Florida Senate - 2008 COMMITTEE AMENDMENT
Bill No. SB 304
547184
Senate
Comm: RCS
3/11/2008
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House
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The Committee on Commerce (Justice) recommended the following
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amendment:
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Senate Amendment (with title amendment)
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Delete everything after the enacting clause
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and insert:
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Section 1. Subsections (4), (6), and (9) of section
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617.01201, Florida Statutes, are amended to read:
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617.01201 Filing requirements.--
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(4) The document must be typewritten or printed and must
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be legible. If electronically transmitted, the document must be
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in a format that may be retrieved or reproduced in typewritten
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or printed form.
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(6) The document must be executed:
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(a) By a director the chair or any vice chair of the board
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of directors of a domestic or foreign corporation, or by its
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president or by another of its officers;
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(b) If directors or officers have not been selected or the
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corporation has not been formed, by an incorporator; or
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(c) If the corporation is in the hands of a receiver,
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trustee, or other court-appointed fiduciary, by the that
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fiduciary.
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(9) The document must be delivered to the office of the
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department of State for filing. Delivery may be made by
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electronic transmission if and to the extent allowed by the
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department. If the document is filed in typewritten or printed
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form and not transmitted electronically, the department may
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require that and may be accompanied by one exact or conformed
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copy be delivered with the document, (except as provided in s.
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617.1508. The document), and must be accompanied by the correct
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filing fee and any other tax or penalty required by this act or
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other law.
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Section 2. Subsection (7) of section 617.0122, Florida
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Statutes, is amended to read:
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617.0122 Fees for filing documents and issuing
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certificates.--The Department of State shall collect the
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following fees on documents delivered to the department for
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filing:
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(7) Agent's statement of resignation from inactive
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administratively dissolved corporation: $35.
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Any citizen support organization that is required by rule of the
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Department of Environmental Protection to be formed as a
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nonprofit organization and is under contract with the department
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is exempt from any fees required for incorporation as a
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nonprofit organization, and the Secretary of State may not
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assess any such fees if the citizen support organization is
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certified by the Department of Environmental Protection to the
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Secretary of State as being under contract with the Department
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of Environmental Protection.
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Section 3. Subsections (1) and (2) of section 617.0124,
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Florida Statutes, are amended to read:
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617.0124 Correcting filed document.--
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(1) A domestic or foreign corporation may correct a
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document filed by the department of State within 30 10 business
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days after filing if the document:
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(a) The document contains an incorrect statement; or
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(b) The document was defectively executed, attested,
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sealed, verified, or acknowledged; or.
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(c) The electronic transmission of the document was
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defective.
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(2) A document is corrected:
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(a) By preparing articles of correction that:
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1. Describe the document, (including its filing date) or
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attach a copy of it to the articles;
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2. Specify the incorrect statement and the reason it is
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incorrect or the manner in which the execution was defective;
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and
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3. Correct the incorrect statement or defective execution;
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and
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(b) By delivering the executed articles of correction to
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the department of State for filing.
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Section 4. Section 617.01401, Florida Statutes, is amended
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to read:
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617.01401 Definitions.--As used in this chapter act,
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unless the context otherwise requires, the term:
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(1) "Articles of incorporation" includes original,
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amended, and restated articles of incorporation, articles of
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consolidation, and articles of merger, and all amendments
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thereto, including documents designated by the laws of this
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state as charters, and, in the case of a foreign corporation,
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documents equivalent to articles of incorporation in the
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jurisdiction of incorporation.
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(2) "Board of directors" means the group of persons vested
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with the management of the affairs of the corporation
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irrespective of the name by which such group is designated,
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including, but not limited to, managers or trustees.
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(3) "Bylaws" means the code or codes of rules adopted for
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the regulation or management of the affairs of the corporation
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irrespective of the name or names by which such rules are
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designated.
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(4) "Corporation" or "domestic corporation" means a
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corporation not for profit, subject to the provisions of this
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chapter act, except a foreign corporation.
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(5) "Corporation not for profit" means a corporation no
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part of the income or profit of which is distributable to its
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members, directors, or officers, except as otherwise provided
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under this chapter.
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(6) "Department" means the Department of State.
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(7) "Distribution" means the payment of a dividend or any
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part of the income or profit of a corporation to its members,
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directors, or officers. A donation or transfer of corporate
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assets or income to or from another not-for-profit corporation
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qualified as tax-exempt under s. 501(c) of the Internal Revenue
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Code or a governmental organization exempt from federal and
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state income taxes, if such corporation or governmental
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organization is a member of the corporation making such donation
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or transfer, is not a distribution for purposes of this chapter.
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(8)(6) "Electronic transmission" means any form of
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communication, not directly involving the physical transmission
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or transfer of paper, which creates a record that may be
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retained, retrieved, and reviewed by a recipient thereof and
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which may be directly reproduced in a comprehensible and legible
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paper form by such recipient through an automated process.
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Examples of electronic transmission include, but are not limited
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to, telegrams, facsimile transmissions of images, and text that
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is sent via electronic mail between computers.
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(9)(7) "Foreign corporation" means a corporation not for
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profit organized under laws other than the laws of this state.
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(10)(8) "Insolvent" means the inability of a corporation
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to pay its debts as they become due in the usual course of its
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affairs.
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(11)(9) "Mail" means the United States mail, facsimile
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transmissions, and private mail carriers handling nationwide
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mail services.
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(12)(10) "Member" means one having membership rights in a
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corporation in accordance with the provisions of its articles of
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incorporation or bylaws or the provisions of this chapter act.
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(13) "Mutual benefit corporation" means a domestic
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corporation that is not organized primarily or exclusively for
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religious purposes; is not recognized as exempt under s.
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501(c)(3) of the Internal Revenue Code, or the corresponding
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section of a subsequently enacted federal revenue act; and is
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not organized for a public or charitable purpose that is
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required upon its dissolution to distribute its assets to the
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United States, a state, a local subdivision thereof, or a person
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that is recognized as exempt under s. 501(c)(3) of the Internal
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Revenue Code, or the corresponding section of a subsequently
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enacted federal revenue act. The term does not include an
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association organized under chapter 718, chapter 719, chapter
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720, or chapter 721, or any corporation where membership in the
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corporation is required pursuant to a document recorded in
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county property records.
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(14)(11) "Person" includes individual and entity.
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(15) "Successor entity" means any trust, receivership, or
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other legal entity that is governed by the laws of this state to
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which the remaining assets and liabilities of a dissolved
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corporation are transferred and that exists solely for the
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purposes of prosecuting and defending suits by or against the
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dissolved corporation and enabling the dissolved corporation to
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settle and close the business of the dissolved corporation, to
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dispose of and convey the property of the dissolved corporation,
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to discharge the liabilities of the dissolved corporation, and
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to distribute to the dissolved corporation's members any
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remaining assets, but not for the purpose of continuing the
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business for which the dissolved corporation was organized.
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(16) "Voting power" means the total number of votes
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entitled to be cast for the election of directors at the time
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the determination of voting power is made, excluding a vote that
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is contingent upon the happening of a condition or event that
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has not yet occurred. If the members of a class are entitled to
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vote as a class to elect directors, the determination of the
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voting power of the class is based on the percentage of the
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number of directors the class is entitled to elect relative to
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the total number of authorized directors. If the corporation's
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directors are not elected by the members, voting power shall,
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unless otherwise provided in the articles of incorporation or
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bylaws, be on a one-member, one-vote basis.
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Section 5. Subsection (1) of section 617.0205, Florida
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Statutes, is amended to read:
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617.0205 Organizational meeting of directors.--
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(1) After incorporation:
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(a) If initial directors are named in the articles of
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incorporation, the initial directors shall hold an
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organizational meeting, at the call of a majority of the
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directors, to complete the organization of the corporation by
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appointing officers, adopting bylaws, and carrying on any other
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business brought before the meeting;
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(b) If initial directors are not named in the articles of
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incorporation, the incorporators shall hold an organizational
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meeting at the call of a majority of the incorporators:
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1. To elect directors and complete the organization of the
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corporation; or
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2. To elect a board of directors who shall complete the
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organization of the corporation.
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Section 6. Subsections (7) and (16) of section 617.0302,
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Florida Statutes, are amended to read:
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617.0302 Corporate powers.--Every corporation not for
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profit organized under this act, unless otherwise provided in
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its articles of incorporation or bylaws, shall have power to:
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(7) Make contracts and guaranties, incur liabilities,
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borrow money at such rates of interest as the corporation may
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determine, issue its notes, bonds, and other obligations, and
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secure any of its obligations by mortgage and pledge of all or
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any of its property, franchises, or income.
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(16) Merge with other corporations or other business
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entities identified in s. 607.1108(1), both for profit and not
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for profit, domestic and foreign, if the surviving corporation
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or other surviving business entity is a corporation not for
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profit or other business entity that has been organized as a
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not-for-profit entity under a governing statute or other
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applicable law that permits such a merger.
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Section 7. Subsection (12) is added to section 617.0503,
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Florida Statutes, to read:
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617.0503 Registered agent; duties; confidentiality of
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investigation records.--
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(12) Any alien business organization may withdraw its
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registered agent designation by delivering an application for
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certificate of withdrawal to the department for filing. The
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application shall set forth:
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(a) The name of the alien business organization and the
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jurisdiction under the law of which it is incorporated or
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organized; and
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(b) That it is no longer required to maintain a registered
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agent in this state.
