companies; providing
16 definitions; providing requirements, criteria,
17 and procedures for appraisals; providing for
18 appraisal rights of company members; providing
19 for assertion of appraisal rights by nominees
20 and beneficial owners; providing for notice of
21 appraisal rights; providing for notice of
22 intent to demand payment; providing for a
23 written appraisal notice and form; providing
24 for perfection of appraisal rights; providing a
25 right to withdraw; providing for a member's
26 acceptance of certain offers; providing
27 procedures for members dissatisfied with
28 company offers; providing for court action to
29 determine fair value of certain demands for
30 payment under certain circumstances; providing
31 for award of court costs and attorney's fees;
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1 providing limitations on payments by limited
2 liability companies under certain
3 circumstances; amending ss. 608.438, 608.4381,
4 608.4382, 608.4383, and 608.439, F.S., to
5 conform; creating ss. 608.4401-608.4404, F.S.;
6 providing definitions, requirements, criteria,
7 and procedures for conversion of a domestic
8 limited liability company into another business
9 entity; requiring a plan of conversion;
10 requiring certain actions on a plan of
11 conversion; providing for certificates of
12 conversion; providing for effects of
13 conversion; amending s. 608.452, F.S., to
14 conform; amending s. 617.0302, F.S., to
15 conform; amending s. 617.0505, F.S.; exempting
16 certain private clubs organized as corporations
17 from a prohibition against distributions made
18 to members in certain circumstances; creating
19 s. 617.1108, F.S.; providing that certain
20 statutory provisions related to mergers of
21 corporations apply to not-for-profit
22 corporations; creating ss. 620.1101-620.2205,
23 F.S.; revising the Florida Revised Uniform
24 Limited Partnership Act; providing a popular
25 name; providing definitions; specifying
26 conditions of knowledge and notice; providing
27 for nature, purpose, and duration of limited
28 partnerships; providing powers of limited
29 partnerships; specifying the governing law
30 relating to limited partnerships; providing
31 supplemental principles of law; providing for
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1 application of certain rates of interest under
2 certain circumstances; providing for names of
3 limited partnerships; specifying certain fees
4 of the Department of State for certain
5 purposes; providing for effect of partnership
6 agreements; providing for nonwaivable
7 provisions; requiring limited partnerships to
8 maintain certain required information;
9 authorizing certain business transactions of
10 partners with a partnership; providing for dual
11 capacity of certain persons; requiring a
12 designated office, registered office, and
13 registered agent of a limited partnership;
14 providing for change of designated office,
15 registered office, or registered agent;
16 providing for resignation of a registered
17 agent; providing for service of process for
18 certain purposes; providing for consent and
19 proxies of partners; providing for formation of
20 limited partnerships; providing for a
21 certificate of limited partnership; providing
22 for amendment or restatement of a certificate
23 of partnership; providing for a certificate of
24 dissolution; providing for a statement of
25 termination; requiring certain records to be
26 signed; providing for signing and filing of
27 certain records pursuant to court order;
28 providing for delivery to and filing of certain
29 records by the Department of State; providing
30 for effective dates and times of certain
31 records and filings; providing for correcting
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1 certain filed records; providing for liability
2 for false information in filed records;
3 providing for a certificate of status;
4 requiring delivery of annual reports to the
5 department; providing conditions for becoming a
6 partner; specifying absence of right or power
7 of a limited partner to bind a limited
8 partnership; providing for approval of certain
9 rights; specifying absence of liability of
10 limited partner for limited partnership
11 obligations; specifying rights of limited
12 partners and former limited partners to certain
13 information; specifying limited duties of
14 limited partners; specifying conditions of
15 liability or lack of liability on the part of
16 certain persons for certain partnership
17 obligations under certain circumstances;
18 specifying conditions for becoming a general
19 partner; specifying a general partner as an
20 agent for the limited partnership; specifying
21 liability of limited partnership for certain
22 actions of general partners; providing for
23 liability of general partners; specifying
24 certain actions by and against limited
25 partnerships and general partners; specifying
26 management rights of general partners;
27 providing certain approval rights of other
28 partners; specifying the right of general
29 partners and former general partners to certain
30 information; providing general standards of
31 conduct for general partners; providing for
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1 form of certain contributions by partners;
2 providing for liability for certain
3 contributions; providing for sharing of
4 profits, losses, and distributions; providing
5 for interim distributions; specifying absence
6 of right to receive a distribution upon
7 dissociation; providing for distributions in
8 kind; providing certain rights to
9 distributions; providing limitations on
10 distributions; providing for liability for
11 certain improper distributions; providing for
12 dissociation as limited partner under certain
13 circumstances; providing for effect of
14 dissociation as limited partner; providing for
15 dissociation as general partner; specifying a
16 person's power to dissociate as general under
17 certain circumstances; specifying conditions
18 and liability of wrongful dissociation;
19 providing for effect of dissociation as general
20 partner; providing to a dissociated general
21 partner a power to bind and liability to a
22 partnership before dissolution of the
23 partnership; providing for certain liability of
24 dissociated general partners; providing for a
25 partner's transferable interest; providing for
26 transfers of partner's transferable interest;
27 providing rights of creditors of partners and
28 transferees; providing for powers of estates of
29 deceased partners; providing for nonjudicial
30 dissolution of limited partnerships; providing
31 for judicial dissolutions; providing for
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1 winding up activities of a limited partnership;
2 providing for a power of a general partner and
3 dissociated general partners to bind a
4 partnership after dissolution; providing for
5 liability of certain persons to the partnership
6 after dissolution; providing for disposition of
7 known claims against dissolved limited
8 partnerships; providing for filing certain
9 unknown claims against dissolved limited
10 partnerships; providing for liability of
11 certain persons for certain barred claims
12 against a limited partnership; providing for
13 administrative dissolution; providing for
14 reinstatement after administrative dissolution;
15 providing for appeals from reinstatement
16 denials; providing for revocation of
17 dissolution; providing for disposition of
18 assets upon winding up of activities of a
19 limited partnership; specifying when
20 contributions are required; specifying the
21 governing law relating to foreign limited
22 partnerships; providing for applications for
23 certificates of authority for foreign limited
24 partnerships; specifying certain activities as
25 not constituting transacting business by a
26 foreign limited partnership; providing for
27 filing a certificate of authority for foreign
28 limited partnerships to transact business;
29 prohibiting a foreign limited partnership from
30 obtaining a certificate of authority for a
31 noncomplying name; providing for revocation of
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1 a certificate of authority for foreign limited
2 partnerships; providing for cancellation of a
3 certificate of authority for a foreign limited
4 partnership; providing for effect of failure to
5 have a certificate; authorizing the Attorney
6 General to bring actions to restrain foreign
7 limited partnerships from transacting business
8 under certain circumstances; providing for
9 reinstatement after administrative revocation;
10 providing for amending a certificate of
11 authority; providing for direct actions by a
12 partner against a limited partnership or
13 another partner under certain circumstances;
14 authorizing partners to maintain derivative
15 actions for certain purposes; specifying proper
16 plaintiff in derivative actions; specifying
17 contents of certain pleadings; specifying
18 distribution of proceeds in derivative actions;
19 providing for court award of expenses and
20 attorney fees under certain circumstances;
21 providing definitions; providing for conversion
22 of an organization to a limited partnership or
23 a limited partnership to another organization;
24 requiring a plan of conversion; specifying
25 certain actions on a plan of conversion;
26 requiring a certificate of conversion;
27 specifying certain required filings with the
28 Department of State for a conversion; providing
29 for effect of conversion; providing for a
30 merger of a limited partnership with certain
31 organizations; requiring a plan of merger;
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1 specifying certain actions on a plan of merger;
2 requiring a certificate of merger; specifying
3 certain required filings for a merger;
4 providing for effect of merger; providing
5 restrictions on approval of conversions and
6 mergers; providing for liability of a general
7 partner after conversion or merger; providing
8 for power of certain persons to bind an
9 organization after conversion or merger;
10 providing for appraisals of interests in
11 certain limited partnerships; providing
12 definitions; providing for appraisal rights of
13 limited partners; providing for assertion of
14 appraisal rights by nominees and beneficial
15 owners; providing for notice of appraisal
16 rights; providing for notice of intent to
17 demand payment; providing for a written
18 appraisal notice and form; providing for
19 perfection of appraisal rights; providing a
20 right to withdraw; providing for a limited
21 partner's acceptance of certain offers;
22 providing procedures for limited partners
23 dissatisfied with limited partnership offers;
24 providing for court action to determine fair
25 value of certain demands for payment under
26 certain circumstances; providing for award of
27 court costs and attorney's fees; providing
28 limitations on payments by limited partnerships
29 under certain circumstances; providing for
30 application of laws to provisions governing
31 conversions and mergers; providing for
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1 uniformity of application and construction;
2 providing severability; providing for
3 application to the Electronic Signatures in
4 Global and National Commerce Act; providing for
5 application to existing business entities;
6 amending ss. 620.8103 and 620.8404, F.S., to
7 conform; amending s. 620.8105, F.S.; providing
8 requirements for partnership registration
9 statements, certificates of merger or
10 conversion, and amended partnership
11 registrations and certificates of merger or
12 conversion; amending s. 620.81055, F.S.;
13 providing a fee for a certificate of
14 conversion; creating ss. 620.8911-620.8923,
15 F.S.; providing definitions; providing for
16 conversion of certain organizations to a
17 partnership or a partnership to another
18 organization; providing requirements, criteria,
19 and procedures for conversions; requiring a
20 plan of conversion; requiring certain actions
21 by a converting partnership on a plan of
22 conversion; specifying certain required filings
23 with the Department of State for a conversion;
24 providing for effect of conversion; providing
25 for a merger of a partnership with certain
26 organizations; providing requirements,
27 criteria, and procedures for mergers; requiring
28 a plan of merger; specifying certain actions by
29 a constituent partnership on a plan of merger;
30 specifying certain requiring filings with the
31 Department of State for a merger; providing for
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1 effect of merger; providing restrictions on
2 approval of conversions and mergers; providing
3 for liability of partners after conversion or
4 merger; providing for power of certain persons
5 to bind an organization after conversion or
6 merger; providing construction relating to
7 application of other laws to conversions and
8 mergers; amending s. 620.9104, F.S.; specifying
9 additional activities not constituting
10 transacting business; amending s. 607.11101,
11 F.S.; conforming cross-references; repealing s.
12 608.4384, F.S., relating to rights of members
13 of limited liability companies dissenting to a
14 merger; repealing ss. 620.101, 620.102,
15 620.103, 620.105, 620.1051, 620.106, 620.107,
16 620.108, 620.109, 620.112, 620.113, 620.114,
17 620.115, 620.116, 620.117, 620.118, 620.119,
18 620.122, 620.123, 620.124, 620.125, 620.126,
19 620.127, 620.128, 620.129, 620.132, 620.133,
20 620.134, 620.135, 620.136, 620.137, 620.138,
21 620.139, 620.142, 620.143, 620.144, 620.145,
22 620.146, 620.147, 620.148, 620.149, 620.152,
23 620.153, 620.154, 620.155, 620.156, 620.157,
24 620.158, 620.159, 620.162, 620.163, 620.164,
25 620.165, 620.166, 620.167, 620.168, 620.169,
26 620.172, 620.173, 620.174, 620.175, 620.176,
27 620.177, 620.178, 620.179, 620.182, 620.1835,
28 620.184, 620.185, 620.186, 620.187, 620.192,
29 620.201, 620.202, 620.203, 620.204, and
30 620.205, F.S., relating to the Florida Revised
31 Uniform Limited Partnership Act (1986);
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1 repealing ss. 620.8901, 620.8902, 620.8903,
2 620.8904, 620.8905, 6210.8906, 620.8907, and
3 620.8908, F.S., relating to conversions of
4 partnerships and limited partnerships under the
5 Revised Uniform Partnership Act of 1995;
6 providing effective dates.
7
8 Be It Enacted by the Legislature of the State of Florida:
9
10 Section 1. Sections 607.1112, 607.1113, 607.1114, and
11 607.1115, Florida Statutes, are created to read:
12 607.1112 Conversion of domestic corporation into
13 another business entity.--
14 (1) As used in this section and ss. 607.1113 and
15 607.1114, the term "another business entity" or "other
16 business entity" means a limited liability company; a common
17 law or business trust or association; a real estate investment
18 trust; a general partnership, including a limited liability
19 partnership; a limited partnership, including a limited
20 liability limited partnership; or any other domestic or
21 foreign entity that is organized under a governing law or
22 other applicable law, provided such term shall not include a
23 corporation and shall not include any entity that has not been
24 organized for profit.
25 (2) Pursuant to a plan of conversion complying with
26 and approved in accordance with this section, a domestic
27 corporation may convert to another business entity organized
28 under the laws of this state or any other state, the United
29 States, a foreign country, or other foreign jurisdiction, if:
30
31
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1 (a) The domestic corporation converting to the other
2 business entity complies with the applicable provisions of
3 this chapter.
4 (b) The conversion is permitted by the laws of the
5 jurisdiction that enacted the applicable laws under which the
6 other business entity is governed and the other business
7 entity complies with such laws in effecting the conversion.
8 (3) The plan of conversion shall set forth:
9 (a) The name of the domestic corporation and the name
10 and jurisdiction of organization of the other business entity
11 to which the domestic corporation is to be converted.
12 (b) The terms and conditions of the conversion,
13 including the manner and basis of converting the shares,
14 obligations, or other securities, or rights to acquire shares,
15 obligations, or other securities, of the domestic corporation
16 into the partnership interests, limited liability company
17 interests, obligations, or other securities of the other
18 business entity, including any rights to acquire any such
19 interests, obligations, or other securities, or, in whole or
20 in part, into cash or other consideration.
21 (c) All statements required to be set forth in the
22 plan of conversion by the laws under which the other business
23 entity is governed.
24 (4) The plan of conversion shall include, or have
25 attached to it, the articles, certificate, registration, or
26 other organizational document by which the other business
27 entity has been or will be organized under its governing laws.
28 (5) The plan of conversion may also set forth any
29 other provisions relating to the conversion.
30 (6) The plan of conversion shall be adopted and
31 approved by the board of directors and shareholders of a
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1 domestic corporation in the same manner as a merger of a
2 domestic corporation under s. 607.1103. Notwithstanding such
3 requirement, if the other business entity is a partnership or
4 limited partnership, no shareholder of the converting domestic
5 corporation shall, as a result of the conversion, become a
6 general partner of the partnership or limited partnership,
7 unless such shareholder specifically consents in writing to
8 becoming a general partner of such partnership or limited
9 partnership and, unless such written consent is obtained from
10 each such shareholder, such conversion shall not become
11 effective under s. 607.1114. Any shareholder providing such
12 consent in writing shall be deemed to have voted in favor of
13 the plan of conversion pursuant to which the shareholder
14 became a general partner.
15 (7) Section 607.1103 and ss. 607.1301-607.1333 shall,
16 insofar as they are applicable, apply to a conversion of a
17 domestic corporation into another business entity in
18 accordance with this chapter.
19 607.1113 Certificate of conversion.--
20 (1) After a plan of conversion is approved by the
21 board of directors and shareholders of a converting domestic
22 corporation, such corporation shall deliver to the Department
23 of State for filing a certificate of conversion which shall be
24 executed by the domestic corporation as required by s.
25 607.0120 and shall set forth:
26 (a) A statement that the domestic corporation has been
27 converted into another business entity in compliance with this
28 chapter and that the conversion complies with the applicable
29 laws governing the other business entity.
30 (b) A statement that the plan of conversion was
31 approved by the converting domestic corporation in accordance
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1 with this chapter and, if applicable, a statement that the
2 written consent of each shareholder of such domestic
3 corporation who, as a result of the conversion, becomes a
4 general partner of the surviving entity has been obtained
5 pursuant to s. 607.1112(6).
6 (c) The effective date of the conversion, which,
7 subject to the limitations in s. 607.0123(2), may be on or
8 after the date of filing the certificate of conversion but
9 shall not be different than the effective date of the
10 conversion under the laws governing the other business entity
11 into which the domestic corporation has been converted.
12 (d) The address, including street and number, if any,
13 of the principal office of the other business entity under the
14 laws of the state, country, or jurisdiction in which such
15 other business entity was organized.
16 (e) If the other business entity is a foreign entity
17 and is not authorized to transact business in this state, a
18 statement that the other business entity appoints the
19 Secretary of State as its agent for service of process in a
20 proceeding to enforce obligations of the converting domestic
21 corporation, including any appraisal rights of shareholders of
22 the converting domestic corporation under ss.
23 607.1301-607.1333 and the street and mailing address of an
24 office which the Department of State may use for purposes of
25 s. 607.1114(4).
26 (f) A statement that the other business entity has
27 agreed to pay any shareholders having appraisal rights the
28 amount to which they are entitled under ss. 607.1301-607.1333.
29 (2) A copy of the certificate of conversion, certified
30 by the Department of State, may be filed in the official
31
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1 records of any county in this state in which the converting
2 domestic corporation holds an interest in real property.
3 607.1114 Effect of conversion of domestic corporation
4 into another business entity.--When a conversion becomes
5 effective:
6 (1) A domestic corporation that has been converted
7 into another business entity pursuant to this chapter is for
8 all purposes the same entity that existed before the
9 conversion.
10 (2) The title to all real property and other property,
11 or any interest therein, owned by the domestic corporation at
12 the time of its conversion into the other business entity
13 remains vested in the converted entity without reversion or
14 impairment by operation of this chapter.
15 (3) The other business entity into which the domestic
16 corporation was converted shall continue to be responsible and
17 liable for all the liabilities and obligations of the
18 converting domestic corporation, including liability to any
19 shareholders having appraisal rights under ss.
20 607.1301-607.1333 with respect to such conversion.
21 (4) Any claim existing or action or proceeding pending
22 by or against any domestic corporation that is converted into
23 another business entity may be continued as if the conversion
24 did not occur. If the converted entity is a foreign entity, it
25 shall be deemed to have consented to the jurisdiction of the
26 courts of this state to enforce any obligation of the
27 converting domestic corporation if, before the conversion, the
28 converting domestic corporation was subject to suit in this
29 state on the obligation. A converted entity that is a foreign
30 entity and not authorized to transact business in this state
31 shall appoint the Department of State as its agent for service
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1 of process for purposes of enforcing an obligation under this
2 subsection, including any appraisal rights of shareholders
3 under ss. 607.1301-607.1333 to the extent applicable to the
4 conversion. Service on the Department of State under this
5 subsection shall be made in the same manner and with the same
6 consequences as under s. 48.181.
7 (5) Neither the rights of creditors nor any liens upon
8 the property of a domestic corporation that is converted into
9 another business entity under this chapter shall be impaired
10 by such conversion.
11 (6) The shares, obligations, and other securities, or
12 rights to acquire shares, obligations, or other securities, of
13 the domestic corporation shall be converted into the
14 partnership interests, limited liability company interests,
15 obligations, or other securities of the other business entity,
16 including any rights to acquire any such interests,
17 obligations, or other securities, or, in whole or in part,
18 into cash, or other consideration, as provided in the plan of
19 conversion. The former shareholders of the converting domestic
20 corporation shall be entitled only to the rights provided in
21 the plan of conversion and to their appraisal rights, if any,
22 under ss. 607.1301-607.1333 or other applicable law.
23 607.1115 Conversion of another business entity to a
24 domestic corporation.--
25 (1) As used in this section, the term "other business
26 entity" means a limited liability company; a common law or
27 business trust or association; a real estate investment trust;
28 a general partnership, including a limited liability
29 partnership; a limited partnership, including a limited
30 liability limited partnership; or any other domestic or
31 foreign entity that is organized under a governing law or
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1 other applicable law, provided such term shall not include a
2 corporation and shall not include any entity that has not been
3 organized for profit.
4 (2) Any other business entity may convert to a
5 domestic corporation if the conversion is permitted by the
6 laws of the jurisdiction that enacted the applicable laws
7 governing the other business entity and the other business
8 entity complies with such laws and the requirements of this
9 section in effecting the conversion. The other business entity
10 shall file with the Department of State in accordance with s.
11 607.0120:
12 (a) A certificate of conversion that has been executed
13 in accordance with s. 607.0120.
14 (b) Articles of incorporation that comply with s.
15 607.0202 and have been executed in accordance with s.
16 607.0120.
17 (3) The certificate of conversion shall state:
18 (a) The date on which, and the jurisdiction in which,
19 the other business entity was first organized and, if the
20 entity has changed, its jurisdiction immediately prior to its
21 conversion.
22 (b) The name of the other business entity immediately
23 prior to the filing of the certificate of conversion to a
24 corporation.
25 (c) The name of the corporation as set forth in its
26 articles of incorporation filed in accordance with subsection
27 (2).
28 (d) The delayed effective date or time, which, subject
29 to the limitations in s. 607.0123(2), shall be a date or time
30 certain, of the conversion if the conversion is not to be
31 effective upon the filing of the certificate of conversion and
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1 the articles of incorporation, provided such delayed effective
2 date may not be different than the effective date and time of
3 the articles of incorporation.
4 (4) Upon the filing with the Department of State of
5 the certificate of conversion and the articles of
6 incorporation, or upon the delayed effective date or time of
7 the certificate of conversion and the articles of
8 incorporation, the other business entity shall be converted
9 into a domestic corporation and the corporation shall
10 thereafter be subject to all of the provisions of this
11 chapter, except notwithstanding s. 607.0123, the existence of
12 the corporation shall be deemed to have commenced when the
13 other business entity commenced its existence in the
14 jurisdiction in which the other business entity was first
15 organized.
16 (5) The conversion of any other business entity into a
17 domestic corporation shall not affect any obligations or
18 liabilities of the other business entity incurred prior to its
19 conversion to a domestic corporation or the personal liability
20 of any person incurred prior to such conversion.
21 (6) When any conversion becomes effective under this
22 section, for all purposes of the laws of this state, all of
23 the rights, privileges, and powers of the other business
24 entity that has been converted, and all property, real,
25 personal, and mixed, and all debts due to such other business
26 entity, as well as all other things and causes of action
27 belonging to such other business entity, shall be vested in
28 the domestic corporation into which it was converted and shall
29 thereafter be the property of the domestic corporation as they
30 were of the other business entity. Without limiting this
31 provision, title to any real property, or any interest
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1 therein, vested by deed or otherwise in such other business
2 entity at the time of conversion shall remain vested in the
3 converted entity without reversion or impairment by operation
4 of this chapter. All rights of creditors and all liens upon
5 any property of such other business entity shall be preserved
6 unimpaired, and all debts, liabilities, and duties of such
7 other business entity shall thenceforth attach to the domestic
8 corporation into which it was converted and may be enforced
9 against the domestic corporation to the same extent as if said
10 debts, liabilities, and duties had been incurred or contracted
11 by the domestic corporation.
12 (7) Unless otherwise agreed, or as required under
13 applicable laws of states other than this state, the
14 converting entity shall not be required to wind up its affairs
15 or pay its liabilities and distribute its assets and the
16 conversion shall not constitute a dissolution of such entity
17 and shall constitute a continuation of the existence of the
18 converting entity in the form of a domestic corporation.
19 (8) Prior to filing a certificate of conversion with
20 the Department of State, the conversion shall be approved in
21 the manner provided for by the document, instrument,
22 agreement, or other writing, as the case may be, governing the
23 internal affairs of the other business entity or by other
24 applicable law, as appropriate, and the articles of
25 incorporation and bylaws of the corporation shall be approved
26 by the same authorization required to approve the conversion.
27 As part of such an approval, a plan of conversion or other
28 record may describe the manner and basis of converting the
29 partnership interests, limited liability company interests,
30 obligations, or securities of, or other interests or rights
31 in, the other business entity, including any rights to acquire
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1 any such interests, obligations, securities, or other rights,
2 into shares of the domestic corporation, or rights to acquire
3 shares, obligations, securities, or other rights, or, in whole
4 or in part, into cash or other consideration. Such a plan or
5 other record may also contain other provisions relating to the
6 conversion, including without limitation the right of the
7 other business entity to abandon a proposed conversion, or an
8 effective date for the conversion that is not inconsistent
9 with paragraph (2)(d).
10 Section 2. Paragraph (a) of subsection (1) of section
11 607.1302, Florida Statutes, is amended to read:
12 607.1302 Right of shareholders to appraisal.--
13 (1) A shareholder of a domestic corporation is
14 entitled to appraisal rights, and to obtain payment of the
15 fair value of that shareholder's shares, in the event of any
16 of the following corporate actions:
17 (a) Consummation of a conversion of such corporation
18 pursuant to s. 607.1112 if shareholder approval is required
19 for the conversion and the shareholder is entitled to vote on
20 the conversion under ss. 607.1103 and 607.1112(6), or the
21 consummation of a merger to which such the corporation is a
22 party if shareholder approval is required for the merger under
23 by s. 607.1103 and the shareholder is entitled to vote on the
24 merger or if such the corporation is a subsidiary and the
25 merger is governed by s. 607.1104;
26 Section 3. Subsections (1) and (5) of section 608.407,
27 Florida Statutes, are amended, and subsection (6) is added to
28 that section, to read:
29 608.407 Articles of organization.--
30 (1) In order to form a limited liability company,
31 articles of organization of a limited liability company shall
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1 be executed and filed with the Department of State by one or
2 more members or authorized representatives of the limited
3 liability company. The articles of organization shall set
4 forth:
5 (a) The name of the limited liability company.
6 (b) The mailing address and the street address of the
7 principal office of the limited liability company.
8 (c) The name and street address of its initial
9 registered agent for service of process in the state. The
10 articles of organization shall include or be accompanied by
11 the written statement required by s. 608.415.
12 (d) Any other matters that the members elect to
13 include in the articles of organization.
14 (5) The fact that articles of organization are on file
15 with the Department of State is notice that the entity formed
16 in connection with the filing of the articles of organization
17 is a limited liability company formed under the laws of this
18 state and is notice of all other facts set forth in the
19 articles of organization. If the articles of organization
20 contain any information described in subsections (4) and (6),
21 the articles of organization shall be deemed notice of that
22 information as well, provided, if such information has been
23 added or changed by an amendment or restatement of the
24 articles of organization, the articles of organization shall
25 not be deemed notice of such fact until 90 days after the
26 effective date of such amendment or restatement.
27 (6) The articles of organization may also, but need
28 not, identify one or more persons authorized to serve as a
29 manager or managing member and may describe any limitations
30 upon the authority of a manager or managing member, provided a
31 provision in the articles of organization limiting the
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1 authority of a manager or managing member to transfer real
2 property held in the name of the limited liability company is
3 not notice of the limitation, to a person who is not a member
4 or manager of the limited liability company, unless the
5 limitation appears in an affidavit, certificate, or other
6 instrument that bears the name of the limited liability
7 company and is recorded in the office for recording transfers
8 of such real property.
9 Section 4. Paragraph (a) of subsection (1) of section
10 608.4225, Florida Statutes, is amended to read:
11 608.4225 General standards for managers and managing
12 members.--
13 (1) Subject to ss. 608.4226 and 608.423, each manager
14 and managing member shall owe a duty of loyalty and a duty of
15 care to the limited liability company and all of the members
16 of the limited liability company.
17 (a) Subject to s. 608.4226, the duty of loyalty is
18 limited to includes, without limitation:
19 1. Accounting to the limited liability company and
20 holding as trustee for the limited liability company any
21 property, profit, or benefit derived by such manager or
22 managing member in the conduct or winding up of the limited
23 liability company business or derived from a use by such
24 manager or managing member of limited liability company
25 property, including the appropriation of a limited liability
26 company opportunity.
27 2. Refraining from dealing with the limited liability
28 company in the conduct or winding up of the limited liability
29 company business as or on behalf of a party having an interest
30 adverse to the limited liability company.
31
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1 3. Refraining from competing with the limited
2 liability company in the conduct of the limited liability
3 company business before the dissolution of the limited
4 liability company.
5 Section 5. Sections 608.4351, 608.4352, 608.4353,
6 608.4354, 608.4355, 608.4356, 608.4357, 608.43575, 608.4358,
7 608.43585, 608.4359, and 608.43595, Florida Statutes, are
8 created to read:
9 608.4351 Appraisal rights; definitions.--The following
10 definitions apply to this section and ss. 608.4352-608.43595:
11 (1) "Affiliate" means a person that directly or
12 indirectly, through one or more intermediaries, controls, is
13 controlled by, or is under common control with another person.
14 For purposes of s. 608.4352(2)(d), a person is deemed to be an
15 affiliate of its senior executives.
16 (2) "Appraisal event" means an event described in s.
17 608.4352(1).
18 (3) "Beneficial member" means a person who is the
19 beneficial owner of a membership interest held in a voting
20 trust or by a nominee on the beneficial owner's behalf.
21 (4) "Converted entity" means the other business entity
22 into which a domestic limited liability company converts
23 pursuant to ss. 608.4401-608.4404.
24 (5) "Fair value" means the value of the member's
25 membership interests determined:
26 (a) Immediately before the effectuation of the
27 appraisal event to which the member objects.
28 (b) Using customary and current valuation concepts and
29 techniques generally employed for similar businesses in the
30 context of the transaction requiring appraisal, excluding any
31 appreciation or depreciation in anticipation of the
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1 transaction to which the member objects unless exclusion would
2 be inequitable to the limited liability company and its
3 remaining members.
4 (6) "Interest" means interest from the effective date
5 of the appraisal event to which the member objects until the
6 date of payment, at the rate of interest determined for
7 judgments in accordance with s. 55.03, determined as of the
8 effective date of the appraisal event.
9 (7) "Limited liability company" means the domestic
10 limited liability company that issued the membership interest
11 held by a member demanding appraisal, and for matters covered
12 in ss. 608.4352-608.43595, includes the converted entity in a
13 conversion or the surviving entity in a merger.
14 (8) "Record member" means each person who is
15 identified as a member in the current list of members
16 maintained in accordance with s. 608.4101 by the limited
17 liability company, or to the extent the limited liability
18 company has failed to maintain a current list, each person
19 that is the rightful owner of a membership interest in the
20 limited liability company. An assignee of a membership
21 interest is not a record member.
22 (9) "Senior executive" means a manager or managing
23 member or the chief executive officer, chief operating
24 officer, chief financial officer, or anyone in charge of a
25 principal business unit or function of a limited liability
26 company or of a manager or managing member of the limited
27 liability company.
28 (10) "Member" means a record member or a beneficial
29 member.
30 (11) "Membership interest" has the same meaning set
31 forth in s. 608.402, except, if the appraisal rights of a
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1 member under s. 608.4352 pertain to only a certain class or
2 series of a membership interest, the term "membership
3 interest" means only the membership interest pertaining to
4 such class or series.
5 (12) "Surviving entity " means the other business
6 entity into which a domestic limited liability company is
7 merged pursuant to ss. 608.438-608.4383.
8 608.4352 Right of members to appraisal.--
9 (1) A member of a domestic limited liability company
10 is entitled to appraisal rights, and to obtain payment of the
11 fair value of that member's membership interest, in the
12 following events:
13 (a) Consummation of a merger of such limited liability
14 company pursuant to this act and the member possessed the
15 right to vote upon the merger; or
16 (b) Consummation of a conversion of such limited
17 liability company pursuant to this act and the member
18 possessed the right to vote upon the conversion.
19 (2) Notwithstanding subsection (1), the availability
20 of appraisal rights shall be limited in accordance with the
21 following provisions:
22 (a) Appraisal rights shall not be available for
23 membership interests which are:
24 1. Listed on the New York Stock Exchange or the
25 American Stock Exchange or designated as a national market
26 system security on an interdealer quotation system by the
27 National Association of Securities Dealers, Inc.; or
28 2. Not listed or designated as provided in
29 subparagraph 1. but are issued by a limited liability company
30 that has at least 500 members and all membership interests of
31 the limited liability company, including membership interests
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1 that are limited to a right to receive distributions, have a
2 market value of at least $10 million, exclusive of the value
3 of any such interests held by its managing members, managers,
4 and other senior executives owning more than 10 percent of the
5 rights to receive distributions from the limited liability
6 company.
7 (b) The applicability of paragraph (a) shall be
8 determined as of the date fixed to determine the members
9 entitled to receive notice of, and to vote upon, the appraisal
10 event.
11 (c) Paragraph (a) shall not apply, and appraisal
12 rights shall be available pursuant to subsection (1), for any
13 members who are required by the appraisal event to accept for
14 their membership interests anything other than cash or a
15 proprietary interest of an entity that satisfies the standards
16 set forth in paragraph (a) at the time the appraisal event
17 becomes effective.
18 (d) Paragraph (a) shall not apply, and appraisal
19 rights shall be available pursuant to subsection (1), for the
20 holders of a membership interest if:
21 1. Any of the members' interests in the limited
22 liability company or the limited liability company's assets
23 are being acquired or converted, whether by merger,
24 conversion, or otherwise, pursuant to the appraisal event by a
25 person, or by an affiliate of a person, who:
26 a. Is, or at any time in the 1-year period immediately
27 preceding approval of the appraisal event was, the beneficial
28 owner of 20 percent or more of those interests in the limited
29 liability company entitled to vote on the appraisal event,
30 excluding any such interests acquired pursuant to an offer for
31 all interests having such voting rights if such offer was made
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1 within 1 year prior to the appraisal event for consideration
2 of the same kind and of a value equal to or less than that
3 paid in connection with the appraisal event; or
4 b. Directly or indirectly has, or at any time in the
5 1-year period immediately preceding approval of the appraisal
6 event had, the power, contractually or otherwise, to cause the
7 appointment or election of any senior executives; or
8 2. Any of the members' interests in the limited
9 liability company or the limited liability company's assets
10 are being acquired or converted, whether by merger,
11 conversion, or otherwise, pursuant to the appraisal event by a
12 person, or by an affiliate of a person, who is, or at any time
13 in the 1-year period immediately preceding approval of the
14 appraisal event was, a senior executive of the limited
15 liability company or a senior executive of any affiliate of
16 the limited liability company, and that senior executive will
17 receive, as a result of the limited liability company action,
18 a financial benefit not generally available to members, other
19 than:
20 a. Employment, consulting, retirement, or similar
21 benefits established separately and not as part of or in
22 contemplation of the appraisal event;
23 b. Employment, consulting, retirement, or similar
24 benefits established in contemplation of, or as part of, the
25 appraisal event that are not more favorable than those
26 existing before the appraisal event or, if more favorable,
27 that have been approved by the limited liability company; or
28 c. In the case of a managing member or manager of the
29 limited liability company who will, during or as the result of
30 the appraisal event, become a managing member, manager,
31 general partner, or director of the surviving or converted
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1 entity or one of its affiliates, those rights and benefits as
2 a managing member, manager, general partner, or director that
3 are provided on the same basis as those afforded by the
4 surviving or converted entity generally to other managing
5 members, managers, general partners, or directors of the
6 surviving or converted entity or its affiliate.
