Florida Senate - 2008 CS for CS for SB 304
By the Committees on Judiciary; Commerce; and Senator Aronberg
590-06403-08 2008304c2
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A bill to be entitled
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An act relating to corporations not for profit; amending
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s. 617.01201, F.S.; requiring a document that is
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electronically transmitted to be in a format that may be
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retrieved in typewritten or printed form; requiring that a
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document be executed by a director of the domestic or
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foreign corporation; authorizing the delivery of a
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document by electronic transmission to the extent allowed
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by the Department of State; amending s. 617.0122, F.S.;
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requiring the department to collect a fee for filing an
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agent's statement of resignation from an inactive
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corporation; amending s. 617.0124, F.S.; authorizing a
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domestic or foreign corporation to correct a document
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filed by the department within 30 days under certain
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circumstances; amending s. 617.01401, F.S.; defining the
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terms "department," "distribution," "mutual benefit
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corporation," "successor entity," and "voting power";
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amending s. 617.0205, F.S.; requiring the incorporators to
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hold an organizational meeting after incorporation if the
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initial directors are not named in the articles of
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incorporation; amending s. 617.0302, F.S.; authorizing a
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corporation not for profit to make guaranties; amending s.
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617.0503, F.S.; providing that an alien business
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organization may withdraw its registered agent designation
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by delivering an application for certificate of withdrawal
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to the department; amending s. 617.0505, F.S.; prohibiting
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a corporation not for profit from making distributions to
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its members; providing an exception; deleting provisions
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related to the issuance of certificates; amending s.
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617.0601, F.S.; correcting a reference to the Solicitation
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of Contributions Act; providing that certain stock
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certificates constitute certificates of membership;
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requiring that a resignation, expulsion, or termination of
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membership be recorded in the membership book; creating s.
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617.0605, F.S.; prohibiting a member of a corporation from
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transferring a membership under certain circumstances;
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creating s. 617.0606, F.S.; providing that the resignation
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of a member does not relieve the member from obligations
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incurred and commitments made prior to resignation;
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creating s. 617.0607, F.S.; requiring that a member of a
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corporation be terminated or suspended pursuant to a
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procedure that is fair and reasonable; requiring that
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written notice given and delivered by certified mail or
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first-class mail; requiring that a proceeding challenging
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an expulsion, suspension, or termination be commenced
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within 1 year after the effective date of such expulsion,
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suspension, or termination; providing that a member who
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has been expelled or suspended may be liable to the
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corporation for dues, assessments, or fees; creating s.
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617.0608, F.S.; prohibiting a corporation from purchasing
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any of its memberships; authorizing a mutual benefit
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corporation to purchase the membership of a member who
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resigns or whose membership is terminated; amending s.
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617.0701, F.S.; authorizing the holders of at least 5
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percent of the voting power of a corporation to call a
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special meeting of the members under certain
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circumstances; authorizing a person who signs a demand for
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a special meeting to call a special meeting of the members
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under certain circumstances; revising the timeframes
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relating to written member consent to actions; clarifying
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the types of corporations that are not subject to certain
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requirements; amending s. 617.0721, F.S.; authorizing the
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corporation to reject a proxy action if it has reasonable
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doubt as the validity of an appointment; providing that
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members and proxy holders who are not physically present
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at a meeting may participate by means of remote
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communication and are deemed to be present at the meeting
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under certain circumstances; amending s. 617.0725, F.S.;
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requiring an amendment to the articles of incorporation or
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the bylaws which adds a greater or lesser quorum or voting
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requirement to meet certain requirements; creating s.
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617.07401, F.S.; prohibiting a person from commencing a
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proceeding in the right of a domestic or foreign
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corporation unless the person was a member of the
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corporation or became a member through transfer by
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operation of law; requiring that a complaint in a
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proceeding brought in the right of a domestic or foreign
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corporation be verified and allege the demand with
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particularity; authorizing the court to dismiss a
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derivative proceeding if the court finds that a
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determination was made in good faith after a reasonable
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investigation; prohibiting certain proceedings from being
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discontinued or settled without the approval of the court;
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authorizing the court to require a plaintiff to pay a
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defendant's reasonable expenses upon termination of a
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proceeding, including attorney's fees; amending s.
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617.0801, F.S.; providing the duties of the board of
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directors; amending s. 617.0806, F.S.; providing that
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directors may be divided into classes; amending s.
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617.0808, F.S.; providing that any member of the board of
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directors may be removed from office with or without cause
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by a certain vote; providing that a director who is
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elected by a class, chapter, or other organizational unit
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may be removed only by members of that class, chapter, or
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organizational unit; providing that a director elected or
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appointed by the board may be removed without cause by a
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vote of two-thirds of the directors then in office;
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providing that a director of a corporation described in s.