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Section 8. Section 617.0505, Florida Statutes, is amended
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to read:
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617.0505 Distributions; exceptions Payment of dividends
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and distribution of income to members prohibited; issuance of
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certificates of membership; effect of stock issued under prior
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law.--
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(1) Except as authorized in s. 617.1302, A dividend may
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not be paid, and any part of the income or profit of a
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corporation may not make distributions be distributed, to its
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members, directors, or officers.
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(1) A mutual benefit corporation, such as a private club
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that is established for social, pleasure, or recreational
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purposes and that is organized as a corporation of which the
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equity interests are held by the members, may, subject to s.
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617.1302, purchase the equity membership interest of any member,
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and the payment for such interest is not a distribution for
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purposes of this section.
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(2) A corporation may pay compensation in a reasonable
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amount to its members, directors, or officers for services
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rendered, may confer benefits upon its members in conformity
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with its purposes, and, upon dissolution or final liquidation,
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may make distributions to its members as permitted by this
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chapter act.
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(3) If expressly permitted by its articles of
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incorporation, a corporation may make distributions upon partial
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liquidation to its members, as permitted by this section. Any
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such payment, benefit, or distribution does not constitute a
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dividend or a distribution of income or profit for purposes of
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this section.
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(4) A Any corporation that which is a utility exempt from
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regulation under s. 367.022(7), whose articles of incorporation
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state that it is exempt from taxation under s. 501(c)(12) of the
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Internal Revenue Code or the corresponding section of a
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subsequently enacted federal revenue act, may make such refunds
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to its members, prior to a dissolution or liquidation, as its
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managing board deems necessary to establish or preserve its tax-
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exempt status. Any such refund does not constitute a dividend or
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a distribution of income or profit for purposes of this section.
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(5) A corporation that is regulated by chapter 718,
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chapter 719, chapter 720, chapter 721, or chapter 723, or a
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corporation where membership in such corporation is required
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pursuant to a document recorded in the county property records,
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may make refunds to its members, giving credits to its members,
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disbursing insurance proceeds to its members, or disbursing or
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paying settlements to its members without violating this
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section.
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(2) Subject to subsection (1), a corporation may issue
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certificates in any form evidencing membership in the
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corporation.
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(3) Stock certificates issued under former s. 617.011(2),
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Florida Statutes (1989), constitute membership certificates for
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purposes of this act.
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Section 9. Subsections (1), (2), and (5) of section
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617.0601, Florida Statutes, are amended to read:
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617.0601 Members, generally.--
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(1)(a) A corporation may have one or more classes of
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members or may have no members. If the corporation has one or
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more classes of members, the designation of such class or
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classes, the qualifications and rights of the members of each
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class, any quorum and voting requirements for meetings and
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activities of the members, and notice requirements sufficient to
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provide notice of meetings and activities of the members must be
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set forth in the articles of incorporation or in the bylaws.
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(b) The articles of incorporation or bylaws of any
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corporation not for profit that maintains chapters or affiliates
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may grant representatives of such chapters or affiliates the
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right to vote in conjunction with the board of directors of the
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corporation notwithstanding applicable quorum or voting
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requirements of this chapter act if the corporation is
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registered with the department of State pursuant to ss. 496.401-
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496.424 ss. 496.001-496.011, the Solicitation of Contributions
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Funds Act.
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(c) This subsection does not apply to any condominium
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association organized under chapter 718.
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(2) A corporation may issue certificates of membership.
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Stock certificates issued under former s. 617.011(2), Florida
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Statutes (1989), constitute certificates of membership for
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purposes of this section.
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(5) Membership in the corporation may be terminated in the
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manner provided by law, by the articles of incorporation, or by
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the bylaws, and A resignation, expulsion, or termination of
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membership pursuant to s. 617.0606 or s. 617.0607 shall be
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recorded in the membership book. Unless otherwise provided in
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the articles of incorporation or the bylaws, all the rights and
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privileges of a member cease on termination of membership.
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Section 10. Section 617.0605, Florida Statutes, is created
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to read:
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617.0605 Transfer of membership interests.--
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(1) A member of a corporation may not transfer a
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membership or any right arising from membership except as
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otherwise allowed in this section.
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(2) Except as set forth in the articles of incorporation
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or bylaws of a mutual benefit corporation, a member of a mutual
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benefit corporation may not transfer a membership or any right
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arising from membership.
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(3) If transfer rights have been provided for one or more
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members of a mutual benefit corporation, a restriction on such
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rights is not binding with respect to a member holding a
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membership issued before the adoption of the restriction unless
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the restriction is approved by the members and the affected
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member.
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Section 11. Section 617.0606, Florida Statutes, is created
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to read:
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617.0606 Resignation of members.--
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(1) Except as may be provided in the articles of
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incorporation or bylaws of a corporation, a member of a mutual
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benefit corporation may not transfer a membership or any right
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arising from membership.
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(2) The resignation of a member does not relieve the
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member from any obligations that the member may have to the
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corporation as a result of obligations incurred or commitments
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made before resignation.
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Section 12. Section 617.0607, Florida Statutes, is created
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to read:
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617.0607 Termination, expulsion, and suspension.--
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(1) A member of a corporation may not be expelled or
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suspended, and a membership in the corporation may not be
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terminated or suspended, except pursuant to a procedure that is
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fair and reasonable and is carried out in good faith.
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(2) Any written notice given by mail must be delivered by
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certified mail or first-class mail to the last address of the
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member shown on the records of the corporation.
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(3) Any proceeding challenging an expulsion, suspension,
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or termination, including a proceeding in which the defective
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notice is alleged, must be commenced within 1 year after the
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effective date of the expulsion, suspension, or termination.
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(4) A member who has been expelled or suspended may be
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liable to the corporation for dues, assessments, or fees as a
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result of obligations incurred or commitments made before
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expulsion or suspension.
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Section 13. Section 617.0608, Florida Statutes, is created
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to read:
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617.0608 Purchase of memberships.--
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(1) A corporation may not purchase any of its memberships
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or any right arising from membership except as provided in s.
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617.0505 or subsection (2).
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(2) Subject to s. 617.1302, a mutual benefit corporation
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may purchase the membership of a member who resigns, or whose
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membership is terminated, for the amount and pursuant to the
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conditions set forth in its articles of incorporation or bylaws.
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Section 14. Subsections (3), (4), and (6) of section
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617.0701, Florida Statutes, are amended to read:
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617.0701 Meetings of members, generally; failure to hold
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annual meeting; special meeting; consent to corporate actions
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without meetings; waiver of notice of meetings.--
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(3) Except as provided in the articles of incorporation or
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bylaws, special meetings of the members may be called by:
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(a) The president;,
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(b) The chair of the board of directors;,
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(c) The board of directors;, or such
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(d) Other officers or persons as are provided for in the
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articles of incorporation or the bylaws;.
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(e) The holders of at least 5 percent of the voting power
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of a corporation when one or more written demands for the
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meeting, which describe the purpose for which the meeting is to
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be held, are signed, dated, and delivered to a corporate
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officer; or
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(f) A person who signs a demand for a special meeting
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pursuant to paragraph (e) if notice for a special meeting is not
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given within 30 days after receipt of the demand. The person
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signing the demand may set the time and place of the meeting and
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give notice under this subsection.
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(4)(a) Unless otherwise provided in the articles of
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incorporation, action required or permitted by this chapter act
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to be taken at an annual or special meeting of members may be
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taken without a meeting, without prior notice, and without a
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vote if the action is taken by the members entitled to vote on
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such action and having not less than the minimum number of votes
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necessary to authorize such action at a meeting at which all
386
members entitled to vote on such action were present and voted.
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(a) In order To be effective, the action must be evidenced
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by one or more written consents describing the action taken,
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dated and signed by approving members having the requisite
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number of votes and entitled to vote on such action, and
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delivered to the corporation by delivery to its principal office
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in this state, its principal place of business, the corporate
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secretary, or another officer or agent of the corporation having
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custody of the book in which proceedings of meetings of members
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are recorded. Written consent shall not be effective to take the
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corporate action referred to in the consent is not effective
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unless the consent is signed by members having the requisite
398
number of votes necessary to authorize the action within 90 60
399
days after of the date of the earliest dated consent and is
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delivered in the manner required by this section.
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(b) Any written consent may be revoked prior to the date
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that the corporation receives the required number of consents to
403
authorize the proposed action. A revocation is not effective
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unless in writing and until received by the corporation at its
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principal office in this state or its principal place of
406
business, or received by the corporate secretary or other
407
officer or agent of the corporation having custody of the book
408
in which proceedings of meetings of members are recorded.
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(c) Within 30 10 days after obtaining such authorization
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by written consent, notice must be given to those members who
411
are entitled to vote on the action but who have not consented in
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writing. The notice must fairly summarize the material features
413
of the authorized action.
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(d) A consent signed under this section has the effect of
415
a meeting vote and may be described as such in any document.
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(e) If the action to which the members consent is such as
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would have required the filing of articles or a certificate
418
under any other section of this chapter act if such action had
419
been voted on by members at a meeting thereof, the articles or
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certificate filed under such other section must state that
421
written consent has been given in accordance with the provisions
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of this section.
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(f) Whenever action is taken pursuant to this section, the
424
written consent of the members consenting to such action or the
425
written reports of inspectors appointed to tabulate such
426
consents must be filed with the minutes of member proceedings of
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members.
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(6) Subsections (1) and (3) do not apply to any
429
corporation that is an association as defined in s. 720.301, or
430
a corporation regulated by chapter 718, chapter 719, chapter
431
720, chapter 721, or chapter 723, or a corporation where
432
membership in such corporation is required pursuant to a
433
document recorded in the county property records.