7 (e) For the purposes of subparagraph (d)1.a. only, the
8 term "beneficial owner" means any person who, directly or
9 indirectly, through any contract, arrangement, or
10 understanding, other than a revocable proxy, has or shares the
11 right to vote, or to direct the voting of, an interest in a
12 limited liability company with respect to approval of the
13 appraisal event, provided a member of a national securities
14 exchange shall not be deemed to be a beneficial owner of an
15 interest in a limited liability company held directly or
16 indirectly by it on behalf of another person solely because
17 such member is the recordholder of interests in the limited
18 liability company if the member is precluded by the rules of
19 such exchange from voting without instruction on contested
20 matters or matters that may affect substantially the rights or
21 privileges of the holders of the interests in the limited
22 liability company to be voted. When two or more persons agree
23 to act together for the purpose of voting such interests, each
24 member of the group formed thereby shall be deemed to have
25 acquired beneficial ownership, as of the date of such
26 agreement, of all voting interests in the limited liability
27 company beneficially owned by any member of the group.
28 (3) A member entitled to appraisal rights under this
29 section and ss. 608.4353-608.43595 may not challenge a
30 completed appraisal event unless the appraisal event:
31
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1 (a) Was not effectuated in accordance with the
2 applicable provisions of this section and ss.
3 608.4353-608.43595, or the limited liability company's
4 articles of organization or operating agreement; or
5 (b) Was procured as a result of fraud or material
6 misrepresentation.
7 (4) A limited liability company may modify, restrict,
8 or eliminate the appraisal rights provided in this section and
9 ss. 608.4353-608.43595 in its operating agreement.
10 608.4353 Assertion of rights by nominees and
11 beneficial owners.--
12 (1) A record member may assert appraisal rights as to
13 fewer than all the membership interests registered in the
14 record member's name which are owned by a beneficial member
15 only if the record member objects with respect to all
16 membership interests of the class or series owned by that
17 beneficial member and notifies the limited liability company
18 in writing of the name and address of each beneficial member
19 on whose behalf appraisal rights are being asserted. The
20 rights of a record member who asserts appraisal rights for
21 only part of the membership interests of the class or series
22 held of record in the record member's name under this
23 subsection shall be determined as if the membership interests
24 to which the record member objects and the record member's
25 other membership interests were registered in the names of
26 different record members.
27 (2) A beneficial member may assert appraisal rights as
28 to a membership interest held on behalf of the member only if
29 such beneficial member:
30 (a) Submits to the limited liability company the
31 record member's written consent to the assertion of such
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1 rights no later than the date referred to in s.
2 608.4356(2)(b)2.
3 (b) Does so with respect to all membership interests
4 of the class or series that are beneficially owned by the
5 beneficial member.
6 608.4354 Notice of appraisal rights.--
7 (1) If a proposed appraisal event is to be submitted
8 to a vote at a members' meeting, the meeting notice must state
9 that the limited liability company has concluded that members
10 are, are not, or may be entitled to assert appraisal rights
11 under this act.
12 (2) If the limited liability company concludes that
13 appraisal rights are or may be available, a copy of ss.
14 608.4351-608.43595 must accompany the meeting notice sent to
15 those record members entitled to exercise appraisal rights.
16 (3) If the appraisal event is to be approved other
17 than by a members' meeting, the notice referred to in
18 subsection (1) must be sent to all members at the time that
19 consents are first solicited, whether or not consents are
20 solicited from all members, and include the materials
21 described in s. 608.4356.
22 608.4355 Notice of intent to demand payment.--
23 (1) If a proposed appraisal event is submitted to a
24 vote at a members' meeting, or is submitted to a member
25 pursuant to a consent vote, a member who is entitled to and
26 who wishes to assert appraisal rights with respect to any
27 class or series of membership interests:
28 (a) Must deliver to a manager or managing member of
29 the limited liability company before the vote is taken, or
30 within 20 days after receiving the notice pursuant to s.
31 608.4353(3) if action is to be taken without a member meeting,
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1 written notice of such person's intent to demand payment if
2 the proposed appraisal event is effectuated.
3 (b) Must not vote, or cause or permit to be voted, any
4 membership interests of such class or series in favor of the
5 appraisal event.
6 (2) A person who may otherwise be entitled to
7 appraisal rights, but who does not satisfy the requirements of
8 subsection (1), is not entitled to payment under ss.
9 608.4351-608.43595.
10 608.4356 Appraisal notice and form.--
11 (1) If the proposed appraisal event becomes effective,
12 the limited liability company must deliver a written appraisal
13 notice and form required by paragraph (2)(a) to all members
14 who satisfied the requirements of s. 608.4355.
15 (2) The appraisal notice must be sent no earlier than
16 the date the appraisal event became effective and no later
17 than 10 days after such date and must:
18 (a) Supply a form that specifies the date that the
19 appraisal event became effective and that provides for the
20 member to state:
21 1. The member's name and address.
22 2. The number, classes, and series of membership
23 interests as to which the member asserts appraisal rights.
24 3. That the member did not vote for the transaction.
25 4. Whether the member accepts the limited liability
26 company's offer as stated in subparagraph (b)4.
27 5. If the offer is not accepted, the member's
28 estimated fair value of the membership interests and a demand
29 for payment of the member's estimated value plus interest.
30 (b) State:
31
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1 1. Where the form described in paragraph (a) must be
2 sent.
3 2. A date by which the limited liability company must
4 receive the form, which date may not be fewer than 40 nor more
5 than 60 days after the date the appraisal notice and form
6 described in this subsection are sent, and that the member
7 shall have waived the right to demand appraisal with respect
8 to the membership interests unless the form is received by the
9 limited liability company by such specified date.
10 3. In the case of membership interests represented by
11 a certificate, the location at which certificates for such
12 certificated membership interests must be deposited, if that
13 action is required by the limited liability company, and the
14 date by which those certificates must be deposited, which date
15 may not be earlier than the date for receiving the required
16 form under subparagraph 2.
17 4. The limited liability company's estimate of the
18 fair value of the membership interests.
19 5. An offer to each member who is entitled to
20 appraisal rights to pay the limited liability company's
21 estimate of fair value set forth in subparagraph 4.
22 6. That, if requested in writing, the limited
23 liability company will provide to the member so requesting,
24 within 10 days after the date specified in subparagraph 2.,
25 the number of members who return the forms by the specified
26 date and the total number of membership interests owned by
27 them.
28 7. The date by which the notice to withdraw under s.
29 608.4357 must be received, which date must be within 20 days
30 after the date specified in subparagraph 2.
31 (c) Be accompanied by:
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1 1. Financial statements of the limited liability
2 company that issued the membership interests to be appraised,
3 consisting of a balance sheet as of the end of the fiscal year
4 ending not more than 15 months prior to the date of the
5 limited liability company's appraisal notice, an income
6 statement for that year, a cash flow statement for that year,
7 and the latest available interim financial statements, if any.
8 2. A copy of ss. 608.4351-608.43595.
9 608.4357 Perfection of rights; right to withdraw.--
10 (1) A member who wishes to exercise appraisal rights
11 must execute and return the form received pursuant to s.
12 608.4356(1) and, in the case of certificated membership
13 interests and if the limited liability company so requires,
14 deposit the member's certificates in accordance with the terms
15 of the notice by the date referred to in the notice pursuant
16 to s. 608.4356(2)(b)2. Once a member deposits that member's
17 certificates or, in the case of uncertificated membership
18 interests, returns the executed form described in s.
19 608.4356(2), the member loses all rights as a member, unless
20 the member withdraws pursuant to subsection (3). Upon
21 receiving a demand for payment from a member who holds an
22 uncertificated membership interest, the limited liability
23 company shall make an appropriate notation of the demand for
24 payment in its records.
25 (2) The limited liability company may restrict the
26 transfer of such membership interests from the date the member
27 delivers the items required by subsection (1).
28 (3) A member who has complied with subsection (1) may
29 nevertheless decline to exercise appraisal rights and withdraw
30 from the appraisal process by so notifying the limited
31 liability company in writing by the date set forth in the
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1 appraisal notice pursuant to s. 608.4356(2)(b)7. A member who
2 fails to so withdraw from the appraisal process may not
3 thereafter withdraw without the limited liability company's
4 written consent.
5 (4) A member who does not execute and return the form
6 and, in the case of certificated membership interests, deposit
7 that member's certificates, if so required by the limited
8 liability company, each by the date set forth in the notice
9 described in subsection (2), shall not be entitled to payment
10 under this chapter.
11 (5) If the member's right to receive fair value is
12 terminated other than by the purchase of the membership
13 interest by the limited liability company, all rights of the
14 member, with respect to such membership interest, shall be
15 reinstated effective as of the date the member delivered the
16 items required by subsection (1), including the right to
17 receive any intervening payment or other distribution with
18 respect to such membership interest, or, if any such rights
19 have expired or any such distribution other than a cash
20 payment has been completed, in lieu thereof at the election of
21 the limited liability company, the fair value thereof in cash
22 as determined by the limited liability company as of the time
23 of such expiration or completion, but without prejudice
24 otherwise to any action or proceeding of the limited liability
25 company that may have been taken by the limited liability
26 company on or after the date the member delivered the items
27 required by subsection (1).
28 608.43575 Member's acceptance of limited liability
29 company's offer.--
30 (1) If the member states on the form provided in s.
31 608.4356(1) that the member accepts the offer of the limited
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1 liability company to pay the limited liability company's
2 estimated fair value for the membership interest, the limited
3 liability company shall make such payment to the member within
4 90 days after the limited liability company's receipt of the
5 items required by s. 608.4357(1).
6 (2) Upon payment of the agreed value, the member shall
7 cease to have any interest in the membership interest.
8 608.4358 Procedure if member is dissatisfied with
9 offer.--
10 (1) A member who is dissatisfied with the limited
11 liability company's offer as set forth pursuant to s.
12 608.4356(2)(b)5. must notify the limited liability company on
13 the form provided pursuant to s. 608.4356(1) of the member's
14 estimate of the fair value of the membership interest and
15 demand payment of that estimate plus interest.
16 (2) A member who fails to notify the limited liability
17 company in writing of the member's demand to be paid the
18 member's estimate of the fair value plus interest under
19 subsection (1) within the timeframe set forth in s.
20 608.4356(2)(b)2. waives the right to demand payment under this
21 section and shall be entitled only to the payment offered by
22 the limited liability company pursuant to s. 608.4356(2)(b)5.
23 608.43585 Court action.--
24 (1) If a member makes demand for payment under s.
25 608.4358 which remains unsettled, the limited liability
26 company shall commence a proceeding within 60 days after
27 receiving the payment demand and petition the court to
28 determine the fair value of the membership interest and
29 accrued interest. If the limited liability company does not
30 commence the proceeding within the 60-day period, any member
31
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1 who has made a demand pursuant to s. 608.4358 may commence the
2 proceeding in the name of the limited liability company.
3 (2) The proceeding shall be commenced in the
4 appropriate court of the county in which the limited liability
5 company's principal office in this state is located or, if
6 none, the county in which its registered agent is located. If
7 the limited liability company is a foreign limited liability
8 company without a registered agent in this state, the
9 proceeding shall be commenced in the county in this state in
10 which the principal office or registered agent of the domestic
11 limited liability company was located at the time of the
12 appraisal event.
13 (3) All members, whether or not residents of this
14 state, whose demands remain unsettled shall be made parties to
15 the proceeding as in an action against their membership
16 interests. The limited liability company shall serve a copy of
17 the initial pleading in such proceeding upon each member party
18 who is a resident of this state in the manner provided by law
19 for the service of a summons and complaint and upon each
20 nonresident member party by registered or certified mail or by
21 publication as provided by law.
22 (4) The jurisdiction of the court in which the
23 proceeding is commenced under subsection (2) is plenary and
24 exclusive. If it so elects, the court may appoint one or more
25 persons as appraisers to receive evidence and recommend a
26 decision on the question of fair value. The appraisers shall
27 have the powers described in the order appointing them or in
28 any amendment to the order. The members demanding appraisal
29 rights are entitled to the same discovery rights as parties in
30 other civil proceedings. There shall be no right to a jury
31 trial.
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1 (5) Each member made a party to the proceeding is
2 entitled to judgment for the amount of the fair value of such
3 member's membership interests, plus interest, as found by the
4 court.
5 (6) The limited liability company shall pay each such
6 member the amount found to be due within 10 days after final
7 determination of the proceedings. Upon payment of the
8 judgment, the member shall cease to have any interest in the
9 membership interests.
10 608.4359 Court costs and counsel fees.--
11 (1) The court in an appraisal proceeding shall
12 determine all costs of the proceeding, including the
13 reasonable compensation and expenses of appraisers appointed
14 by the court. The court shall assess the costs against the
15 limited liability company, except that the court may assess
16 costs against all or some of the members demanding appraisal,
17 in amounts the court finds equitable, to the extent the court
18 finds such members acted arbitrarily, vexatiously, or not in
19 good faith with respect to the rights provided by this
20 chapter.
21 (2) The court in an appraisal proceeding may also
22 assess the fees and expenses of counsel and experts for the
23 respective parties, in amounts the court finds equitable:
24 (a) Against the limited liability company and in favor
25 of any or all members demanding appraisal if the court finds
26 the limited liability company did not substantially comply
27 with ss. 608.4353 and 608.4356; or
28 (b) Against either the limited liability company or a
29 member demanding appraisal, in favor of any other party, if
30 the court finds that the party against whom the fees and
31 expenses are assessed acted arbitrarily, vexatiously, or not
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1 in good faith with respect to the rights provided by this
2 chapter.
3 (3) If the court in an appraisal proceeding finds that
4 the services of counsel for any member were of substantial
5 benefit to other members similarly situated, and that the fees
6 for those services should not be assessed against the limited
7 liability company, the court may award to such counsel
8 reasonable fees to be paid out of the amounts awarded the
9 members who were benefited.
10 (4) To the extent the limited liability company fails
11 to make a required payment pursuant to s. 608.43575, the
12 member may sue directly for the amount owed and, to the extent
13 successful, shall be entitled to recover from the limited
14 liability company all costs and expenses of the suit,
15 including attorney's fees.
16 608.43595 Limitation on limited liability company
17 payment.--
18 (1) No payment shall be made to a member seeking
19 appraisal rights if, at the time of payment, the limited
20 liability company is unable to meet the distribution standards
21 of s. 608.428. In such event, the member shall, at the
22 member's option:
23 (a) Withdraw the notice of intent to assert appraisal
24 rights, which shall in such event be deemed withdrawn with the
25 consent of the limited liability company; or
26 (b) Retain the status as a claimant against the
27 limited liability company and, if the limited liability
28 company is liquidated, be subordinated to the rights of
29 creditors of the limited liability company but have rights
30 superior to the members not asserting appraisal rights and if
31 it is not liquidated, retain the right to be paid for the
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1 membership interest, which right the limited liability company
2 shall be obliged to satisfy when the restrictions of this
3 section do not apply.
4 (2) The member shall exercise the option under
5 paragraph (1)(a) or paragraph (1)(b) by written notice filed
6 with the limited liability company within 30 days after the
7 limited liability company has given written notice that the
8 payment for the membership interests cannot be made because of
9 the restrictions of this section. If the member fails to
10 exercise the option, the member shall be deemed to have
11 withdrawn the notice of intent to assert appraisal rights.
12 Section 6. Subsection (1), paragraphs (a), (d), (e),
13 and (f) of subsection (3), and paragraph (d) of subsection (4)
14 of section 608.438, Florida Statutes, are amended to read:
15 608.438 Merger of limited liability company.--
16 (1) As used in this section and ss. 608.4381-608.4383
17 608.4384, the term "other business entity" or "another
18 business entity" means includes a corporation, a limited
19 liability company, a common law or business trust or
20 association, a real estate investment trust, a common law
21 trust, an unincorporated business, a general partnership,
22 including a limited liability partnership, a limited
23 partnership, including a limited liability limited
24 partnership, a limited liability company other than a limited
25 liability company organized under the laws of this chapter, or
26 any other domestic or foreign entity that is organized under a
27 governing law or other formed pursuant to the requirements of
28 applicable law.
29 (3) The plan of merger shall set forth:
30 (a) The name of each limited liability company and the
31 name and jurisdiction of formation, organization, or
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1 incorporation of each other business entity planning to merge,
2 and the name of the surviving or resulting limited liability
3 company or other business entity into which each other limited
4 liability company or other business entity plans to merge,
5 which is, in this section and in ss. 608.4381-608.4383
6 608.4384, designated as the surviving entity.
7 (d) If a partnership is to be the surviving entity,
8 the names and business addresses of the general partners of
9 the surviving entity.
10 (e) If a limited liability company is to be the
11 surviving entity, and management thereof is vested in one or
12 more managers or managing members, the names and business
13 addresses of such managers or managing members.
14 (d)(f) All statements required to be set forth in the
15 plan of merger by the laws under which each other business
16 entity that is a party to the merger is formed, organized, or
17 incorporated.
18 (4) The plan of merger may set forth:
19 (d) A statement of, or a statement of the method of
20 determining, the "fair value," as defined in s. 608.4351
21 608.4384(1)(b), of an interest in any domestic limited
22 liability company that is a party to the merger.
23 Section 7. Subsection (2), paragraphs (c), (d), (e),
24 and (f) of subsection (4), and subsection (6) of section
25 608.4381, Florida Statutes, are amended to read:
26 608.4381 Action on plan of merger.--
27 (2) In addition to the approval required by subsection
28 (1), if the surviving entity is a partnership or limited
29 partnership, no member of a limited liability company that is
30 a party to the merger shall, as a result of the merger, become
31 a general partner of such partnership or limited partnership
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1 the surviving entity unless such member specifically consents
2 in writing to becoming a general partner of such partnership
3 or limited partnership, the surviving entity and unless such
4 written consent is obtained from each such member who, as a
5 result of the merger, would become a general partner of the
6 surviving entity, such merger shall not become effective under
7 s. 608.4383. Any member providing such consent in writing
8 shall be deemed to have voted in favor of the plan of merger
9 for purposes of ss. 608.4351-608.43595 s. 608.4384.
10 (4) The notification required by subsection (3) shall
11 be in writing and shall include:
12 (c) The statement or statements required by ss.
13 608.4351-608.43595 regarding availability of appraisal rights,
14 if any, to members of the limited liability company A clear
15 and concise statement that, if the plan of merger is effected,
16 members dissenting therefrom may be entitled, if they comply
17 with the provisions of s. 608.4384 regarding the rights of
18 dissenting members, to be paid the fair value of their
19 interests, which shall be accompanied by a copy of s.
20 608.4384.
21 (d) A statement of, or a statement of the method of
22 determining, the "fair value," as defined in s.
23 608.4384(1)(b), of an interest in the limited liability
24 company, in the case of a limited liability company in which
25 management is not reserved to its members, as determined by
26 the managers of such limited liability company, which
27 statement may consist of a reference to the applicable
28 provisions of such limited liability company's articles of
29 organization or operating agreement that determine the fair
30 value of an interest in the limited liability company for such
31 purposes, and which shall constitute an offer by the limited
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1 liability company to purchase at such fair value any interests
2 of a "dissenter," as defined in s. 608.4384(1)(a), unless and
3 until such dissenter's right to receive the fair value of the
4 dissenter's interests in the limited liability company is
5 terminated pursuant to s. 608.4384(8).
6 (d)(e) The date on which such notification was mailed
7 or delivered to the members.
8 (e)(f) Any other information concerning the plan of
9 merger.
10 (6) A plan of merger may provide for the manner, if
11 any, in which the plan of merger may be amended at any time
12 before the effective date of the merger, except after the
13 approval of the plan of merger by the members of a limited
14 liability company that is a party to the merger, the plan of
15 merger may not be amended to:
16 (a) Change the amount or kind of interests,
17 partnership interests, shares, obligations, other securities,
18 cash, rights, or any other property to be received by the
19 members of such limited liability company in exchange for or
20 on conversion of their interests;
21 (b) If the surviving entity is a limited liability
22 company, change any term of the articles of organization or
23 the operating agreement of the surviving entity, except for
24 changes that otherwise could be adopted without the approval
25 of the members of the surviving entity;
26 (c) If the surviving entity is not a limited liability
27 company, change any term of the articles of incorporation or
28 comparable governing document of the surviving entity, except
29 for changes that otherwise could be adopted by the board of
30 directors or comparable representatives of the surviving
31 entity; or
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1 (d) Change any of the terms and conditions of the plan
2 of merger if any such change, alone or in the aggregate, would
3 materially and adversely affect the members, or any class or
4 group of members, of such limited liability company.
5
6 If an amendment to a plan of merger is made in accordance the
7 plan and articles of merger have been filed with the
8 Department of State, an amended certificate articles of merger
9 executed by each limited liability company and other business
10 entity that is a party to the merger shall be filed with the
11 Department of State prior to the effective date of the merger.
12 Section 8. Section 608.4382, Florida Statutes, is
13 amended to read:
14 608.4382 Certificate Articles of merger.--
15 (1) After a plan of merger is approved by each limited
16 liability company and each other business entity that is a
17 party to the merger, the surviving entity shall deliver to the
18 Department of State for filing a certificate articles of
19 merger, which shall be executed by each limited liability
20 company and by each other business entity as required by
21 applicable law, and which shall set forth:
22 (a) The plan of merger.
23 (b) A statement that the plan of merger was approved
24 by each limited liability company that is a party to the
25 merger in accordance with the applicable provisions of this
26 chapter, and, if applicable, a statement that the written
27 consent of each member of such limited liability company who,
28 as a result of the merger, becomes a general partner of the
29 surviving entity has been obtained pursuant to s. 608.4381(2).
30
31
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1 (c) A statement that the plan of merger was approved
2 by each domestic partnership that is a party to the merger in
3 accordance with the applicable provisions of chapter 620.
4 (d) A statement that the plan of merger was approved
5 by each domestic corporation that is a party to the merger in
6 accordance with the applicable provisions of chapter 607.
7 (e) A statement that the plan of merger was approved
8 by each other business entity that is a party to the merger,
9 other than limited liability companies, partnerships, and
10 corporations formed, organized, or incorporated under the laws
11 of this state, in accordance with the applicable laws of the
12 state, country, or jurisdiction under which such other
13 business entity is formed, organized, or incorporated.
14 (f) The effective date of the merger, which may be on
15 or after the date of filing the certificate articles of
16 merger, subject to the limitations in s. 608.409(2),;
17 provided, if the certificate articles of merger does do not
18 provide for an effective date of the merger, the effective
19 date shall be the date on which the certificate articles of
20 merger is are filed.
21 (g) If the surviving entity is another business entity
22 formed, organized, or incorporated under the laws of any
23 state, country, or jurisdiction other than this state:
24 1. The address, including street and number, if any,
25 of its principal office under the laws of the state, country,
26 or jurisdiction in which it was formed, organized, or
27 incorporated.
28 2. If the surviving entity is a foreign entity and is
29 not authorized to transact business in this state, a statement
30 that the surviving entity appoints is deemed to have appointed
31 the Secretary of State as its agent for service of process in
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1 a proceeding to enforce obligations any obligation or the
2 rights of dissenting members of each limited liability company
3 that merged into such entity, including any appraisal rights
4 of its members under ss. 608.4351-608.43595, and the street
5 and mailing address of an office which the Department of State
6 may use for purposes of s. 48.181 is a party to the merger.
7 3. A statement that the surviving entity has agreed to
8 promptly pay to any members with appraisal rights the
9 dissenting members of each limited liability company that is a
10 party to the merger the amount, if any, to which such
11 dissenting members are entitled under ss. 608.4351-608.43595
12 s. 608.4384.
13 (2) A copy of the certificate articles of merger,
14 certified by the Department of State, may be filed in the
15 official records of any office of the official who is the
16 recording officer of each county in this state in which any
17 real property of a party to the merger holds an interest in
18 real property other than the surviving entity is situated.
19 Section 9. Subsections (2), (3), and (7) of section
20 608.4383, Florida Statutes, are amended to read:
21 608.4383 Effect of merger.--When a merger becomes
22 effective:
23 (2) The title to all real estate and other property,
24 or any interest therein, owned by each domestic limited
25 liability company and other business entity that is a party to
26 the merger is vested in the surviving entity without reversion
27 or impairment by reason of this chapter. The surviving entity
28 shall record a certified copy of the articles of merger in any
29 county in which a merging entity holds an interest in real
30 property.
31
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1 (3) The surviving entity shall thereafter be
2 responsible and liable for all the liabilities and obligations
3 of each limited liability company and other business entity
4 that is a party to the merger, including liabilities arising
5 out of the appraisal rights under ss. 608.4351-608.43595 of
6 dissenters with respect to such merger under applicable law.
7 (7) The interests, partnership and membership
8 interests, shares, obligations, or other securities and other
9 interests, and the rights to acquire such interests,
10 partnership interests, shares, obligations, or other
11 securities and other interests, of each limited liability
12 company and other business entity that is a party to the
13 merger shall be converted into interests, partnership and
14 membership interests, shares, obligations, or other securities
15 and other interests, or rights to such securities,
16 obligations, or other interests, of the surviving entity or
17 any other limited liability company or other business entity
18 or, in whole or in part, into cash or other property as
19 provided in the plan of merger, and the former members of each
20 limited liability company merging into another business entity
21 holders of interests, partnership interests, shares,
22 obligations, or other securities, or rights to such
23 securities, shall be entitled only to the rights provided in
24 the plan of merger and to their appraisal rights as
25 dissenters, if any, under ss. 608.4351-608.43595 s. 608.4384,
26 ss. 607.1301-607.1320, s. 620.205, or other applicable law.
27 Section 10. Section 608.439, Florida Statutes, is
28 amended to read:
29 608.439 Conversion of certain entities to a limited
30 liability company.--
31
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1 (1) As used in this section, the term "other business
2 entity" or "another business entity" means a common law or
3 business trust or association;, a real estate investment
4 trust;, a general partnership common law trust, or any other
5 unincorporated business, including a limited liability
6 partnership;, a limited partnership, whether general
7 (including a registered limited liability limited
8 partnership;) or any other domestic or foreign entity that is
9 organized under a governing law or other applicable law,
10 provided such term shall not include a domestic limited
11 (including a registered limited liability limited partnership)
12 or a foreign limited liability company.
13 (2) Any other business entity may convert to a
14 domestic limited liability company if the conversion is
15 permitted by the laws of the jurisdiction that enacted the
16 statute or other applicable law governing the other business
17 entity and the other business entity complies with such laws
18 and the requirements of this section in effecting the
19 conversion. The other business entity shall file with by
20 complying with subsection (8) and filing in the Department of
21 State in accordance with s. 608.4081:
22 (a) A certificate of conversion to a limited liability
23 company that has been executed by one or more authorized
24 persons in accordance with s. 608.408.; and
25 (b) Articles of organization that comply with s.
26 608.407 and have been executed by one or more authorized
27 persons in accordance with s. 608.408.
28 (3) The certificate of conversion to a limited
29 liability company shall state:
30 (a) The date on which and jurisdiction in which the
31 other entity was first organized created, formed, or otherwise
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1 came into being and, if it has changed, its jurisdiction
2 immediately prior to its conversion to a domestic limited
3 liability company.;
4 (b) The name of the other entity immediately prior to
5 the filing of the certificate of conversion. to a limited
6 liability company;
7 (c) The name of the limited liability company as set
8 forth in its articles of organization filed in accordance with
9 subsection (2).; and
10 (d) Subject to the limitations in s. 608.409(2), the
11 delayed future effective date or time (which shall be a date
12 or time certain) of the conversion to a limited liability
13 company if it is not to be effective upon the filing of the
14 certificate of conversion to a limited liability company and
15 the articles of organization, provided such delayed effective
16 date and time may not be different than the effective date of
17 the articles of organization.
18 (4) Upon the filing in the Department of State of the
19 certificate of conversion to a limited liability company and
20 the articles of organization or upon the delayed future
21 effective date or time of the certificate of conversion to a
22 limited liability company and the articles of organization,
23 the other entity shall be converted into a domestic limited
24 liability company and the limited liability company shall
25 thereafter be subject to all of the provisions of this
26 chapter, except that notwithstanding s. 608.409, the existence
27 of the limited liability company shall be deemed to have
28 commenced when on the date the other entity commenced its
29 existence in the jurisdiction in which the other entity was
30 first organized created, formed, incorporated, or otherwise
31 came into being.
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1 (5) The conversion of any other entity into a domestic
2 limited liability company shall not affect any obligations or
3 liabilities of the other entity incurred prior to its
4 conversion into to a domestic limited liability company or the
5 personal liability of any person incurred prior to such
6 conversion.
7 (6) When any conversion becomes effective under this
8 section, for all purposes of the laws of this state, all of
9 the rights, privileges, and powers of the other entity that
10 has converted, and all property, real, personal, and mixed,
11 and all debts due to such other entity, as well as all other
12 things and causes of action belonging to such other entity,
13 shall be vested in the domestic limited liability company into
14 which it was converted and shall thereafter be the property of
15 the domestic limited liability company as they were of the
16 other entity that has converted, and the title to any real
17 property vested by deed or otherwise in such other entity
18 shall not revert or be in any way impaired by reason of this
19 chapter, but all rights of creditors and all liens upon any
20 property of such other entity shall be preserved unimpaired,
21 and all debts, liabilities, and duties of the other entity
22 that has converted shall thenceforth attach to the domestic
23 limited liability company and may be enforced against it to
24 the same extent as if said debts, liabilities, and duties had
25 been incurred or contracted by it.
26 (7) Unless otherwise agreed, or as required under
27 applicable non-Florida law, the converting entity shall not be
28 required to wind up its affairs or pay its liabilities and
29 distribute its assets, and the conversion shall not constitute
30 a dissolution of the converting such entity and shall
31
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1 constitute a continuation of the existence of the converting
2 entity in the form of a domestic limited liability company.
3 (8) Prior to filing a certificate of conversion to
4 limited liability company with the Department of State, the
5 conversion shall be approved in the manner provided for by the
6 document, instrument, agreement, or other writing, as the case
7 may be, governing the internal affairs of the other entity and
8 the conduct of its business or by applicable law, as
9 appropriate, and the articles of organization or operating
10 agreement shall be approved by the same authorization required
11 to approve the conversion. As part of such an approval, a plan
12 of conversion or other record may describe the manner and
13 basis of converting the shares, partnership interests, limited
14 liability company interests, obligations, or securities of, or
15 other interests in, the other business entity which is to be
16 converted, or any rights to acquire any such shares,
17 interests, obligations, or other securities, into limited
18 liability company interests, obligations, or other securities
19 of the domestic limited liability company, or rights to
20 acquire interests, obligations, or other securities, or, in
21 whole or in part, into cash or other consideration. Such a
22 plan or other record may also contain other provisions
23 relating to the conversion, including without limitation the
24 right of the other business entity to abandon a proposed
25 conversion, or an effective date for the conversion that is
26 not inconsistent with paragraph (3)(d).
27 (9) The provisions of this section shall not be
28 construed to limit the accomplishment of a change in the law
29 governing, or the domicile of, any other entity to this state
30 by any other means provided for in the articles of
31 organization or operating agreement or other agreement or as
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1 otherwise permitted by law, including by the amendment of the
2 articles of organization or operating agreement or other
3 agreement.
4 Section 11. Sections 608.4401, 608.4402, 608.4403, and
5 608.4404, Florida Statutes, are created to read:
6 608.4401 Conversion of a domestic limited liability
7 company into another business entity.--
8 (1) As used in this section and ss. 608.4402,
9 608.4403, and 608.4404, the term "other business entity" or
10 "another business entity" means a corporation; a common law or
11 business trust or association; a real estate investment trust;
12 a general partnership, including a limited liability
13 partnership; a limited partnership, including a limited
14 liability limited partnership; or any other domestic or
15 foreign entity that is organized under a governing law or
16 other applicable law, provided such term shall not include a
17 domestic limited liability company.
18 (2) Pursuant to a plan of conversion complying and
19 approved in accordance with this section and s. 608.4402, a
20 domestic limited liability company may convert to another
21 business entity organized under the laws of this state or any
22 other state, the United States, a foreign country, or any
23 other foreign jurisdiction, if:
24 (a) The domestic limited liability company converting
25 to the other business entity complies with the applicable
26 provisions of this chapter and any applicable terms in its
27 articles of organization and operating agreement.
28 (b) The conversion is permitted by the laws of the
29 jurisdiction that enacted the law or other applicable law
30 under which the other business entity is governed and the
31
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1 other business entity complies with such laws in effecting the
2 conversion.
3 (3) The plan of conversion shall set forth:
4 (a) The name of the domestic limited liability company
5 and the name and jurisdiction of the other business entity
6 into which the domestic limited liability company is to be
7 converted.
8 (b) The terms and conditions of the conversion,
9 including the manner and basis of converting the limited
10 liability company interests or other securities, or any rights
11 to acquire limited liability company interests or other
12 securities, of the domestic limited liability company into the
13 partnership interests, shares, obligations, securities, or
14 other interests in the other business entity, or any rights to
15 acquire any partnership interests, shares, obligations,
16 securities, or other interests, or, in whole or in part, into
17 cash or other consideration.
18 (c) The statements required to be set forth in the
19 plan of conversion by the laws under which the other business
20 entity is governed.
21 (4) The plan of conversion shall include, or have
22 attached, the articles, certificate, registration, or other
23 organizational document by which the other business entity has
24 been organized under its governing law.