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501(c) of the Internal Revenue Code may be removed from
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office pursuant to procedures provided in the articles of
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incorporation or the bylaws; amending s. 617.0809, F.S.;
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providing that a vacancy on the board of directors for a
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director elected by a class, chapter, unit, or group may
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be filled only by members of that class, chapter, unit, or
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group; providing that the term of a director elected or
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appointed to fill a vacancy expires at the next annual
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meeting at which directors are elected; amending s.
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617.0832, F.S.; deleting a provision that authorizes
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common or interested directors to be counted in
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determining the presence of a quorum at a meeting that
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ratifies a contract between a corporation and one of its
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directors and any other corporation in which one of its
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directors is financially interested; providing
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circumstances under which a conflict-of-interest
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transaction is authorized; amending s. 617.0833, F.S.;
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providing an exception to the requirement that a loan may
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not be made by a corporation to its directors; amending s.
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617.0834, F.S.; providing that an officer or director of a
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certain nonprofit organization or agricultural or
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horticultural organization is immune from civil liability;
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amending s. 617.1007, F.S.; providing that a restatement
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of the articles of incorporation of a corporation may
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include one or more amendments; amending s. 617.1101,
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F.S.; providing requirements for a plan of merger;
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creating s. 617.1102, F.S.; providing a limitation on the
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merger of a corporation not for profit; creating s.
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617.1301, F.S.; prohibiting a corporation from making
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distributions to its members under certain circumstances;
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creating s. 617.1302, F.S.; providing that a mutual
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benefit corporation may purchase its memberships only
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under certain circumstances; authorizing a corporation to
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make distributions upon dissolution; amending s. 617.1405,
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F.S.; providing that the name of a dissolved corporation
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may be available for immediate assumption by another
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corporation if the dissolved corporation provides the
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department with an affidavit authorizing such use;
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creating s. 617.1407, F.S.; authorizing a dissolved
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corporation or successor entity to execute certain
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procedures to resolve payment of unknown claims against
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it; providing that certain claims against a dissolved
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corporation are barred; providing that a claim may be
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entered against a dissolved corporation under certain
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circumstances; creating s. 617.1408, F.S.; authorizing a
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dissolved corporation or successor entity to execute
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certain procedures to dispose of known claims against it;
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requiring that a dissolved corporation deliver written
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notice of the dissolution to each of its known claimants;
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providing a procedure under which a dissolved corporation
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may reject a claim made against it; requiring that a
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dissolved corporation give notice of the dissolution to
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persons having known claims that are contingent,
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conditional, or unmatured; requiring that a dissolved
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corporation follow certain procedures in offering
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compensation to a claimant if the claim matures; requiring
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that a dissolved corporation petition the circuit court to
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determine the amount and form of security that is
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sufficient to provide compensation to certain claimants;
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providing that the giving of notice or making of an offer
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does not revive a claim that has been barred; providing
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that directors of a dissolved corporation or governing
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persons of a successor entity that has complied with
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certain procedures are not personally liable to the
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claimants of a dissolved corporation; providing that
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certain members of a dissolved corporation are not liable
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for any claim against the corporation; providing a limit
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on the aggregate liability of any member of a dissolved
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corporation; repealing s. 617.1421(6), F.S., relating to
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the assumption and use of the name of a dissolved
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corporation; amending s. 617.1422, F.S.; deleting certain
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requirements for an application to reinstate a corporation
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that has been dissolved; requiring that a corporation
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submit a reinstatement form prescribed and furnished by
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the department; providing that the name of a dissolved
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corporation is not available for assumption or use by
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another corporation until 1 year after the effective date
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of dissolution; providing an exception; amending s.
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617.1430, F.S.; revising the requirements for members to
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dissolve a corporation in circuit court; amending s.
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617.1503, F.S.; requiring a foreign corporation to deliver
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a certificate of existence authenticated by the Secretary
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of State; amending s. 617.1504, F.S.; requiring that a
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foreign corporation make application to the department to
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obtain an amended certificate of authority within 90 days
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after the occurrence of a change; amending s. 617.1506,
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F.S.; requiring that an alternate corporate name adopted
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for use in this state be cross-referenced to the real
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corporate name in the records of the Division of
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Corporations; requiring that the corporate name of a
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foreign corporation be distinguishable from the corporate
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name of a corporation for profit incorporated or
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authorized to transact business in this state; amending s.
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617.1530, F.S.; requiring that the department receive an
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authenticated certificate from the Secretary of State
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before commencing a proceeding to revoke the certificate
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of authority of a foreign corporation; amending s.