434
Section 15. Section 617.0721, Florida Statutes, is amended
435
to read:
436
617.0721 Voting by members.--
437
(1) Members are not entitled to vote except as conferred
438
by the articles of incorporation or the bylaws.
439
(2) A member who is entitled to vote may vote in person
440
or, unless the articles of incorporation or the bylaws otherwise
441
provide, may vote by proxy executed in writing by the member or
442
by his or her duly authorized attorney in fact. An appointment
443
of a proxy is not valid after 11 months following the date of
444
its execution unless otherwise provided in the proxy.
445
(a) If directors or officers are to be elected by members,
446
the bylaws may provide that such elections may be conducted by
447
mail.
448
(b) A corporation may reject a vote, consent, waiver, or
449
proxy appointment if the secretary or other officer or agent
450
authorized to tabulate votes, acting in good faith, has a
451
reasonable basis for doubting the validity of the signature on
452
it or the signatory's authority to sign for the member.
453
(3) If authorized by the board of directors, and subject
454
to such guidelines and procedures as the board of directors may
455
adopt, members and proxy holders who are not physically present
456
at a meeting may, by means of remote communication:
457
(a) Participate in the meeting.
458
(b) Be deemed to be present in person and vote at the
459
meeting if:
460
1. The corporation implements reasonable means to verify
461
that each person deemed present and authorized to vote by means
462
of remote communication is a member or proxy holder; and
463
2. The corporation implements reasonable measures to
464
provide such members or proxy holders with a reasonable
465
opportunity to participate in the meeting and to vote on matters
466
submitted to the members, including an opportunity to
467
communicate and to read or hear the proceedings of the meeting
468
substantially concurrent with the proceedings.
469
470
If any member or proxy holder votes or takes other action by
471
means of remote communication, a record of that member's
472
participation in the meeting must be maintained by the
473
corporation in accordance with s. 617.1601.
474
(4)(3) If any corporation, whether for profit or not for
475
profit, is a member of a corporation organized under this
476
chapter act, the chair of the board, president, any vice
477
president, the secretary, or the treasurer of the member
478
corporation, and any such officer or cashier or trust officer of
479
a banking or trust corporation holding such membership, and any
480
like officer of a foreign corporation whether for profit or not
481
for profit, holding membership in a domestic corporation, shall
482
be deemed by the corporation in which membership is held to have
483
the authority to vote on behalf of the member corporation and to
484
execute proxies and written waivers and consents in relation
485
thereto, unless, before a vote is taken or a waiver or consent
486
is acted upon, it appears pursuant to is made to appear by a
487
certified copy of the bylaws or resolution of the board of
488
directors or executive committee of the member corporation that
489
such authority does not exist or is vested in some other officer
490
or person. In the absence of such certification, a person
491
executing any such proxies, waivers, or consents or presenting
492
himself or herself at a meeting as one of such officers of a
493
corporate member shall be, for the purposes of this section,
494
conclusively deemed to be duly elected, qualified, and acting as
495
such officer and to be fully authorized. In the case of
496
conflicting representation, the corporate member shall be deemed
497
to be represented by its senior officer, in the order first
498
stated in this subsection.
499
(5)(4) The articles of incorporation or the bylaws may
500
provide that, in all elections for directors, every member
501
entitled to vote has the right to cumulate his or her votes and
502
to give one candidate a number of votes equal to the number of
503
votes he or she could give if one director were being elected
504
multiplied by the number of directors to be elected or to
505
distribute such votes on the same principles among any number of
506
such candidates. A corporation may not have cumulative voting
507
unless such voting is expressly authorized in the articles of
508
incorporation.
509
(6)(5) If a corporation has no members or its members do
510
not have the right to vote, the directors shall have the sole
511
voting power.
512
(7)(6) Subsections (1), (2), (5) (4), and (6) (5) do not
513
apply to a corporation that is an association as defined in s.
514
720.301.
515
Section 16. Section 617.0725, Florida Statutes, is amended
516
to read:
517
617.0725 Quorum.--An amendment to the articles of
518
incorporation or the bylaws which adds, that changes, or deletes
519
a greater or lesser quorum or voting requirement must meet the
520
same quorum or voting requirement and be adopted by the same
521
vote and voting groups required to take action under the quorum
522
and voting requirements then in effect or proposed to be
523
adopted, whichever is greater prescribed in the provision being
524
amended.
525
Section 17. Section 617.07401, Florida Statutes, is
526
created to read:
527
617.07401 Members' derivative actions.--
528
(1) A person may not commence a proceeding in the right of
529
a domestic or foreign corporation unless the person was a member
530
of the corporation when the transaction complained of occurred
531
or unless the person became a member through transfer by
532
operation of law from one who was a member at that time.
533
(2) A complaint in a proceeding brought in the right of a
534
domestic or foreign corporation must be verified and allege with
535
particularity the demand made to obtain action by the board of
536
directors and that the demand was refused or ignored by the
537
board of directors for at least 90 days after the date of the
538
first demand unless, before the expiration of the 90 days, the
539
person was notified in writing that the corporation rejected the
540
demand, or unless irreparable injury to the corporation would
541
result by waiting for the expiration of the 90-day period. If
542
the corporation commences an investigation of the charges made
543
in the demand or complaint, the court may stay any proceeding
544
until the investigation is completed.
545
(3) The court may dismiss a derivative proceeding if, on
546
motion by the corporation, the court finds that one of the
547
groups specified in paragraphs (a)-(c) has made a good faith
548
determination after conducting a reasonable investigation upon
549
which its conclusions are based that the maintenance of the
550
derivative suit is not in the best interests of the corporation.
551
The corporation has the burden of proving the independence and
552
good faith of the group making the determination and the
553
reasonableness of the investigation. The determination shall be
554
made by:
555
(a) A majority vote of independent directors present at a
556
meeting of the board of directors, if the independent directors
557
constitute a quorum;
558
(b) A majority vote of a committee consisting of two or
559
more independent directors appointed by a majority vote of
560
independent directors present at a meeting of the board of
561
directors, whether or not such independent directors constitute
562
a quorum; or
563
(c) A panel of one or more independent persons appointed
564
by the court upon motion by the corporation.
565
(4) A proceeding commenced under this section may not be
566
discontinued or settled without the approval of the court. If
567
the court determines that a proposed discontinuance or
568
settlement substantially affects the interest of the members of
569
the corporation, or a class, series, or voting group of members,
570
the court shall direct that notice be given to the members
571
affected. The court may determine which party or parties to the
572
proceeding shall bear the expense of giving the notice.
573
(5) Upon termination of the proceeding, the court may
574
require the plaintiff to pay any defendant's reasonable
575
expenses, including reasonable attorney's fees, incurred in
576
defending the proceeding if it finds that the proceeding was
577
commenced without reasonable cause.
578
(6) The court may award reasonable expenses for
579
maintaining the proceeding, including reasonable attorney's
580
fees, to a successful plaintiff or to the person commencing the
581
proceeding who receives any relief, whether by judgment,
582
compromise, or settlement, and may require that the person
583
account for the remainder of any proceeds to the corporation;
584
however, this subsection does not apply to any relief rendered
585
for the benefit of injured members only and limited to a
586
recovery of the loss or damage of the injured members.
587
Section 18. Section 617.0801, Florida Statutes, is amended
588
to read:
589
617.0801 Requirement for and Duties of board of
590
directors.--All corporate powers must be exercised by or under
591
the authority of, and the affairs of the corporation managed
592
under the direction of, its board of directors, subject to any
593
limitation set forth in the articles of incorporation.
594
Section 19. Section 617.0806, Florida Statutes, is amended
595
to read:
596
617.0806 Staggered terms for directors.--The articles of
597
incorporation or bylaws may provide that directors may be
598
divided into classes and the terms of office of the several
599
classes need not be uniform. Each director shall hold office for
600
the term to which he or she is elected or appointed and until
601
his or her successor has been elected or appointed and qualified
602
or until his or her earlier resignation, removal from office, or
603
death.
604
Section 20. Section 617.0808, Florida Statutes, is amended
605
to read:
606
617.0808 Removal of directors.--
607
(1) Subject to subsection (2), a director may be removed
608
from office pursuant to procedures provided in the articles of
609
incorporation or the bylaws, which shall provide the following,
610
and if they do not do so, shall be deemed to include the
611
following:
612
(a)(1) Any member of the board of directors may be removed
613
from office with or without cause by:
614
1. A majority of all votes of the directors, if the
615
director was elected or appointed by the directors; or
616
2. A majority of all votes of the members, if the director
617
was elected or appointed by the members.
618
(b) If a director is elected by a class, chapter, or other
619
organizational unit, or by region or other geographic grouping,
620
the director may be removed only by the members of that class,
621
chapter, unit, or grouping. However:
622
1. A director may be removed only if the number of votes
623
cast to remove the director would be sufficient to elect the
624
director at a meeting to elect directors, except as provided in
625
subparagraphs 2. and 3.
626
2. If cumulative voting is authorized, a director may not
627
be removed if the number of votes sufficient to elect the
628
director under cumulative voting is voted against the removal of
629
the director.
630
3. If at the beginning of the term of a director the
631
articles of incorporation or bylaws provide that the director
632
may be removed for missing a specified number of board meetings,
633
the board may remove the director for failing to attend the
634
specified number of meetings. The director may be removed only
635
if a majority of the directors then in office vote for the
636
removal the vote or agreement in writing by a majority of all
637
votes of the membership.