25 (5) A plan of conversion may provide for the manner,
26 if any, in which the plan of conversion may be amended at any
27 time before the effective date of the conversion, except after
28 the approval of the plan of conversion by the members of the
29 limited liability company to be converted, the plan of
30 conversion may not be amended to:
31
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1 (a) Change the amount or kind of partnership
2 interests, shares, obligations, securities, cash, rights, or
3 any other consideration to be received by the members of such
4 limited liability company in exchange for or on conversion of
5 their member interests in or other securities of the limited
6 liability company;
7 (b) Change any term of the articles of incorporation
8 or organization, bylaws, partnership or operating agreement,
9 or comparable governing document of the surviving entity,
10 except for changes that otherwise could be adopted without
11 approval of the members approving the plan of conversion; or
12 (c) Change any of the terms and conditions of the plan
13 of conversion if any such change, alone or in the aggregate,
14 would materially and adversely affect the members, or any
15 class or group of members, of such limited liability company.
16
17 If an amendment to a plan of conversion is made in accordance
18 with the plan of conversion and a certificate of conversion
19 has been filed with the Department of State, an amended
20 certificate of conversion executed by the limited liability
21 company shall be filed with the Department of State prior to
22 the effective date of the conversion.
23 (6) The plan of conversion may also set forth any
24 other provisions relating to the conversion, including,
25 without limitation, a statement of the method of determining,
26 the fair value, as defined in s 608.4351, of an interest in
27 the limited liability company.
28 608.4402 Action on plan of conversion.--
29 (1) Unless the articles of organization or the
30 operating agreement of a limited liability company requires a
31 greater than majority vote, the plan of conversion shall be
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1 approved in writing by a majority of the managers who are
2 members of a converting limited liability company in which
3 management is not reserved to its members. If no manager is a
4 member, the plan of conversion shall be approved by vote of
5 the members as set forth in this section. Unless the articles
6 of organization or the operating agreement of the converting
7 limited liability company requires a greater than majority
8 vote or provides for another method of determining the voting
9 rights of each of its members, and whether or not management
10 is reserved to its members, the plan of conversion shall be
11 approved in writing by a majority-in-interest of the members
12 of the converting limited liability company and, if
13 applicable, the vote of each member shall be weighted in
14 accordance with s. 608.4231, provided, unless the articles of
15 organization or the operating agreement of the converting
16 limited liability company requires a greater than majority
17 vote or provides for another method of determining the voting
18 rights of each of its members, if there is more than one class
19 or group of members, the conversion shall be approved by a
20 majority-in-interest of the members of each such class or
21 group, and, if applicable, the vote of each member shall be
22 weighted in accordance with s. 608.4231.
23 (2) In addition to the approval required by subsection
24 (1), if the other business entity is a partnership or limited
25 partnership, no member of a converting limited liability
26 company shall become a general partner of such partnership or
27 limited partnership as a result of the conversion unless such
28 member specifically consents in writing to becoming a general
29 partner of such partnership or limited partnership, and,
30 unless such written consent is obtained from each such member,
31 the conversion shall not become effective under s. 608.4404.
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1 Any member providing such consent in writing shall also be
2 deemed to have voted in favor of the plan of conversion for
3 purposes of ss. 608.4351-608.43595.
4 (3) All members of the limited liability company to be
5 converted shall be given written notice of any meeting or
6 other action with respect to the approval of a plan of
7 conversion as provided in subsections (4) and (5), not fewer
8 than 30 or more than 60 days before the date of the meeting at
9 which the plan of conversion shall be submitted for approval
10 by the members of such limited liability company, provided, if
11 the plan of conversion is submitted to the members of the
12 limited liability company for their written approval or other
13 action without a meeting, such notification shall be given to
14 each member not fewer than 30 or more than 60 days before the
15 effective date of the conversion. Pursuant to s. 608.455, the
16 notification required by this subsection may be waived in
17 writing by any person entitled to such notification.
18 (4) The notification required by subsection (3) shall
19 be in writing and shall include:
20 (a) The date, time, and place of the meeting, if any,
21 at which the plan of conversion is to be submitted for
22 approval by the members of the limited liability company or,
23 if the plan of conversion is to be submitted for written
24 approval or by other action without a meeting, a statement to
25 that effect.
26 (b) A copy or summary of the plan of conversion.
27 (c) The statement or statements required by ss.
28 608.4351-608.43595 concerning availability of appraisal
29 rights, if any, to members of the limited liability company.
30 (d) The date on which such notification was mailed or
31 delivered to the members.
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1 (e) Any other information concerning the plan of
2 conversion.
3 (5) The notification required by subsection (3) shall
4 be deemed to be given at the earliest date of:
5 (a) The date such notification is received;
6 (b) Five days after the date such notification is
7 deposited in the United States mail addressed to the member at
8 the member's address as it appears in the books and records of
9 the limited liability company, with postage thereon prepaid;
10 (c) The date shown on the return receipt, if sent by
11 registered or certified mail, return receipt requested, and
12 the receipt is signed by or on behalf of the addressee; or
13 (d) The date such notification is given in accordance
14 with the provisions of the articles of organization or the
15 operating agreement of the limited liability company.
16 (6) Unless the converting limited liability company's
17 articles of organization or operating agreement or the plan of
18 conversion provide otherwise, notwithstanding the prior
19 approval of the plan of conversion by the managers or members
20 of a converting limited liability company in which management
21 is not reserved to its members, and at any time prior to the
22 filing of the certificate of conversion with the Department of
23 State, the planned conversion may be abandoned, subject to any
24 contractual rights, by such limited liability company by the
25 affirmative vote of a majority of its managers without further
26 action by its members, in accordance with the procedure set
27 forth in the plan of conversion, or if none is set forth in
28 such plan, in the manner determined by the managers of such
29 limited liability company.
30 608.4403 Certificate of conversion.--
31
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1 (1) After a plan of conversion is approved by a
2 converting limited liability company, the limited liability
3 company shall deliver to the Department of State for filing a
4 certificate of conversion, which shall be executed by the
5 converting limited liability company, and which shall set
6 forth:
7 (a) A statement that the limited liability company has
8 been converted into another business entity in compliance with
9 this chapter and that the conversion complies with the law or
10 other applicable law governing the other business entity.
11 (b) A statement that the plan of conversion was
12 approved by the converting limited liability company in
13 accordance with this chapter and, if applicable, a statement
14 that the written consent of each member of such limited
15 liability company who, as a result of the conversion, becomes
16 a general partner of the surviving entity has been obtained
17 pursuant to s. 608.4402(2).
18 (c) The effective date of the conversion, which,
19 subject to the limitations in s. 608.409(2), may be on or
20 after the date of filing the certificate of conversion, but
21 which shall not be different than the effective date of the
22 conversion under the laws governing the other business entity
23 into which the limited liability company has been converted.
24 (d) The address, including street and number, if any,
25 of the principal office of the other business entity under the
26 laws of the state, country, or jurisdiction in which such
27 entity was organized.
28 (e) If the other business entity is a foreign entity
29 and is not authorized to transact business in this state, a
30 statement that the other business entity appoints the
31 Secretary of State as its agent for service of process in a
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1 proceeding to enforce obligations of the converting limited
2 liability company, including any appraisal rights of its
3 members under ss. 608.4351-608.43595 and the street and
4 mailing address of an office which the Department of State may
5 use for purposes of s. 48.181.
6 (f) A statement that the other business entity has
7 agreed to pay to any members having appraisal rights the
8 amount to which such members are entitled under ss.
9 608.4351-608.43595.
10 (2) A copy of the certificate of conversion, certified
11 by the Department of State, may be filed in the official
12 records of any county in this state in which the converting
13 limited liability company holds an interest in real property.
14 608.4404 Effect of conversion.--When a conversion
15 becomes effective:
16 (1) A domestic limited liability company that has been
17 converted into another business entity pursuant to this
18 chapter is for all purposes the same entity that existed
19 before the conversion.
20 (2) The title to all real property and other property,
21 or any interest therein, owned by the domestic limited
22 liability company at the time of its conversion into the other
23 business entity remains vested in the converted entity without
24 reversion or impairment by operation of this chapter.
25 (3) The other business entity into which the domestic
26 limited liability company was converted shall continue to be
27 responsible and liable for all the liabilities and obligations
28 of such limited liability company, including any liability to
29 members having appraisal rights under ss. 608.4351-608.43595
30 with respect to such conversion.
31
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1 (4) Any claim existing or action or proceeding pending
2 by or against any domestic limited liability company that is
3 converted into another business entity may be continued as if
4 the conversion did not occur. If the converted entity is a
5 foreign entity, such entity shall be deemed to have consented
6 to the jurisdiction of the courts of this state to enforce any
7 obligation of the converting domestic limited liability
8 company if, before the conversion, the converting domestic
9 limited liability company was subject to suit in this state on
10 the obligation. A converted entity that is a foreign entity
11 and not authorized to transact business in this state appoints
12 the Department of State as its agent for service of process
13 for purposes of enforcing an obligation under this subsection,
14 including any appraisal rights of members under ss.
15 608.4351-608.43595 to the extent applicable to the conversion.
16 Service on the Department of State under this subsection is
17 made in the same manner and with the same consequences as
18 under s. 48.181.
19 (5) Neither the rights of creditors nor any liens upon
20 the property of a domestic limited liability company that is
21 converted into another business entity under this chapter
22 shall be impaired by such conversion.
23 (6) The member interests, obligations, and other
24 securities, or rights to acquire any member interests,
25 obligations, or other securities, of the domestic limited
26 liability company shall be converted into the shares,
27 partnership interests, interests, obligations, or other
28 securities of the other business entity, including any rights
29 to acquire any such shares, interests, obligations, or other
30 securities, or, in whole or in part, into cash or other
31 consideration as provided in the plan of conversion. The
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1 former members of the converting domestic limited liability
2 company shall be entitled only to the rights provided in the
3 plan of conversion and to their appraisal rights, if any,
4 under ss. 608.4351-608.43595 or other applicable law.
5 Section 12. Subsection (3) of section 608.452, Florida
6 Statutes, is amended, subsections (9) and (10) of that section
7 are renumbered as subsections (10) and (11), respectively, and
8 new subsection (9) is added to that section, to read:
9 608.452 Fees of the Department of State.--The fees of
10 the Department of State under this chapter are as follows:
11 (3) For filing a certificate articles of merger of
12 limited liability companies or other business entities, $25
13 per constituent party to the merger, unless a specific fee is
14 required for a party in other applicable law.
15 (9) For filing a certificate of conversion of a
16 limited liability company, $25.
17 Section 13. Subsection (16) of section 617.0302,
18 Florida Statutes, is amended to read:
19 617.0302 Corporate powers.--Every corporation not for
20 profit organized under this act, unless otherwise provided in
21 its articles of incorporation or bylaws, shall have power to:
22 (16) Merge with other corporations or other business
23 entities, both for profit and not for profit, domestic and
24 foreign, if the surviving corporation or other surviving
25 business entity is a corporation not for profit or other
26 business entity that has been organized as a not-for-profit
27 entity under a governing statute or other applicable law that
28 permits such a merger.
29 Section 14. Subsection (1) of section 617.0505,
30 Florida Statutes, is amended to read:
31
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1 617.0505 Payment of dividends and distribution of
2 income to members prohibited; issuance of certificates of
3 membership; effect of stock issued under prior law.--
4 (1) A dividend may not be paid, and any part of the
5 income or profit of a corporation may not be distributed, to
6 its members, directors, or officers. A private club that is
7 established for social, pleasure, or recreational purposes and
8 organized as a corporation of which the equity interests are
9 held by the members may purchase the equity membership
10 interest of any member and the payment for such interest is
11 not a distribution for purposes of this section. A corporation
12 may pay compensation in a reasonable amount to its members,
13 directors, or officers for services rendered, may confer
14 benefits upon its members in conformity with its purposes,
15 and, upon dissolution or final liquidation, may make
16 distributions to its members as permitted by this act. If
17 expressly permitted by its articles of incorporation, a
18 corporation may make distributions upon partial liquidation to
19 its members, as permitted by this section. Any such payment,
20 benefit, or distribution does not constitute a dividend or a
21 distribution of income or profit for purposes of this section.
22 Any corporation which is a utility exempt from regulation
23 under s. 367.022(7), whose articles of incorporation state
24 that it is exempt from taxation under s. 501(c)(12) of the
25 Internal Revenue Code, may make such refunds to its members,
26 prior to a dissolution or liquidation, as its managing board
27 deems necessary to establish or preserve its tax-exempt
28 status. Any such refund does not constitute a dividend or a
29 distribution of income or profit for purposes of this section.
30 Section 15. Section 617.1108, Florida Statutes, is
31 created to read:
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1 617.1108 Merger of domestic corporation and other
2 business entities.--Subject to s. 617.0302(16) and other
3 applicable provisions of this chapter, ss. 607.1108, 607.1109,
4 and 607.11101 shall apply to a merger involving a corporation
5 not for profit organized under this act and one or more other
6 business entities identified in s. 607.1108(1).
7 Section 16. Sections 620.1101, 620.1102, 620.1103,
8 620.1104, 620.1105, 620.1106, 620.1107, 620.1108, 620.1109,
9 620.1110, 620.1111, 620.1112, 620.1113, 620.1114, 620.1115,
10 620.1116, 620.1117, 620.1118, 620.1201, 620.1202, 620.1203,
11 620.1204, 620.1205, 620.1206, 620.1207, 620.1208, 620.1209,
12 620.1210, 620.1301, 620.1302, 620.1303, 620.1304, 620.1305,
13 620.1306, 620.1401, 620.1402, 620.1403, 620.1404, 620.1405,
14 620.1406, 620.1407, 620.1408, 620.1501, 620.1502, 620.1503,
15 620.1504, 620.1505, 620.1506, 620.1507, 620.1508, 620.1509,
16 620.1601, 620.1602, 620.1603, 620.1604, 620.1605, 620.1606,
17 620.1607, 620.1701, 620.1702, 620.1703, 620.1704, 620.1801,
18 620.1802, 620.1803, 620.1804, 620.1805, 620.1806, 620.1807,
19 620.1808, 620.1809, 620.1810, 620.1811, 620.1812, 620.1813,
20 620.1901, 620.1902, 620.1903, 620.1904, 620.1905, 620.1906,
21 620.1907, 620.1908, 620.1909, 620.1910, 620.2001, 620.2002,
22 620.2003, 620.2004, 620.2005, 620.2101, 620.2102, 620.2103,
23 620.2104, 620.2105, 620.2106, 620.2107, 620.2108, 620.2109,
24 620.2110, 620.2111, 620.2112, 620.2113, 620.2114, 620.2115,
25 620.2116, 620.2117, 620.2118, 620.2119, 620.2120, 620.2121,
26 620.2122, 620.2123, 620.2124, 620.2125, 620.2201, 620.2202,
27 620.2203, 620.2204, and 620.2205, Florida Statutes, are
28 created to read:
29 620.1101 Popular name.--This section and sections
30 620.1102-620.2205 may be cited as the "Florida Revised Uniform
31 Limited Partnership Act of 2005."
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1 620.1102 Definitions.--As used in this act:
2 (1) "Act" means the Florida Revised Uniform Limited
3 Partnership Act of 2005, as amended.
4 (2) "Certificate of limited partnership" means the
5 certificate required by s. 620.1201. The term includes the
6 certificate as amended or restated.
7 (3) "Contribution," except in the phrase "right of
8 contribution," means any benefit provided by a person to a
9 limited partnership in order to become a partner or in the
10 person's capacity as a partner.
11 (4) "Debtor in bankruptcy" means a person that is the
12 subject of:
13 (a) An order for relief under Title 11 U.S.C. or a
14 comparable order under a successor statute of general
15 application; or
16 (b) A comparable order under federal, state, or
17 foreign law governing insolvency.
18 (5) "Designated office" means:
19 (a) With respect to a limited partnership, the office
20 that the limited partnership is required to designate and
21 maintain under s. 620.1114.
22 (b) With respect to a foreign limited partnership, its
23 principal office.
24 (6) "Distribution" means a transfer of money or other
25 property from a limited partnership to a partner in the
26 partner's capacity as a partner or to a transferee on account
27 of a transferable interest owned by the transferee.
28 (7) "Foreign limited liability limited partnership"
29 means a foreign limited partnership whose general partners
30 have limited liability for the obligations of the foreign
31
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1 limited partnership under a provision similar to s.
2 620.1404(3).
3 (8) "Foreign limited partnership" means a partnership
4 formed under the laws of a jurisdiction other than this state
5 and required by those laws to have one or more general
6 partners and one or more limited partners. The term includes a
7 foreign limited liability limited partnership.
8 (9) "General partner" means:
9 (a) With respect to a limited partnership, a person
10 that:
11 1. Becomes a general partner under s. 620.1401; or
12 2. Was a general partner in a limited partnership when
13 the limited partnership became subject to this act under s.
14 620.2204(1) or (2).
15 (b) With respect to a foreign limited partnership, a
16 person that has rights, powers, and obligations similar to
17 those of a general partner in a limited partnership.
18 (10) "Limited liability limited partnership," except
19 in the phrase "foreign limited liability limited partnership,"
20 means a limited partnership whose certificate of limited
21 partnership states that the limited partnership is a limited
22 liability limited partnership, or which was a limited
23 liability limited partnership when the limited partnership
24 became subject to this act under s. 620.2204(1) or (2).
25 (11) "Limited partner" means:
26 (a) With respect to a limited partnership, a person
27 that:
28 1. Becomes a limited partner under s. 620.1301; or
29 2. Was a limited partner in a limited partnership when
30 the limited partnership became subject to this act under
31 subsection 620.2204(1) or (2).
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1 (b) With respect to a foreign limited partnership, a
2 person that has rights, powers, and obligations similar to
3 those of a limited partner in a limited partnership.
4 (12) "Limited partnership," except in the phrases
5 "foreign limited partnership" and "foreign limited liability
6 limited partnership," means an entity, having one or more
7 general partners and one or more limited partners, which is
8 formed under this act by two or more persons or becomes
9 subject to this act as the result of a conversion or merger
10 under this act, or which was a limited partnership governed by
11 the laws of this state when this act became a law and became
12 subject to this act under s. 620.2204(1) or (2). The term
13 includes a limited liability limited partnership.
14 (13) "Partner" means a limited partner or general
15 partner.
16 (14) "Partnership agreement" means the partners'
17 agreement, whether oral, implied, in a record, or in any
18 combination thereof, concerning the limited partnership. The
19 term includes the agreement as amended or restated.
20 (15) "Person" means an individual, corporation,
21 business trust, estate, trust, partnership, limited liability
22 company, association, joint venture, or government;
23 governmental subdivision, agency, or instrumentality; public
24 corporation; or any other legal or commercial entity.
25 (16) "Person dissociated as a general partner" means a
26 person dissociated as a general partner of a limited
27 partnership.
28 (17) "Principal office" means the office at which the
29 principal executive office of a limited partnership or foreign
30 limited partnership is located, whether or not the office is
31 located in this state.
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1 (18) "Record" means information that is inscribed on a
2 tangible medium or that is stored in an electronic or other
3 medium and is retrievable in perceivable form.
4 (19) "Registered agent" means the person acting as the
5 registered agent of the limited partnership for service of
6 process and meeting the requirements in s. 620.1114.
7 (20) "Registered office" means the address of the
8 registered agent meeting the requirements of s. 620.1114.
9 (21) "Required information" means the information that
10 a limited partnership is required to maintain under s.
11 620.1111.
12 (22) "Sign" means to:
13 (a) Execute or adopt a tangible symbol with the
14 present intent to authenticate a record; or
15 (b) Attach or logically associate an electronic
16 symbol, sound, or process to or with a record with the present
17 intent to authenticate the record.
18 (23) "State" means a state of the United States, the
19 District of Columbia, Puerto Rico, the United States Virgin
20 Islands, or any territory or insular possession subject to the
21 jurisdiction of the United States.
22 (24) "Transfer" includes an assignment, conveyance,
23 deed, bill of sale, lease, mortgage, security interest,
24 encumbrance, gift, or transfer by operation of law.
25 (25) "Transferable interest" means a partner's right
26 to receive distributions.
27 (26) "Transferee" means a person to which all or part
28 of a transferable interest has been transferred, whether or
29 not the transferor is a partner.
30 620.1103 Knowledge and notice.--
31
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1 (1) A person knows a fact if the person has actual
2 knowledge of the fact.
3 (2) A person has notice of a fact if the person:
4 (a) Knows of the fact;
5 (b) Has received a notification of the fact;
6 (c) Has reason to know the fact exists from all of the
7 facts known to the person at the time in question; or
8 (d) Has notice of the fact under subsection (3) or
9 subsection (4).
10 (3) A certificate of limited partnership on file in
11 the Department of State is notice that the partnership is a
12 limited partnership and the persons designated in the
13 certificate as general partners are general partners. Except
14 as otherwise provided in subsection (4), the certificate is
15 not notice of any other fact.
16 (4) A person has notice of:
17 (a) Another person's dissociation as a general partner
18 90 days after the effective date of an amendment to the
19 certificate of limited partnership which states that the other
20 person has dissociated or 90 days after the effective date of
21 a statement of dissociation pertaining to the other person,
22 whichever occurs first;
23 (b) A limited partnership's dissolution 90 days after
24 the effective date of the certificate of dissolution of the
25 limited partnership;
26 (c) A limited partnership's termination 90 days after
27 the effective date of a statement of termination;
28 (d) A limited partnership's conversion under s.
29 620.2102 90 days after the effective date of the certificate
30 of conversion;
31
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1 (e) A merger under s. 620.2106 90 days after the
2 effective date of the certificate of merger; or
3 (f) Any limitations upon the authority of a general
4 partner as set forth in the initial certificate of limited
5 partnership or, if the limitations are added by an amendment
6 or restatement of the certificate of limited partnership, 90
7 days after the effective date of the amendment or restatement,
8 provided a provision in the certificate of limited partnership
9 limiting the authority of a general partner to transfer real
10 property held in the name of the limited partnership is not
11 notice of the limitation to a person who is not a partner
12 unless the limitation appears in an affidavit, certificate, or
13 other instrument that bears the name of the limited
14 partnership and is recorded in the office for recording
15 transfers of such real property.
16 (5) A person notifies or gives a notification to
17 another person by taking steps reasonably required to inform
18 the other person in the ordinary course, whether or not the
19 other person learns of it.
20 (6) A person receives a notification when the
21 notification:
22 (a) Comes to the person's attention; or
23 (b) Is delivered at the person's place of business or
24 at any other place held out by the person as a place for
25 receiving communications.
26 (7) Except as otherwise provided in subsection (8), a
27 person other than an individual knows, has notice, or receives
28 a notification of a fact for purposes of a particular
29 transaction when the individual conducting the transaction for
30 the person knows, has notice, or receives a notification of
31 the fact, or in any event when the fact would have been
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1 brought to the individual's attention if the person had
2 exercised reasonable diligence. A person other than an
3 individual exercises reasonable diligence if such person
4 maintains reasonable routines for communicating significant
5 information to the individual conducting the transaction for
6 the person and there is reasonable compliance with the
7 routines. Reasonable diligence does not require an individual
8 acting for the person to communicate information unless the
9 communication is part of the individual's regular duties or
10 the individual has reason to know of the transaction and that
11 the transaction would be materially affected by the
12 information.
13 (8) A general partner's knowledge, notice, or receipt
14 of a notification of a fact relating to the limited
15 partnership is effective immediately as knowledge of, notice
16 to, or receipt of a notification by the limited partnership,
17 except in the case of a fraud on the limited partnership
18 committed by or with the consent of the general partner. A
19 limited partner's knowledge, notice, or receipt of a
20 notification of a fact relating to the limited partnership is
21 not effective as knowledge of, notice to, or receipt of a
22 notification by the limited partnership.
23 620.1104 Nature, purpose, and duration of entity.--
24 (1) A limited partnership is an entity distinct from
25 its partners. A limited partnership is the same entity
26 regardless of whether its certificate states that the limited
27 partnership is a limited liability limited partnership.
28 (2) A limited partnership may be organized under this
29 act for any lawful purpose.
30 (3) A limited partnership has a perpetual duration.
31
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1 620.1105 Powers.--A limited partnership has the powers
2 to do all things necessary or convenient to carry on its
3 activities, including the power to sue, be sued, and defend in
4 its own name and to maintain an action against a partner for
5 harm caused to the limited partnership by a breach of the
6 partnership agreement or violation of a duty to the
7 partnership.
8 620.1106 Governing law.--The laws of this state govern
9 relations among the partners of a limited partnership and
10 between the partners and the limited partnership and the
11 liability of partners as partners for an obligation of the
12 limited partnership.
13 620.1107 Supplemental principles of law; rate of
14 interest.--
15 (1) Unless displaced by particular provisions of this
16 act, the principles of law and equity supplement this act.
17 (2) If an obligation to pay interest arises under this
18 act and the rate is not specified, the same rate of interest
19 that has been determined for judgments in accordance with s.
20 55.03 shall apply to the obligation in question.
21 620.1108 Name.--
22 (1) The name of a limited partnership may contain the
23 name of any partner.
24 (2) The name of a limited partnership that is not a
25 limited liability limited partnership must contain the phrase
26 "limited partnership" or "limited" or the abbreviation "L.P."
27 or "Ltd." or the designation "LP," and may not contain the
28 phrase "limited liability limited partnership" or the
29 abbreviation "L.L.L.P." or the designation "LLLP."
30 (3) The name of a limited liability limited
31 partnership must contain the phrase "limited liability limited
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1 partnership" or the abbreviation "L.L.L.P." or designation
2 "LLLP," except that a limited liability limited partnership
3 organized prior to the effective date of this act that is
4 using an abbreviation or designation permitted under prior law
5 shall be entitled to continue using such abbreviation or
6 designation until its dissolution.
7 (4) The name of a limited partnership must be
8 distinguishable in the records of the Department of State
9 from the names of all other entities or filings, except
10 fictitious name registrations pursuant to s. 865.09 organized,
11 registered, or reserved under the laws of this state, the
12 names of which are on file with the Department of State.
13 (5) Subject to s. 620.905, this section applies to any
14 foreign limited partnership transacting business in this
15 state, having a certificate of authority to transact business
16 in this state, or applying for a certificate of authority.
17 620.1109 Department of State; fees.--In addition to
18 the supplemental corporate fee of $88.75 imposed pursuant to
19 s. 607.193, the fees of the Department of State under this act
20 are as follows:
21 (1) For furnishing a certified copy, $52.50 for the
22 first 15 pages plus $1.00 for each additional page.
23 (2) For filing an original certificate of limited
24 partnership, $965.
25 (3) For filing an original application for
26 registration as a foreign limited partnership, $965.
27 (4) For filing certificate of conversion, $52.50.
28 (5) For filing certificate of merger, $52.50 for each
29 party thereto.
30 (6) For filing a reinstatement, $500 for each calendar
31 year or part thereof the limited partnership was
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1 administratively dissolved or foreign limited partnership was
2 revoked in the records of the Department of State.
3 (7) For filing an annual report, $411.25.
4 (8) For filing a certificate:
5 (a) Designating a registered agent, $35;
6 (b) Changing a registered agent or registered office
7 address, $35;
8 (c) Resigning as a registered agent, $87.50; or
9 (d) Of amendment or restatement of the certificate of
10 limited partnership, $52.50;
11 (9) For filing a statement of termination, $52.50.
12 (10) For filing a notice of cancellation for foreign
13 limited partnership, $52.50.
14 (11) For furnishing a certificate of status or
15 authorization, $8.75.
16 (12) For filing a certificate of dissolution, $52.50.
17 (13) For filing a certificate of revocation of
18 dissolution, $52.50.
19 (14) For filing any other domestic or foreign limited
20 partnership document, $52.50.
21 620.1110 Effect of partnership agreement; nonwaivable
22 provisions.--
23 (1) Except as otherwise provided in subsection (2),
24 the partnership agreement governs relations among the partners
25 and between the partners and the partnership. To the extent
26 the partnership agreement does not otherwise provide, this act
27 governs relations among the partners and between the partners
28 and the partnership.
29 (2) A partnership agreement may not:
30 (a) Vary a limited partnership's power under s.
31 620.1105 to sue, be sued, and defend in its own name;
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1 (b) Vary the law applicable to a limited partnership
2 under s. 620.106;
3 (c) Vary the requirements of s. 620.1204;
4 (d) Vary the information required under s. 620.1111 or
5 unreasonably restrict the right to information under s.
6 620.1304 or s. 620.1407, but the partnership agreement may
7 impose reasonable restrictions on the availability and use of
8 information obtained under those sections and may define
9 appropriate remedies, including liquidated damages, for a
10 breach of any reasonable restriction on use;
11 (e) Eliminate the duty of loyalty of a general partner
12 under s. 620.1408 but the partnership agreement may:
13 1. Identify specific types or categories of activities
14 that do not violate the duty of loyalty, if not manifestly
15 unreasonable; and
16 2. Specify the number, percentage, class, or other
17 type of partners that may authorize or ratify, after full
18 disclosure to all partners of all material facts, a specific
19 act or transaction that otherwise would violate the duty of
20 loyalty;
21 (f) Unreasonably reduce the duty of care of a general
22 partner under s. 620.1408(3);
23 (g) Eliminate the obligation of good faith and fair
24 dealing under ss. 620.1305(2) and 620.1408(4), but the
25 partnership agreement may prescribe the standards by which the
26 performance of the obligation is to be measured, if the
27 standards are not manifestly unreasonable;
28 (h) Vary the power of a person to dissociate as a
29 general partner under s. 620.1604(1), except to require that
30 the notice under s. 620.1603(1) be in a record;
31
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1 (i) Vary the power of a court to decree dissolution in
2 the circumstances specified in s. 620.1802;
3 (j) Vary the requirement to wind up the partnership's
4 business as specified in s. 620.1803;
5 (k) Unreasonably restrict the right to maintain an
6 action under s. 620.2001 or s. 620.2002;
7 (l) Restrict the right of a partner under s.
8 620.2110(1) to approve a conversion or merger or the right of
9 a general partner under s. 620.2110(2) to consent to an
10 amendment to the certificate of limited partnership which
11 deletes a statement that the limited partnership is a limited
12 liability limited partnership; or
13 (m) Restrict rights under this act of a person other
14 than a partner or a transferee.
15 620.1111 Required information.--A limited partnership
16 shall maintain at its designated office the following
17 information:
18 (1) A current list showing the full name and last
19 known street and mailing address of each partner, separately
20 identifying the general partners, in alphabetical order, and
21 the limited partners, in alphabetical order.
22 (2) A copy of the initial certificate of limited
23 partnership and all amendments to and restatements of the
24 certificate, together with signed copies of any powers of
25 attorney under which any certificate, amendment, or
26 restatement has been signed.
27 (3) A copy of any filed certificate of conversion or
28 merger, together with the plan of conversion or plan of merger
29 approved by the partners.
30
31
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1 (4) A copy of the limited partnership's federal,
2 state, and local income tax returns and reports, if any, for
3 the 3 most recent years.
4 (5) A copy of any partnership agreement made in a
5 record and any amendment made in a record to any partnership
6 agreement.
7 (6) A copy of any financial statement of the limited
8 partnership for the 3 most recent years.
9 (7) A copy of the three most recent annual reports
10 delivered by the limited partnership to the Department of
11 State pursuant to s. 620.1210.
12 (8) A copy of any record made by the limited
13 partnership during the past 3 years of any consent given by or
14 vote taken of any partner pursuant to this act or the
15 partnership agreement.
16 (9) Unless contained in a partnership agreement made
17 in a record, a record stating:
18 (a) The amount of cash and a description and statement
19 of the agreed value of the other benefits contributed and
20 agreed to be contributed by each partner.
21 (b) The times at which, or events on the happening of
22 which, any additional contributions agreed to be made by each
23 partner are to be made.
24 (c) For any person that is both a general partner and
25 a limited partner, a specification of transferable interest
26 the person owns in each capacity.
27 (d) Any events upon the happening of which the limited
28 partnership is to be dissolved and its activities wound up.
29 620.1112 Business transactions of partner with
30 partnership.--A partner may lend money to and transact other
31 business with the limited partnership and, subject to s.
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1 620.1408 and any other applicable provisions of this act, a
2 partner has the same rights and obligations with respect to
3 the loan or other transaction as a person that is not a
4 partner.
5 620.1113 Dual capacity.--A person may be both a
6 general partner and a limited partner. A person that is both a
7 general and limited partner has the rights, powers, duties,
8 and obligations provided by this act and the partnership
9 agreement in each of those capacities. When the person acts as
10 a general partner, the person is subject to the obligations,
11 duties, and restrictions under this act and the partnership
12 agreement for general partners. When the person acts as a
13 limited partner, the person is subject to the obligations,
14 duties, and restrictions under this act and the partnership
15 agreement for limited partners.
16 620.1114 Designated office, registered office, and
17 registered agent.--
18 (1) A limited partnership shall designate and
19 continuously maintain in this state:
20 (a) A designated office, which need not be a place of
21 its activity in this state.
22 (b) A registered agent for service of process upon the
23 limited partnership and a registered office, which shall be
24 the address of its registered agent.
25 (2) A foreign limited partnership shall designate and
26 continuously maintain in this state a registered agent for
27 service of process and a registered office, which shall be the
28 address of its registered agent.
29 (3) A registered agent of a limited partnership or
30 foreign limited partnership must be an individual who is a
31
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1 resident of this state or other person authorized to do
2 business in this state.
3 620.1115 Change of registered agent or registered
4 office.--
5 (1) In order to change its registered agent or
6 registered office address, a limited partnership or a foreign
7 limited partnership may deliver to the Department of State for
8 filing a statement of change containing:
9 (a) The name of the limited partnership or foreign
10 limited partnership.
11 (b) The name of its current registered agent.
12 (c) If the registered agent is to be changed, the name
13 and written acceptance of the new registered agent.
14 (d) The street address of its current registered
15 office address for its registered agent.
16 (e) If the registered office address is to be changed,
17 the new street address in this state of such office.