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617.1601, F.S.; requiring that a corporation keep a copy
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of its articles of incorporation; amending s. 617.1602,
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F.S.; providing that a member of a corporation is entitled
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to inspect and copy certain records of the corporation at
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a reasonable location specified by the corporation;
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requiring that a member give the corporation written
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notice 10 days before the date on which he or she wishes
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to inspect and copy records; amending s. 617.1605, F.S.;
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revising the circumstances under which a corporation is
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required to furnish a member with its latest annual
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financial statement; creating s. 617.1703, F.S.; providing
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for the applicability of certain provisions to
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corporations regulated under the act; amending s.
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617.1803, F.S.; providing for certain changes when a
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foreign not-for-profit corporation becomes domesticated;
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amending s. 617.1806, F.S.; revising the provisions for
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conversion to a corporation not for profit; amending s.
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617.1907, F.S.; providing that the repeal or amendment of
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a statute does not affect certain operations and
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proceedings; repealing s. 617.2103, F.S., relating to
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exemptions for certain corporations; providing an
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effective date.
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Be It Enacted by the Legislature of the State of Florida:
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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 be
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legible. If electronically transmitted, the document must be in a
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format that may be retrieved or reproduced in typewritten or
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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 nonprofit
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organization, and the Secretary of State may not assess any such
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fees if the citizen support organization is certified by the
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Department of Environmental Protection to the Secretary of State
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as being under contract with the Department of Environmental
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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; 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, unless
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the context otherwise requires, the term:
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(1) "Articles of incorporation" includes original, amended,
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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 state
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as charters, and, in the case of a foreign corporation, documents
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equivalent to articles of incorporation in the jurisdiction of
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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 state
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income taxes, if such corporation or governmental organization is
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a member of the corporation making such donation or transfer, is
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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 to
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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 mail
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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; and is not organized for
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a public or charitable purpose that is required upon its
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dissolution to distribute its assets to the United States, a
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state, a local subdivision thereof, or a person that is
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recognized as exempt under s. 501(c)(3) of the Internal Revenue
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Code. The term does not include an association organized under
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chapter 718, chapter 719, chapter 720, or chapter 721, or any
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corporation where membership in the corporation is required
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pursuant to a document recorded in 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 to
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distribute to the dissolved corporation's members any remaining
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assets, but not for the purpose of continuing the business for
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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 the
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determination of voting power is made, excluding a vote that is
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contingent upon the happening of a condition or event that has
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not yet occurred. If the members of a class are entitled to vote
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as a class to elect directors, the determination of the voting
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power of the class is based on the percentage of the number of
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directors the class is entitled to elect relative to the total
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number of authorized directors. If the corporation's directors
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are not elected by the members, voting power shall, unless
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otherwise provided in the articles of incorporation or bylaws, be
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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 organizational
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meeting, at the call of a majority of the directors, to complete
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the organization of the corporation by appointing officers,
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adopting bylaws, and carrying on any other business brought
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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 its
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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 or
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other surviving business entity is a corporation not for profit
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or other business entity that has been organized as a not-for-
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profit entity under a governing statute or other applicable law
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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 and
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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 not
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be paid, and any part of the income or profit of a corporation
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may not make distributions be distributed, to its members,
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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
444
amount to its members, directors, or officers for services
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rendered, may confer benefits upon its members in conformity with
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its purposes, and, upon dissolution or final liquidation, may
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make distributions to its members as permitted by this chapter
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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, may make such refunds to its members,
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prior to a dissolution or liquidation, as its managing board
460
deems necessary to establish or preserve its tax-exempt status.
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Any such refund does not constitute a dividend or a distribution
462
of income or profit for purposes of this section.
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(5) A corporation that is regulated by chapter 718, chapter
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719, chapter 720, chapter 721, or chapter 723, or a corporation
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where membership in such corporation is required pursuant to a
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document recorded in the county property records, may make
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refunds to its members, giving credits to its members, disbursing
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insurance proceeds to its members, or disbursing or paying
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settlements to its members without violating this 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
492
requirements of this chapter act if the corporation is registered
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496.001-496.011, the Solicitation of Contributions Funds Act.
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(c) This subsection does not apply to any condominium
496
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
499
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
506
the articles of incorporation or the bylaws, all the rights and
507
privileges of a member cease on termination of membership.
508
Section 10. Section 617.0605, Florida Statutes, is created
509
to read:
510
617.0605 Transfer of membership interests.--
511
(1) A member of a corporation may not transfer a membership
512
or any right arising from membership except as otherwise allowed
513
in this section.