638
(c)(2) The notice of a meeting of the members to recall a
639
member or members of the board of directors shall state the
640
specific directors sought to be removed.
641
(d)(3) A proposed removal of a director at a meeting shall
642
require a separate vote for each director whose removal is board
643
member sought to be removed. Where removal is sought by written
644
consent agreement, a separate consent agreement is required for
645
each director board member to be removed.
646
(e)(4) If removal is effected at a meeting, any vacancies
647
created thereby shall be filled by the members or directors
648
eligible to vote for the removal at the same meeting.
649
(f)(5) Any director who is removed from the board is shall
650
not be eligible to stand for reelection until the next annual
651
meeting at which directors are elected of the members.
652
(g)(6) Any director removed from office shall turn over to
653
the board of directors within 72 hours any and all records of
654
the corporation in his or her possession.
655
(h)(7) If a director who is removed does shall not
656
relinquish his or her office or turn over records as required
657
under this section, the circuit court in the county where the
658
corporation's principal office is located may summarily order
659
the director to relinquish his or her office and turn over
660
corporate records upon application of any member.
661
(i) A director elected or appointed by the board may be
662
removed without cause by a vote of two-thirds of the directors
663
then in office or such greater number as is set forth in the
664
articles of incorporation or bylaws.
665
(2) A director of a corporation described in s. 501(c) of
666
the Internal Revenue Code may be removed from office pursuant to
667
procedures provided in the articles of incorporation or the
668
bylaws, and the corporation may provide in the articles of
669
incorporation or the bylaws that it is subject to the provisions
670
of subsection (1).
671
Section 21. Section 617.0809, Florida Statutes, is amended
672
to read:
673
617.0809 Board vacancy on board.--
674
(1) Except as provided in s. 617.0808(1)(f), any vacancy
675
occurring on the board of directors may be filled by the
676
affirmative vote of the majority of the remaining directors,
677
even though the remaining directors constitute less than a
678
quorum, or by the sole remaining director, as the case may be,
679
or, if the vacancy is not so filled or if no director remains,
680
by the members or, on the application of any person, by the
681
circuit court of the county where the registered office of the
682
corporation is located.
683
(2) Whenever a vacancy occurs with respect to a director
684
elected by a class, chapter, unit, or group, the vacancy may be
685
filled only by members of that class, chapter, unit, or group,
686
or by a majority of the directors then in office elected by such
687
class, chapter, unit, or group.
688
(3)(2) The term of a director elected or appointed to fill
689
a vacancy expires at the next annual meeting at which directors
690
are elected shall be elected or appointed for the unexpired term
691
of his or her predecessor in office. Any directorship to be
692
filled by reason of an increase in the number of directors may
693
be filled by the board of directors, but only for a term of
694
office continuing until the next election of directors by the
695
members or, if the corporation has no members or no members
696
having the right to vote thereon, for such term of office as is
697
provided in the articles of incorporation or the bylaws.
698
(4)(3) A vacancy that will occur at a specific later date,
699
by reason of a resignation effective at a later date under s.
700
617.0807 or otherwise, may be filled before the vacancy occurs.
701
However, the new director may not take office until the vacancy
702
occurs.
703
Section 22. Subsection (2) of section 617.0832, Florida
704
Statutes, is amended, and subsection (3) is added to that
705
section, to read:
706
617.0832 Director conflicts of interest.--
707
(2) For purposes of paragraph (1)(a) only, a conflict-of-
708
interest transaction is authorized, approved, or ratified if it
709
receives the affirmative vote of a majority of the directors on
710
the board of directors, or on the committee, who have no
711
relationship or interest in the transaction described in
712
subsection (1), but a transaction may not be authorized,
713
approved, or ratified under this section by a single director.
714
If a majority of the directors who have no relationship or
715
interest in the transaction vote to authorize, approve, or
716
ratify the transaction, a quorum is present for the purpose of
717
taking action under this section. The presence of, or a vote
718
cast by, a director having a relationship or interest in the
719
transaction does not affect the validity of any action taken
720
under paragraph (1)(a) if the transaction is otherwise
721
authorized, approved, or ratified as provided in subsection (1),
722
but such presence or vote of such a director may be counted for
723
purposes of determining whether the transaction is approved
724
under other sections of this chapter.
725
(3) For purposes of paragraph (1)(b), a conflict-of-
726
interest transaction is authorized, approved, or ratified if it
727
receives the vote of a majority in interest of the members
728
entitled to vote under this subsection. A director who has a
729
relationship or interest in the transaction described in
730
subsection (1) may not vote to determine whether to authorize,
731
approve, or ratify a conflict-of-interest transaction under
732
paragraph (1)(b). However, the vote of that director is counted
733
in determining whether the transaction is approved under other
734
sections of this chapter. A majority in interest of the members
735
entitled to vote on the transaction under this subsection
736
constitutes a quorum for the purpose of taking action under this
737
section. Common or interested directors may be counted in
738
determining the presence of a quorum at a meeting of the board
739
of directors or a committee thereof which authorizes, approves,
740
or ratifies such contract or transaction.
741
Section 23. Section 617.0833, Florida Statutes, is amended
742
to read:
743
617.0833 Loans to directors or officers.--Loans, other
744
than through the purchase of bonds, debentures, or similar
745
obligations of the type customarily sold in public offerings, or
746
through ordinary deposit of funds in a bank, may not be made by
747
a corporation to its directors or officers, or to any other
748
corporation, firm, association, or other entity in which one or
749
more of its directors or officers is a director or officer or
750
holds a substantial financial interest, except a loan by one
751
corporation which is exempt from federal income taxation under
752
s. 501(c)(3) of the Internal Revenue Code or the corresponding
753
section of a subsequently enacted federal revenue act of 1986,
754
as amended, to another corporation which is exempt from federal
755
income taxation under s. 501(c)(3) of the Internal Revenue Code
756
or the corresponding section of a subsequently enacted federal
757
revenue act of 1986, as amended. A loan made in violation of
758
this section is a violation of the duty to the corporation of
759
the directors or officers authorizing it or participating in it,
760
but the obligation of the borrower with respect to the loan is
761
shall not be affected thereby.
762
Section 24. Subsection (1) of section 617.0834, Florida
763
Statutes, is amended to read:
764
617.0834 Officers and directors of certain corporations
765
and associations not for profit; immunity from civil
766
liability.--
767
(1) An officer or director of a nonprofit organization
768
recognized under s. 501(c)(3) or s. 501(c)(4) or s. 501(c)(6) of
769
the Internal Revenue Code of 1986, as amended, or of the
770
corresponding section of a subsequently enacted federal revenue
771
act, or of an agricultural or a horticultural organization
772
recognized under s. 501(c)(5), of the Internal Revenue Code of
773
1986, as amended, or of the corresponding section of a
774
subsequently enacted federal revenue act, is not personally
775
liable for monetary damages to any person for any statement,
776
vote, decision, or failure to take an action, regarding
777
organizational management or policy by an officer or director,
778
unless:
779
(a) The officer or director breached or failed to perform
780
his or her duties as an officer or director; and
781
(b) The officer's or director's breach of, or failure to
782
perform, his or her duties constitutes:
783
1. A violation of the criminal law, unless the officer or
784
director had reasonable cause to believe his or her conduct was
785
lawful or had no reasonable cause to believe his or her conduct
786
was unlawful. A judgment or other final adjudication against an
787
officer or director in any criminal proceeding for violation of
788
the criminal law estops that officer or director from contesting
789
the fact that his or her breach, or failure to perform,
790
constitutes a violation of the criminal law, but does not estop
791
the officer or director from establishing that he or she had
792
reasonable cause to believe that his or her conduct was lawful
793
or had no reasonable cause to believe that his or her conduct
794
was unlawful;
795
2. A transaction from which the officer or director
796
derived an improper personal benefit, either directly or
797
indirectly; or
798
3. Recklessness or an act or omission that which was
799
committed in bad faith or with malicious purpose or in a manner
800
exhibiting wanton and willful disregard of human rights, safety,
801
or property.
802
Section 25. Subsections (2) and (3) of section 617.1007,
803
Florida Statutes, are amended to read:
804
617.1007 Restated articles of incorporation.--
805
(2) The restatement may include one or more amendments to
806
the articles of incorporation. If the restatement includes an
807
amendment requiring member approval, it must be adopted as
808
provided in s. 617.1002.
809
(3) A corporation restating its articles of incorporation
810
shall deliver to the department of State for filing articles of
811
restatement, executed in accordance with the provisions of s.
812
617.01201, setting forth the name of the corporation and the
813
text of the restated articles of incorporation together with a
814
certificate setting forth:
815
(a) Whether the restatement contains an amendment to the
816
articles of incorporation requiring member approval and, if it
817
does not, that the board of directors adopted the restatement;
818
or
819
(b) If the restatement contains an amendment to the
820
articles of incorporation requiring member approval, the
821
information required by s. 617.1006.
822
Section 26. Subsection (2) of section 617.1101, Florida
823
Statutes, is amended, and subsection (3) is added to that
824
section, to read:
825
617.1101 Plan of merger.--
826
(2) Each corporation must adopt a plan of merger setting
827
forth:
828
(a) The names of the corporations proposing to merge and
829
the name of the surviving corporation into which each other
830
corporation plans to merge, which is hereinafter designated as
831
the surviving corporation;
832
(b) The terms and conditions of the proposed merger;
833
(c) A statement of any changes in the articles of
834
incorporation of the surviving corporation to be effected by
835
such merger; and
836
(d) The manner and basis, if any, of converting the
837
memberships of each merging corporation into memberships,
838
obligations, or securities of the surviving corporation or any
839
other corporation or, in whole or in part, into cash or other
840
property. Such other provisions with respect to the proposed
841
merger as are deemed necessary or desirable.