18 (2) A statement of change is effective when filed by
19 the Department of State.
20 (3) The changes described in this section may also be
21 made on the limited partnership or foreign limited
22 partnership's annual report filed with the Department of
23 State.
24 620.1116 Resignation of registered agent.--
25 (1) In order to resign as registered agent of a
26 limited partnership or foreign limited partnership, the agent
27 must deliver to the Department of State for filing a signed
28 statement of resignation containing the name of the limited
29 partnership or foreign limited partnership.
30 (2) After filing the statement with the Department of
31 State, the registered agent shall mail a copy to the limited
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1 partnership's or foreign limited partnership's current mailing
2 address.
3 (3) A registered agent is terminated on the 31st day
4 after the Department of State files the statement of
5 resignation.
6 620.1117 Service of process.--
7 (1) A registered agent appointed by a limited
8 partnership or foreign limited partnership is an agent of the
9 limited partnership or foreign limited partnership for service
10 of any process, notice, or demand required or permitted by law
11 to be served upon the limited partnership or foreign limited
12 partnership.
13 (2) If a limited partnership or foreign limited
14 partnership does not appoint or maintain a registered agent in
15 this state or the registered agent cannot with reasonable
16 diligence be found at the address of the registered office,
17 the Department of State shall be an agent of the limited
18 partnership or foreign limited partnership upon whom process,
19 notice, or demand may be served.
20 (3) Service of any process, notice, or demand on the
21 Department of State may be made by delivering to and leaving
22 with the Department of State duplicate copies of the process,
23 notice, or demand. If a process, notice, or demand is served
24 on the Department of State, the Department of State shall
25 forward one of the copies by registered or certified mail,
26 return receipt requested, to the limited partnership or
27 foreign limited partnership at its designated office.
28 (4) Service is effected under subsection (3) at the
29 earliest of:
30 (a) The date the limited partnership or foreign
31 limited partnership receives the process, notice, or demand;
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1 (b) The date shown on the return receipt, if signed on
2 behalf of the limited partnership or foreign limited
3 partnership; or
4 (c) Five days after the process, notice, or demand is
5 deposited in the mail, if mailed postpaid and correctly
6 addressed.
7 (5) The Department of State shall keep a record of
8 each process, notice, and demand served pursuant to this
9 section and record the time of, and the action taken
10 regarding, the service.
11 (6) This section does not affect the right to serve
12 process, notice, or demand in any other manner provided by
13 law.
14 620.1118 Consent and proxies of partners.--Subject to
15 the management and approval rights described in s. 620.1406,
16 an action requiring the consent of partners under this act may
17 be taken without a meeting, and a partner may appoint a proxy
18 to consent or otherwise act for the partner by a record
19 appointing the proxy that is signed, either personally or by
20 the partner's attorney in fact.
21 620.1201 Formation of limited partnership; certificate
22 of limited partnership.--
23 (1) In order for a limited partnership to be formed, a
24 certificate of limited partnership must be delivered to the
25 Department of State for filing. The certificate must state:
26 (a) The name of the limited partnership, which must
27 comply with s. 620.1108.
28 (b) The street and mailing address of the initial
29 designated office of the limited partnership, and the name,
30 street address in this state, and written acceptance of the
31 initial registered agent.
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1 (c) The name and the business address of each general
2 partner; each general partner that is not an individual must
3 be organized or otherwise registered with the Department of
4 State as required by law, must maintain an active status, and
5 must not be dissolved, revoked, or withdrawn.
6 (d) Whether the limited partnership is a limited
7 liability limited partnership.
8 (e) Any additional information which may be required
9 by s. 620.2104 or s. 620.2108.
10 (2) A certificate of limited partnership may also
11 contain any other matters, but may not vary or otherwise
12 affect the provisions specified in s. 620.1110(2) in a manner
13 inconsistent with that section.
14 (3) If there has been substantial compliance with
15 subsection (1), then subject to s. 620.1206(3), a limited
16 partnership is formed when the Department of State files the
17 certificate of limited partnership.
18 (4) Subject to subsection (2), if any provision of a
19 partnership agreement is inconsistent with the filed
20 certificate of limited partnership, or with a filed statement
21 of dissociation, termination, or change, a filed certificate
22 of conversion or merger, or a certificate of dissolution or
23 revocation of dissolution, involving the limited partnership:
24 (a) The partnership agreement prevails as to partners
25 and transferees.
26 (b) The filed certificate of limited partnership,
27 statement of dissociation, termination, or change, certificate
28 of conversion or merger, or certificate of dissolution or
29 revocation of dissolution prevails as to persons, other than
30 partners and transferees, that reasonably rely on the filed
31 record to their detriment.
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1 620.1202 Amendment or restatement of certificate.--
2 (1) In order to amend or restate its certificate of
3 limited partnership, a limited partnership must deliver to the
4 Department of State for filing an amendment or restatement or,
5 pursuant to s. 620.2108, certificate of merger stating:
6 (a) The name of the limited partnership.
7 (b) The date of filing of its initial certificate.
8 (c) The changes the amendment or restatement makes to
9 the certificate as most recently amended or restated.
10 (2) A limited partnership shall promptly deliver to
11 the Department of State for filing an amendment to or
12 restatement of a certificate of limited partnership to
13 reflect:
14 (a) The admission of a new general partner;
15 (b) The dissociation of a person as a general partner;
16 or
17 (c) The appointment of a person to wind up the limited
18 partnership's activities under s. 620.1803(3) or (4).
19 (3) A general partner that knows that any information
20 in a filed certificate of limited partnership was false when
21 the certificate was filed or has become false due to changed
22 circumstances shall promptly:
23 (a) Cause the certificate to be amended or restated;
24 or
25 (b) If appropriate, deliver to the Department of State
26 for filing a statement of change pursuant to s. 620.1115 or a
27 statement of correction pursuant to s. 620.1207.
28 (4) A certificate of limited partnership may be
29 amended or restated at any time for any other proper purpose
30 as determined by the limited partnership.
31
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1 (5) Subject to s. 620.1206(3), an amendment or
2 restated certificate is effective when filed by the Department
3 of State.
4 (6) A limited partnership may, whenever desired,
5 integrate into a single instrument all of the provisions of
6 its certificate of limited partnership which are then in
7 effect and operative as a result of there having theretofore
8 been filed with the Department of State one or more
9 certificates or other instruments pursuant to any provision of
10 this section, and the limited partnership may at the same time
11 further amend its certificate of limited partnership by
12 adopting a restated certificate of limited partnership in
13 accordance with subsections (7)-(10).
14 (7) If the restated certificate of limited partnership
15 merely restates and integrates but does not further amend the
16 initial certificate of limited partnership, as theretofore
17 amended or restated by any instrument that was executed and
18 filed pursuant to any of the subsections in this section, the
19 restated certificate shall be specifically designated in its
20 heading as a "Restated Certificate of Limited Partnership,"
21 together with such other words as the limited partnership may
22 deem appropriate, and shall be executed by at least one
23 general partner and filed as provided by this act with the
24 Department of State. If the restated certificate restates and
25 integrates and also further amends in any respect the initial
26 certificate of limited partnership, as theretofore amended or
27 restated, the restated certificate shall be specifically
28 designated in its heading as an "Amended and Restated
29 Certificate of Limited Partnership," together with such other
30 words as the limited partnership may deem appropriate, and
31 shall be executed by at least one general partner and by each
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1 other general partner designated in the restated certificate
2 of limited partnership as a new general partner and filed as
3 provided by this act with the Department of State.
4 (8) A restated certificate of limited partnership
5 shall state, either in its heading or in an introductory
6 paragraph, the limited partnership's present name, and, if it
7 has been changed, the name under which it was originally
8 filed; the date of filing of its original certificate of
9 limited partnership with the Department of State; and, subject
10 to s. 620.1206(3), the delayed effective date or time, which
11 shall be a date or time certain, of the restated certificate
12 if it is not to be effective upon the filing of the restated
13 certificate. A restated certificate shall also state that it
14 was duly executed and is being filed in accordance with this
15 section. If the restated certificate only restates and
16 integrates and does not further amend the limited
17 partnership's certificate of limited partnership as
18 theretofore amended or supplemented and there is no
19 discrepancy between those provisions and the restated
20 certificate, it shall state that fact as well.
21 (9) Upon the filing of the restated certificate of
22 limited partnership with the Department of State, or upon the
23 delayed effective date or time of a restated certificate of
24 limited partnership as provided for therein, the initial
25 certificate of limited partnership, as theretofore amended or
26 supplemented, shall be superseded. Thereafter, the restated
27 certificate of limited partnership, including any further
28 amendment or changes made thereby, shall be the certificate of
29 limited partnership of the limited partnership, but the
30 original effective date of formation shall remain unchanged.
31
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1 (10) Any amendment or change effected in accordance
2 with subsections (7)-(9) and this subsection shall be subject
3 to any other provisions of this act, not inconsistent with
4 this section, which would apply if a separate certificate of
5 amendment were filed to effect such amendment or change.
6 620.1203 Certificate of dissolution; statement of
7 termination.--
8 (1) A certificate of dissolution shall be filed with
9 the Department of State in accordance with s. 620.1801(2) and
10 set forth:
11 (a) The name of the limited partnership.
12 (b) The date of filing of its initial certificate of
13 limited partnership.
14 (c) The reason for filing the certificate of
15 dissolution.
16 (d) Any other information as determined by the general
17 partners filing the statement or by a person appointed
18 pursuant to s. 620.1803(3) or (4).
19 (2) If there has been substantial compliance with
20 subsection (1), then subject to s. 620.1206(3) the dissolution
21 of the limited partnership shall be effective when the
22 Department of State files the certificate of dissolution.
23 (3) A dissolved limited partnership that has completed
24 winding up may deliver to the Department of State for filing a
25 statement of termination that states:
26 (a) The name of the limited partnership.
27 (b) The date of filing of its initial certificate of
28 limited partnership.
29 (c) The limited partnership has completed winding up
30 its affairs and wishes to file a statement of termination.
31
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1 (d) Any other information as determined by the general
2 partners filing the statement or by a person appointed
3 pursuant to s. 620.1803(3) or (4).
4 620.1204 Signing of records.--
5 (1) Each record delivered to the Department of State
6 for filing pursuant to this act must be signed in the
7 following manner:
8 (a) An initial certificate of limited partnership must
9 be signed by all general partners listed in the certificate of
10 limited partnership.
11 (b) An amendment adding or deleting a statement that
12 the limited partnership is a limited liability limited
13 partnership must be signed by all general partners listed in
14 the certificate of limited partnership.
15 (c) An amendment designating as general partner a
16 person admitted under s. 620.1801(1)(c) following the
17 dissociation of a limited partnership's last general partner
18 must be signed by that person.
19 (d) An amendment required by s. 620.1803(3) following
20 the appointment of a person to wind up the dissolved limited
21 partnership's activities must be signed by that person.
22 (e) Any other amendment must be signed by:
23 1. At least one general partner listed in the
24 certificate of limited partnership.
25 2. Each other person designated in the amendment as a
26 new general partner.
27 3. Each person that the amendment indicates has
28 dissociated as a general partner, unless:
29 a. The person is deceased or a guardian or general
30 conservator has been appointed for the person and the
31 amendment so states; or
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1 b. The person has previously delivered to the
2 Department of State for filing a statement of dissociation.
3 (f) A restated certificate of limited partnership must
4 be signed by at least one general partner listed in the
5 certificate, and, to the extent the restated certificate of
6 limited partnership effects a change described under any other
7 paragraph of this subsection, the certificate of limited
8 partnership must also be signed in a manner that satisfies
9 that paragraph.
10 (g) A certificate of dissolution, a statement of
11 termination, and a certificate of revocation of dissolution
12 must be signed by all general partners listed in the
13 certificate of limited partnership or, if the certificate of
14 limited partnership of a dissolved limited partnership lists
15 no general partners, by the person appointed pursuant to s.
16 620.803(3) or (4) to wind up the dissolved limited
17 partnership's activities.
18 (h) A certificate of conversion must be signed as
19 provided in s. 620.2104(1).
20 (i) A certificate of merger must be signed as provided
21 in s. 620.2108(1).
22 (j) Any other record delivered on behalf of a limited
23 partnership to the Department of State for filing must be
24 signed by at least one general partner listed in the
25 certificate of limited partnership.
26 (k) A statement by a person pursuant to s.
27 620.1605(1)(d) stating that the person has dissociated as a
28 general partner must be signed by that person.
29 (l) A statement of withdrawal by a person pursuant to
30 s. 620.1306 must be signed by that person.
31
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1 (m) A record delivered on behalf of a foreign limited
2 partnership to the Department of State for filing must be
3 signed by at least one general partner of the foreign limited
4 partnership.
5 (n) Any other record delivered on behalf of any person
6 to the Department of State for filing must be signed by that
7 person.
8 (2) Any person may sign by an attorney in fact any
9 record to be filed pursuant to this act.
10 620.1205 Signing and filing pursuant to judicial
11 order.--
12 (1) If a person required by this act to sign a record
13 or deliver a record to the Department of State for filing does
14 not do so, any other person that is aggrieved may petition the
15 circuit court to order:
16 (a) The person to sign the record;
17 (b) The person to deliver the record to the Department
18 of State for filing; or
19 (c) The Department of State to file the record
20 unsigned.
21 (2) If the person aggrieved under subsection (1) is
22 not the limited partnership or foreign limited partnership to
23 which the record pertains, the aggrieved person shall make the
24 limited partnership or foreign limited partnership a party to
25 the action. A person aggrieved under subsection (1) may seek
26 the remedies provided in subsection (1) in the same action in
27 combination or in the alternative.
28 (3) A record filed unsigned pursuant to this section
29 is effective without being signed.
30 620.1206 Delivery to and filing of records by
31 Department of State; effective time and date.--
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1 (1) A record authorized or required to be delivered to
2 the Department of State for filing under this act must be
3 captioned to describe the record's purpose, be in a medium
4 permitted by the Department of State, and be delivered to the
5 Department of State. Unless the Department of State determines
6 that a record does not comply with the filing requirements of
7 this act, and if all filing fees have been paid, the
8 Department of State shall file the record.
9 (2) Upon request and payment of a fee, the Department
10 of State shall send to the requester a certified copy of the
11 requested record.
12 (3) Except as otherwise provided in ss. 620.1116 and
13 620.1207, a record delivered to the Department of State for
14 filing under this act may specify an effective time and a
15 delayed effective date. Except as otherwise provided in this
16 act, a record filed by the Department of State is effective:
17 (a) If the record does not specify an effective time
18 and does not specify a delayed effective date, on the date and
19 at the time the record is filed as evidenced by the Department
20 of State's endorsement of the date and time on the record;
21 (b) If the record specifies an effective time but not
22 a delayed effective date, on the date the record is filed at
23 the time specified in the record;
24 (c) If the record specifies a delayed effective date
25 but not an effective time, at 12:01 a.m. on the earlier of:
26 1. The specified date; or
27 2. The 90th day after the record is filed; or
28 (d) If the record specifies an effective time and a
29 delayed effective date, at the specified time on the earlier
30 of:
31 1. The specified date; or
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1 2. The 90th day after the record is filed.
2 620.1207 Correcting filed record.--
3 (1) A limited partnership or foreign limited
4 partnership may deliver to the Department of State for filing
5 a statement of correction to correct a record previously
6 delivered by the limited partnership or foreign limited
7 partnership to the Department of State and filed by the
8 Department of State, if at the time of filing the record
9 contained false or erroneous information or was defectively
10 signed.
11 (2) A statement of correction may not state a delayed
12 effective date and must:
13 (a) Describe the record to be corrected, including its
14 filing date.
15 (b) Specify the incorrect information and the reason
16 it is incorrect or the manner in which the signing was
17 defective.
18 (c) Correct the incorrect information or defective
19 signature.
20 (3) When filed by the Department of State, a statement
21 of correction is effective retroactively as of the effective
22 date of the record the statement corrects, but the statement
23 is effective when filed:
24 (a) For the purposes of s. 620.103(3) and (4).
25 (b) As to persons relying on the uncorrected record
26 and adversely affected by the correction.
27 620.1208 Liability for false information in filed
28 record.--
29 (1) If a record delivered to the Department of State
30 for filing under this act and filed by the Department of State
31 contains false information, a person that suffers loss by
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1 reliance on the information may recover damages for the loss
2 from:
3 (a) A person that signed the record, or caused another
4 to sign the record on the person's behalf, and knew the
5 information to be false at the time the record was signed.
6 (b) A general partner that has notice the information
7 was false when the record was filed or has become false
8 because of changed circumstances, if the general partner has
9 notice for a reasonably sufficient time before the information
10 is relied upon to enable the general partner to effect an
11 amendment pursuant to s. 620.1202, file a petition pursuant to
12 s. 620.1205, or deliver to the Department of State for filing
13 a statement of change pursuant to s. 620.1115 or a statement
14 of correction pursuant to s. 620.1207.
15 (2) Signing a record authorized or required to be
16 filed under this act constitutes an affirmation under the
17 penalties of perjury that the facts stated in the record are
18 true.
19 620.1209 Certificate of status.--
20 (1) The Department of State, upon request and payment
21 of the requisite fee, shall furnish a certificate of status
22 for a limited partnership if the records filed in the
23 Department of State show that the Department of State has
24 filed a certificate of limited partnership. A certificate of
25 status must state:
26 (a) The limited partnership's name.
27 (b) That the limited partnership was duly formed under
28 the laws of this state and the date of formation.
29 (c) Whether all fees and penalties due to the
30 Department of State under this act have been paid.
31
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1 (d) Whether the limited partnership's most recent
2 annual report required by s. 620.1210 has been filed by the
3 Department of State.
4 (e) Whether the Department of State has
5 administratively dissolved the limited partnership or received
6 a record notifying the Department of State that the limited
7 partnership has been dissolved by judicial action pursuant to
8 s. 620.1802.
9 (f) Whether the Department of State has filed a
10 certificate of dissolution for the limited partnership.
11 (g) Whether the Department of State has filed a
12 statement of termination for the limited partnership.
13 (2) The Department of State, upon request and payment
14 of the requisite fee, shall furnish a certificate of status
15 for a foreign limited partnership if the records filed in the
16 Department of State show that the Department of State has
17 filed a certificate of authority. A certificate of status must
18 state:
19 (a) The foreign limited partnership's name and any
20 alternate name adopted under s. 620.1905(1) for use in this
21 state.
22 (b) That the foreign limited partnership is authorized
23 to transact business in this state.
24 (c) Whether all fees and penalties due to the
25 Department of State under this act or other law have been
26 paid.
27 (d) Whether the foreign limited partnership's most
28 recent annual report required by s. 620.1210 has been filed by
29 the Department of State.
30
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1 (e) Whether the Department of State has revoked the
2 foreign limited partnership's certificate of authority or
3 filed a notice of cancellation.
4 (3) Subject to any qualification stated in the
5 certificate, a certificate of status issued by the Department
6 of State may be relied upon as conclusive evidence that the
7 limited partnership or foreign limited partnership is in
8 existence or is authorized to transact business in this state.
9 620.1210 Annual report for Department of State.--
10 (1) A limited partnership or a foreign limited
11 partnership authorized to transact business in this state
12 shall deliver to the Department of State for filing an annual
13 report that states:
14 (a) The name of the limited partnership or, if a
15 foreign limited partnership, the name under which the foreign
16 limited partnership is registered to transact business in this
17 state.
18 (b) The street and mailing address of the limited
19 partnership or foreign limited partnership, the name of its
20 registered agent in this state, and the street address of its
21 registered office in this state.
22 (c) The name and business address of each general
23 partner. Each general partner that is not an individual must
24 be organized or otherwise registered with the Department of
25 State as required by law, must maintain an active status, and
26 must not be dissolved, revoked, or withdrawn.
27 (d) Federal Employer Identification number.
28 (e) Any additional information that is necessary or
29 appropriate to enable the Department of State to carry out the
30 provisions of this act.
31
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1 (2) Information in an annual report must be current as
2 of the date the annual report is delivered to the Department
3 of State for filing.
4 (3) The first annual report must be delivered to the
5 Department of State between January 1 and May 1 of the year
6 following the calendar year in which a limited partnership was
7 formed or a foreign limited partnership was authorized to
8 transact business. An annual report must be delivered to the
9 Department of State between January 1 and May 1 of each
10 subsequent calendar year.
11 (4) If an annual report does not contain the
12 information required in subsection (1), the Department of
13 State shall promptly notify the reporting limited partnership
14 or foreign limited partnership and return the report to it for
15 correction. If the report is corrected to contain the
16 information required in subsection (1) and delivered to the
17 Department of State within 30 days after the effective date of
18 the notice, it is timely delivered.
19 (5) If a filed annual report contains the address of a
20 designated office, name of a registered agent, or registered
21 office address which differs from the information shown in the
22 records of the Department of State immediately before the
23 filing, the differing information in the annual report is
24 considered a statement of change under s. 620.1115.
25 620.1301 Becoming limited partner.--A person becomes a
26 limited partner:
27 (1) As provided in the partnership agreement;
28 (2) As the result of a conversion or merger involving
29 the limited partnership under this act as provided in the plan
30 of conversion or merger; or
31 (3) With the consent of all the partners.
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1 620.1302 No right or power as limited partner to bind
2 limited partnership; certain approval rights.--
3 (1) A limited partner does not have the right or the
4 power as a limited partner to act for or bind the limited
5 partnership.
6 (2) The limited partners have only those approval
7 rights as are described in s. 620.1406.
8 620.1303 No liability as limited partner for limited
9 partnership obligations.--An obligation of a limited
10 partnership, whether arising in contract, tort, or otherwise,
11 is not the obligation of a limited partner. A limited partner
12 is not personally liable, directly or indirectly, by way of
13 contribution or otherwise, for an obligation of the limited
14 partnership solely by reason of being a limited partner, even
15 if the limited partner participates in the management and
16 control of the limited partnership.
17 620.1304 Right of limited partner and former limited
18 partner to information.--
19 (1) Upon 10 days' demand, made in a record received by
20 the limited partnership, a limited partner may inspect and
21 copy required information during regular business hours in the
22 limited partnership's designated office. The limited partner
23 need not have any particular purpose for seeking the
24 information.
25 (2) During regular business hours and at a reasonable
26 location specified by the limited partnership, a limited
27 partner may obtain from the limited partnership and inspect
28 and copy true and full information regarding the state of the
29 activities and financial condition of the limited partnership
30 and other information regarding the activities of the limited
31 partnership as is just and reasonable if:
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1 (a) The limited partner seeks the information for a
2 purpose reasonably related to the limited partner's interest
3 as a limited partner.
4 (b) The limited partner makes a demand in a record
5 received by the limited partnership, describing with
6 reasonable particularity the information sought and the
7 purpose for seeking the information.
8 (c) The information sought is directly connected to
9 the limited partner's purpose.
10 (3) Within 10 days after receiving a demand pursuant
11 to subsection (2), the limited partnership in a record shall
12 inform the limited partner that made the demand:
13 (a) What information the limited partnership will
14 provide in response to the demand.
15 (b) When and where the limited partnership will
16 provide the information.
17 (c) If the limited partnership declines to provide any
18 demanded information, the limited partnership's reasons for
19 declining.
20 (4) Subject to subsection (6), a person dissociated as
21 a limited partner may inspect and copy required information
22 during regular business hours in the limited partnership's
23 designated office if:
24 (a) The information pertains to the period during
25 which the person was a limited partner.
26 (b) The person seeks the information in good faith.
27 (c) The person meets the requirements of subsection
28 (2).
29 (5) The limited partnership shall respond to a demand
30 made pursuant to subsection (4) in the same manner as provided
31 in subsection (3).
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1 (6) If a limited partner dies, s. 620.1704 applies.
2 (7) Subject to s. 620.1110(2)(d), the limited
3 partnership may impose reasonable restrictions on the use of
4 information obtained under this section. In a dispute
5 concerning the reasonableness of a restriction under this
6 subsection, the limited partnership has the burden of proving
7 reasonableness.
8 (8) A limited partnership may charge a person that
9 makes a demand under this section reasonable costs of copying,
10 limited to the costs of labor and material.
11 (9) Whenever this act or a partnership agreement
12 provides for a limited partner to give or withhold consent to
13 a matter, before the consent is given or withheld, the limited
14 partnership shall, without demand, provide the limited partner
15 with all information material to the limited partner's
16 decision that the limited partnership knows.
17 (10) A limited partner or person dissociated as a
18 limited partner may exercise the rights under this section
19 through an attorney or other agent. Any restriction imposed
20 under subsection (7) or by the partnership agreement applies
21 both to the attorney or other agent and to the limited partner
22 or person dissociated as a limited partner.
23 (11) The rights stated in this section do not extend
24 to a person as transferee but may be exercised by the legal
25 representative of an individual under legal disability who is
26 a limited partner or person dissociated as a limited partner.
27 620.1305 Limited duties of limited partners.--
28 (1) A limited partner does not have any fiduciary duty
29 to the limited partnership or to any other partner solely by
30 reason of being a limited partner. To the extent a limited
31 partner is vested with or delegated management powers or
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1 duties under the partnership agreement, the only fiduciary
2 duties that such limited partner has to the limited
3 partnership and the other partners with respect to the
4 exercise of such powers or duties are those duties described
5 in s. 620.1408, subject to the same standards and limitations
6 that would apply to a general partner under that section with
7 respect to the exercise of such powers or duties.
8 (2) A limited partner shall discharge the duties to
9 the limited partnership and the other partners under this act
10 or under the partnership agreement and exercise any rights
11 consistently with the obligation of good faith and fair
12 dealing.
13 (3) A limited partner does not violate a duty or
14 obligation under this act or under the partnership agreement
15 merely because the limited partner's conduct furthers the
16 limited partner's own interest.
17 620.1306 Person erroneously believing self to be
18 limited partner.--
19 (1) Except as otherwise provided in subsection (2), a
20 person that makes an investment in a business enterprise and
21 erroneously but in good faith believes that the person has
22 become a limited partner in the enterprise is not liable for
23 the enterprise's obligations by reason of making the
24 investment, receiving distributions from the enterprise, or
25 exercising any rights of or appropriate to a limited partner,
26 if, on ascertaining the mistake, the person:
27 (a) Causes an appropriate certificate of limited
28 partnership, amendment, or statement of correction to be
29 signed and delivered to the Department of State for filing; or
30
31
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1 (b) Withdraws from future participation as an owner in
2 the enterprise by signing and delivering to the Department of
3 State for filing a statement of withdrawal under this section.
4 (2) A person that makes an investment described in
5 subsection (1) is liable to the same extent as a general
6 partner to any third party that enters into a transaction with
7 the enterprise, believing in good faith that the person is a
8 general partner, before the Department of State files a
9 statement of withdrawal, certificate of limited partnership,
10 amendment, or statement of correction to show that the person
11 is not a general partner.
12 (3) If a person makes a diligent effort in good faith
13 to comply with paragraph (1)(a) and is unable to cause the
14 appropriate certificate of limited partnership, amendment, or
15 statement of correction to be signed and delivered to the
16 Department of State for filing, the person has the right to
17 withdraw from the enterprise pursuant to paragraph (1)(b) even
18 if the withdrawal would otherwise breach an agreement with
19 others that are or have agreed to become coowners of the
20 enterprise.
21 620.1401 Becoming general partner.--A person becomes a
22 general partner:
23 (1) As provided in the partnership agreement;
24 (2) Under s. 620.1801(1)(c) following the dissociation
25 of a limited partnership's last general partner;
26 (3) As the result of a conversion or merger involving
27 the limited partnership under this act as provided for in the
28 plan of conversion or merger; or
29 (4) With the consent of all the partners.
30 620.1402 General partner agent of limited
31 partnership.--
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1 (1) Each general partner is an agent of the limited
2 partnership for the purposes of its activities. An act of a
3 general partner, including the signing of a record in the
4 partnership's name, for apparently carrying on in the ordinary
5 course the limited partnership's activities or activities of
6 the kind carried on by the limited partnership binds the
7 limited partnership, unless the general partner did not have
8 authority to act for the limited partnership in the particular
9 matter and the person with which the general partner was
10 dealing knew, had received a notification, or had notice under
11 s. 620.1103(4) that the general partner lacked authority.
12 (2) An act of a general partner which is not
13 apparently for carrying on in the ordinary course the limited
14 partnership's activities or activities of the kind carried on
15 by the limited partnership binds the limited partnership only
16 if the act was approved by the other partners as provided in
17 s. 620.1406.
18 620.1403 Limited partnership liable for general
19 partner's actionable conduct.--
20 (1) A limited partnership is liable for loss or injury
21 caused to a person, or for a penalty incurred, as a result of
22 a wrongful act or omission, or other actionable conduct, of a
23 general partner acting in the ordinary course of activities of
24 the limited partnership or with authority of the limited
25 partnership.
26 (2) If, in the course of the limited partnership's
27 activities or while acting with authority of the limited
28 partnership, a general partner receives or causes the limited
29 partnership to receive money or property of a person not a
30 partner, and the money or property is misapplied by a general
31 partner, the limited partnership is liable for the loss.
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1 620.1404 General partner's liability.--
2 (1) Except as otherwise provided in subsections (2)
3 and (3), all general partners are liable jointly and severally
4 for all obligations of the limited partnership unless
5 otherwise agreed by the claimant or provided by law.
6 (2) A person that becomes a general partner of an
7 existing limited partnership is not personally liable for an
8 obligation of a limited partnership incurred before the person
9 became a general partner.
10 (3) An obligation of a limited partnership incurred
11 while the limited partnership is a limited liability limited
12 partnership, whether arising in contract, tort, or otherwise,
13 is solely the obligation of the limited partnership. A general
14 partner is not personally liable, directly or indirectly, by
15 way of contribution or otherwise, for such an obligation
16 solely by reason of being or acting as a general partner. This
17 subsection applies despite anything inconsistent in the
18 partnership agreement that existed immediately before the
19 consent required to become a limited liability limited
20 partnership under s. 620.1406.
21 620.1405 Actions by and against partnership and
22 partners.--
23 (1) To the extent not inconsistent with s. 620.1404, a
24 general partner may be joined in an action against the limited
25 partnership or named in a separate action.
26 (2) A judgment against a limited partnership is not by
27 itself a judgment against a general partner. A judgment
28 against a limited partnership may not be satisfied from a
29 general partner's assets unless there is also a judgment
30 against the general partner.
31
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1 (3) A judgment creditor of a general partner may not
2 levy execution against the assets of the general partner to
3 satisfy a judgment based on a claim against the limited
4 partnership, unless the partner is personally liable for the
5 claim under s. 620.1404 and:
6 (a) A judgment based on the same claim has been
7 obtained against the limited partnership and a writ of
8 execution on the judgment has been returned unsatisfied in
9 whole or in part;
10 (b) The limited partnership is a debtor in bankruptcy;
11 (c) The general partner has agreed that the creditor
12 need not exhaust limited partnership assets;
13 (d) A court grants permission to the judgment creditor
14 to levy execution against the assets of a general partner
15 based on a finding that limited partnership assets subject to
16 execution are clearly insufficient to satisfy the judgment,
17 that exhaustion of limited partnership assets is excessively
18 burdensome, or that the grant of permission is an appropriate
19 exercise of the court's equitable powers; or
20 (e) Liability is imposed on the general partner by law
21 or contract independent of the existence of the limited
22 partnership.
23 620.1406 Management rights of general partner;
24 approval rights of other partners.--
25 (1) Each general partner has equal rights in the
26 management and conduct of the limited partnership's
27 activities. Any matter relating to the activities of the
28 limited partnership may be exclusively decided by the general
29 partner or, if there is more than one general partner, by a
30 majority of the general partners, except that the following
31 actions require the approval of all general partners:
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1 (a) Amending the partnership agreement or the
2 certificate of limited partnership, including any statement
3 changing the status of the limited partnership to a limited
4 liability limited partnership or deleting a statement that the
5 limited partnership is a limited liability limited
6 partnership.
7 (b) Admitting a limited partner under s. 620.1301.
8 (c) Admitting a general partner under s. 620.1401.
9 (d) Compromising a partner's obligation to make
10 contributions under s. 620.1502 or return an improper
11 distribution under s. 620.1508.
12 (e) Expelling a limited partner under s. 620.1601.
13 (f) Redeeming a transferable interest subject to a
14 charging order under s. 620.1703.
15 (g) Dissolving the limited partnership under s.
16 620.1801.
17 (h) Approving a plan of conversion under s. 620.2103
18 or a plan of merger under s. 620.2107.
19 (i) Selling, leasing, exchanging, or otherwise
20 disposing of all, or substantially all, of the limited
21 partnership's property, with or without good will, other than
22 in the usual and regular course of the limited partnership's
23 activities.
24 (2) The expulsion of a general partner under s.
25 620.1603 shall require the consent of all of the other general
26 partners.
27 (3) In addition to the approval of the general
28 partners required by subsections (1) and (2), the approval of
29 all limited partners shall be required to take any of the
30 actions under subsection (1) or subsection (2) with the
31
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1 exception of a transaction described in paragraph (1)(h) or a
2 transaction described in paragraph (1)(i).
3 (4) The approval of a plan of conversion under s.
4 620.2103 or a plan of merger under s. 620.2107 shall require
5 the consent of the limited partners in the manner described
6 therein.
7 (5) A transaction described in paragraph (1)(i) shall
8 require approval of limited partners owning a majority of the
9 rights to receive distributions as limited partners at the
10 time the consent is to be effective.
11 (6) A limited partnership shall reimburse a general
12 partner for payments made and indemnify a general partner for
13 liabilities incurred by the general partner in the ordinary
14 course of the activities of the partnership or for the
15 preservation of its activities or property if such payments
16 were made or such liabilities were incurred in good faith and
17 either in the furtherance of the limited partnership's
18 purposes or the ordinary scope of its activities.
19 (7) A limited partnership shall reimburse a general
20 partner for an advance to the limited partnership beyond the
21 amount of capital the general partner agreed to contribute.
22 (8) A payment or advance made by a general partner
23 which gives rise to an obligation of the limited partnership
24 under subsection (6) or subsection (7) constitutes a loan to
25 the limited partnership which accrues interest from the date
26 of the payment or advance.
27 (9) A general partner is not entitled to remuneration
28 for services performed for the partnership.
29 620.1407 Right of general partner and former general
30 partner to information.--
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1 (1) A general partner, without having any particular
2 purpose for seeking the information, may inspect and copy
3 during regular business hours:
4 (a) In the limited partnership's designated office,
5 required information.
6 (b) At a reasonable location specified by the limited
7 partnership, any other records maintained by the limited
8 partnership regarding the limited partnership's activities and
9 financial condition.
10 (2) Each general partner and the limited partnership
11 shall furnish to a general partner:
12 (a) Without demand, any information concerning the
13 limited partnership's activities, reasonably required for the
14 proper exercise of the general partner's rights and duties
15 under the partnership agreement or this act.
16 (b) On demand, any other information concerning the
17 limited partnership's activities, except to the extent the
18 demand or the information demanded is unreasonable or
19 otherwise improper under the circumstances.
20 (3) Subject to subsection (5), upon 10 days' demand
21 made in a record received by the limited partnership, a person
22 dissociated as a general partner may have access to the
23 information and records described in subsection (1) at the
24 location specified in subsection (1) if:
25 (a) The information or record pertains to the period
26 during which the person was a general partner.
27 (b) The person seeks the information or record in good
28 faith.
29 (c) The person satisfies the requirements imposed on a
30 limited partner by s. 620.1304(2).
31
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1 (4) The limited partnership shall respond to a demand
2 made pursuant to subsection (3) in the same manner as provided
3 in s. 620.1304(3).
4 (5) If a general partner dies, s. 620.1704 applies.
5 (6) The limited partnership may impose reasonable
6 restrictions on the use of information under this section. In
7 any dispute concerning the reasonableness of a restriction
8 under this subsection, the limited partnership has the burden
9 of proving reasonableness.
10 (7) A limited partnership may charge a person
11 dissociated as a general partner that makes a demand under
12 this section reasonable costs of copying, limited to the costs
13 of labor and material.
14 (8) A general partner or person dissociated as a
15 general partner may exercise the rights under this section
16 through an attorney or other agent. Any restriction imposed
17 under subsection (6) or by the partnership agreement applies
18 both to the attorney or other agent and to the general partner
19 or person dissociated as a general partner.
20 (9) The rights under this section do not extend to a
21 person as transferee, but the rights under subsection (3) of a
22 person dissociated as a general partner may be exercised by
23 the legal representative of an individual who dissociated as a
24 general partner under s. 620.603(7)(b) or (c).
25 620.1408 General standards of conduct for general
26 partner.--
27 (1) The only fiduciary duties that a general partner
28 has to the limited partnership and the other partners are the
29 duties of loyalty and care under subsections (2) and (3).
30
31
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1 (2) A general partner's duty of loyalty to the limited
2 partnership and the other partners is limited to the
3 following:
4 (a) To account to the limited partnership and hold as
5 trustee for it any property, profit, or benefit derived by the
6 general partner in the conduct and winding up of the limited
7 partnership's activities or derived from a use by the general
8 partner of limited partnership property, including the
9 appropriation of a limited partnership opportunity.
10 (b) To refrain from dealing with the limited
11 partnership in the conduct or winding up of the limited
12 partnership's activities as or on behalf of a party having an
13 interest adverse to the limited partnership.
14 (c) To refrain from competing with the limited
15 partnership in the conduct of the limited partnership's
16 activities.
17 (3) A general partner's duty of care to the limited
18 partnership and the other partners in the conduct and winding
19 up of the limited partnership's activities is limited to
20 refraining from engaging in grossly negligent or reckless
21 conduct, intentional misconduct, or a knowing violation of
22 law.
23 (4) A general partner shall discharge the duties to
24 the partnership and the other partners under this act or under
25 the partnership agreement and exercise any rights consistently
26 with the obligation of good faith and fair dealing.
27 (5) A general partner does not violate a duty or
28 obligation under this act or under the partnership agreement
29 merely because the general partner's conduct furthers the
30 general partner's own interest.
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1 620.1501 Form of contribution.--A contribution of a
2 partner may consist of tangible or intangible property or
3 other benefit to the limited partnership, including money,
4 services performed, promissory notes, other agreements to
5 contribute cash or property, and contracts for services to be
6 performed.
7 620.1502 Liability for contribution.--
8 (1) A partner's obligation to contribute money or
9 other property or other benefit to, or to perform services
10 for, a limited partnership shall be in a record signed by the
11 partner, and such obligation shall not be excused by the
12 partner's death, disability, or other inability to perform
13 personally.
14 (2) If a partner does not make a promised nonmonetary
15 contribution, the partner is obligated at the option of the
16 limited partnership to contribute money equal to that portion
17 of the value, as stated in the required information, of the
18 stated contribution which has not been made.
19 (3) The obligation of a partner to make a contribution
20 or return money or other property paid or distributed in
21 violation of this act may be compromised only by consent of
22 all partners. A creditor of a limited partnership which
23 extends credit or otherwise acts in reliance on an obligation
24 described in subsection (1), without notice of any compromise
25 under this subsection, may enforce the original obligation.
26 (4) A partnership agreement may provide that the
27 interest of any partner who fails to make any contribution
28 that the partner is obligated to make shall be subject to
29 specified penalties for, or specified consequences of, such
30 failure. Such penalty or consequence may take the form of
31 reducing the partner's proportionate interest in the limited
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1 partnership, subordinating the partner's partnership interests
2 to that of nondefaulting partners, a forced sale, or the
3 forfeiture of the partner's interest in the limited
4 partnership, the lending by other partners of the amount
5 necessary to meet the partner's commitment, a fixing of the
6 value of the partner's interest in the limited partnership by
7 appraisal or by formula and redemption or sale of such
8 interest at such value, or other penalty or consequence.
9 620.1503 Sharing of profits, losses, and
10 distributions.--
11 (1) Profits and losses of a limited partnership shall
12 be allocated among the partners on the basis of the value, as
13 stated in the required records when the limited partnership
14 makes the allocations, of the contributions the limited
15 partnership has received from each partner.
16 (2) Distributions by a limited partnership shall be
17 shared by the partners on the basis of the value, as stated in
18 the required records when the limited partnership decides to
19 make the distribution, of the contributions the limited
20 partnership has received from each partner.
21 620.1504 Interim distributions.--A partner does not
22 have a right to any distribution before the dissolution and
23 winding up of the limited partnership unless the limited
24 partnership decides to make an interim distribution.
25 620.1505 No distribution on account of
26 dissociation.--A person does not have a right to receive a
27 distribution on account of dissociation.
28 620.1506 Distribution in kind.--A partner does not
29 have a right to demand or receive any distribution from a
30 limited partnership in any form other than cash. Subject to s.
31 620.1813, a limited partnership may distribute an asset in
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1 kind to the extent each partner receives a percentage of the
2 asset equal to the partner's share of distributions.
3 620.1507 Right to distribution.--When a partner or
4 transferee becomes entitled to receive a distribution, the
5 partner or transferee has the status of, and is entitled to
6 all remedies available to, a creditor of the limited
7 partnership with respect to the distribution. However, the
8 limited partnership's obligation to make a distribution is
9 subject to offset for any amount owed to the limited
10 partnership by the partner or dissociated partner on whose
11 account the distribution is made.
12 620.1508 Limitations on distribution.--
13 (1) A limited partnership may not make a distribution
14 in violation of the partnership agreement.
15 (2) A limited partnership may not make a distribution
16 if after the distribution:
17 (a) The limited partnership would not be able to pay
18 its debts as they become due in the ordinary course of the
19 limited partnership's activities; or
20 (b) The limited partnership's total assets would be
21 less than the sum of its total liabilities plus the amount
22 that would be needed, if the limited partnership were to be
23 dissolved, wound up, and terminated at the time of the
24 distribution, to satisfy the preferential rights upon
25 dissolution, winding up, and termination of partners whose
26 preferential rights are superior to those of persons receiving
27 the distribution.
28 (3) A limited partnership may base a determination
29 that a distribution is not prohibited under subsection (2) on
30 financial statements prepared on the basis of accounting
31 practices and principles that are reasonable in the
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1 circumstances or on a fair valuation or other method that is
2 reasonable in the circumstances.
3 (4) Except as otherwise provided in subsection (7),
4 the effect of a distribution under subsection (2) is measured:
5 (a) In the case of distribution by purchase,
6 redemption, or other acquisition of a transferable interest in
7 the limited partnership, as of the date money or other
8 property is transferred or debt incurred by the limited
9 partnership.
10 (b) In all other cases, as of the date:
11 1. The distribution is authorized, if the payment
12 occurs within 120 days after that date; or
13 2. The payment is made, if payment occurs more than
14 120 days after the distribution is authorized.
15 (5) A limited partnership's indebtedness to a partner
16 incurred by reason of a distribution made in accordance with
17 this section is at parity with the limited partnership's
18 indebtedness to its general, unsecured creditors.
19 (6) A limited partnership's indebtedness, including
20 indebtedness issued in connection with or as part of a
21 distribution, is not considered a liability for purposes of
22 subsection (2) if the terms of the indebtedness provide that
23 payment of principal and interest are made only to the extent
24 that a distribution could then be made to partners under this
25 section.
26 (7) If indebtedness is issued as a distribution, each
27 payment of principal or interest on the indebtedness is
28 treated as a distribution, the effect of which is measured on
29 the date the payment is made.
30 620.1509 Liability for improper distributions.--
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1 (1) A general partner that consents to a distribution
2 made in violation of s. 620.1508 is personally liable to the
3 limited partnership for the amount of the distribution which
4 exceeds the amount that could have been distributed without
5 the violation if it is established that in consenting to the
6 distribution the general partner failed to comply with s.
7 620.1408.
8 (2) A partner or transferee that received a
9 distribution knowing that the distribution to that partner or
10 transferee was made in violation of s. 620.1508 is personally
11 liable to the limited partnership but only to the extent that
12 the distribution received by the partner or transferee
13 exceeded the amount that could have been properly paid under
14 s. 620.1508.
15 (3) A general partner against which an action is
16 commenced under subsection (1) may:
17 (a) Implead in the action any other person that is
18 liable under subsection (1) and compel contribution from the
19 person.
20 (b) Implead in the action any person that received a
21 distribution in violation of subsection (2) and compel
22 contribution from the person in the amount the person received
23 in violation of subsection (2).
24 (4) An action under this section is barred if it is
25 not commenced within 2 years after the distribution.
26 620.1601 Dissociation as limited partner.--
27 (1) A person does not have a right to dissociate as a
28 limited partner before the termination of the limited
29 partnership.
30
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1 (2) A person is dissociated from a limited partnership
2 as a limited partner upon the occurrence of any of the
3 following events:
4 (a) The limited partnership's having notice of the
5 person's express will to withdraw as a limited partner or on a
6 later date specified by the person;
7 (b) An event agreed to in the partnership agreement as
8 causing the person's dissociation as a limited partner;
9 (c) The person's expulsion as a limited partner
10 pursuant to the partnership agreement;
11 (d) The person's expulsion as a limited partner by the
12 unanimous consent of the other partners if:
13 1. It is unlawful to carry on the limited
14 partnership's activities with the person as a limited partner;
15 2. There has been a transfer of all of the person's
16 transferable interest in the limited partnership, other than a
17 transfer for security purposes, or a court order charging the
18 person's interest, which has not been foreclosed;
19 3. The person is a corporation and, within 90 days
20 after the limited partnership notifies the person that the
21 corporation will be expelled as a limited partner because the
22 corporation has filed a certificate of dissolution or the
23 equivalent, the corporation's charter has been revoked, or its
24 right to conduct business has been suspended by the
25 jurisdiction of its incorporation, and there is no revocation
26 of the certificate of dissolution or no reinstatement of its
27 charter or its right to conduct business; or
28 4. The person is a limited liability company or
29 partnership that has been dissolved and whose business is
30 being wound up;
31
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1 (e) On application by the limited partnership, the
2 person's expulsion as a limited partner by judicial
3 determination because:
4 1. The person engaged in wrongful conduct that
5 adversely and materially affected the limited partnership's
6 activities;
7 2. The person willfully or persistently committed a
8 material breach of the partnership agreement, any duty the
9 person may have under s. 620.1305(1), or the obligation of
10 good faith and fair dealing under s. 620.1305(2); or
11 3. The person engaged in conduct relating to the
12 limited partnership's activities which makes it not reasonably
13 practicable to carry on the activities with the person as
14 limited partner;
15 (f) In the case of a person who is an individual, the
16 person's death;
17 (g) In the case of a person that is a trust or is
18 acting as a limited partner by virtue of being a trustee of a
19 trust, distribution of the trust's entire transferable
20 interest in the limited partnership, but not merely by reason
21 of the substitution of a successor trustee;
22 (h) In the case of a person that is an estate or is
23 acting as a limited partner by virtue of being a personal
24 representative of an estate, distribution of the estate's
25 entire transferable interest in the limited partnership, but
26 not merely by reason of the substitution of a successor
27 personal representative;
28 (i) Termination of a limited partner that is not an
29 individual, partnership, limited liability company,
30 corporation, trust, or estate; or
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1 (j) The limited partnership's participation in a
2 conversion or merger under this act, if the limited
3 partnership:
4 1. Is not the converted or surviving entity; or
5 2. Is the converted or surviving entity but, as a
6 result of the conversion or merger, the person ceases to be a
7 limited partner.
8 620.1602 Effect of dissociation as limited partner.--
9 (1) Upon a person's dissociation as a limited partner:
10 (a) Subject to s. 620.1704, the person does not have
11 further rights as a limited partner.
12 (b) The person's obligation of good faith and fair
13 dealing as a limited partner under s. 620.1305(2) continues
14 only as to matters arising and events occurring before the
15 dissociation and such person's duties, if any, under s.
16 620.1305(1) terminate or continue in the same manner as
17 provided in s. 620.1605(1)(b) and (c).
18 (c) Subject to s. 620.1704 and ss. 620.2101-620.2125,
19 any transferable interest owned by the person in the person's
20 capacity as a limited partner immediately before dissociation
21 is owned by the person as a mere transferee.
22 (2) A person's dissociation as a limited partner does
23 not of itself discharge the person from any obligation to the
24 limited partnership or the other partners which the person
25 incurred while a limited partner.
26 620.1603 Dissociation as general partner.--A person is
27 dissociated from a limited partnership as a general partner
28 upon the occurrence of any of the following events:
29 (1) The limited partnership's having notice of the
30 person's express will to withdraw as a general partner or on a
31 later date specified by the person;
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1 (2) An event agreed to in the partnership agreement as
2 causing the person's dissociation as a general partner;
3 (3) The person's expulsion as a general partner
4 pursuant to the partnership agreement;
5 (4) The person's expulsion as a general partner by the
6 unanimous consent of the other partners if:
7 (a) It is unlawful to carry on the limited
8 partnership's activities with the person as a general partner;
9 (b) There has been a transfer of all or substantially
10 all of the person's transferable interest in the limited
11 partnership, other than a transfer for security purposes, or a
12 court order charging the person's interest, which has not been
13 foreclosed;
14 (c) The person is a corporation and, within 90 days
15 after the limited partnership notifies the person that the
16 corporation will be expelled as a general partner because the
17 corporation has filed a certificate of dissolution or the
18 equivalent, the corporation's charter has been revoked, or its
19 right to conduct business has been suspended by the
20 jurisdiction of its incorporation, and there is no revocation
21 of the certificate of dissolution or no reinstatement of its
22 charter or its right to conduct business; or
23 (d) The person is a limited liability company or
24 partnership that has been dissolved and whose business is
25 being wound up;
26 (5) On application by the limited partnership, the
27 person's expulsion as a general partner by judicial
28 determination because:
29 (a) The person engaged in wrongful conduct that
30 adversely and materially affected the limited partnership
31 activities;
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1 (b) The person willfully or persistently committed a
2 material breach of the partnership agreement or of a duty owed
3 to the partnership or the other partners under s. 620.1408; or
4 (c) The person engaged in conduct relating to the
5 limited partnership's activities which makes it not reasonably
6 practicable to carry on the activities of the limited
7 partnership with the person as a general partner;
8 (6) The person's:
9 (a) Becoming a debtor in bankruptcy;
10 (b) Execution of an assignment for the benefit of
11 creditors;
12 (c) Seeking, consenting to, or acquiescing in the
13 appointment of a trustee, receiver, or liquidator of the
14 person or of all or substantially all of the person's
15 property; or
16 (d) Failure, within 90 days after the appointment, to
17 have vacated or stayed the appointment of a trustee, receiver,
18 or liquidator of the general partner or of all or
19 substantially all of the person's property obtained without
20 the person's consent or acquiescence, or failing within 90
21 days after the expiration of a stay to have the appointment
22 vacated;
23 (7) In the case of a person who is an individual:
24 (a) The person's death;
25 (b) The appointment of a guardian or general
26 conservator for the person; or
27 (c) A judicial determination that the person has
28 otherwise become incapable of performing the person's duties
29 as a general partner under the partnership agreement;
30 (8) In the case of a person that is a trust or is
31 acting as a general partner by virtue of being a trustee of a
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1 trust, distribution of the trust's entire transferable
2 interest in the limited partnership, but not merely by reason
3 of the substitution of a successor trustee;
4 (9) In the case of a person that is an estate or is
5 acting as a general partner by virtue of being a personal
6 representative of an estate, distribution of the estate's
7 entire transferable interest in the limited partnership, but
8 not merely by reason of the substitution of a successor
9 personal representative;
10 (10) Termination of a general partner that is not an
11 individual, partnership, limited liability company,
12 corporation, trust, or estate; or
13 (11) The limited partnership's participation in a
14 conversion or merger under this act, if the limited
15 partnership:
16 (a) Is not the converted or surviving entity; or
17 (b) Is the converted or surviving entity but, as a
18 result of the conversion or merger, the person ceases to be a
19 general partner.
20 620.1604 Person's power to dissociate as general
21 partner; wrongful dissociation.--
22 (1) A person has the power to dissociate as a general
23 partner at any time, rightfully or wrongfully, by express will
24 pursuant to s. 620.1603(1).
25 (2) A person's dissociation as a general partner is
26 wrongful only if:
27 (a) It is in breach of an express provision of the
28 partnership agreement; or
29 (b) It occurs before the termination of the limited
30 partnership, and:
31
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1 1. The person withdraws as a general partner by
2 express will;
3 2. The person is expelled as a general partner by
4 judicial determination under s. 620.1603(5);
5 3. The person is dissociated as a general partner by
6 becoming a debtor in bankruptcy; or
7 4. In the case of a person that is not an individual,
8 trust other than a business trust, or estate, the person is
9 expelled or otherwise dissociated as a general partner because
10 it willfully dissolved or terminated.
11 (3) A person that wrongfully dissociates as a general
12 partner is liable to the limited partnership and, subject to
13 s. 620.2001, to the other partners for damages caused by the
14 dissociation. The liability is in addition to any other
15 obligation of the general partner to the limited partnership
16 or to the other partners.
17 620.1605 Effect of dissociation as general partner.--
18 (1) Upon a person's dissociation as a general partner:
19 (a) The person's right to participate as a general
20 partner in the management and conduct of the partnership's
21 activities terminates.
22 (b) The person's duty of loyalty as a general partner
23 under s. 620.1408(2)(c) terminates.
24 (c) The person's duty of loyalty as a general partner
25 under s. 620.1408(2)(a) and (b) and duty of care under s.
26 620.1408(3) continue only with regard to matters arising and
27 events occurring before the person's dissociation as a general
28 partner.
29 (2) The person may sign and deliver to the Department
30 of State for filing a statement of dissociation pertaining to
31 the person and, at the request of the limited partnership,
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1 shall sign an amendment to the certificate of limited
2 partnership which states that the person has dissociated.
3 (3) Subject to s. 620.1704 and ss. 620.2101-620.2125,
4 any transferable interest owned by the person immediately
5 before dissociation in the person's capacity as a general
6 partner is owned by the person as a mere transferee.
7 (4) A person's dissociation as a general partner does
8 not of itself discharge the person from any obligation to the
9 limited partnership or the other partners which the person
10 incurred while a general partner.
11 620.1606 Power to bind and liability to limited
12 partnership before dissolution of partnership of person
13 dissociated as general partner.--
14 (1) After a person is dissociated as a general partner
15 and before the limited partnership is dissolved, converted
16 under s. 620.2102, or merged out of existence under s.
17 620.2106, the limited partnership is bound by an act of the
18 person only if:
19 (a) The act would have bound the limited partnership
20 under s. 620.1402 before the dissociation.
21 (b) At the time the other party enters into the
22 transaction:
23 1. Less than 2 years have passed since the
24 dissociation.
25 2. The other party does not have notice of the
26 dissociation and reasonably believes that the person is a
27 general partner.
28 (2) If a limited partnership is bound under subsection
29 (1), the person dissociated as a general partner which caused
30 the limited partnership to be bound is liable:
31
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1 (a) To the limited partnership for any damage caused
2 to the limited partnership arising from the obligation
3 incurred under subsection (1).
4 (b) If a general partner or another person dissociated
5 as a general partner is liable for the obligation, to the
6 general partner or other person for any damage caused to the
7 general partner or other person arising from the liability.
8 620.1607 Liability to other persons of person
9 dissociated as general partner.--
10 (1) A person's dissociation as a general partner does
11 not of itself discharge the person's liability as a general
12 partner for an obligation of the limited partnership incurred
13 before dissociation. Except as otherwise provided in
14 subsections (2) and (3), the person is not liable for a
15 limited partnership's obligation incurred after dissociation.
16 (2) A person whose dissociation as a general partner
17 resulted in a dissolution and winding up of the limited
18 partnership's activities is liable to the same extent as a
19 general partner under s. 620.1404 on an obligation incurred by
20 the limited partnership under s. 620.1804.
21 (3) A person that has dissociated as a general partner
22 but whose dissociation did not result in a dissolution and
23 winding up of the limited partnership's activities is liable
24 on a transaction entered into by the limited partnership after
25 the dissociation only if:
26 (a) A general partner would be liable on the
27 transaction.
28 (b) At the time the other party enters into the
29 transaction:
30 1. Less than 2 years have passed since the
31 dissociation.
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1 2. The other party does not have notice of the
2 dissociation and reasonably believes that the person is a
3 general partner.
4 (4) By agreement with a creditor of a limited
5 partnership and the limited partnership, a person dissociated
6 as a general partner may be released from liability for an
7 obligation of the limited partnership.
8 (5) A person dissociated as a general partner is
9 released from liability for an obligation of the limited
10 partnership if the limited partnership's creditor, with notice
11 of the person's dissociation as a general partner but without
12 the person's consent, agrees to a material alteration in the
13 nature or time of payment of the obligation.
14 620.1701 Partner's transferable interest;
15 certificates.--
16 (1) The only interest of a partner which is
17 transferable is the partner's transferable interest. A
18 transferable interest is personal property.
19 (2) The partnership agreement may provide that a
20 partner's interest in a limited partnership may be evidenced
21 by a certificate issued by the limited partnership and may
22 also provide for the assignment or transfer of any interest in
23 the limited partnership represented by such a certificate and
24 make other provisions with respect to such certificates.
25 620.1702 Transfer of partner's transferable
26 interest.--
27 (1) A transfer, in whole or in part, of a partner's
28 transferable interest:
29 (a) Is permissible.
30
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1 (b) Does not by itself cause the partner's
2 dissociation or a dissolution and winding up of the limited
3 partnership's activities.
4 (c) Does not, as against the other partners or the
5 limited partnership, entitle the transferee to participate in
6 the management or conduct of the limited partnership's
7 activities, to require access to any information to which a
8 limited partner would otherwise have access under s. 620.1304,
9 except as otherwise provided in subsection (3), or to inspect
10 or copy the required information or the limited partnership's
11 other records.
12 (2) A transferee has a right to receive, in accordance
13 with the transfer:
14 (a) Distributions to which the transferor would
15 otherwise be entitled.
16 (b) Upon the dissolution and winding up of the limited
17 partnership's activities the net amount otherwise
18 distributable to the transferor.
19 (3) In a dissolution and winding up, a transferee is
20 entitled to an account of the limited partnership's
21 transactions only from the date of dissolution.
22 (4) Upon transfer, the transferor retains the rights
23 of a partner other than the interest in distributions
24 transferred and retains all duties and obligations of a
25 partner.
26 (5) A limited partnership need not give effect to a
27 transferee's rights under this section until the limited
28 partnership has notice of the transfer.
29 (6) A transfer of a partner's transferable interest in
30 the limited partnership in violation of a restriction on
31 transfer contained in the partnership agreement is ineffective
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1 as to a person having notice of the restriction at the time of
2 transfer.
3 (7) A transferee that becomes a partner with respect
4 to a transferable interest is liable for the transferor's
5 obligations under ss. 620.1502 and 620.1509. However, the
6 transferee is not obligated for liabilities unknown to the
7 transferee at the time the transferee became a partner.
8 620.1703 Rights of creditor of partner or
9 transferee.--
10 (1) On application to a court of competent
11 jurisdiction by any judgment creditor of a partner or
12 transferee, the court may charge the partnership interest of
13 the partner or transferable interest of a transferee with
14 payment of the unsatisfied amount of the judgment with
15 interest. To the extent so charged, the judgment creditor has
16 only the rights of a transferee of the partnership interest.
17 (2) This act shall not deprive any partner or
18 transferee of the benefit of an exemption law applicable to
19 the partner's partnership or transferee's transferable
20 interest.
21 (3) This section provides the exclusive remedy which a
22 judgment creditor of a partner or transferee may use to
23 satisfy a judgment out of the judgment debtor's interest in
24 the limited partnership or transferable interest. Other
25 remedies, including foreclosure on the partner's interest in
26 the limited partnership or a transferee's transferable
27 interest and a court order for directions, accounts, and
28 inquiries that the debtor general or limited partner might
29 have made, are not available to the judgment creditor
30 attempting to satisfy the judgment out of the judgment
31
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1 debtor's interest in the limited partnership and may not be
2 ordered by a court.
3 620.1704 Power of estate of deceased partner.--If a
4 partner dies, the deceased partner's personal representative
5 or other legal representative may exercise the rights of a
6 transferee as provided in s. 620.1702 and, for the purposes of
7 settling the estate, may exercise the rights of a current
8 limited partner under s. 620.1304.
9 620.1801 Nonjudicial dissolution.--
10 (1) Except as otherwise provided in s. 620.1802, a
11 limited partnership is dissolved, and its activities must be
12 wound up, only upon the occurrence of any of the following:
13 (a) The happening of an event specified in the
14 partnership agreement;
15 (b) The consent of all general partners and of all
16 limited partners;
17 (c) After the dissociation of a person as a general
18 partner:
19 1. If the limited partnership has at least one
20 remaining general partner, the consent to dissolve the limited
21 partnership by all partners at the time the consent is to be
22 effective; or
23 2. If the limited partnership does not have a
24 remaining general partner, the passage of 90 days after the
25 dissociation, unless before the end of the period:
26 a. Consent to continue the activities of the limited
27 partnership and admit at least one general partner is given by
28 all partners at the time the consent is to be effective;
29 b. At least one person is admitted as a general
30 partner in accordance with the consent;
31
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1 (d) The passage of 90 days after the dissociation of
2 the limited partnership's last limited partner, unless before
3 the end of the period the limited partnership admits at least
4 one limited partner; or
5 (e) The signing and filing of a declaration of
6 dissolution by the Department of State under s. 620.1809(3).
7 (2) Upon the occurrence of an event specified in
8 paragraphs (1)(a)-(d), the limited partnership shall file a
9 certificate of dissolution as provided in s. 620.1203.
10 620.1802 Judicial dissolution.--On application by a
11 partner, the circuit court may order dissolution of a limited
12 partnership if it is not reasonably practicable to carry on
13 the activities of the limited partnership in conformity with
14 the partnership agreement.
15 620.1803 Winding up.--
16 (1) A limited partnership continues after dissolution
17 only for the purpose of winding up its activities.
18 (2) In winding up its activities, the limited
19 partnership:
20 (a) May preserve the limited partnership business or
21 property as a going concern for a reasonable time, prosecute
22 and defend actions and proceedings, whether civil, criminal,
23 or administrative, transfer the limited partnership's
24 property, settle disputes by mediation or arbitration, and
25 perform other necessary acts.
26 (b) Shall discharge, make provision for, or otherwise
27 address the limited partnership's liabilities, settle and
28 close the limited partnership's activities, and marshal and
29 distribute the assets of the partnership.
30 (c) May file a statement of termination as provided in
31 s. 620.1203.
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1 (3) If a dissolved limited partnership does not have a
2 general partner, a person to wind up the dissolved limited
3 partnership's activities may be appointed by the consent of
4 limited partners owning a majority of the rights to receive
5 distributions as limited partners at the time the consent is
6 to be effective. A person appointed under this subsection:
7 (a) Has the powers of a general partner under s.
8 620.1804.
9 (b) Shall promptly amend the certificate of limited
10 partnership to state:
11 1. That the limited partnership does not have a
12 general partner.
13 2. The name of the person that has been appointed to
14 wind up the limited partnership.
15 3. The street and mailing address of the person.
16 (4) On the application of any partner, the circuit
17 court may order judicial supervision of the winding up,
18 including the appointment of a person to wind up the dissolved
19 limited partnership's activities, if:
20 (a) A limited partnership does not have a general
21 partner and within a reasonable time following the dissolution
22 no person has been appointed pursuant to subsection (3); or
23 (b) The applicant establishes other good cause.
24 620.1804 Power of general partner and person
25 dissociated as general partner to bind partnership after
26 dissolution.--
27 (1) A limited partnership is bound by a general
28 partner's act after dissolution which:
29 (a) Is appropriate for winding up the limited
30 partnership's activities; or
31
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1 (b) Would have bound the limited partnership under s.
2 620.1402 before dissolution, if, at the time the other party
3 enters into the transaction, the other party does not have
4 notice of the dissolution.
5 (2) A person dissociated as a general partner binds a
6 limited partnership through an act occurring after dissolution
7 if:
8 (a) At the time the other party enters into the
9 transaction:
10 1. Less than 2 years have passed since the
11 dissociation.
12 2. The other party does not have notice of the
13 dissociation and reasonably believes that the person is a
14 general partner.
15 (b) The act:
16 1. Is appropriate for winding up the limited
17 partnership's activities; or
18 2. Would have bound the limited partnership under s.
19 620.1402 before dissolution and at the time the other party
20 enters into the transaction the other party does not have
21 notice of the dissolution.
22 620.1805 Liability after dissolution of general
23 partner and person dissociated as general partner to limited
24 partnership, other general partners, and persons dissociated
25 as general partner.--
26 (1) If a general partner having knowledge of the
27 dissolution causes a limited partnership to incur an
28 obligation under s. 620.1804(1) by an act that is not
29 appropriate for winding up the partnership's activities, the
30 general partner is liable:
31
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1 (a) To the limited partnership for any damage caused
2 to the limited partnership arising from the obligation.
3 (b) If another general partner or a person dissociated
4 as a general partner is liable for the obligation, to that
5 other general partner or person for any damage caused to that
6 other general partner or person arising from the liability.
7 (2) If a person dissociated as a general partner
8 causes a limited partnership to incur an obligation under s.
9 620.1804(2), the person is liable:
10 (a) To the limited partnership for any damage caused
11 to the limited partnership arising from the obligation.
12 (b) If a general partner or another person dissociated
13 as a general partner is liable for the obligation, to the
14 general partner or other person for any damage caused to the
15 general partner or other person arising from the liability.
16 620.1806 Known claims against dissolved limited
17 partnership.--
18 (1) A dissolved limited partnership or successor
19 entity, as defined in subsection (14), may dispose of the
20 known claims against it by following the procedure described
21 in subsections (2), (3), and (4).
22 (2) A dissolved limited partnership or successor
23 entity shall deliver to each of its known claimants written
24 notice of the dissolution at any time after its effective
25 date. The written notice shall:
26 (a) Provide a reasonable description of the claim that
27 the claimant may be entitled to assert.
28 (b) State whether the claim is admitted or not
29 admitted, in whole or in part, and, if admitted:
30 1. The amount that is admitted, which may be as of a
31 given date.
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1 2. Any interest obligation if fixed by an instrument
2 of indebtedness.
3 (c) Provide a mailing address to which a claim may be
4 sent.
5 (d) State the deadline, which may not be fewer than
6 120 days after the effective date of the written notice, by
7 which confirmation of the claim must be delivered to the
8 dissolved limited partnership or successor entity.
9 (e) State that the dissolved limited partnership or
10 successor entity may make distributions thereafter to other
11 claimants and to the partners or transferees of the limited
12 partnership or persons interested as having been such without
13 further notice.
14 (f) Unless the limited partnership has been throughout
15 its existence a limited liability limited partnership, state
16 that the barring of a claim against the limited partnership
17 will also bar any corresponding claim against any general
18 partner or person dissociated as a general partner which is
19 based on s. 620.1404.
20 (3) A dissolved limited partnership or successor
21 entity may reject, in whole or in part, any claim made by a
22 claimant pursuant to this subsection by mailing notice of such
23 rejection to the claimant within 90 days after receipt of such
24 claim and, in all events, at least 150 days before expiration
25 of 3 years following the effective date of dissolution. A
26 notice sent by the dissolved limited partnership or successor
27 entity pursuant to this subsection shall be accompanied by a
28 copy of this section.
29 (4) A dissolved limited partnership or successor
30 entity electing to follow the procedures described in
31 subsections (2) and (3) shall also give notice of the
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1 dissolution of the limited partnership to persons with known
2 claims, that are contingent upon the occurrence or
3 nonoccurrence of future events or otherwise conditional or
4 unmatured, and request that such persons present such claims
5 in accordance with the terms of such notice. Such notice shall
6 be in substantially the form, and sent in the same manner, as
7 described in subsection (2).