842
(3) The plan of merger may set forth:
843
(a) Amendments to, or a restatement of, the articles of
844
incorporation of the surviving corporation;
845
(b) The effective date of the merger, which may be on or
846
after the date of filing the articles of incorporation or
847
merger; or
848
(c) Other provisions relating to the merger.
849
Section 27. Section 617.1102, Florida Statutes, is created
850
to read:
851
617.1102 Limitation on merger.--A corporation not for
852
profit organized under this chapter may merge with one or more
853
other business entities, as identified in s. 607.1108(1), only
854
if the surviving entity of such merger is a corporation not for
855
profit or other business entity that has been organized as a
856
not-for-profit entity under a governing statute or other
857
applicable law that allows such a merger.
858
Section 28. Section 617.1301, Florida Statutes, is created
859
to read:
860
617.1301 Prohibited distributions.--Except as authorized
861
in ss. 617.0505 and 617.1302, a corporation may not make any
862
distributions to its members.
863
Section 29. Section 617.1302, Florida Statutes, is created
864
to read:
865
617.1302 Authorized distributions.--
866
(1) A mutual benefit corporation may purchase its
867
memberships pursuant to s. 617.0608 only if, after the purchase
868
is completed:
869
(a) The mutual benefit corporation is able to pay its
870
debts as they become due in the usual course of its activities;
871
and
872
(b) The total assets of the mutual benefit corporation at
873
least equal the sum of its total liabilities.
874
(2) A corporation may make distributions upon dissolution
875
in conformity with the dissolution provisions of this chapter.
876
Section 30. Subsection (4) of section 617.1405, Florida
877
Statutes, is amended to read:
878
617.1405 Effect of dissolution.--
879
(4) The name of a dissolved corporation is shall not be
880
available for assumption or use by another corporation until
881
after 120 days after the effective date of dissolution unless
882
the dissolved corporation provides the department with an
883
affidavit, executed pursuant to s. 617.01201, authorizing the
884
immediate assumption or use of the name by another corporation.
885
Section 31. Section 617.1407, Florida Statutes, is created
886
to read:
887
617.1407 Unknown claims against dissolved corporation.--
888
(1) A dissolved corporation or successor entity may
889
execute one of the following procedures to resolve payment of
890
unknown claims:
891
(a) A dissolved corporation or successor entity may file
892
notice of its dissolution with the department on the form
893
prescribed by the department and request that persons having
894
claims against the corporation which are not known to the
895
corporation or successor entity present them in accordance with
896
the notice. The notice must:
897
1. State the name of the corporation and the date of
898
dissolution;
899
2. Describe the information that must be included in a
900
claim and provide a mailing address to which the claim may be
901
sent; and
902
3. State that a claim against the corporation under this
903
subsection is barred unless a proceeding to enforce the claim is
904
commenced within 4 years after the filing of the notice.
905
(b) A dissolved corporation or successor entity may,
906
within 10 days after filing articles of dissolution with the
907
department, publish a "Notice of Corporate Dissolution." The
908
notice must appear once a week for 2 consecutive weeks in a
909
newspaper of general circulation in the county in the state in
910
which the corporation has its principal office, if any, or, if
911
none, in a county in the state in which the corporation owns
912
real or personal property. Such newspaper shall meet the
913
requirements as are prescribed by law for such purposes. The
914
notice must:
915
1. State the name of the corporation and the date of
916
dissolution;
917
2. Describe the information that must be included in a
918
claim and provide a mailing address to which the claim may be
919
sent; and
920
3. State that a claim against the corporation under this
921
subsection is barred unless a proceeding to enforce the claim is
922
commenced within 4 years after the date of the second
923
consecutive weekly publication of the notice.
924
(2) If the dissolved corporation or successor entity
925
complies with paragraph (1)(a) or paragraph (1)(b), the claim of
926
each of the following claimants is barred unless the claimant
927
commences a proceeding to enforce the claim against the
928
dissolved corporation within 4 years after the date of filing
929
the notice with the department or the date of the second
930
consecutive weekly publication, as applicable:
931
(a) A claimant who did not receive written notice under s.
932
617.1408(9), or whose claim is not provided for under s.
933
617.1408(10), regardless of whether such claim is based on an
934
event occurring before or after the effective date of
935
dissolution.
936
(b) A claimant whose claim was timely sent to the
937
dissolved corporation but on which no action was taken.
938
(3) A claim may be entered under this section:
939
(a) Against the dissolved corporation, to the extent of
940
its undistributed assets; or
941
(b) If the assets have been distributed in liquidation,
942
against a member of the dissolved corporation to the extent of
943
such member's pro rata share of the claim or the corporate
944
assets distributed to such member in liquidation, whichever is
945
less; however, the aggregate liability of any member of a
946
dissolved corporation may not exceed the amount distributed to
947
the member in dissolution.
948
Section 32. Section 617.1408, Florida Statutes, is created
949
to read:
950
617.1408 Known claims against dissolved corporation.--
951
(1) A dissolved corporation or successor entity may
952
dispose of the known claims against it by following the
953
procedures described in subsections (2), (3), and (4).
954
(2) The dissolved corporation or successor entity shall
955
deliver to each of its known claimants written notice of the
956
dissolution at any time after its effective date. The written
957
notice must:
958
(a) Provide a reasonable description of the claim that the
959
claimant may be entitled to assert;
960
(b) State whether the claim is admitted or not admitted,
961
in whole or in part, and, if admitted:
962
1. The amount that is admitted, which may be as of a given
963
date; and
964
2. Any interest obligation if fixed by an instrument of
965
indebtedness;
966
(c) Provide a mailing address where a claim may be sent;
967
(d) State the deadline, which must be at least 120 days
968
after the effective date of the written notice, by which
969
confirmation of the claim must be delivered to the dissolved
970
corporation or successor entity; and
971
(e) State that the corporation or successor entity may
972
make distributions thereafter to other claimants and the members
973
of the corporation or persons interested as having been such
974
without further notice.
975
(3) A dissolved corporation or successor entity may
976
reject, in whole or in part, any claim made by a claimant
977
pursuant to this section by mailing notice of such rejection to
978
the claimant within 90 days after receipt of such claim and, in
979
all events, at least 150 days before expiration of 3 years
980
following the effective date of dissolution. The notice must be
981
accompanied by a copy of this section.
982
(4) A dissolved corporation or successor entity electing
983
to follow the procedures described in subsections (2) and (3)
984
must also give notice of dissolution to persons having known
985
claims that are contingent upon the occurrence or nonoccurrence
986
of future events, or are otherwise conditional or unmatured, and
987
request that such persons present such claims in accordance with
988
the terms of the notice. The notice must be in substantially the
989
form, and sent in the same manner, as described in subsection
990
(2).
991
(5) A dissolved corporation or successor entity shall
992
offer any claimant whose known claim is contingent, conditional,
993
or unmatured such security as the corporation or entity
994
determines is sufficient to provide compensation to the claimant
995
if the claim matures. The dissolved corporation or successor
996
entity shall deliver such offer to the claimant within 90 days
997
after receipt of such claim and, in all events, at least 150
998
days before expiration of 3 years following the effective date
999
of dissolution. If the claimant offered such security does not
1000
deliver in writing to the dissolved corporation or successor
1001
entity a notice rejecting the offer within 120 days after
1002
receipt of such offer, the claimant is deemed to have accepted
1003
such security as the sole source from which to satisfy his or
1004
her claim against the corporation.
1005
(6) A dissolved corporation or successor entity that has
1006
given notice in accordance with subsections (2) and (4) shall
1007
petition the circuit court in the county where the corporation's
1008
principal office is located or was located on the effective date
1009
of dissolution to determine the amount and form of security
1010
which is sufficient to provide compensation to a claimant who
1011
has rejected the offer for security made pursuant to subsection
1012
(5).
1013
(7) A dissolved corporation or successor entity that has
1014
given notice in accordance with subsection (2) shall petition
1015
the circuit court in the county where the corporation's
1016
principal office is located or was located on the effective date
1017
of dissolution to determine the amount and form of security
1018
which is sufficient to provide compensation to claimants whose
1019
claims are known to the corporation or successor entity but
1020
whose identities are unknown. The court shall appoint a guardian
1021
ad litem to represent all claimants whose identities are unknown
1022
in any proceeding brought under this subsection. The reasonable
1023
fees and expenses of such guardian, including all reasonable
1024
expert witness fees, shall be paid by the petitioner in such
1025
proceeding.
1026
(8) The giving of any notice or making of any offer
1027
pursuant to this section does not revive any claim then barred,
1028
does not constitute acknowledgment by the dissolved corporation
1029
or successor entity that any person to whom such notice is sent
1030
is a proper claimant, and does not operate as a waiver of any
1031
defense or counterclaim in respect of any claim asserted by any
1032
person to whom such notice is sent.
1033
(9) A dissolved corporation or successor entity that has
1034
followed the procedures described in subsections (2)-(7) shall:
1035
(a) Pay the claims admitted or made and not rejected in
1036
accordance with subsection (3);
1037
(b) Post the security offered and not rejected pursuant to
1038
subsection (5);
1039
(c) Post any security ordered by the circuit court in any
1040
proceeding under subsections (6) and (7); and
1041
(d) Pay or make provision for all other known obligations
1042
of the corporation or the successor entity. Such claims or
1043
obligations shall be paid in full, and any provision for
1044
payments shall be made in full if there are sufficient funds. If
1045
there are insufficient funds, the claims and obligations shall
1046
be paid or provided for according to their priority and, among
1047
claims of equal priority, ratably to the extent of funds legally
1048
available for payment. Any remaining funds shall be distributed
1049
in accordance with s. 617.1406; however, such distribution may
1050
not be made until 150 days after the date of the last notice of
1051
rejections given pursuant to subsection (3). In the absence of
1052
actual fraud, the judgment of the directors of the dissolved
1053
corporation or the governing persons of the successor entity as
1054
to the provisions made for the payment of all obligations under
1055
this paragraph is conclusive.
1056
(10) A dissolved corporation or successor entity that has
1057
not followed the procedures described in subsections (2) and (3)
1058
shall pay or make reasonable provision to pay all known claims
1059
and obligations, including all contingent, conditional, or
1060
unmatured claims known to the corporation or the successor
1061
entity and all claims that are known to the dissolved
1062
corporation or the successor entity but for which the identity
1063
of the claimant is unknown. Such claims shall be paid in full,
1064
and any provision for payment made shall be made in full if
1065
there are sufficient funds. If there are insufficient funds,
1066
such claims and obligations shall be paid or provided for
1067
according to their priority and, among claims of equal priority,
1068
ratably to the extent of funds legally available for payment
1069
thereof. Any remaining funds shall be distributed in accordance
1070
with s. 617.1406.
1071
(11) Directors of a dissolved corporation or governing
1072
persons of a successor entity that has complied with subsection
1073
(9) or subsection (10) are not personally liable to the
1074
claimants of the dissolved corporation.
1075
(12) A member of a dissolved corporation the assets of
1076
which were distributed pursuant to subsection (9) or subsection
1077
(10) is not liable for any claim against the corporation greater
1078
than the member's pro rata share of the claim or the amount
1079
distributed to the member, whichever is less.
1080
(13) A member of a dissolved corporation, the assets of
1081
which were distributed pursuant to subsection (9), is not liable
1082
for any claim against the corporation which is known to the
1083
corporation or successor entity and on which a proceeding is
1084
begun after the expiration of 3 years following the effective
1085
date of dissolution.
1086
(14) The aggregate liability of any member of a dissolved
1087
corporation for claims against the dissolved corporation may not
1088
be greater than the amount distributed to the member in
1089
dissolution.
1090
Section 33. Subsection (6) of section 617.1421, Florida
1091
Statutes, is repealed.
1092
Section 34. Section 617.1422, Florida Statutes, is amended
1093
to read:
1094
617.1422 Reinstatement following administrative
1095
dissolution.--
1096
(1)(a) A corporation administratively dissolved under s.
1097
617.1421 may apply to the department of State for reinstatement
1098
at any time after the effective date of dissolution. The
1099
corporation must submit a reinstatement form prescribed and
1100
furnished by the department or a current uniform business report
1101
signed by a registered agent and an officer or director and
1102
submit application must:
1103
1. Recite the name of the corporation and the effective
1104
date of its administrative dissolution;
1105
2. State that the ground or grounds for dissolution either
1106
did not exist or have been eliminated and that no further
1107
grounds currently exist for dissolution;
1108
3. State that the corporation's name satisfies the
1109
requirements of s. 617.0401; and
1110
4. State that all fees owed by the corporation and
1111
computed at the rate provided by law at the time the corporation
1112
applies for reinstatement. have been paid; or
1113
(b) Submit a current annual report, signed by the
1114
registered agent and an officer or director, which substantially
1115
complies with the requirements of paragraph (a).
1116
(2) If the department of State determines that the
1117
application contains the information required by subsection (1)
1118
and that the information is correct, it shall file the document,
1119
cancel the certificate of dissolution, and reinstate the
1120
corporation effective on the date which the reinstatement
1121
document is filed.
1122
(3) When the reinstatement is effective, it relates back
1123
to and takes effect as of the effective date of the
1124
administrative dissolution and the corporation resumes carrying
1125
on its business affairs as if the administrative dissolution had
1126
never occurred.
1127
(4) The name of the dissolved corporation is not available
1128
for assumption or use by another corporation until 1 year after
1129
the effective date of dissolution unless the dissolved
1130
corporation provides the department with an affidavit executed
1131
pursuant to s. 617.01201 authorizing the immediate assumption or
1132
use of the name by another corporation.
1133
(5)(4) If the name of the dissolved corporation has been
1134
lawfully assumed in this state by another corporation, the
1135
department of State shall require the dissolved corporation to
1136
amend its articles of incorporation to change its name before
1137
accepting its application for reinstatement.
1138
Section 35. Subsection (2) of section 617.1430, Florida
1139
Statutes, is amended to read:
1140
617.1430 Grounds for judicial dissolution.--A circuit
1141
court may dissolve a corporation:
1142
(2) In a proceeding brought by at least 50 members or
1143
members holding at least 10 percent of the voting power,
1144
whichever is less, or by a member or group or percentage of
1145
members as otherwise provided in the articles of incorporation
1146
or bylaws, or by a director or any person authorized in the
1147
articles of incorporation, by a member if it is established
1148
that:
1149
(a) The directors are deadlocked in the management of the
1150
corporate affairs, the members are unable to break the deadlock,
1151
and irreparable injury to the corporation is threatened or being
1152
suffered;
1153
(b) The members are deadlocked in voting power and have
1154
failed to elect successors to directors whose terms have expired
1155
or would have expired upon qualification of their successors; or
1156
(c) The corporate assets are being misapplied or wasted.
1157
Section 36. Subsection (2) of section 617.1503, Florida
1158
Statutes, is amended to read:
1159
617.1503 Application for certificate of authority.--
1160
(2) The foreign corporation shall deliver with the
1161
completed application a certificate of existence, (or a document
1162
of similar import,) duly authenticated, within not more than 90
1163
days prior to delivery of the application to the department of
1164
State, by the Secretary of State or other official having
1165
custody of corporate records in the jurisdiction under the law
1166
of which it is incorporated. A translation of the certificate,
1167
under oath of the translator, must be attached to a certificate
1168
that which is in a language other than the English language.
1169
Section 37. Subsection (2) of section 617.1504, Florida
1170
Statutes, is amended to read:
1171
617.1504 Amended certificate of authority.--
1172
(2) Such application shall be made within 90 30 days after
1173
the occurrence of any change mentioned in subsection (1), shall
1174
be made on forms prescribed by the department of State, shall be
1175
executed and filed in the same manner as an original application
1176
for authority, and shall set forth:
1177
(a) The name of the foreign corporation as it appears on
1178
the department's records of the Department of State;
1179
(b) The jurisdiction of its incorporation;
1180
(c) The date it was authorized to conduct its affairs in
1181
this state;
1182
(d) If the name of the foreign corporation has been
1183
changed, the name relinquished, the new name, a statement that
1184
the change of name has been effected under the laws of the
1185
jurisdiction of its incorporation, and the date the change was
1186
effected;
1187
(e) If the period of duration has been changed, a
1188
statement of such change and the date the change was effected;
1189
(f) If the jurisdiction of incorporation has been changed,
1190
a statement of such change and the date the change was effected;
1191
and
1192
(g) If the purpose or purposes that which the corporation
1193
intends to pursue in this state have been changed, a statement
1194
of such new purpose or purposes, and a further statement that
1195
the corporation is authorized to pursue such purpose or purposes
1196
in the jurisdiction of its incorporation.
1197
Section 38. Section 617.1506, Florida Statutes, is amended
1198
to read:
1199
617.1506 Corporate name of foreign corporation.--
1200
(1) A foreign corporation may is not entitled to file an
1201
application for a certificate of authority unless the corporate
1202
name of such corporation satisfies the requirements of s.
1203
617.0401. To obtain or maintain a certificate of authority to
1204
transact business in this state, the foreign corporation:
1205
(a) May add the word "corporation" or "incorporated" or
1206
the abbreviation "corp." or "inc." or words of like import,
1207
which as will clearly indicate that it is a corporation instead
1208
of a natural person or partnership or other business entity;
1209
however, to its corporate name for use in this state, provided,
1210
the name of a foreign corporation may not contain the word
1211
"company" or the abbreviation "co."; or
1212
(b) May use an alternate name to transact business in this
1213
state if its real name is unavailable. Any alternate corporate
1214
name adopted for use in this state must be cross-referenced to
1215
the real corporate name in the records of the Division of
1216
Corporations. If the real corporate name of the corporation
1217
becomes available in this state or if the corporation chooses to
1218
change its alternate name and it delivers to the Department of
1219
State, for filing, a copy of the resolution of its board of
1220
directors, changing or withdrawing the alternate name and
1221
executed as required by s. 617.01201, must be delivered for
1222
filing adopting an alternate name.
1223
(2) The corporate name, including the alternate name, of a
1224
foreign corporation must be distinguishable, within the records
1225
of the Division of Corporations, from:
1226
(a) Any corporate name of a corporation for profit
1227
incorporated or authorized to transact business in this state.
1228
(b)(a) The alternate name of another foreign corporation
1229
authorized to transact business in this state.
1230
(c)(b) The corporate name of a not-for-profit corporation
1231
incorporated or authorized to transact business in this state.
1232
(d)(c) The names of all other entities or filings, except
1233
fictitious name registrations pursuant to s. 865.09, organized,
1234
or registered under the laws of this state, that are on file
1235
with the Division of Corporations.