8 (5) A dissolved limited partnership or successor
9 entity shall offer any claimant whose known claim is
10 contingent, conditional, or unmatured such security as the
11 limited partnership or such entity determines is sufficient to
12 provide compensation to the claimant if the claim matures. The
13 dissolved limited partnership or successor entity shall
14 deliver such offer to the claimant within 90 days after
15 receipt of such claim and, in all events, at least 150 days
16 before expiration of 3 years following the effective date of
17 dissolution. If the claimant offered such security does not
18 deliver in writing to the dissolved limited partnership or
19 successor entity a notice rejecting the offer within 120 days
20 after receipt of such offer for security, the claimant is
21 deemed to have accepted such security as the sole source from
22 which to satisfy his or her claim against the limited
23 partnership.
24 (6) A dissolved limited partnership or successor
25 entity which has given notice in accordance with subsections
26 (2) and (4), and is seeking the protection offered by
27 subsections (9) and (12), shall petition the circuit court in
28 the county in which the limited partnership's principal office
29 is located or was located at the effective date of dissolution
30 to determine the amount and form of security that will be
31 sufficient to provide compensation to any claimant who has
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1 rejected the offer for security made pursuant to subsection
2 (5).
3 (7) A dissolved limited partnership or successor
4 entity which has given notice in accordance with subsection
5 (2), and is seeking the protection offered by subsections (9)
6 and (12), shall petition the circuit court in the county in
7 which the limited partnership's principal office is located or
8 was located at the effective date of dissolution to determine
9 the amount and form of security which will be sufficient to
10 provide compensation to claimants whose claims are known to
11 the limited partnership or successor entity but whose
12 identities are unknown. The court shall appoint a guardian ad
13 litem to represent all claimants whose identities are unknown
14 in any proceeding brought under this subsection. The
15 reasonable fees and expenses of such guardian, including all
16 reasonable expert witness fees, shall be paid by the
17 petitioner in such proceeding.
18 (8) The giving of any notice or making of any offer
19 pursuant to the provisions of this section shall not revive
20 any claim then barred or constitute acknowledgment by the
21 dissolved limited partnership or successor entity that any
22 person to whom such notice is sent is a proper claimant and
23 shall not operate as a waiver of any defense or counterclaim
24 in respect of any claim asserted by any person to whom such
25 notice is sent.
26 (9) A dissolved limited partnership or successor
27 entity which has followed the procedures described in
28 subsections (2)-(7):
29 (a) Shall pay the claims admitted or made and not
30 rejected in accordance with subsection (3).
31
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1 (b) Shall post the security offered and not rejected
2 pursuant to subsection (5).
3 (c) Shall post any security ordered by the circuit
4 court in any proceeding under subsections (6) and (7).
5 (d) Shall pay or make provision for all other known
6 obligations of the limited partnership or such successor
7 entity.
8
9 If there are sufficient funds, such claims or obligations
10 shall be paid in full, and any such provision for payments
11 shall be made in full. If there are insufficient funds, such
12 claims and obligations shall be paid or provided for according
13 to their priority and, among claims of equal priority, ratably
14 to the extent of funds legally available therefor. Any
15 remaining funds shall be distributed to the partners and
16 transferees of the dissolved limited partnership; however,
17 such distribution may not be made before the expiration of 150
18 days after the date of the last notice of any rejection given
19 pursuant to subsection (3). In the absence of actual fraud,
20 the judgment of the general partners of the dissolved limited
21 partnership, or other person or persons winding up the limited
22 partnership under s. 620.1803, or the governing persons of
23 such successor entity, as to the provisions made for the
24 payment of all obligations under paragraph (9)(d), is
25 conclusive.
26 (10) A dissolved limited partnership or successor
27 entity which has not followed the procedures described in
28 subsections (2) and (3) shall pay or make reasonable provision
29 to pay all known claims and obligations, including all
30 contingent, conditional, or unmatured claims known to the
31 dissolved limited partnership or such successor entity and all
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1 claims which are known to the dissolved limited partnership or
2 such successor entity but for which the identity of the
3 claimant is unknown. If there are sufficient funds, such
4 claims shall be paid in full, and any such provision made for
5 payment shall be made in full. If there are insufficient
6 funds, such claims and obligations shall be paid or provided
7 for according to their priority and, among claims of equal
8 priority, ratably to the extent of funds legally available
9 therefor. Any remaining funds shall be distributed to the
10 partners and transferees of the dissolved limited partnership.
11 (11) Except for any general partner otherwise liable
12 under s. 620.1404, s. 620.1405, or s. 620.1607, a partner or
13 transferee of a dissolved limited partnership the assets of
14 which were distributed pursuant to subsection (9) or
15 subsection (10) is not liable for any claim against the
16 limited partnership in an amount in excess of such partner's
17 or transferee's pro rata share of the claim or the amount
18 distributed to the partner or transferee, whichever is less.
19 (l2) A partner, whether or not a general partner, or
20 transferee of a dissolved limited partnership, the assets of
21 which were distributed pursuant to subsection (9), is not
22 liable for any claim against the limited partnership which
23 claim is known to the limited partnership or successor entity
24 and on which a proceeding is not begun prior to the expiration
25 of 3 years following the effective date of dissolution.
26 (13) Except for any general partner otherwise liable
27 under s. 620.1404, s. 620.1405, or s. 620.1607 and not
28 entitled to the relief provided under subsection (12), the
29 aggregate liability of any person for claims against the
30 dissolved limited partnership arising under this section or s.
31
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1 620.1807 may not exceed the amount distributed to the person
2 in dissolution.
3 (14) As used in this section or s. 620.1807, the term
4 "successor entity" includes any trust, receivership, or other
5 legal entity governed by the laws of this state to which the
6 remaining assets and liabilities of a dissolved limited
7 partnership are transferred and which exists solely for the
8 purposes of prosecuting and defending suits by or against the
9 dissolved limited partnership, enabling the dissolved limited
10 partnership to settle and close the business of the dissolved
11 limited partnership, to dispose of and convey the property of
12 the dissolved limited partnership, to discharge the
13 liabilities of the dissolved limited partnership, and to
14 distribute to the dissolved limited partnership's partners any
15 remaining assets, but not for the purpose of continuing the
16 business for which the dissolved limited partnership was
17 organized.
18 620.1807 Unknown claims against dissolved limited
19 partnership.--
20 (1) In addition to filing the certificate of
21 dissolution under s. 620.1801(2), a dissolved limited
22 partnership or successor entity, as defined in s.
23 620.1806(14), may also file with the Department of State on
24 the form prescribed by the department a request that persons
25 with claims against the limited partnership which are not
26 known to the limited partnership or successor entity present
27 them in accordance with the notice.
28 (2) The notice must:
29 (a) Describe the information that must be included in
30 a claim and provide a mailing address to which the claim may
31 be sent.
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1 (b) State that a claim against the limited partnership
2 will be barred unless a proceeding to enforce the claim is
3 commenced within 4 years after the filing of the notice.
4 (3) If the dissolved limited partnership or successor
5 entity files the notice in accordance with subsections (1) and
6 (2), the claim of each of the following claimants is barred
7 unless the claimant commences a proceeding to enforce the
8 claim against the dissolved limited partnership within 4 years
9 after the filing date:
10 (a) A claimant who did not receive written notice
11 under s. 620.1806(9) or whose claim was not provided for under
12 s. 620.1806(10), whether such claim is based on an event
13 occurring before or after the effective date of dissolution.
14 (b) A claimant whose claim was timely sent to the
15 dissolved limited partnership but not acted on.
16 (4) A claim may be enforced under this section:
17 (a) Against the dissolved limited partnership, to the
18 extent of its undistributed assets; or
19 (b) If the assets have been distributed in
20 liquidation, against a partner or transferee of the dissolved
21 limited partnership to the extent of such partner's or
22 transferee's pro rata share of the claim or the limited
23 partnership assets distributed to such partner or transferee
24 in liquidation, whichever is less, provided the aggregate
25 liability of any person for all claims against the dissolved
26 limited partnership arising under this section or s. 620.1806,
27 or, with respect to a limited partner, otherwise, may not
28 exceed the amount distributed to the person in liquidation; or
29 (c) Against any person liable on the claim under s.
30 620.1404.
31
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1 620.1808 Liability of general partner and person
2 dissociated as general partner when claim against limited
3 partnership barred.--If a claim is barred under s. 620.1806 or
4 s. 620.1807, any corresponding claim under s. 620.1404, s.
5 620.1405, or s. 620.1607 is also barred.
6 620.1809 Administrative dissolution.--
7 (1) The Department of State may dissolve a limited
8 partnership administratively if the limited partnership does
9 not, within 60 days after the due date:
10 (a) Pay any fee or penalty due to the Department of
11 State under this act or other law;
12 (b) Deliver its annual report to the Department of
13 State;
14 (c) Appoint and maintain a registered agent as
15 required by s. 620.1114; or
16 (d) Deliver for filing a statement of a change under
17 s. 620.1115 within 30 days after a change has occurred in the
18 name of the registered agent or the registered office address.
19 (2) If the Department of State determines that a
20 ground exists for administratively dissolving a limited
21 partnership, the Department of State shall file a record of
22 the determination and send a copy to the limited partnership.
23 (3) If within 60 days after sending the copy the
24 limited partnership does not correct each ground for
25 dissolution or demonstrate to the reasonable satisfaction of
26 the Department of State that each ground determined by the
27 Department of State does not exist, the Department of State
28 shall administratively dissolve the limited partnership by
29 preparing, signing, and filing a declaration of dissolution
30 that states the grounds for dissolution. The Department of
31
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1 State shall send the limited partnership a copy of the filed
2 declaration.
3 (4) A limited partnership administratively dissolved
4 continues its existence but may carry on only activities
5 necessary to wind up its activities and liquidate its assets
6 under ss. 620.1803 and 620.1812 and to notify claimants under
7 ss. 620.1806 and 620.1807.
8 (5) The administrative dissolution of a limited
9 partnership does not terminate the authority of its agent for
10 service of process.
11 (6) A partner of a limited partnership is not liable
12 for the obligations of the limited partnership solely by
13 reason of the foreign limited partnership's having been
14 administratively dissolved pursuant to this section.
15 620.1810 Reinstatement following administrative
16 dissolution.--
17 (1) A limited partnership that has been
18 administratively dissolved under s. 620.1809 may apply to the
19 Department of State for reinstatement at any time after the
20 effective date of dissolution. The limited partnership must
21 submit a form of reinstatement prescribed and furnished by the
22 Department of State together with all fees then owed by the
23 limited partnership, computed at a rate provided by law at the
24 time the limited partnership applies for reinstatement.
25 (2) As an alternative to submitting the form of
26 reinstatement referred to in subsection (1), the limited
27 partnership may submit a current annual report, signed by its
28 registered agent and a general partner, which contains the
29 same information described in subsection (1).
30 (3) If the Department of State determines that the
31 application for reinstatement, or current annual report
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1 described in subsection (2), contains the information required
2 by subsection (1) and that the information is correct, the
3 Department of State shall reinstate the limited partnership.
4 (4) When the reinstatement becomes effective, the
5 reinstatement relates back to and takes effect as of the
6 effective date of the administrative dissolution, and the
7 limited partnership may resume its activities as if the
8 administrative dissolution had never occurred.
9 620.1811 Appeal from denial of reinstatement.--
10 (1) If the Department of State denies a limited
11 partnership's request for reinstatement following
12 administrative dissolution, the Department of State shall
13 prepare, sign, and file a notice that explains the reason or
14 reasons for denial and serve the limited partnership with a
15 copy of the notice.
16 (2) Within 30 days after service of the notice of
17 denial, the limited partnership may appeal from the denial of
18 reinstatement by petitioning the circuit court to set aside
19 the dissolution. The petition must be served on the Department
20 of State and contain a copy of the Department of State's
21 declaration of dissolution, the limited partnership's
22 application for reinstatement, and the Department of State's
23 notice of denial.
24 (3) The court may summarily order the Department of
25 State to reinstate the dissolved limited partnership or may
26 take other action the court considers appropriate.
27 620.1812 Revocation of dissolution.--
28 (1) A limited partnership that has dissolved as the
29 result of an event described in ss. 620.1801(1)(a)-(d) and
30 filed a certificate of dissolution with the Department of
31 State may revoke its dissolution at any time prior to the
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1 expiration of 120 days following the effective date of its
2 certificate of dissolution.
3 (2) Revocation of dissolution shall be authorized in
4 the same manner as the dissolution was authorized.
5 (3) After revocation of dissolution is authorized, the
6 limited partnership shall deliver a certificate of revocation
7 of dissolution to the Department of State for filing, together
8 with a copy of its certificate of dissolution, that sets
9 forth:
10 (a) The name of the limited partnership.
11 (b) The effective date of the dissolution that was
12 revoked.
13 (c) The date that the revocation of dissolution was
14 authorized.
15 (4) If there has been substantial compliance with
16 subsection (3), subject to s. 620.1206(3) the revocation of
17 dissolution is effective when the Department of State files
18 the certificate of revocation of dissolution.
19 (5) When the revocation of dissolution is effective,
20 the revocation of dissolution relates back to and takes effect
21 as of the effective date of the dissolution, and the limited
22 partnership resumes carrying on its business as if dissolution
23 had never occurred.
24 620.1813 Disposition of assets; when contributions
25 required.--
26 (1) In winding up a limited partnership's activities,
27 the assets of the limited partnership, including the
28 contributions required by this section, must be applied to
29 satisfy the limited partnership's obligations to creditors,
30 including, to the extent permitted by law, partners that are
31 creditors.
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1 (2) Any surplus remaining after the limited
2 partnership complies with subsection (1) must be paid in cash
3 as a distribution.
4 (3) If a limited partnership's assets are insufficient
5 to satisfy all of its obligations under subsection (1), with
6 respect to each unsatisfied obligation incurred when the
7 limited partnership was not a limited liability limited
8 partnership, subject to s. 620.1808 the following rules apply:
9 (a) Each person that was a general partner when the
10 obligation was incurred and that has not been released from
11 the obligation under s. 620.1607 shall contribute to the
12 limited partnership for the purpose of enabling the limited
13 partnership to satisfy the obligation. The contribution due
14 from each of those persons is in proportion to the right to
15 receive distributions in the capacity of general partner in
16 effect for each of those persons when the obligation was
17 incurred.
18 (b) If a person does not contribute the full amount
19 required under paragraph (a) with respect to an unsatisfied
20 obligation of the limited partnership, the other persons
21 required to contribute by paragraph (a) on account of the
22 obligation shall contribute the additional amount necessary to
23 discharge the obligation. The additional contribution due from
24 each of those other persons is in proportion to the right to
25 receive distributions in the capacity of general partner in
26 effect for each of those other persons when the obligation was
27 incurred.
28 (c) If a person does not make the additional
29 contribution required by paragraph (b), further additional
30 contributions are determined and due in the same manner as
31 provided in that paragraph.
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1 (4) A person that makes an additional contribution
2 under paragraph (3)(b) or paragraph (3)(c) may recover from
3 any person whose failure to contribute under paragraph (3)(a)
4 or paragraph (3)(b) necessitated the additional contribution.
5 A person may not recover under this subsection more than the
6 amount additionally contributed. A person's liability under
7 this subsection may not exceed the amount the person failed to
8 contribute.
9 (5) The estate of a deceased individual is liable for
10 the person's obligations under this section.
11 (6) An assignee for the benefit of creditors of a
12 limited partnership or a partner, or a person appointed by a
13 court to represent creditors of a limited partnership or a
14 partner, may enforce a person's obligation to contribute under
15 subsection (3).
16 620.1901 Governing law regarding foreign limited
17 partnerships.--
18 (1) The laws of the state or other jurisdiction under
19 which a foreign limited partnership is organized govern
20 relations among the partners of the foreign limited
21 partnership and between the partners and the foreign limited
22 partnership and the liability of partners as partners for an
23 obligation of the foreign limited partnership.
24 (2) A foreign limited partnership may not be denied a
25 certificate of authority by reason of any difference between
26 the laws of the jurisdiction under which the foreign limited
27 partnership is organized and the laws of this state.
28 (3) A certificate of authority does not authorize a
29 foreign limited partnership to engage in any business or
30 exercise any power that a limited partnership may not engage
31 in or exercise in this state.
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1 620.1902 Application for certificate of authority.--
2 (1) A foreign limited partnership shall apply for a
3 certificate of authority to transact business in this state by
4 delivering a signed application to the Department of State for
5 filing. The application must state:
6 (a) The name of the foreign limited partnership and,
7 if the name does not comply with s. 620.1108, an alternate
8 name adopted pursuant to s. 620.1905(1).
9 (b) The state or other jurisdiction under whose law
10 the foreign limited partnership is organized and the date of
11 its formation.
12 (c) The principal office and mailing address of the
13 foreign limited partnership.
14 (d) The name, street address in this state, and
15 written acceptance of the foreign limited partnership's
16 initial registered agent in this state.
17 (e) The name and principal office and mailing address
18 of each of the foreign limited partnership's general partners.
19 Each general partner that is not an individual must be
20 organized or otherwise registered with the Department of State
21 as required by law, must maintain an active status, and may
22 not be dissolved, revoked, or withdrawn.
23 (f) Whether the foreign limited partnership is a
24 foreign limited liability limited partnership.
25 (2) A foreign limited partnership shall deliver with
26 the completed application a certificate of existence or a
27 record of similar import signed by the Department of State or
28 other official having custody of the foreign limited
29 partnership's publicly filed records in the state or other
30 jurisdiction under whose law the foreign limited partnership
31
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1 is organized, dated not more than 90 days prior to the
2 delivery of the application to the Secretary of State.
3 620.1903 Activities not constituting transacting
4 business.--
5 (1) Activities of a foreign limited partnership which
6 do not constitute transacting business in this state within
7 the meaning of s. 620.1902 include:
8 (a) Maintaining, defending, and settling an action or
9 proceeding.
10 (b) Holding meetings of its partners or carrying on
11 any other activity concerning its internal affairs.
12 (c) Maintaining accounts in financial institutions.
13 (d) Maintaining offices or agencies for the transfer,
14 exchange, and registration of the foreign limited
15 partnership's own securities or maintaining trustees or
16 depositories with respect to those securities.
17 (e) Selling through independent contractors.
18 (f) Soliciting or obtaining orders, whether by mail or
19 electronic means or through employees, agents, or otherwise,
20 if the orders require acceptance outside this state before
21 they become contracts.
22 (g) Creating or acquiring indebtedness, mortgages, or
23 security interests in real or personal property.
24 (h) Securing or collecting debts or enforcing
25 mortgages or other security interests in property securing the
26 debts, and holding, protecting, and maintaining property so
27 acquired.
28 (i) Conducting an isolated transaction that is
29 completed within 30 days and is not one in the course of
30 similar transactions of a like manner.
31 (j) Transacting business in interstate commerce.
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1 (k) Owning and controlling a subsidiary corporation
2 incorporated in or transacting business within this state or
3 voting the stock of any corporation which it has lawfully
4 acquired.
5 (l) Owning a limited partnership interest in a limited
6 partnership that is doing business within this state, unless
7 such limited partner manages or controls the partnership or
8 exercises the powers and duties of a general partner.
9 (m) Owning, without more, real or personal property.
10 (2) The list of activities in subsection (1) is not
11 exhaustive.
12 (3) For purposes of s. 620.1902, the ownership in this
13 state of income-producing real property or tangible personal
14 property, other than property excluded under subsection (1),
15 constitutes transacting business in this state.
16 (4) This section does not apply in determining the
17 contacts or activities that may subject a foreign limited
18 partnership to service of process, taxation, or regulation
19 under any other law of this state.
20 620.1904 Filing of certificate of authority.--Unless
21 the Department of State determines that an application for a
22 certificate of authority does not comply with the filing
23 requirements of this act, the Department of State, upon
24 payment of all filing fees, shall authorize the foreign
25 limited partnership to transact business in this state.
26 620.1905 Noncomplying name of foreign limited
27 partnership.--
28 (1) A foreign limited partnership whose name does not
29 comply with s. 620.1108 may not obtain a certificate of
30 authority until it adopts, for the purpose of transacting
31 business in this state, an alternate name that complies with
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1 s. 620.1108. A foreign limited partnership that adopts an
2 alternate name under this subsection and then obtains a
3 certificate of authority with the name need not comply with s.
4 865.09. After obtaining a certificate of authority with an
5 alternate name, a foreign limited partnership shall transact
6 business in this state under the name unless the foreign
7 limited partnership is authorized under s. 865.09 to transact
8 business in this state under another name.
9 (2) If a foreign limited partnership authorized to
10 transact business in this state changes its name to one that
11 does not comply with s. 620.1108, it may not thereafter
12 transact business in this state until it complies with
13 subsection (1) and obtains an amended certificate of
14 authority.
15 620.1906 Revocation of certificate of authority.--
16 (1) A certificate of authority of a foreign limited
17 partnership to transact business in this state may be revoked
18 by the Department of State in the manner provided in
19 subsections (2) and (3) if the foreign limited partnership
20 does not:
21 (a) Pay, within 60 days after the due date, any fee or
22 penalty due to the Department of State under this act or other
23 law;
24 (b) Deliver, within 60 days after the due date, its
25 annual report required under s. 620.1210;
26 (c) Appoint and maintain an agent for service of
27 process as required by s. 620.1114(2); or
28 (d) Deliver for filing a statement of a change under
29 s. 620.1115 within 30 days after a change has occurred in the
30 name or address of the agent.
31
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1 (2) In order to revoke a certificate of authority, the
2 Department of State must prepare, sign, and file a notice of
3 revocation and send a copy to the foreign limited partnership.
4 The notice must state:
5 (a) The effective date of the revocation, which must
6 be at least 60 days after the date the Department of State
7 sends the copy.
8 (b) The foreign limited partnership's failures to
9 comply with subsection (1) which are the reason for the
10 revocation.
11 (3) The authority of the foreign limited partnership
12 to transact business in this state ceases on the effective
13 date of the notice of revocation unless before that date the
14 foreign limited partnership cures each failure to comply with
15 subsection (1) stated in the notice. If the foreign limited
16 partnership cures the failures, the Department of State shall
17 so indicate on the filed notice.
18 620.1907 Cancellation of certificate of authority;
19 effect of failure to have certificate.--
20 (1) In order to cancel its certificate of authority to
21 transact business in this state, a foreign limited partnership
22 must deliver to the Department of State for filing a notice of
23 cancellation. The certificate is canceled when the notice
24 becomes effective under s. 620.1206. The notice of
25 cancellation shall be signed by at least one general partner
26 and set forth the following:
27 (a) The name of the foreign limited partnership as it
28 appears on the records of the Department of State.
29 (b) The jurisdiction of its formation.
30 (c) The date the foreign limited partnership was
31 authorized to transact business in this state.
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1 (d) A statement that the foreign limited partnership
2 is canceling its certificate of authority in this state.
3 (2) A foreign limited partnership transacting business
4 in this state may not maintain an action or proceeding in this
5 state until the foreign limited partnership has a certificate
6 of authority to transact business in this state.
7 (3) The failure of a foreign limited partnership to
8 have a certificate of authority to transact business in this
9 state does not impair the validity of a contract or act of the
10 foreign limited partnership or prevent the foreign limited
11 partnership from defending an action or proceeding in this
12 state.
13 (4) A partner of a foreign limited partnership is not
14 liable for the obligations of the foreign limited partnership
15 solely by reason of the foreign limited partnership's having
16 transacted business in this state without a certificate of
17 authority.
18 (5) If a foreign limited partnership transacts
19 business in this state without a certificate of authority or
20 cancels its certificate of authority, the foreign limited
21 partnership shall appoint the Department of State as its agent
22 for service of process for rights of action arising out of the
23 transaction of business in this state.
24 620.1908 Action by Attorney General.--The Attorney
25 General may maintain an action to restrain a foreign limited
26 partnership from transacting business in this state in
27 violation of this act.
28 620.1909 Reinstatement following administrative
29 revocation.--
30 (1) A foreign limited partnership whose certificate of
31 authority was administratively revoked under s. 620.1906 may
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1 apply to the Department of State for reinstatement at any time
2 after the effective date of revocation of the certificate of
3 authority. The foreign limited partnership must submit a form
4 of reinstatement prescribed and furnished by the Department of
5 State together with all fees then owed by the foreign limited
6 partnership, computed at a rate provided by law at the time
7 the foreign limited partnership applies for reinstatement.
8 (2) As an alternative to submitting the form of
9 reinstatement referred to in subsection (1), the foreign
10 limited partnership may submit a current annual report, signed
11 by its registered agent and a general partner, which contains
12 the same information described in subsection (1).
13 (3) If the Department of State determines that the
14 application for reinstatement or the current annual report
15 described in subsection (2) contains the information required
16 by subsection (1) and that the information is correct, it
17 shall reinstate the foreign limited partnership's certificate
18 of authority.
19 (4) When the reinstatement becomes effective, the
20 reinstatement relates back to and takes effect as of the
21 effective date of the administrative revocation, and the
22 foreign limited partnership may resume its activities as if
23 the administrative revocation had never occurred.
24 620.1910 Amending certificate of authority.--
25 (1) A foreign limited partnership authorized to
26 transact business in this state shall make application to the
27 Department of State to obtain an amended certificate of
28 authority to:
29 (a) Change its name on the records of the Department
30 of State;
31 (b) Amend its jurisdiction;
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1 (c) Change its general partners;
2 (d) Add or delete its status as a limited liability
3 limited partnership; or
4 (e) Amend any false statement contained in its
5 application for certificate of authority.
6 (2) Such application shall be made within 30 days
7 after the occurrence of any change mentioned in subsection
8 (1), must be signed by at least one general partner, and shall
9 set forth:
10 (a) The name of the foreign limited partnership as it
11 appears on the records of the Department of State.
12 (b) The jurisdiction of its formation.
13 (c) The date the foreign limited partnership was
14 authorized to transact business in this state.
15 (d) If the name of the foreign limited partnership has
16 been changed, the name relinquished and its new name.
17 (e) If the amendment changes the jurisdiction of the
18 foreign limited partnership, a statement of such change.
19 (f) If the amendment changes the general partners, the
20 name and address of each new general partner. Each general
21 partner that is not an individual must be registered with the
22 Department of State as required by law, must maintain an
23 active status, and must not be dissolved, revoked, or
24 withdrawn.
25 (g) If the foreign limited partnership corrects a
26 false statement, the statement it is correcting and a
27 statement containing the corrected information.
28 (3) The requirements of s. 620.1902(2) for obtaining
29 an original certificate of authority apply to obtaining an
30 amended certificate under this section.
31 620.2001 Direct action by partner.--
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1 (1) Subject to subsection (2), a partner may maintain
2 a direct action against the limited partnership or another
3 partner for legal or equitable relief, with or without an
4 accounting as to the partnership's activities, to enforce the
5 rights and otherwise protect the interests of the partner,
6 including rights and interests under the partnership agreement
7 or this act or arising independently of the partnership
8 relationship.
9 (2) A partner commencing a direct action under this
10 section is required to plead and prove an actual or threatened
11 injury that is not solely the result of an injury suffered or
12 threatened to be suffered by the limited partnership.
13 (3) The accrual of, and any time limitation on, a
14 right of action for a remedy under this section is governed by
15 other law. A right to an accounting upon a dissolution and
16 winding up does not revive a claim barred by law.
17 620.2002 Derivative action.--A partner may maintain a
18 derivative action to enforce a right of a limited partnership
19 if:
20 (1) The partner first makes a demand on the general
21 partners requesting that they cause the limited partnership to
22 bring an action to enforce the right and the general partners
23 do not bring the action within a reasonable time; or
24 (2) A demand would be futile.
25 620.2003 Proper plaintiff.--A derivative action may be
26 maintained only by a person that is a partner at the time the
27 action is commenced and:
28 (1) Was a partner when the conduct giving rise to the
29 action occurred; or
30 (2) Whose status as a partner devolved upon the person
31 by operation of law or pursuant to the terms of the
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1 partnership agreement from a person that was a partner at the
2 time of the conduct.
3 620.2004 Pleading.--In a derivative action, the
4 complaint must state with particularity:
5 (1) The date and content of plaintiff's demand and the
6 general partners' response to the demand; or
7 (2) Why demand should be excused as futile.
8 620.2005 Proceeds and expenses.--
9 (1) Except as otherwise provided in subsection (2):
10 (a) Any proceeds or other benefits of a derivative
11 action, whether by judgment, compromise, or settlement, belong
12 to the limited partnership and not to the derivative
13 plaintiff.
14 (b) If the derivative plaintiff receives any proceeds,
15 the derivative plaintiff shall immediately remit such proceeds
16 to the limited partnership.
17 (2) If a derivative action is successful in whole or
18 in part, the court may award the plaintiff reasonable
19 expenses, including reasonable attorney's fees, from the
20 limited partnership.
21 620.2101 Definitions.--As used in this section and ss.
22 620.2102-620.2124:
23 (1) "Constituent limited partnership" means a
24 constituent organization that is a limited partnership.
25 (2) "Constituent organization" means an organization
26 that is party to a merger.
27 (3) "Converted organization" means the organization
28 into which a converting organization converts pursuant to ss.
29 620.2102-620.2105.
30 (4) "Converting limited partnership" means a
31 converting organization that is a limited partnership.
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1 (5) "Converting organization" means an organization
2 that converts into another organization pursuant to s.
3 620.2102.
4 (6) "General partner" means a general partner of a
5 limited partnership.
6 (7) "Governing law" of an organization means the law
7 that governs the organization's internal affairs.
8 (8) "Organization" means a corporation; general
9 partnership, including a limited liability partnership;
10 limited partnership, including a limited liability limited
11 partnership; limited liability company; common law or business
12 trust or association; real estate investment trust; or any
13 other person organized under a governing statute or other
14 applicable law, provided such term does not include an
15 organization that is not organized for profit unless the
16 not-for-profit organization is the converted organization or
17 the surviving organization in a conversion or a merger
18 governed by this act. The term includes domestic and foreign
19 organizations.
20 (9) "Organizational documents" means:
21 (a) For a domestic or foreign general partnership, its
22 partnership agreement.
23 (b) For a limited partnership or foreign limited
24 partnership, its certificate of limited partnership and
25 partnership agreement.
26 (c) For a domestic or foreign limited liability
27 company, its articles of organization and operating agreement,
28 or comparable records as provided in its governing law.
29 (d) For a business trust, its agreement of trust and
30 declaration of trust.
31
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1 (e) For a domestic or foreign corporation for profit,
2 its articles of incorporation, bylaws, and other agreements
3 among its shareholders which are authorized by its governing
4 law, or comparable records as provided in its governing law.
5 (f) For any other organization, the basic records that
6 create the organization and determine its internal governance
7 and the relations among the persons that own such
8 organization, have an interest in the organization, or are
9 members of the organization.
10 (10) "Personal liability" means personal liability for
11 a debt, liability, or other obligation of an organization
12 which is imposed on a person that coowns, has an interest in,
13 or is a member of the organization:
14 (a) By the organization's governing law solely by
15 reason of the person's coowning, having an interest in, or
16 being a member of the organization; or
17 (b) By the organization's organizational documents
18 under a provision of the organization's governing law
19 authorizing those documents to make one or more specified
20 persons liable for all or specified debts, liabilities, and
21 other obligations of the organization solely by reason of the
22 person or persons' coowning, having an interest in, or being a
23 member of the organization.
24 (11) "Surviving organization" means an organization
25 into which one or more other organizations are merged. A
26 surviving organization may preexist the merger or be created
27 by the merger.
28 620.2102 Conversion.--
29 (1) An organization other than a limited partnership
30 may convert to a limited partnership, and a limited
31 partnership may convert to another organization, other than an
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1 organization which is also a domestic limited partnership
2 governed by this act, pursuant to this section and ss.
3 620.2103-620.2105 and a plan of conversion, if:
4 (a) The other organization's governing law authorizes
5 the conversion.
6 (b) The conversion is permitted by the law of the
7 jurisdiction that enacted the governing law.
8 (c) The other organization complies with its governing
9 law in effecting the conversion.
10 (2) A plan of conversion must be in a record and must
11 include:
12 (a) The name and form of the organization before
13 conversion.
14 (b) The name and form of the organization after
15 conversion.
16 (c) The terms and conditions of the conversion,
17 including the manner and basis for converting interests in the
18 converting organization into any combination of money,
19 interests in the converted organization, and other
20 consideration.
21 (d) The organizational documents of the converted
22 organization.
23 620.2103 Action on plan of conversion by converting
24 limited partnership.--
25 (1) A plan of conversion must be consented to by all
26 of the general partners of a converting limited partnership.
27 Subject to s. 620.2110, the plan of conversion must also be
28 consented to by those limited partners who own a majority of
29 the rights to receive distributions as limited partners at the
30 time the consent is effective, provided, if there is more than
31 one class or group of limited partners, the plan of conversion
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1 must be consented to by those limited partners in each class
2 or group which owns a majority of the rights to receive
3 distributions as limited partners in that class or group at
4 the time the consent is effective. The consents required by
5 this subsection must be in, or evidenced by, a record.
6 (2) Subject to s. 620.2110 and any contractual rights,
7 after a conversion is approved, and at any time before a
8 filing is made under s. 620.2104, a converting limited
9 partnership may amend the plan or abandon the planned
10 conversion:
11 (a) As provided in the plan.
12 (b) Except as prohibited by the plan, by the same
13 consent as was required to approve the plan.
14 620.2104 Filings required for conversion; effective
15 date.--
16 (1) After a plan of conversion is approved:
17 (a) A converting limited partnership shall deliver to
18 the Department of State for filing a certificate of
19 conversion, signed by each general partner listed in the
20 certificate of limited partnership, and must include:
21 1. A statement that the limited partnership has been
22 converted into another organization.
23 2. The name and form of the organization and the
24 jurisdiction of its governing law.
25 3. The date the conversion is effective under the
26 governing law of the converted organization.
27 4. A statement that the conversion was approved as
28 required by this act.
29 5. A statement that the conversion was approved as
30 required by the governing law of the converted organization.
31
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1 6. If the converted organization is a foreign
2 organization not authorized to transact business in this
3 state, the street and mailing address of an office which the
4 Department of State may use for the purposes of s.
5 620.2105(3).