1236
(3) If a foreign corporation authorized to transact
1237
business in this state changes its corporate name to one that
1238
does not satisfy the requirements of s. 617.0401 607.0401, such
1239
corporation may not transact business in this state under the
1240
changed name until the corporation adopts a name satisfying the
1241
requirements of s. 617.0401 607.0401.
1242
(4) The corporate name must be distinguishable from the
1243
names of all other entities or filings, organized, registered,
1244
or reserved under the laws of the state that are on file with
1245
the Division of Corporations, except fictitious name
1246
registrations pursuant to s. 865.09.
1247
Section 39. Subsection (6) of section 617.1530, Florida
1248
Statutes, is amended to read:
1249
617.1530 Grounds for revocation of authority to conduct
1250
affairs.--The Department of State may commence a proceeding
1251
under s. 617.1531 to revoke the certificate of authority of a
1252
foreign corporation authorized to conduct its affairs in this
1253
state if:
1254
(6) The department of State receives a duly authenticated
1255
certificate from the Secretary of State or other official having
1256
custody of corporate records in the jurisdiction under the law
1257
of which the foreign corporation is incorporated stating that it
1258
has been dissolved or disappeared as the result of a merger.
1259
Section 40. Paragraph (a) of subsection (5) of section
1260
617.1601, Florida Statutes, is amended to read:
1261
617.1601 Corporate records.--
1262
(5) A corporation shall keep a copy of the following
1263
records:
1264
(a) Its articles of incorporation or restated articles of
1265
incorporation and all amendments to them currently in effect.
1266
Section 41. Subsections (1), (2), and (4) of section
1267
617.1602, Florida Statutes, are amended to read:
1268
617.1602 Inspection of records by members.--
1269
(1) A member of a corporation is entitled to inspect and
1270
copy, during regular business hours at the corporation's
1271
principal office or at a reasonable location specified by the
1272
corporation, any of the records of the corporation described in
1273
s. 617.1601(5), if the member gives the corporation written
1274
notice of his or her demand at least 10 5 business days before
1275
the date on which he or she wishes to inspect and copy.
1276
(2) A member of a corporation is entitled to inspect and
1277
copy, during regular business hours at a reasonable location
1278
specified by the corporation, any of the following records of
1279
the corporation if the member meets the requirements of
1280
subsection (3) and gives the corporation written notice of his
1281
or her demand at least 10 5 business days before the date on
1282
which he or she wishes to inspect and copy:
1283
(a) Excerpts from minutes of any meeting of the board of
1284
directors, records of any action of a committee of the board of
1285
directors while acting in place of the board of directors on
1286
behalf of the corporation, minutes of any meeting of the
1287
members, and records of action taken by the members or board of
1288
directors without a meeting, to the extent not subject to
1289
inspection under subsection (1).
1290
(b) Accounting records of the corporation.
1291
(c) The record of members.
1292
(d) Any other books and records.
1293
(4) This section does not affect:
1294
(a) The right of a member to inspect and copy records
1295
under s. 617.0730(6), or, if the member is in litigation with
1296
the corporation to inspect and copy records, to the same extent
1297
as any other litigant.
1298
(b) The power of a court, independently of this chapter
1299
act, to compel the production of corporate records for
1300
examination.
1301
Section 42. Section 617.1605, Florida Statutes, is amended
1302
to read:
1303
617.1605 Financial reports for members.--A corporation,
1304
upon a member's written demand, shall furnish that member its
1305
latest annual financial statements, which may be consolidated or
1306
combined statements of the corporation and one or more of its
1307
subsidiaries or affiliates, as appropriate, and which include a
1308
balance sheet as of the end of the fiscal year and a statement
1309
of operations for that year. If financial statements are
1310
prepared for the corporation on the basis of generally accepted
1311
accounting principles, the annual financial statements must also
1312
be prepared on such basis. Within 60 days following the end of
1313
the fiscal or calendar year or annually on such date as is
1314
otherwise provided in the bylaws of the corporation, the board
1315
of directors of the corporation shall mail or furnish by
1316
personal delivery to each member a complete financial report of
1317
actual receipts and expenditures for the previous 12 months. The
1318
report shall show the amounts of receipts by accounts and
1319
receipt classifications and shall show the amounts of expenses
1320
by accounts and expense classifications.
1321
Section 43. Section 617.1703, Florida Statutes, is created
1322
to read:
1323
617.1703 Application of chapter.--In the event of any
1324
conflict between the provisions of this chapter and chapter 718
1325
regarding condominiums, chapter 719 regarding cooperatives,
1326
chapter 720 regarding homeowners' associations, chapter 721
1327
regarding timeshares, or chapter 723 regarding mobile home
1328
owners' associations, the provisions of such other chapters
1329
shall apply. The provisions of ss. 617.0605-617.0608 do not
1330
apply to corporations regulated by any of the foregoing chapters
1331
or to any other corporation where membership in the corporation
1332
is required pursuant to a document recorded in the county
1333
property records.
1334
Section 44. Subsection (8) is added to section 617.1803,
1335
Florida Statutes, to read:
1336
617.1803 Domestication of foreign not-for-profit
1337
corporations.--
1338
(8) When a domestication becomes effective:
1339
(a) The title to all real and personal property, both
1340
tangible and intangible, of the foreign corporation remains in
1341
the domesticated corporation without reversion or impairment;
1342
(b) The liabilities of the foreign corporation remain the
1343
liabilities of the domesticated corporation;
1344
(c) An action or proceeding against the foreign
1345
corporation continues against the domesticated corporation as if
1346
the domestication had not occurred;
1347
(d) The articles of incorporation attached to the
1348
certificate of domestication constitute the articles of
1349
incorporation of the domesticated corporation; and
1350
(e) Membership interests in the foreign corporation remain
1351
identical in the domesticated corporation.
1352
Section 45. Section 617.1806, Florida Statutes, is amended
1353
to read:
1354
617.1806 Conversion to corporation not for profit;
1355
petition and contents.--A petition for conversion to a
1356
corporation not for profit pursuant to s. 617.1805 shall be
1357
accompanied by the written consent of all the shareholders
1358
authorizing the change in the corporate nature and directing an
1359
authorized officer to file such petition before the court,
1360
together with a statement agreeing to accept all the property of
1361
the petitioning corporation and agreeing to assume and pay all
1362
its indebtedness and liabilities, and the proposed articles of
1363
incorporation signed by the president and secretary of the
1364
petitioning corporation which shall set forth the provisions
1365
required in original articles of incorporation by s. 617.0202.
1366
Section 46. Section 617.1907, Florida Statutes, is amended
1367
to read:
1368
617.1907 Effect of repeal or amendment of prior acts.--
1369
(1) Except as provided in subsection (2), the repeal or
1370
amendment of a statute by this act does not affect:
1371
(a) The operation of the statute or any action taken under
1372
it before its repeal or amendment;
1373
(b) Any ratification, right, remedy, privilege,
1374
obligation, or liability acquired, accrued, or incurred under
1375
the statute before its repeal or amendment;
1376
(c) Any violation of the statute, or any penalty,
1377
forfeiture, or punishment incurred because of the violation,
1378
before its repeal or amendment; or
1379
(d) Any proceeding, reorganization, or dissolution
1380
commenced under the statute before its repeal or amendment, and
1381
the proceeding, reorganization, or dissolution may be completed
1382
in accordance with the statute as if it had not been repealed or
1383
amended.
1384
(2) If a penalty or punishment imposed for violation of a
1385
statute repealed or amended by this act is reduced by this act,
1386
the penalty or punishment if not already imposed shall be
1387
imposed in accordance with this act.
1388
Section 47. Section 617.2103, Florida Statutes, is
1389
repealed.
1390
Section 48. This act shall take effect October 1, 2008.
1391
1392
================ T I T L E A M E N D M E N T ================
1393
And the title is amended as follows:
1394
Delete everything before the enacting clause
1395
and insert:
1396
A bill to be entitled
1397
An act relating to corporations not for profit; amending
1398
s. 617.01201, F.S.; requiring a document that is
1399
electronically transmitted to be in a format that may be
1400
retrieved in typewritten or printed form; requiring that a
1401
document be executed by a director of the domestic or
1402
foreign corporation; authorizing the delivery of a
1403
document by electronic transmission to the extent allowed
1404
by the Department of State; amending s. 617.0122, F.S.;
1405
requiring the department to collect a fee for filing an
1406
agent's statement of resignation from an inactive
1407
corporation; amending s. 617.0124, F.S.; authorizing a
1408
domestic or foreign corporation to correct a document
1409
filed by the department within 30 days under certain
1410
circumstances; amending s. 617.01401, F.S.; defining the
1411
terms "department," "distribution," "mutual benefit
1412
corporation," "successor entity," and "voting power";
1413
amending s. 617.0205, F.S.; requiring the incorporators to
1414
hold an organizational meeting after incorporation if the
1415
initial directors are not named in the articles of
1416
incorporation; amending s. 617.0302, F.S.; authorizing a
1417
corporation not for profit to make guaranties; amending s.
1418
617.0503, F.S.; providing that an alien business
1419
organization may withdraw its registered agent designation
1420
by delivering an application for certificate of withdrawal
1421
to the department; amending s. 617.0505, F.S.; prohibiting
1422
a corporation not for profit from making distributions to
1423
its members; providing an exception; deleting provisions
1424
related to the issuance of certificates; amending s.
1425
617.0601, F.S.; correcting a reference to the Solicitation
1426
of Contributions Act; providing that certain stock
1427
certificates constitute certificates of membership;
1428
requiring that a resignation, expulsion, or termination of
1429
membership be recorded in the membership book; creating s.