6 (b) If the converting organization is not a converting
7 limited partnership, the converting organization shall deliver
8 to the Department of State for filing:
9 1. A certificate of limited partnership containing the
10 information required by s. 620.1201, signed by each general
11 partner as required by s. 620.1204(1)(a).
12 2. A certificate of conversion, which certificate of
13 conversion must include:
14 a. A statement that the limited partnership was
15 converted from another organization.
16 b. The name and form of the converting organization
17 and the jurisdiction of its governing law.
18 c. A statement that the conversion was approved as
19 required by this act.
20 d. A statement that the conversion was approved in a
21 manner that complied with the converting organization's
22 governing law.
23 (2) A conversion becomes effective:
24 (a) If the converted organization is a limited
25 partnership, when the certificate of limited partnership takes
26 effect.
27 (b) If the converted organization is not a limited
28 partnership, as provided by the governing law of the converted
29 organization.
30 620.2105 Effect of conversion.--
31
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1 (1) An organization that has been converted pursuant
2 to this act is for all purposes the same entity that existed
3 before the conversion.
4 (2) When a conversion takes effect:
5 (a) Title to all real and other property, or any
6 interest in such property, owned by the converting
7 organization at the time of its conversion remains vested in
8 the converted organization without reversion or impairment
9 under this act.
10 (b) All debts, liabilities, and other obligations of
11 the converting organization continue as obligations of the
12 converted organization.
13 (c) An action or proceeding pending by or against the
14 converting organization may be continued as if the conversion
15 had not occurred.
16 (d) Except as prohibited by other law, all of the
17 rights, privileges, immunities, powers, and purposes of the
18 converting organization remain vested in the converted
19 organization.
20 (e) Except as otherwise provided in the plan of
21 conversion, the terms and conditions of the plan of conversion
22 take effect.
23 (f) Except as otherwise agreed, the conversion does
24 not dissolve a converting limited partnership for the purposes
25 of ss. 620.1801-620.1813.
26 (3) A converted organization that is a foreign
27 organization consents to the jurisdiction of the courts of
28 this state to enforce any obligation owed by the converting
29 limited partnership, if before the conversion the converting
30 limited partnership was subject to suit in this state on the
31 obligation. A converted organization that is a foreign
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1 organization and not authorized to transact business in this
2 state appoints the Department of State as its agent for
3 service of process for purposes of enforcing an obligation
4 under this subsection and any appraisal rights of limited
5 partners under ss. 620.2113-620.2124 to the extent applicable
6 to the conversion. Service on the Department of State under
7 this subsection is made in the same manner and with the same
8 consequences as in s. 620.1117(3) and (4).
9 (4) A copy of the statement of conversion, certified
10 by the Department of State, may be filed in any county of this
11 state in which the converting organization holds an interest
12 in real property.
13 620.2106 Merger.--
14 (1) A limited partnership may merge with one or more
15 other constituent organizations pursuant to this section and
16 ss. 620.2107-620.2109 and a plan of merger, if:
17 (a) The governing law of each of the other
18 organizations authorizes the merger.
19 (b) The merger is permitted by the law of a
20 jurisdiction that enacted each of those governing law.
21 (c) Each of the other organizations complies with its
22 governing law in effecting the merger.
23 (2) A plan of merger must be in a record and must
24 include:
25 (a) The name and form of each constituent
26 organization.
27 (b) The name and form of the surviving organization.
28 (c) The terms and conditions of the merger, including
29 the manner and basis for converting the interests in each
30 constituent organization into any combination of money,
31
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1 interests in the surviving organization, and other
2 consideration.
3 (d) Any amendments to be made by the merger to the
4 surviving organization's organizational documents.
5 620.2107 Action on plan of merger by constituent
6 limited partnership.--
7 (1) A plan of merger must be consented to by all of
8 the general partners of a constituent limited partnership.
9 Subject to s. 620.2110, the plan of merger must also be
10 consented to by those limited partners who own a majority of
11 the rights to receive distributions as limited partners at the
12 time the consent is effective, provided, if there is more than
13 one class or group of limited partners, the plan of merger
14 must be consented to by those limited partners who own a
15 majority of the rights to receive distributions as limited
16 partners in that class or group at the time the consent is
17 effective. The consents required by this subsection must be
18 in, or evidenced by, a record.
19 (2) Subject to s. 620.2110 and any contractual rights,
20 after a merger is approved, and at any time before a filing is
21 made under s. 620.2108, a constituent limited partnership may
22 amend the plan or abandon the planned merger:
23 (a) As provided in the plan; and
24 (b) Except as prohibited by the plan,
25
26 with the same consent as was required to approve the plan.
27 620.2108 Filings required for merger; effective
28 date.--
29 (1) After each constituent organization has approved a
30 merger, a certificate of merger must be signed on behalf of:
31
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1 (a) Each preexisting constituent limited partnership,
2 by each general partner listed in the certificate of limited
3 partnership.
4 (b) Each other preexisting constituent organization,
5 by an authorized representative.
6 (2) The certificate of merger must include:
7 (a) The name and form of each constituent organization
8 and the jurisdiction of its governing law.
9 (b) The name and form of the surviving organization,
10 the jurisdiction of its governing law, and, if the surviving
11 organization is created by the merger, a statement to that
12 effect.
13 (c) The date the merger is effective under the
14 governing law of the surviving organization.
15 (d) Any amendments provided for in the plan of merger
16 for the organizational document that created the organization.
17 (e) A statement as to each constituent organization
18 that the merger was approved as required by the organization's
19 governing law.
20 (f) If the surviving organization is a foreign
21 organization not authorized to transact business in this
22 state, the street and mailing address of an office which the
23 Department of State may use for the purposes of s.
24 620.2109(2).
25 (g) Any additional information required by the
26 governing law of any constituent organization.
27 (3) Each constituent limited partnership shall deliver
28 the certificate of merger for filing in the Department of
29 State.
30 (4) A merger becomes effective under this act:
31
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1 (a) If the surviving organization is a limited
2 partnership, upon the later of:
3 1. Compliance with subsection (3); or
4 2. Subject to s. 620.1206(3), as specified in the
5 certificate of merger; or
6 (b) If the surviving organization is not a limited
7 partnership, as provided by the governing law of the surviving
8 organization.
9 (5) A certificate of merger shall act as a statement
10 of termination for purposes of s. 620.1203 for a limited
11 partnership that is a party to the merger that is not the
12 surviving organization, which shall be deemed filed upon the
13 effective date of the merger.
14 620.2109 Effect of merger.--
15 (1) When a merger becomes effective:
16 (a) The surviving organization continues.
17 (b) Each constituent organization that merges into the
18 surviving organization ceases to exist as a separate entity.
19 (c) All property owned by each constituent
20 organization that ceases to exist vests in the surviving
21 organization.
22 (d) All debts, liabilities, and other obligations of
23 each constituent organization that ceases to exist continue as
24 obligations of the surviving organization.
25 (e) An action or proceeding pending by or against any
26 constituent organization that ceases to exist may be continued
27 as if the merger had not occurred.
28 (f) Except as prohibited by other law, all of the
29 rights, privileges, immunities, powers, and purposes of each
30 constituent organization that ceases to exist vest in the
31 surviving organization.
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1 (g) Except as otherwise provided in the plan of
2 merger, the terms and conditions of the plan of merger take
3 effect.
4 (h) Except as otherwise agreed, if a constituent
5 limited partnership ceases to exist, the merger does not
6 dissolve the limited partnership for the purposes of ss.
7 620.1801-620.1813.
8 (i) Any amendments provided for in the certificate of
9 merger for the organizational document that created the
10 organization become effective.
11 (2) A surviving organization that is a foreign
12 organization consents to the jurisdiction of the courts of
13 this state to enforce any obligation owed by a constituent
14 organization, if before the merger the constituent
15 organization was subject to suit in this state on the
16 obligation. A surviving organization that is a foreign
17 organization and not authorized to transact business in this
18 state shall appoint the Department of State as its agent for
19 service of process for the purposes of enforcing an obligation
20 under this subsection and any appraisal rights of limited
21 partners under ss. 620.2113-620.2124 to the extent applicable
22 to the merger. Service on the Department of State under this
23 subsection is made in the same manner and with the same
24 consequences as in s. 620.1117(3) and (4).
25 (3) A copy of the certificate of merger, certified by
26 the Department of State, may be filed in any county of this
27 state in which a constituent organization holds an interest in
28 real property.
29 620.2110 Restrictions on approval of conversions and
30 mergers and on relinquishing limited liability limited
31 partnership status.--
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1 (1) If a partner of a converting or constituent
2 limited partnership will have personal liability with respect
3 to a converted or surviving organization, approval and
4 amendment of a plan of conversion or merger are ineffective
5 without the consent of the partner, unless:
6 (a) The limited partnership's partnership agreement
7 provides for the approval of the conversion or merger with the
8 consent of fewer than all the partners.
9 (b) The partner has consented to the provision of the
10 partnership agreement.
11 (2) An amendment to a certificate of limited
12 partnership which deletes a statement that the limited
13 partnership is a limited liability limited partnership is
14 ineffective without the consent of each general partner
15 unless:
16 (a) The limited partnership's partnership agreement
17 provides for the amendment with the consent of less than all
18 the general partners.
19 (b) Each general partner that does not consent to the
20 amendment has consented to the provision of the partnership
21 agreement.
22 (3) A partner does not give the consent required by
23 subsection (1) or subsection (2) merely by consenting to a
24 provision of the partnership agreement which permits the
25 partnership agreement to be amended with the consent of fewer
26 than all the partners.
27 620.2111 Liability of general partner after conversion
28 or merger.--
29 (1) A conversion or merger under this act does not
30 discharge any liability under ss. 620.1404 and 620.1607 of a
31 person that was a general partner in or dissociated as a
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1 general partner from a converting or constituent limited
2 partnership, but:
3 (a) The provisions of this act pertaining to the
4 collection or discharge of the liability continue to apply to
5 the liability.
6 (b) For the purposes of applying those provisions, the
7 converted or surviving organization is deemed to be the
8 converting or constituent limited partnership.
9 (c) If a person is required to pay any amount under
10 this subsection:
11 1. The person has a right of contribution from each
12 other person that was liable as a general partner under s.
13 620.1404 when the obligation was incurred and has not been
14 released from the obligation under s. 620.1607.
15 2. The contribution due from each of those persons is
16 in proportion to the right to receive distributions in the
17 capacity of general partner in effect for each of those
18 persons when the obligation was incurred.
19 (2) In addition to any other liability provided by
20 law:
21 (a) A person that immediately before a conversion or
22 merger became effective was a general partner in a converting
23 or constituent limited partnership that was not a limited
24 liability limited partnership is personally liable on a
25 transaction entered into by the converted or surviving
26 organization with a third party after the conversion or merger
27 becomes effective, if, at the time the third party enters into
28 the transaction, the third party:
29 1. Does not have notice of the conversion or merger.
30 2. Reasonably believes that:
31
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1 a. The converted or surviving business is the
2 converting or constituent limited partnership.
3 b. The converting or constituent limited partnership
4 is not a limited liability limited partnership.
5 c. The person is a general partner in the converting
6 or constituent limited partnership.
7 (b) A person that was dissociated as a general partner
8 from a converting or constituent limited partnership before
9 the conversion or merger became effective is personally liable
10 on a transaction entered into by the converted or surviving
11 organization with a third party after the conversion or merger
12 becomes effective, if:
13 1. Immediately before the conversion or merger became
14 effective the converting or surviving limited partnership was
15 not a limited liability limited partnership.
16 2. At the time the third party enters into the
17 transaction less than 2 years have passed since the person
18 dissociated as a general partner and the third party:
19 a. Does not have notice of the dissociation.
20 b. Does not have notice of the conversion or merger.
21 c. Reasonably believes that the converted or surviving
22 organization is the converting or constituent limited
23 partnership, the converting or constituent limited partnership
24 is not a limited liability limited partnership, and the person
25 is a general partner in the converting or constituent limited
26 partnership.
27 620.2112 Power of general partners and persons
28 dissociated as general partners to bind organization after
29 conversion or merger.--
30 (1) An act of a person that immediately before a
31 conversion or merger became effective was a general partner in
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1 a converting or constituent limited partnership binds the
2 converted or surviving organization after the conversion or
3 merger becomes effective, if:
4 (a) Before the conversion or merger became effective,
5 the act would have bound the converting or constituent limited
6 partnership under s. 620.1402.
7 (b) At the time the third party enters into the
8 transaction, the third party:
9 1. Does not have notice of the conversion or merger.
10 2. Reasonably believes that the converted or surviving
11 business is the converting or constituent limited partnership
12 and that the person is a general partner in the converting or
13 constituent limited partnership.
14 (2) An act of a person that before a conversion or
15 merger became effective was dissociated as a general partner
16 from a converting or constituent limited partnership binds the
17 converted or surviving organization after the conversion or
18 merger becomes effective, if:
19 (a) Before the conversion or merger became effective,
20 the act would have bound the converting or constituent limited
21 partnership under s. 620.1402 if the person had been a general
22 partner.
23 (b) At the time the third party enters into the
24 transaction, less than 2 years have passed since the person
25 dissociated as a general partner and the third party:
26 1. Does not have notice of the dissociation.
27 2. Does not have notice of the conversion or merger.
28 3. Reasonably believes that the converted or surviving
29 organization is the converting or constituent limited
30 partnership and that the person is a general partner in the
31 converting or constituent limited partnership.
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1 (3) If a person having knowledge of the conversion or
2 merger causes a converted or surviving organization to incur
3 an obligation under subsection (1) or subsection (2), the
4 person is liable:
5 (a) To the converted or surviving organization for any
6 damage caused to the organization arising from the obligation.
7 (b) If another person is liable for the obligation, to
8 that other person for any damage caused to that other person
9 arising from the liability.
10 620.2113 Appraisal rights; definitions.--The following
11 definitions apply to this section and ss. 620.2114-620.2124:
12 (1) "Affiliate" means a person that directly or
13 indirectly through one or more intermediaries controls, is
14 controlled by, or is under common control with another person.
15 For purposes of s. 620.2114(2)(d), a person is deemed to be an
16 affiliate of its senior executives.
17 (2) "Appraisal event" means an event described in s.
18 620.2114(1).
19 (3) "Beneficial limited partner" means a person who is
20 the beneficial owner of a limited partner interest held in a
21 voting trust or by a nominee on the beneficial owner's behalf.
22 (4) "Fair value" means the value of the limited
23 partner's partnership interests determined:
24 (a) Immediately before the effectuation of the
25 appraisal event to which the partner objects.
26 (b) Using customary and current valuation concepts and
27 techniques generally employed for similar businesses in the
28 context of the transaction requiring appraisal, excluding any
29 appreciation or depreciation in anticipation of the
30 transaction to which the partner objects unless exclusion
31
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1 would be inequitable to the limited partnership and its
2 remaining partners.
3 (5) "Interest" means interest from the effective date
4 of the appraisal event to which the limited partner objects
5 until the date of payment, at the rate of interest described
6 in s. 620.107(2), determined as of the effective date of the
7 appraisal event.
8 (6) "Limited partnership" means the limited
9 partnership governed by this act that issued the limited
10 partner interest held by a limited partner demanding appraisal
11 and, for matters covered in ss. 620.2114-620.2124, includes
12 the converted organization in a conversion or the surviving
13 organization in a merger.
14 (7) "Record limited partner" means each person who is
15 identified as a limited partner in the current list of
16 partners maintained in accordance with s. 620.1111 by the
17 limited partnership or, to the extent the limited partnership
18 has failed to maintain a current list, each person that is the
19 rightful owner of a limited partner interest in the limited
20 partnership. A transferee of a limited partner interest is
21 not a record limited partner.
22 (8) "Senior executive" means a general partner or the
23 chief executive officer, chief operating officer, chief
24 financial officer, manager, or anyone in charge of a principal
25 business unit or function of a limited partnership or of a
26 general partner of the limited partnership.
27 (9) "Limited partner" means a record limited partner
28 or a beneficial limited partner.
29 (10) "Limited partner interest" means all rights and
30 other interests held by a person in the limited partnership in
31 that person's capacity as a limited partner under this act and
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1 the limited partnership's partnership agreement, including the
2 limited partner's transferable interest and management and
3 voting rights, if any, and subject to any obligations that
4 such person has in that capacity of limited partner. If the
5 appraisal rights of the limited partner under s. 620.2114
6 pertain to only a certain class or series of a limited partner
7 interest, the term "limited partner interest" means only the
8 limited partner interest pertaining to such class or series.
9 620.2114 Right of limited partners to appraisal.--
10 (1) A limited partner of a limited partnership
11 governed by this act is entitled to appraisal rights, and to
12 obtain payment of the fair value of that limited partner's
13 limited partner interest, in the following events:
14 (a) Consummation of a merger of such limited
15 partnership pursuant to this act and the limited partner
16 possessed the right to vote upon the merger; or
17 (b) Consummation of a conversion of such limited
18 partnership pursuant to this act and the limited partner
19 possessed the right to vote upon the conversion.
20 (2) Notwithstanding subsection (1), the availability
21 of appraisal rights shall be limited in accordance with the
22 following provisions:
23 (a) Appraisal rights shall not be available for
24 limited partner interests which are:
25 1. Listed on the New York Stock Exchange or the
26 American Stock Exchange or designated as a national market
27 system security on an interdealer quotation system by the
28 National Association of Securities Dealers, Inc.; or
29 2. Not so listed or designated, but are issued by a
30 limited partnership that has at least 500 partners and the
31 interests of all partners in the partnership, including
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1 transferable interests, have a market value of at least $10
2 million, exclusive of the value of any such interests held by
3 its general partners and other senior executives owning more
4 than 10 percent of the rights to receive distributions from
5 the limited partnership.
6 (b) The applicability of paragraph (a) shall be
7 determined as of the date fixed to determine the limited
8 partners entitled to receive notice of, and to vote upon, the
9 appraisal event.
10 (c) Paragraph (a) shall not apply and appraisal rights
11 shall be available pursuant to subsection (1) for any limited
12 partners who are required by the appraisal event to accept for
13 their limited partner interests anything other than cash or a
14 proprietary interest of an entity that satisfies the standards
15 set forth in paragraph (a) at the time the appraisal event
16 becomes effective.
17 (d) Paragraph (a) shall not apply and appraisal rights
18 shall be available pursuant to subsection (1) for the holders
19 of a limited partner interest if:
20 1. Any of the partners' interests in the limited
21 partnership or the limited partnership's assets are being
22 acquired or converted, whether by merger, conversion, or
23 otherwise, pursuant to the appraisal event by a person, or by
24 an affiliate of a person, who:
25 a. Is, or at any time in the 1-year period immediately
26 preceding approval of the appraisal event was, the beneficial
27 owner of 20 percent or more of those interests in the limited
28 partnership entitled to vote on the appraisal event, excluding
29 any such interests acquired pursuant to an offer for all
30 interests having such voting rights if such offer was made
31 within 1 year prior to the appraisal event for consideration
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1 of the same kind and of a value equal to or less than that
2 paid in connection with the appraisal event. For purposes of
3 this subparagraph, the term "beneficial owner" means any
4 person who, directly or indirectly, through any contract,
5 arrangement, or understanding, other than a revocable proxy,
6 has or shares the right to vote, or to direct the voting of,
7 an interest in a limited partnership with respect to approval
8 of the appraisal event, provided that a member of a national
9 securities exchange shall not be deemed to be a beneficial
10 owner of an interest in a limited partnership held directly or
11 indirectly by it on behalf of another person solely because
12 such member is the record holder of interests in the limited
13 partnership if the member is precluded by the rules of such
14 exchange from voting without instruction on contested matters
15 or matters that may affect substantially the rights or
16 privileges of the holders of the interests in the limited
17 partnership to be voted. When two or more persons agree to act
18 together for the purpose of voting such interests, each member
19 of the group formed thereby shall be deemed to have acquired
20 beneficial ownership, as of the date of such agreement, of all
21 voting interests in the limited partnership beneficially owned
22 by any member of the group; or
23 b. Directly or indirectly has, or at any time in the
24 1-year period immediately preceding approval of the appraisal
25 event had, the power, contractually or otherwise, to cause the
26 appointment or election of any senior executives; or
27 2. Any of the partners' interests in the limited
28 partnership or the limited partnership's assets are being
29 acquired or converted, whether by merger, conversion, or
30 otherwise, pursuant to the appraisal event by a person, or by
31 an affiliate of a person, who is, or at any time in the 1-year
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1 period immediately preceding approval of the appraisal event
2 was, a senior executive of the limited partnership or a senior
3 executive of any affiliate of the limited partnership, and
4 that senior executive will receive, as a result of the limited
5 partnership action, a financial benefit not generally
6 available to limited partners, other than:
7 a. Employment, consulting, retirement, or similar
8 benefits established separately and not as part of or in
9 contemplation of the appraisal event;
10 b. Employment, consulting, retirement, or similar
11 benefits established in contemplation of, or as part of, the
12 appraisal event that are not more favorable than those
13 existing before the appraisal event or, if more favorable,
14 that have been approved by the limited partnership; or
15 c. In the case of a general partner of the limited
16 partnership who will, during or as the result of the appraisal
17 event, become a general partner, manager, or director of the
18 surviving or converted organization or one of its affiliates,
19 those rights and benefits as a general partner, manager, or
20 director that are provided on the same basis as those afforded
21 by the surviving or converted organization generally to other
22 general partners, managers, or directors of the surviving or
23 converted organization or its affiliate.
24 (3) A limited partner entitled to appraisal rights
25 under ss. 620.2113-620.2124 may not challenge a completed
26 appraisal event unless the appraisal event:
27 (a) Was not effectuated in accordance with the
28 applicable provisions of ss. 620.2113-620.2124, the limited
29 partnership's certificate of limited partnership, or the
30 partnership agreement; or
31
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1 (b) Was procured as a result of fraud or material
2 misrepresentation.
3 (4) A limited partnership may modify, restrict, or
4 eliminate the appraisal rights provided in ss.
5 620.2113-620.2124 in its partnership agreement.
6 620.2115 Assertion of rights by nominees and
7 beneficial owners.--
8 (1) A record limited partner may assert appraisal
9 rights as to fewer than all the limited partner interests
10 registered in the record limited partner's name that are owned
11 by a beneficial limited partner only if the record limited
12 partner objects with respect to all limited partner interests
13 of the class or series owned by that beneficial limited
14 partner and notifies the limited partnership in writing of the
15 name and address of each beneficial limited partner on whose
16 behalf appraisal rights are being asserted. The rights of a
17 record limited partner who asserts appraisal rights for only
18 part of the limited partner interests of the class or series
19 held of record in the record limited partner's name under this
20 subsection shall be determined as if the limited partner
21 interests as to which the record limited partner objects and
22 the record limited partner's other limited partner interests
23 were registered in the names of different record limited
24 partners.
25 (2) A beneficial limited partner may assert appraisal
26 rights as to a limited partner interest held on behalf of the
27 partner only if such beneficial limited partner:
28 (a) Submits to the limited partnership the record
29 limited partner's written consent to the assertion of such
30 rights no later than the date referred to in s.
31 620.2118(2)(b)2.
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1 (b) Does so with respect to all limited partner
2 interests of the class or series that are beneficially owned
3 by the beneficial limited partner.
4 620.2116 Notice of appraisal rights.--
5 (1) If a proposed appraisal event is to be submitted
6 to a vote at a limited partners' meeting, the meeting notice
7 must state that the limited partnership has concluded that
8 partners are, are not, or may be entitled to assert appraisal
9 rights under this act.
10 (2) If the limited partnership concludes that
11 appraisal rights are or may be available, a copy of ss.
12 620.2113-620.2124 must accompany the meeting notice sent to
13 those record limited partners entitled to exercise appraisal
14 rights.
15 (3) If the appraisal event is to be approved other
16 than by a partners' meeting, the notice referred to in
17 subsection (1) must be sent to all limited partners at the
18 time that consents are first solicited, whether or not
19 consents are solicited from all limited partners, and include
20 the materials described in s. 620.2118.
21 620.2117 Notice of intent to demand payment.--
22 (1) If a proposed appraisal event is submitted to a
23 vote at a partners' meeting, or is submitted to a partner
24 pursuant to a consent vote, a limited partner who is entitled
25 to and who wishes to assert appraisal rights with respect to
26 any class or series of limited partner interests:
27 (a) Must deliver to a general partner of the limited
28 partnership before the vote is taken, or within 20 days after
29 receiving the notice pursuant to s. 620.2116(3) if action is
30 to be taken without a partner meeting, written notice of such
31
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1 person's intent to demand payment if the proposed appraisal
2 event is effectuated.
3 (b) Must not vote, or cause or permit to be voted, any
4 limited partner interests of such class or series in favor of
5 the appraisal event.
6 (2) A person who may otherwise be entitled to
7 appraisal rights, but who does not satisfy the requirements of
8 subsection (1), is not entitled to payment under ss.
9 620.2113-620.2124.
10 620.2118 Appraisal notice and form.--
11 (1) If the proposed appraisal event becomes
12 effective, the limited partnership must deliver a written
13 appraisal notice and form required by paragraph (2)(a) to all
14 limited partners who satisfied the requirements of s.
15 620.2117.
16 (2) The appraisal notice must be sent no earlier than
17 the date the appraisal event became effective and no later
18 than 10 days after such date and must:
19 (a) Supply a form that specifies the date that the
20 appraisal event became effective and that provides for the
21 limited partner to state:
22 1. The limited partner's name and address.
23 2. The number, classes, and series of limited partner
24 interests as to which the limited partner asserts appraisal
25 rights.
26 3. That the limited partner did not vote for the
27 transaction.
28 4. Whether the limited partner accepts the limited
29 partnership's offer as stated in subparagraph (b)4.
30 5. If the offer is not accepted, the limited partner's
31 estimated fair value of the limited partner interests and a
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1 demand for payment of the limited partner's estimated value
2 plus interest.
3 (b) State:
4 1. Where the form described in paragraph (a) must be
5 sent.
6 2. A date by which the limited partnership must
7 receive the form, which date may not be fewer than 40 or more
8 than 60 days after the date the appraisal notice and form
9 described in this subsection are sent, and state that the
10 limited partner shall have waived the right to demand
11 appraisal with respect to the limited partner interests unless
12 the form is received by the limited partnership by such
13 specified date.
14 3. In the case of limited partner interest represented
15 by a certificate, the location at which certificates for such
16 certificated partnership interests must be deposited, if that
17 action is required by the limited partnership, and the date by
18 which those certificates must be deposited, which date may not
19 be earlier than the date for receiving the required form under
20 subparagraph 2.
21 4. The limited partnership's estimate of the fair
22 value of the limited partner interests.
23 5. An offer to each limited partner who is entitled to
24 appraisal rights to pay the limited partnership's estimate of
25 fair value set forth in subparagraph 4.
26 6. That, if requested in writing, the limited
27 partnership will provide to the limited partner so requesting,
28 within 10 days after the date specified in subparagraph 2.,
29 the number of limited partners who return the forms by the
30 specified date and the total number of limited partner
31 interests owned by them.
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1 7. The date by which the notice to withdraw under s.
2 620.1119 must be received, which date must be within 20 days
3 after the date specified in subparagraph 2.
4 (c) Be accompanied by:
5 1. Financial statements of the limited partnership
6 that issued the limited partner interests to be appraised,
7 consisting of a balance sheet as of the end of the fiscal year
8 ending not more than 15 months prior to the date of the
9 limited partnership's appraisal notice, an income statement
10 for that year, a cash flow statement for that year, and the
11 latest available interim financial statements, if any.
12 2. A copy of ss. 620.2213-620.2224.
13 620.2119 Perfection of rights; right to withdraw.--
14 (1) A limited partner who wishes to exercise appraisal
15 rights must execute and return the form received pursuant to
16 s. 620.2118(1) and, in the case of certificated partnership
17 interests and the limited partnership so requires, deposit the
18 limited partner's certificates in accordance with the terms of
19 the notice by the date referred to in the notice pursuant to
20 s. 620.2118(2)(b)2. Once a limited partner deposits that
21 limited partner's certificates or, in the case of
22 uncertificated partnership interests, returns the executed
23 form described in s. 620.2118(2), the limited partner loses
24 all rights as a limited partner, unless the limited partner
25 withdraws pursuant to subsection (3). Upon receiving a demand
26 for payment from a limited partner who holds an uncertificated
27 partnership interest, the limited partnership shall make an
28 appropriate notation of the demand for payment in its records.
29 (2) The limited partnership may restrict the transfer
30 of such limited partner interests from the date the limited
31 partner delivers the items required by subsection (1).
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1 (3) A limited partner who has complied with subsection
2 (1) may nevertheless decline to exercise appraisal rights and
3 withdraw from the appraisal process by so notifying the
4 limited partnership in writing by the date set forth in the
5 appraisal notice pursuant to s. 620.2118(2)(b)7. A limited
6 partner who fails to so withdraw from the appraisal process
7 may not thereafter withdraw without the limited partnership's
8 written consent.
9 (4) A limited partner who does not execute and return
10 the form and, in the case of certificated partnership
11 interests, deposit that limited partner's certificates, if so
12 required by the limited partnership, each by the date set
13 forth in the notice described in subsection (2), shall not be
14 entitled to payment under this act.
15 (5) If the limited partner's right to receive fair
16 value is terminated other than by the purchase of the limited
17 partner interest by the limited partnership, all rights of the
18 limited partner, with respect to such limited partner
19 interest, shall be reinstated effective as of the date the
20 limited partner delivered the items required by subsection
21 (1), including the right to receive any intervening payment or
22 other distribution with respect to such partnership interests,
23 or, if any such rights have expired or any such distribution
24 other than a cash payment has been completed, in lieu thereof
25 at the election of the limited partnership, the fair value
26 thereof in cash as determined by the limited partnership as of
27 the time of such expiration or completion, but without
28 prejudice otherwise to any action or proceeding of the limited
29 partnership that may have been taken by the limited
30 partnership on or after the date the limited partner delivered
31 the items required by subsection (1).
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1 620.2120 Limited partner's acceptance of limited
2 partnership's offer.--
3 (1) If the limited partner states on the form provided
4 in s. 620.2118(1) that the limited partner accepts the offer
5 of the limited partnership to pay the limited partnership's
6 estimated fair value for the limited partner interest, the
7 limited partnership shall make such payment to the limited
8 partner within 90 days after the limited partnership's receipt
9 of the items required by s. 620.1119(1).
10 (2) Upon payment of the agreed value, the limited
11 partner shall cease to have any interest in the partnership
12 interests.
13 620.2121 Procedure if limited partner is dissatisfied
14 with offer.--
15 (1) A limited partner who is dissatisfied with the
16 limited partnership's offer as set forth pursuant to s.
17 620.2118(2)(b)5. must notify the limited partnership on the
18 form provided pursuant to s. 620.2118(1) of the limited
19 partner's estimate of the fair value of the limited partner
20 interest and demand payment of that estimate plus interest.
21 (2) A limited partner who fails to notify the limited
22 partnership in writing of the limited partner's demand to be
23 paid the limited partner's estimate of the fair value plus
24 interest under subsection (1) within the timeframe set forth
25 in s. 620.2118(2)(b)2. waives the right to demand payment
26 under this section and shall be entitled only to the payment
27 offered by the limited partnership pursuant to s.
28 620.2118(2)(b)5.
29 620.2122 Court action.--
30 (1) If a limited partner makes demand for payment
31 under s. 620.2121 which remains unsettled, the limited
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1 partnership shall commence a proceeding within 60 days after
2 receiving the payment demand and petition the court to
3 determine the fair value of the partnership interests and
4 accrued interest. If the limited partnership does not commence
5 the proceeding within the 60-day period, any limited partner
6 who has made a demand pursuant to s. 620.2121 may commence the
7 proceeding in the name of the limited partnership.
8 (2) The proceeding shall be commenced in the
9 appropriate court of the county in which the limited
10 partnership's principal office, or, if none, its registered
11 office, in this state is located. If the limited partnership
12 is a foreign limited partnership without a registered office
13 in this state, the proceeding shall be commenced in the county
14 in this state in which the principal office or registered
15 office of the domestic limited partnership was located at the
16 time of the transaction.
17 (3) All limited partners, whether or not residents of
18 this state, whose demands remain unsettled shall be made
19 parties to the proceeding as in an action against their
20 partnership interests. The limited partnership shall serve a
21 copy of the initial pleading in such proceeding upon each
22 limited partner party who is a resident of this state in the
23 manner provided by law for the service of a summons and
24 complaint and upon each nonresident limited partner party by
25 registered or certified mail or by publication as provided by
26 law.
27 (4) The jurisdiction of the court in which the
28 proceeding is commenced under subsection (2) is plenary and
29 exclusive. If the court so elects, the court may appoint one
30 or more persons as appraisers to receive evidence and
31 recommend a decision on the question of fair value. The
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1 appraisers shall have the powers described in the order
2 appointing them or in any amendment to the order. The limited
3 partners demanding appraisal rights are entitled to the same
4 discovery rights as parties in other civil proceedings. There
5 shall be no right to a jury trial.
6 (5) Each partner made a party to the proceeding is
7 entitled to judgment for the amount of the fair value of such
8 limited partner's limited partner partnership interests, plus
9 interest, as found by the court.
10 (6) The limited partnership shall pay each such
11 partner the amount found to be due within 10 days after final
12 determination of the proceedings. Upon payment of the
13 judgment, the limited partner shall cease to have any interest
14 in the limited partnership interests.
15 620.2123 Court costs and counsel fees.--
16 (1) The court in an appraisal proceeding shall
17 determine all costs of the proceeding, including the
18 reasonable compensation and expenses of appraisers appointed
19 by the court. The court shall assess the costs against the
20 limited partnership, except that the court may assess costs
21 against all or some of the limited partners demanding
22 appraisal, in amounts the court finds equitable, to the extent
23 the court finds such partners acted arbitrarily, vexatiously,
24 or not in good faith with respect to the rights provided by
25 this act.