1430
617.0605, F.S.; prohibiting a member of a corporation from
1431
transferring a membership under certain circumstances;
1432
creating s. 617.0606, F.S.; providing that the resignation
1433
of a member does not relieve the member from obligations
1434
incurred and commitments made prior to resignation;
1435
creating s. 617.0607, F.S.; requiring that a member of a
1436
corporation be terminated or suspended pursuant to a
1437
procedure that is fair and reasonable; requiring that
1438
written notice given and delivered by certified mail or
1439
first-class mail; requiring that a proceeding challenging
1440
an expulsion, suspension, or termination be commenced
1441
within 1 year after the effective date of such expulsion,
1442
suspension, or termination; providing that a member who
1443
has been expelled or suspended may be liable to the
1444
corporation for dues, assessments, or fees; creating s.
1445
617.0608, F.S.; prohibiting a corporation from purchasing
1446
any of its memberships; authorizing a mutual benefit
1447
corporation to purchase the membership of a member who
1448
resigns or whose membership is terminated; amending s.
1449
617.0701, F.S.; authorizing the holders of at least 5
1450
percent of the voting power of a corporation to call a
1451
special meeting of the members under certain
1452
circumstances; authorizing a person who signs a demand for
1453
a special meeting to call a special meeting of the members
1454
under certain circumstances; revising the timeframes
1455
relating to written member consent to actions; clarifying
1456
the types of corporations that are not subject to certain
1457
requirements; amending s. 617.0721, F.S.; authorizing the
1458
corporation to reject a proxy action if it has reasonable
1459
doubt as the validity of an appointment; providing that
1460
members and proxy holders who are not physically present
1461
at a meeting may participate by means of remote
1462
communication and are deemed to be present at the meeting
1463
under certain circumstances; amending s. 617.0725, F.S.;
1464
requiring an amendment to the articles of incorporation or
1465
the bylaws which adds a greater or lesser quorum or voting
1466
requirement to meet certain requirements; creating s.
1467
617.07401, F.S.; prohibiting a person from commencing a
1468
proceeding in the right of a domestic or foreign
1469
corporation unless the person was a member of the
1470
corporation or became a member through transfer by
1471
operation of law; requiring that a complaint in a
1472
proceeding brought in the right of a domestic or foreign
1473
corporation be verified and allege the demand with
1474
particularity; authorizing the court to dismiss a
1475
derivative proceeding if the court finds that a
1476
determination was made in good faith after a reasonable
1477
investigation; prohibiting certain proceedings from being
1478
discontinued or settled without the approval of the court;
1479
authorizing the court to require a plaintiff to pay a
1480
defendant's reasonable expenses upon termination of a
1481
proceeding, including attorney's fees; amending s.
1482
617.0801, F.S.; providing the duties of the board of
1483
directors; amending s. 617.0806, F.S.; providing that
1484
directors may be divided into classes; amending s.
1485
617.0808, F.S.; providing that any member of the board of
1486
directors may be removed from office with or without cause
1487
by a certain vote; providing that a director who is
1488
elected by a class, chapter, or other organizational unit
1489
may be removed only by members of that class, chapter, or
1490
organizational unit; providing that a director elected or
1491
appointed by the board may be removed without cause by a
1492
vote of two-thirds of the directors then in office;
1493
providing that a director of a corporation described in s.
1494
501(c) of the Internal Revenue Code may be removed from
1495
office pursuant to procedures provided in the articles of
1496
incorporation or the bylaws; amending s. 617.0809, F.S.;
1497
providing that a vacancy on the board of directors for a
1498
director elected by a class, chapter, unit, or group may
1499
be filled only by members of that class, chapter, unit, or
1500
group; providing that the term of a director elected or
1501
appointed to fill a vacancy expires at the next annual
1502
meeting at which directors are elected; amending s.
1503
617.0832, F.S.; deleting a provision that authorizes
1504
common or interested directors to be counted in
1505
determining the presence of a quorum at a meeting that
1506
ratifies a contract between a corporation and one of its
1507
directors and any other corporation in which one of its
1508
directors is financially interested; providing
1509
circumstances under which a conflict-of-interest
1510
transaction is authorized; amending s. 617.0833, F.S.;
1511
providing an exception to the requirement that a loan may
1512
not be made by a corporation to its directors; amending s.
1513
617.0834, F.S.; providing that an officer or director of a
1514
certain nonprofit organization or agricultural or
1515
horticultural organization is immune from civil liability;
1516
amending s. 617.1007, F.S.; providing that a restatement
1517
of the articles of incorporation of a corporation may
1518
include one or more amendments; amending s. 617.1101,
1519
F.S.; providing requirements for a plan of merger;
1520
creating s. 617.1102, F.S.; providing a limitation on the
1521
merger of a corporation not for profit; creating s.
1522
617.1301, F.S.; prohibiting a corporation from making
1523
distributions to its members under certain circumstances;
1524
creating s. 617.1302, F.S.; providing that a mutual
1525
benefit corporation may purchase its memberships only
1526
under certain circumstances; authorizing a corporation to
1527
make distributions upon dissolution; amending s. 617.1405,
1528
F.S.; providing that the name of a dissolved corporation
1529
may be available for immediate assumption by another
1530
corporation if the dissolved corporation provides the
1531
department with an affidavit authorizing such use;
1532
creating s. 617.1407, F.S.; authorizing a dissolved
1533
corporation or successor entity to execute certain
1534
procedures to resolve payment of unknown claims against
1535
it; providing that certain claims against a dissolved
1536
corporation are barred; providing that a claim may be
1537
entered against a dissolved corporation under certain
1538
circumstances; creating s. 617.1408, F.S.; authorizing a
1539
dissolved corporation or successor entity to execute
1540
certain procedures to dispose of known claims against it;
1541
requiring that a dissolved corporation deliver written
1542
notice of the dissolution to each of its known claimants;
1543
providing a procedure under which a dissolved corporation
1544
may reject a claim made against it; requiring that a
1545
dissolved corporation give notice of the dissolution to
1546
persons having known claims that are contingent,
1547
conditional, or unmatured; requiring that a dissolved
1548
corporation follow certain procedures in offering
1549
compensation to a claimant if the claim matures; requiring
1550
that a dissolved corporation petition the circuit court to
1551
determine the amount and form of security that is
1552
sufficient to provide compensation to certain claimants;
1553
providing that the giving of notice or making of an offer
1554
does not revive a claim that has been barred; providing
1555
that directors of a dissolved corporation or governing
1556
persons of a successor entity that has complied with
1557
certain procedures are not personally liable to the
1558
claimants of a dissolved corporation; providing that
1559
certain members of a dissolved corporation are not liable
1560
for any claim against the corporation; providing a limit
1561
on the aggregate liability of any member of a dissolved
1562
corporation; repealing s. 617.1421(6), F.S., relating to
1563
the assumption and use of the name of a dissolved
1564
corporation; amending s. 617.1422, F.S.; deleting certain
1565
requirements for an application to reinstate a corporation
1566
that has been dissolved; requiring that a corporation
1567
submit a reinstatement form prescribed and furnished by
1568
the department; providing that the name of a dissolved
1569
corporation is not available for assumption or use by
1570
another corporation until 1 year after the effective date
1571
of dissolution; providing an exception; amending s.
1572
617.1430, F.S.; revising the requirements for members to
1573
dissolve a corporation in circuit court; amending s.
1574
617.1503, F.S.; requiring a foreign corporation to deliver
1575
a certificate of existence authenticated by the Secretary
1576
of State; amending s. 617.1504, F.S.; requiring that a
1577
foreign corporation make application to the department to
1578
obtain an amended certificate of authority within 90 days
1579
after the occurrence of a change; amending s. 617.1506,
1580
F.S.; requiring that an alternate corporate name adopted
1581
for use in this state be cross-referenced to the real
1582
corporate name in the records of the Division of
1583
Corporations; requiring that the corporate name of a
1584
foreign corporation be distinguishable from the corporate
1585
name of a corporation for profit incorporated or
1586
authorized to transact business in this state; amending s.
1587
617.1530, F.S.; requiring that the department receive an
1588
authenticated certificate from the Secretary of State
1589
before commencing a proceeding to revoke the certificate
1590
of authority of a foreign corporation; amending s.
1591
617.1601, F.S.; requiring that a corporation keep a copy
1592
of its articles of incorporation; amending s. 617.1602,
1593
F.S.; providing that a member of a corporation is entitled
1594
to inspect and copy certain records of the corporation at
1595
a reasonable location specified by the corporation;
1596
requiring that a member give the corporation written
1597
notice 10 days before the date on which he or she wishes
1598
to inspect and copy records; amending s. 617.1605, F.S.;
1599
revising the circumstances under which a corporation is
1600
required to furnish a member with its latest annual
1601
financial statement; creating s. 617.1703, F.S.; providing
1602
for the applicability of certain provisions to
1603
corporations regulated under the act; amending s.
1604
617.1803, F.S.; providing for certain changes when a
1605
foreign not-for-profit corporation becomes domesticated;
1606
amending s. 617.1806, F.S.; revising the provisions for
1607
conversion to a corporation not for profit; amending s.
1608
617.1907, F.S.; providing that the repeal or amendment of
1609
a statute does not affect certain operations and
1610
proceedings; repealing s. 617.2103, F.S., relating to
1611
exemptions for certain corporations; providing an
1612
effective date.
3/7/2008 3:05:00 PM 577-04464-08
CODING: Words stricken are deletions; words underlined are additions.