26 (2) The court in an appraisal proceeding may also
27 assess the fees and expenses of counsel and experts for the
28 respective parties, in amounts the court finds equitable:
29 (a) Against the limited partnership and in favor of
30 any or all limited partners demanding appraisal if the court
31
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1 finds the limited partnership did not substantially comply
2 with ss. 620.2116 and 620.2118; or
3 (b) Against either the limited partnership or a
4 limited partner demanding appraisal, in favor of any other
5 party, if the court finds that the party against whom the fees
6 and expenses are assessed acted arbitrarily, vexatiously, or
7 not in good faith with respect to the rights provided by this
8 act.
9 (3) If the court in an appraisal proceeding finds that
10 the services of counsel for any limited partner were of
11 substantial benefit to other limited partners similarly
12 situated, and that the fees for those services should not be
13 assessed against the limited partnership, the court may award
14 to such counsel reasonable fees to be paid out of the amounts
15 awarded the limited partners who were benefited.
16 (4) To the extent the limited partnership fails to
17 make a required payment pursuant to s. 620.2120, the limited
18 partner may sue directly for the amount owed and, to the
19 extent successful, shall be entitled to recover from the
20 limited partnership all costs and expenses of the suit,
21 including counsel fees.
22 620.2124 Limitation on limited partnership payment.--
23 (1) No payment shall be made to a limited partner
24 seeking appraisal rights if, at the time of payment, the
25 limited partnership is unable to meet the distribution
26 standards of s. 620.1508. In such event, the limited partner
27 shall, at the limited partner's option:
28 (a) Withdraw the notice of intent to assert appraisal
29 rights, which shall in such event be deemed withdrawn with the
30 consent of the limited partnership; or
31
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1 (b) Retain the status as a claimant against the
2 limited partnership and, if the limited partnership is
3 liquidated, be subordinated to the rights of creditors of the
4 limited partnership, but have rights superior to the limited
5 partners not asserting appraisal rights, and, if it is not
6 liquidated, retain the right to be paid for the limited
7 partner interests, which right the limited partnership shall
8 be obliged to satisfy when the restrictions of this section do
9 not apply.
10 (2) The limited partner shall exercise the option
11 under paragraph (1)(a) or paragraph (1)(b) by written notice
12 filed with the limited partnership within 30 days after the
13 limited partnership has given written notice that the payment
14 for the limited partner interests cannot be made because of
15 the restrictions of this section. If the limited partner fails
16 to exercise the option, the limited partner shall be deemed to
17 have withdrawn the notice of intent to assert appraisal
18 rights.
19 620.2125 Application of other laws to provisions
20 governing conversions and mergers.--
21 (1) The provisions of ss. 620.2101-2124 do not
22 preclude an entity from being converted or merged under other
23 law.
24 (2) The provisions of ss. 620.2101-620.2124 do not
25 authorize any act prohibited by other applicable law or change
26 the requirements of any law or rule regulating a specific
27 organization or industry, such as a not-for-profit
28 organization, insurance, banking or investment establishment,
29 or other regulated business or activity.
30 620.2201 Uniformity of application and
31 construction.--In applying and construing this act,
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1 consideration must be given to the need to promote uniformity
2 of the law with respect to its subject matter among states
3 that enact it.
4 620.2202 Severability clause.--If any provision of
5 this act or its application to any person or circumstance is
6 held invalid, the invalidity does not affect other provisions
7 or applications of this act which can be given effect without
8 the invalid provision or application, and to this end the
9 provisions of this act are severable.
10 620.2203 Relation to electronic signatures in Global
11 and National Commerce Act.--This act modifies, limits, or
12 supersedes the federal Electronic Signatures in Global and
13 National Commerce Act, 15 U.S.C. ss. 7001 et seq., but this
14 act does not modify, limit, or supersede s. 101(c) of that
15 act, 15 U.S.C. s. 7001(c), or authorize electronic delivery of
16 any of the notices described in s. 103(b) of that act, 15
17 U.S.C. s. 7001(b), except to the extent permitted pursuant to
18 ss. 15.16, 116.34, and 668.50 of such act.
19 620.2204 Application to existing relationships.--
20 (1) Before January 1, 2007, this act governs only:
21 (a) A limited partnership formed on or after January
22 1, 2006.
23 (b) Except as otherwise provided in subsections (3)
24 and (4), a limited partnership formed before January 1, 2006,
25 which elects, in the manner provided in its partnership
26 agreement or by law for amending the partnership agreement, to
27 be subject to this act.
28 (2) Except as otherwise provided in subsection (3), on
29 and after January 1, 2007, this act governs all limited
30 partnerships.
31
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1 (3) With respect to a limited partnership formed
2 before January 1, 2006, the following rules apply except as
3 the partners otherwise elect in the manner provided in the
4 partnership agreement or by law for amending the partnership
5 agreement:
6 (a) The provisions of s. 620.1104(3) do not apply and
7 the limited partnership has whatever duration such limited
8 partnership had under the law applicable immediately before
9 January 1, 2006.
10 (b) The limited partnership is not required to amend
11 its certificate of limited partnership to comply with s.
12 620.1201(1)(d).
13 (c) The provisions of ss. 620.1601 and 620.1602 do not
14 apply and a limited partner has the same right and power to
15 dissociate from the limited partnership, with the same
16 consequences, as existed immediately before July 1, 2005.
17 (d) The provisions of s. 620.603(4) do not apply.
18 (e) The provisions of s. 620.1603(5) do not apply and
19 a court has the same power to expel a general partner as the
20 court had immediately before January 1, 2006.
21 (f) The provisions of s. 620.1801(3) do not apply and
22 the connection between a person's dissociation as a general
23 partner and the dissolution of the limited partnership is the
24 same as existed immediately before January 1, 2006.
25 (4) With respect to a limited partnership that elects
26 pursuant to paragraph (1)(b) to be subject to this act, after
27 the election takes effect the provisions of this act relating
28 to the liability of the limited partnership's general partners
29 to third parties apply:
30 (a) Before January 1, 2007, to:
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1 1. A third party that had not done business with the
2 limited partnership in the year before the election took
3 effect.
4 2. A third party that had done business with the
5 limited partnership in the year before the election took
6 effect only if the third party knows or has received a
7 notification of the election.
8 (b) On and after January 1, 2007, to all third
9 parties, but those provisions remain inapplicable to any
10 obligation incurred while those provisions were inapplicable
11 under subparagraph (a)2.
12 620.2205 Savings clause.--This act does not affect an
13 action commenced, proceeding brought, or right accrued before
14 this act takes effect.
15 Section 17. Paragraphs (j) and (k) of subsection (2)
16 of section 620.8103, Florida Statutes, are amended to read:
17 620.8103 Effect of partnership agreement; nonwaivable
18 provisions.--
19 (2) The partnership agreement may not:
20 (j) Change the notice provisions contained in s.
21 620.8902(6) or s. 620.8905(6); or
22 (j)(k) Restrict rights of third parties under this
23 act.
24 Section 18. Subsections (5), (6), (7), and (8) of
25 section 620.8105, Florida Statutes, are amended to read:
26 620.8105 Execution, filing, and recording of
27 partnership registration and other statements.--
28 (5) A partnership registration statement or other
29 statement or a certificate of merger or certificate of
30 conversion must be delivered to the Department of State for
31 filing, which may be accomplished by electronic filing
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1 pursuant to s. 15.16, and must be typewritten or legibly
2 printed in the English language. A registration statement or
3 other statement, or a certificate of merger or certificate of
4 conversion, may specify a delayed effective time and, if so
5 specified, such filing shall become effective at the delayed
6 time and date specified. If a delayed effective date, but no
7 time, is specified, the filing shall become effective at the
8 close of business on the delayed effective date. Unless
9 otherwise permitted by this chapter, a delayed effective date
10 for a document to be filed may not be later than the 90th day
11 after the date on which the document is filed.
12 (6) A registration statement filed by a partnership
13 must be executed by at least two partners. Other statements
14 must be executed by a partner or other person authorized by
15 this act. The execution of a statement by an individual as, or
16 on behalf of, a partner or other person named as a partner in
17 a filing constitutes an affirmation under the penalties of
18 perjury that the facts stated therein are true.
19 (7) A partnership may amend or cancel its registration
20 statement, and a person authorized by this act to file a
21 statement of partnership authority, a statement of denial, a
22 statement of dissociation, a statement of dissolution, a
23 certificate statement of merger, a certificate of conversion,
24 a statement of qualification, or a statement of foreign
25 qualification may amend or cancel such document statement, by
26 filing an amendment or cancellation that:
27 (a) Identifies the partnership and the statement or
28 certificate being amended or canceled.; and
29 (b) States the substance of what is being amended or
30 canceled.
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1 (8) A certified copy of a statement or certificate
2 that has been filed with the Department of State and recorded
3 in the office for recording transfers of real property has the
4 effect provided for recorded statements in this act. A
5 recorded statement that is not a certified copy of a statement
6 or certificate filed with the Department of State does not
7 have the effect provided for recorded statements in this act.
8 Section 19. Paragraph (n) of subsection (1) of section
9 620.81055, Florida Statutes, is renumbered as paragraph (o),
10 and a new paragraph (n) is added to said subsection, to read:
11 620.81055 Fees for filing documents and issuing
12 certificates; powers of the Department of State.--
13 (1) The Department of State shall collect the
14 following fees when documents authorized by this act are
15 delivered to the Department of State for filing:
16 (n) Certificate of conversion: $25.
17 (o)(n) Any other document required or permitted to be
18 filed by this act: $25.
19 Section 20. Subsection (2) of section 620.8404,
20 Florida Statutes, is amended to read:
21 620.8404 General standards of partner's conduct.--
22 (2) A partner's duty of loyalty to the partnership and
23 the other partners is limited to includes, without limitation,
24 the following:
25 (a) To account to the partnership and hold as trustee
26 for the partnership any property, profit, or benefit derived
27 by the partner in the conduct and winding up of the
28 partnership business or derived from a use by the partner of
29 partnership property, including the appropriation of a
30 partnership opportunity;
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1 (b) To refrain from dealing with the partnership in
2 the conduct or winding up of the partnership business as or on
3 behalf of a party having an interest adverse to the
4 partnership; and
5 (c) To refrain from competing with the partnership in
6 the conduct of the partnership business before the dissolution
7 of the partnership.
8 Section 21. Sections 620.8911, 620.8912, 620.8913,
9 620.8914, 620.8915, 620.8916, 620.8917, 620.8918, 620.8919,
10 620.8920, 620.8921, 620.8922, and 620.8923, Florida Statutes,
11 are created to read:
12 620.8911 Definitions.--As used in this section and ss.
13 620.8912-620.8923:
14 (1) "Constituent partnership" means a constituent
15 organization that is a partnership governed by this act.
16 (2) "Constituent organization" means an organization
17 that is party to a merger.
18 (3) "Converted organization" means the organization
19 into which a converting organization converts pursuant to ss.
20 620.8902-620.8905.
21 (4) "Converting partnership" means a converting
22 organization that is a partnership governed by this act.
23 (5) "Converting organization" means an organization
24 that converts into another organization pursuant to s.
25 620.8912.
26 (6) "Governing law" of an organization means the law
27 that governs the organization's internal affairs.
28 (7) "Organization" means a corporation; general
29 partnership, including a limited liability partnership;
30 limited partnership, including a limited liability limited
31 partnership; limited liability company; common law or business
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1 trust or association; real estate investment trust; or any
2 other person organized under a governing law or other
3 applicable law, provided such term shall not include an
4 organization that is not organized for profit, unless the
5 not-for-profit organization is the converted organization or
6 the surviving organization in a conversion or a merger
7 governed by this act. The term includes both domestic and
8 foreign organizations.
9 (8) "Organizational documents" means:
10 1. For a domestic or foreign general partnership, its
11 partnership agreement.
12 2. For a limited partnership or foreign limited
13 partnership, its certificate of limited partnership and
14 partnership agreement.
15 3. For a domestic or foreign limited liability
16 company, its articles of organization and operating agreement,
17 or comparable records as provided in its governing law.
18 4. For a business trust, its agreement of trust and
19 declaration of trust.
20 5. For a domestic or foreign corporation for profit,
21 its articles of incorporation, bylaws, and other agreements
22 among its shareholders which are authorized by its governing
23 law, or comparable records as provided in its governing law.
24 6. For any other organization, the basic records that
25 create the organization and determine its internal governance
26 and the relations among the persons that own it, have an
27 interest in it, or are members of it.
28 (9) "Personal liability" means personal liability for
29 a debt, liability, or other obligation of an organization
30 which is imposed on a person that coowns, has an interest in,
31 or is a member of the organization:
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1 1. By the organization's governing law solely by
2 reason of the person's coowning, having an interest in, or
3 being a member of the organization; or
4 2. By the organization's organizational documents
5 under a provision of the organization's governing law
6 authorizing those documents to make one or more specified
7 persons liable for all or specified debts, liabilities, and
8 other obligations of the organization solely by reason of the
9 person or persons' coowning, having an interest in, or being a
10 member of the organization.
11 (10) "Record" means information that is inscribed on a
12 tangible medium or that is stored in an electronic or other
13 medium and is retrievable in perceivable form.
14 (11) "Surviving organization" means an organization
15 into which one or more other organizations are merged. A
16 surviving organization may preexist the merger or be created
17 by the merger.
18 620.8912 Conversion.--
19 (1) An organization other than a partnership may
20 convert to a partnership, and a partnership may convert to
21 another organization pursuant to this section and ss.
22 620.8913-620.8915 and a plan of conversion, if:
23 (a) The other organization's governing law authorizes
24 the conversion.
25 (b) The conversion is permitted by the law of the
26 jurisdiction that enacted the governing law.
27 (c) The other organization complies with its governing
28 law in effecting the conversion.
29 (2) A plan of conversion must be in a record and must
30 include:
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1 (a) The name and form of the organization before
2 conversion.
3 (b) The name and form of the organization after
4 conversion.
5 (c) The terms and conditions of the conversion,
6 including the manner and basis for converting interests in the
7 converting organization into any combination of money,
8 interests in the converted organization, and other
9 consideration.
10 (d) The organizational documents of the converted
11 organization.
12 620.8913 Action on plan of conversion by converting
13 partnership.--
14 (1) A plan of conversion must be consented to by all
15 of the partners of a converting partnership. The consents
16 required by this subsection must be in, or evidenced by, a
17 record.
18 (2) Subject to s. 620.8920 and any contractual rights,
19 after a conversion is approved, and at any time before a
20 filing is made under s. 620.8914, a converting partnership may
21 amend the plan or abandon the planned conversion:
22 (a) As provided in the plan.
23 (b) Except as prohibited by the plan, by the same
24 consent as was required to approve the plan.
25 620.8914 Filings required for conversion; effective
26 date.--
27 (1) After a plan of conversion is approved:
28 (a) A converting partnership shall deliver to the
29 Department of State for filing a statement of registration in
30 accordance with s. 620.8105, if such statement was not
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1 previously filed, and a certificate of conversion, in
2 accordance with s. 620.8105, which must include:
3 1. A statement that the partnership has been converted
4 into another organization.
5 2. The name and form of the organization and the
6 jurisdiction of its governing law.
7 3. The date the conversion is effective under the
8 governing law of the converted organization.
9 4. A statement that the conversion was approved as
10 required by this act.
11 5. A statement that the conversion was approved as
12 required by the governing law of the converted organization.
13 6. If the converted organization is a foreign
14 organization not authorized to transact business in this
15 state, the street and mailing address of an office which the
16 Department of State may use for the purposes of s.
17 620.8915(3).
18 (b) In the case of a converting organization
19 converting into a partnership to be governed by this act, the
20 converting organization shall deliver to the Department of
21 State for filing:
22 1. A certificate of registration in accordance with s.
23 620.8105.
24 2. A certificate of conversion, in accordance with s.
25 620.8105, which certificate of conversion must include:
26 a. A statement that the partnership was converted from
27 another organization.
28 b. The name and form of the converting organization
29 and the jurisdiction of its governing law.
30 c. A statement that the conversion was approved as
31 required by this act.
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1 d. A statement that the conversion was approved in a
2 manner that complied with the converting organization's
3 governing law.
4 e. The effective time of the conversion, if other than
5 the time of the filing of the statement of conversion.
6 (2) A conversion becomes effective:
7 (a) If the converted organization is a partnership, at
8 the time specified in the plan of conversion or the
9 certificate of conversion, which may be as of or after the
10 time of the filing of the certificate of conversion, and, if
11 the certificate of conversion does not contain such an
12 effective time, the effective time shall be upon the filing of
13 the certificate of conversion with the Department of State,
14 provided, if the certificate has a delayed effective date, the
15 certificate may not be effective any later than the 90th day
16 after the date it was filed and provided further, the
17 effective date shall not be any earlier than the effective
18 date of the statement of registration filed with the
19 Department of State for the partnership in accordance with s.
20 620.8105.
21 (b) If the converted organization is not a
22 partnership, as provided by the governing law of the converted
23 organization.
24 620.8915 Effect of conversion.--
25 (1) An organization that has been converted pursuant
26 to this act is for all purposes the same entity that existed
27 before the conversion.
28 (2) When a conversion takes effect:
29 (a) Title to all real estate and other property, or
30 any interest therein, owned by the converting organization at
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1 the time of its conversion remains vested in the converted
2 organization without reversion or impairment under this act.
3 (b) All debts, liabilities, and other obligations of
4 the converting organization continue as obligations of the
5 converted organization.
6 (c) An action or proceeding pending by or against the
7 converting organization may be continued as if the conversion
8 had not occurred.
9 (d) Except as prohibited by other law, all of the
10 rights, privileges, immunities, powers, and purposes of the
11 converting organization remain vested in the converted
12 organization.
13 (e) Except as otherwise provided in the plan of
14 conversion, the terms and conditions of the plan of conversion
15 take effect.
16 (f) Except as otherwise agreed, the conversion does
17 not dissolve a converting limited partnership for purposes of
18 this act and ss. 620.8801-620.8807 shall not apply.
19 (3) A converted organization that is a foreign
20 organization consents to the jurisdiction of the courts of
21 this state to enforce any obligation owed by the converting
22 partnership, if before the conversion the converting
23 partnership was subject to suit in this state on the
24 obligation. A converted organization that is a foreign
25 organization and not authorized to transact business in this
26 state shall appoint the Department of State as its agent for
27 service of process for purposes of enforcing an obligation
28 under this subsection. Service on the Department of State
29 under this subsection shall be made in the same manner and
30 with the same consequences as provided in s. 48.181.
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1 (4) A copy of the certificate of conversion, certified
2 by the Department of State, may be filed in any county of this
3 state in which the converting organization holds an interest
4 in real property.
5 620.8916 Merger.--
6 (1) A partnership may merge with one or more other
7 constituent organizations pursuant to this section and ss.
8 620.8917-620.8919 and a plan of merger, if:
9 (a) The governing law of each of the other
10 organizations authorizes the merger.
11 (b) The merger is permitted by the law of each
12 jurisdiction that enacted those governing laws.
13 (c) Each of the other organizations complies with its
14 governing law in effecting the merger.
15 (2) A plan of merger must be in a record and must
16 include:
17 (a) The name and form of each constituent
18 organization.
19 (b) The name and form of the surviving organization.
20 (c) The terms and conditions of the merger, including
21 the manner and basis for converting the interests in each
22 constituent organization into any combination of money,
23 interests in the surviving organization, and other
24 consideration.
25 (d) Any amendments to be made by the merger to the
26 surviving organization's organizational documents.
27 620.8917 Action on plan of merger by constituent
28 partnership.--
29 (1) A plan of merger must be consented to by all of
30 the partners of a constituent partnership. The consents
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1 required by this subsection must be in, or evidenced by, a
2 record.
3 (2) Subject to s. 620.8920 and any contractual rights,
4 after a merger is approved, and at any time before a filing is
5 made under s. 620.8918, a constituent partnership may amend
6 the plan or abandon the planned merger:
7 (a) As provided in the plan.
8 (b) Except as prohibited by the plan, with the same
9 consent as was required to approve the plan.
10 620.8918 Filings required for merger; effective
11 date.--
12 (1) After each constituent organization has approved a
13 merger, a certificate of merger must be signed on behalf of:
14 (a) Each preexisting constituent partnership, by all
15 of the partners of such partnership.
16 (b) Each other preexisting constituent organization,
17 by an authorized representative.
18 (2) The certificate of merger must include:
19 (a) The name and form of each constituent organization
20 and the jurisdiction of its governing law.
21 (b) The name and form of the surviving organization,
22 the jurisdiction of its governing law, and, if the surviving
23 organization is created by the merger, a statement to that
24 effect.
25 (c) The date the merger is effective under the
26 governing law of the surviving organization.
27 (d) Any amendments provided for in the plan of merger
28 for the organizational document that created the organization.
29 (e) A statement as to each constituent organization
30 that the merger was approved as required by the organization's
31 governing law.
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1 (f) If the surviving organization is a foreign
2 organization not authorized to transact business in this
3 state, the street and mailing address of an office which the
4 Department of State may use for the purposes of subsection
5 620.8919(2).
6 (g) Any additional information required by the
7 governing law of any constituent organization.
8 (3) Each constituent partnership shall deliver to the
9 Department of State for filing a statement of registration in
10 accordance with s. 620.8105, if such statement was not
11 previously filed, and a certificate of merger in accordance
12 with s. 620.8105.
13 (4) A merger becomes effective under this act:
14 (a) If the surviving organization is a partnership, at
15 the time specified in the plan of merger or the certificate of
16 merger, which may be as of or after the time of the filing of
17 the certificate of merger, and, if the certificate of merger
18 does not contain such an effective time, the effective time
19 shall be upon the filing of the statement of merger with the
20 Department of State, provided, if the certificate has a
21 delayed effective date, the certificate may not be effective
22 any later than the 90th day after the date it was filed, and
23 provided further, the effective date shall not be any earlier
24 than the effective date of the statement of registration filed
25 with the Department of State for the partnership in accordance
26 with s. 620.8105.
27 (b) If the surviving organization is not a
28 partnership, as provided by the governing law of the surviving
29 organization.
30 (5) A certificate of merger shall act as a
31 cancellation of any statement of registration for purposes of
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1 s. 620.8105 for a partnership that is a party to the merger
2 that is not the surviving organization, which cancellation
3 shall be deemed filed upon the effective date of the merger.
4 620.8919 Effect of merger.--
5 (1) When a merger becomes effective:
6 (a) The surviving organization continues.
7 (b) Each constituent organization that merges into the
8 surviving organization ceases to exist as a separate entity.
9 (c) Title to all real estate and other property owned
10 by each constituent organization that ceases to exist vests in
11 the surviving organization without reversion or impairment.
12 (d) All debts, liabilities, and other obligations of
13 each constituent organization that ceases to exist continue as
14 obligations of the surviving organization.
15 (e) An action or proceeding pending by or against any
16 constituent organization that ceases to exist may be continued
17 as if the merger had not occurred.
18 (f) Except as prohibited by other law, all of the
19 rights, privileges, immunities, powers, and purposes of each
20 constituent organization that ceases to exist vest in the
21 surviving organization.
22 (g) Except as otherwise provided in the plan of
23 merger, the terms and conditions of the plan of merger take
24 effect.
25 (h) Except as otherwise agreed, if a constituent
26 partnership ceases to exist, the merger does not dissolve the
27 partnership for purposes of this act, and ss.
28 620.8801-620.8807 shall not apply.
29 (i) Any amendments provided for in the certificate of
30 merger for the organizational document that created the
31 organization become effective.
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1 (2) A surviving organization that is a foreign
2 organization consents to the jurisdiction of the courts of
3 this state to enforce any obligation owed by a constituent
4 organization, if before the merger the constituent
5 organization was subject to suit in this state on the
6 obligation. A surviving organization that is a foreign
7 organization and not authorized to transact business in this
8 state shall appoint the Department of State as its agent for
9 service of process pursuant to the provisions of s. 48.181.
10 (3) A copy of the certificate of merger, certified by
11 the Department of State, may be filed in any county of this
12 state in which a constituent organization holds an interest in
13 real property.
14 620.8920 Restrictions on approval of conversions and
15 mergers and on relinquishing limited liability partnership
16 status.--
17 (1) If a partner of a converting or constituent
18 partnership will have personal liability with respect to a
19 converted or surviving organization, approval and amendment of
20 a plan of conversion or merger are ineffective without the
21 consent of the partner, unless:
22 (a) The partnership's partnership agreement provides
23 for the approval of the conversion or merger with the consent
24 of fewer than all the partners.
25 (b) The partner has consented to the provision of the
26 partnership agreement.
27 (2) An amendment to a statement of qualification of a
28 limited liability partnership which revokes its status as
29 such is ineffective without the consent of each general
30 partner unless:
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1 (a) The limited liability partnership's partnership
2 agreement provides for the amendment with the consent of less
3 than all its partners.
4 (b) Each partner that does not consent to the
5 amendment has consented to the provision of the partnership
6 agreement.
7 (3) A partner does not give the consent required by
8 subsection (1) or subsection (2) merely by consenting to a
9 provision of the partnership agreement which permits the
10 partnership agreement to be amended with the consent of fewer
11 than all the partners.
12 620.8921 Liability of a partner after conversion or
13 merger.--
14 (1) A conversion or merger under this act does not
15 discharge any liability under ss. 620.8306 and 620.8703 of a
16 person that was a partner in or dissociated as a partner from
17 a converting or constituent partnership, but:
18 (a) The provisions of this act pertaining to the
19 collection or discharge of the liability continue to apply to
20 the liability.
21 (b) For the purposes of applying those provisions, the
22 converted or surviving organization is deemed to be the
23 converting or constituent partnership.
24 (c) If a person is required to pay any amount under
25 this subsection:
26 1. The person has a right of contribution from each
27 other person that was liable as a partner under s. 620.8306
28 when the obligation was incurred and has not been released
29 from the obligation under s. 620.8703.
30
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1 2. Any such rights of contribution and the relative
2 amounts of contribution shall be determined and settled in the
3 same manner as provided in s. 620.8807(3).
4 (2) In addition to any other liability provided by
5 law:
6 (a) A person that immediately before a conversion or
7 merger became effective was a partner in a converting or
8 constituent partnership that was not a limited liability
9 partnership is personally liable on a transaction entered into
10 by the converted or surviving organization with a third party
11 after the conversion or merger becomes effective, if, at the
12 time the third party enters into the transaction, the third
13 party:
14 1. Does not have notice of the conversion or merger.
15 2. Reasonably believes that:
16 a. The converted or surviving business is the
17 converting or constituent partnership.
18 b. The converting or constituent partnership is not a
19 limited liability limited partnership.
20 c. The person is a partner in the converting or
21 constituent partnership.
22 (b) A person that was dissociated as a partner from a
23 converting or constituent partnership before the conversion or
24 merger became effective is personally liable on a transaction
25 entered into by the converted or surviving organization with a
26 third party after the conversion or merger becomes effective,
27 if:
28 1. Immediately before the conversion or merger became
29 effective the converting or surviving partnership was not a
30 limited liability partnership.
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1 2. At the time the third party enters into the
2 transaction fewer than 2 years have passed since the person
3 dissociated as a partner, and the third party:
4 a. Does not have notice of the dissociation.
5 b. Does not have notice of the conversion or merger.
6 c. Reasonably believes that the converted or surviving
7 organization is the converting or constituent partnership, the
8 converting or constituent limited partnership is not a limited
9 liability partnership, and the person is a partner in the
10 converting or constituent partnership.
11 620.8922 Power of partners and persons dissociated as
12 partners to bind organization after conversion or merger.--
13 (1) An act of a person who immediately before a
14 conversion or merger became effective was a partner in a
15 converting or constituent partnership binds the converted or
16 surviving organization after the conversion or merger becomes
17 effective, if:
18 (a) Before the conversion or merger became effective,
19 the act would have bound the converting or constituent limited
20 partnership under s. 620.8301.
21 (b) At the time the third party enters into the
22 transaction, the third party:
23 1. Does not have notice of the conversion or merger.
24 2. Reasonably believes that the converted or surviving
25 business is the converting or constituent partnership and that
26 the person is a partner in the converting or constituent
27 partnership.
28 (2) An act of a person that before a conversion or
29 merger became effective was dissociated as a partner from a
30 converting or constituent partnership binds the converted or
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1 surviving organization after the conversion or merger becomes
2 effective, if:
3 (a) Before the conversion or merger became effective,
4 the act would have bound the converting or constituent
5 partnership under s. 620.8301 if the person had been a
6 partner.
7 (b) At the time the third party enters into the
8 transaction, fewer than 2 years have passed since the person
9 dissociated as a partner, and the third party:
10 1. Does not have notice of the dissociation.
11 2. Does not have notice of the conversion or merger.
12 3. Reasonably believes that the converted or surviving
13 organization is the converting or constituent partnership and
14 that the person is a partner in the converting or constituent
15 partnership.
16 (3) If a person having knowledge of the conversion or
17 merger causes a converted or surviving organization to incur
18 an obligation under subsection (1) or subsection (2), the
19 person is liable:
20 (a) To the converted or surviving organization for any
21 damage caused to the organization arising from the obligation.
22 (b) If another person is liable for the obligation, to
23 that other person for any damage caused to that other person
24 arising from the liability.
25 620.8923 Application of other laws to provisions
26 governing conversions and mergers.--
27 (1) The provisions of ss. 620.8911-620.8922 do not
28 preclude an entity from being converted or merged under other
29 law.
30 (2) The provisions of ss. 620.8911-620.8922 do not
31 authorize any act prohibited by any other applicable law or
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1 change the requirements of any law or rule regulating a
2 specific organization or industry, including, but not limited
3 to, a not-for-profit organization, insurance, banking or
4 investment establishment, or other regulated business or
5 activity.
6 Section 22. Subsection (1) of section 620.9104,
7 Florida Statutes, is amended to read:
8 620.9104 Activities not constituting transacting
9 business.--
10 (1) Activities of a foreign limited liability
11 partnership which do not constitute transacting business
12 within the meaning of ss. 620.9101-620.9105 include, but are
13 not limited to:
14 (a) Maintaining, defending, or settling an action or
15 proceeding.;
16 (b) Holding meetings of its partners or carrying on
17 any other activity concerning its internal affairs.;
18 (c) Maintaining bank accounts in financial
19 institutions.;
20 (d) Maintaining offices or agencies for the transfer,
21 exchange, and registration of the partnership's own securities
22 or maintaining trustees or depositories with respect to those
23 securities.;
24 (e) Selling through independent contractors.;
25 (f) Soliciting or obtaining orders, whether by mail or
26 through employees or agents or otherwise, if the orders
27 require acceptance outside this state before they become
28 contracts.;
29 (g) Creating or acquiring indebtedness, mortgages, or
30 security interests in real or personal property.;
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1 (h) Securing or collecting debts or foreclosing
2 mortgages or other security interests in property securing the
3 debts, and holding, protecting, and maintaining property so
4 acquired.;
5 (i) Conducting an isolated transaction that is
6 completed within 30 days and is not one in the course of
7 similar transactions of like nature.; and
8 (j) Transacting business in interstate commerce.
9 (k) Owning and controlling a subsidiary corporation
10 incorporated in or transacting business within this state or
11 voting the stock of any corporation which it has lawfully
12 acquired.
13 (l) Owning a limited partnership interest in a limited
14 partnership that is doing business within this state, unless
15 such limited partner manages or controls the partnership or
16 exercises the powers and duties of a general partner.
17 (m) Owning, without more, real or personal property.
18 Section 23. Subsection (7) of section 607.11101,
19 Florida Statutes, is amended to read:
20 607.11101 Effect of merger of domestic corporation and
21 other business entity.--When a merger becomes effective:
22 (7) The shares, partnership interests, interests,
23 obligations, or other securities, and the rights to acquire
24 shares, partnership interests, interests, obligations, or
25 other securities, of each domestic corporation and other
26 business entity that is a party to the merger shall be
27 converted into shares, partnership interests, interests,
28 obligations, or other securities, or rights to such
29 securities, of the surviving entity or any other domestic
30 corporation or other business entity or, in whole or in part,
31 into cash or other property as provided in the plan of merger,
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1 and the former holders of shares, partnership interests,
2 interests, obligations, or other securities, or rights to such
3 securities, shall be entitled only to the rights provided in
4 the plan of merger and to their appraisal rights, if any,
5 under ss. 607.1301-607.1333, ss. 608.4351-608.43595, ss.
6 620.2114-620.2124 s. 608.4384, s. 620.205, or other applicable
7 law.
8 Section 24. Effective January 1, 2006:
9 (1) Section 608.4384, Florida Statutes, is repealed.
10 (2) Sections 620.101, 620.102, 620.103, 620.105,
11 620.1051, 620.106, 620.107, 620.108, 620.109, 620.112,
12 620.113, 620.114, 620.115, 620.116, 620.117, 620.118, 620.119,
13 620.122, 620.123, 620.124, 620.125, 620.126, 620.127, 620.128,
14 620.129, 620.132, 620.133, 620.134, 620.135, 620.136, 620.137,
15 620.138, 620.139, 620.142, 620.143, 620.144, 620.145, 620.146,
16 620.147, 620.148, 620.149, 620.152, 620.153, 620.154, 620.155,
17 620.156, 620.157, 620.158, 620.159, 620.162, 620.163, 620.164,
18 620.165, 620.166, 620.167, 620.168, 620.169, 620.172, 620.173,
19 620.174, 620.175, 620.176, 620.177, 620.178, 620.179, 620.182,
20 620.1835, 620.184, 620.185, 620.186, 620.187, 620.192,
21 620.201, 620.202, 620.203, 620.204, and 620.205, Florida
22 Statutes, are repealed.
23 (3) Sections 620.8901, 620.8902, 620.8903, 620.8904,
24 620.8905, 620.8906, 620.8907, and 620.8908, Florida Statutes,
25 are repealed.
26 Section 25. Except as otherwise provided herein, this
27 act shall take effect January 1, 2006.
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 1056
3
4 The committee substitute makes the following changes to the
underlying bill:
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-- Provides that a payment for a member's interest in a
6 private club organized as not-for-profit corporation is
not a distribution for purposes of the restriction on
7 not-for-profit corporations paying dividends or
distributions; and
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-- Makes technical and conforming changes throughout.
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