514
(2) Except as set forth in the articles of incorporation or
515
bylaws of a mutual benefit corporation, a member of a mutual
516
benefit corporation may not transfer a membership or any right
517
arising from membership.
518
(3) If transfer rights have been provided for one or more
519
members of a mutual benefit corporation, a restriction on such
520
rights is not binding with respect to a member holding a
521
membership issued before the adoption of the restriction unless
522
the restriction is approved by the members and the affected
523
member.
524
Section 11. Section 617.0606, Florida Statutes, is created
525
to read:
526
617.0606 Resignation of members.--
527
(1) Except as may be provided in the articles of
528
incorporation or bylaws of a corporation, a member of a mutual
529
benefit corporation may not transfer a membership or any right
530
arising from membership.
531
(2) The resignation of a member does not relieve the member
532
from any obligations that the member may have to the corporation
533
as a result of obligations incurred or commitments made before
534
resignation.
535
Section 12. Section 617.0607, Florida Statutes, is created
536
to read:
537
617.0607 Termination, expulsion, and suspension.--
538
(1) A member of a corporation may not be expelled or
539
suspended, and a membership in the corporation may not be
540
terminated or suspended, except pursuant to a procedure that is
541
fair and reasonable and is carried out in good faith.
542
(2) Any written notice given by mail must be delivered by
543
certified mail or first-class mail to the last address of the
544
member shown on the records of the corporation.
545
(3) Any proceeding challenging an expulsion, suspension, or
546
termination, including a proceeding in which the defective notice
547
is alleged, must be commenced within 1 year after the effective
548
date of the expulsion, suspension, or termination.
549
(4) A member who has been expelled or suspended may be
550
liable to the corporation for dues, assessments, or fees as a
551
result of obligations incurred or commitments made before
552
expulsion or suspension.
553
Section 13. Section 617.0608, Florida Statutes, is created
554
to read:
555
617.0608 Purchase of memberships.--
556
(1) A corporation may not purchase any of its memberships
557
or any right arising from membership except as provided in s.
558
617.0505 or subsection (2).
559
(2) Subject to s. 617.1302, a mutual benefit corporation
560
may purchase the membership of a member who resigns, or whose
561
membership is terminated, for the amount and pursuant to the
562
conditions set forth in its articles of incorporation or bylaws.
563
Section 14. Subsections (3), (4), and (6) of section
564
617.0701, Florida Statutes, are amended to read:
565
617.0701 Meetings of members, generally; failure to hold
566
annual meeting; special meeting; consent to corporate actions
567
without meetings; waiver of notice of meetings.--
568
(3) Except as provided in the articles of incorporation or
569
bylaws, special meetings of the members may be called by:
570
(a) The president;,
571
(b) The chair of the board of directors;,
572
(c) The board of directors;, or such
573
(d) Other officers or persons as are provided for in the
574
articles of incorporation or the bylaws;.
575
(e) The holders of at least 5 percent of the voting power
576
of a corporation when one or more written demands for the
577
meeting, which describe the purpose for which the meeting is to
578
be held, are signed, dated, and delivered to a corporate officer;
579
or
580
(f) A person who signs a demand for a special meeting
581
pursuant to paragraph (e) if notice for a special meeting is not
582
given within 30 days after receipt of the demand. The person
583
signing the demand may set the time and place of the meeting and
584
give notice under this subsection.
585
(4)(a) Unless otherwise provided in the articles of
586
incorporation, action required or permitted by this chapter act
587
to be taken at an annual or special meeting of members may be
588
taken without a meeting, without prior notice, and without a vote
589
if the action is taken by the members entitled to vote on such
590
action and having not less than the minimum number of votes
591
necessary to authorize such action at a meeting at which all
592
members entitled to vote on such action were present and voted.
593
(a) In order To be effective, the action must be evidenced
594
by one or more written consents describing the action taken,
595
dated and signed by approving members having the requisite number
596
of votes and entitled to vote on such action, and delivered to
597
the corporation by delivery to its principal office in this
598
state, its principal place of business, the corporate secretary,
599
or another officer or agent of the corporation having custody of
600
the book in which proceedings of meetings of members are
601
recorded. Written consent shall not be effective to take the
602
corporate action referred to in the consent is not effective
603
unless the consent is signed by members having the requisite
604
number of votes necessary to authorize the action within 90 60
605
days after of the date of the earliest dated consent and is
606
delivered in the manner required by this section.
607
(b) Any written consent may be revoked prior to the date
608
that the corporation receives the required number of consents to
609
authorize the proposed action. A revocation is not effective
610
unless in writing and until received by the corporation at its
611
principal office in this state or its principal place of
612
business, or received by the corporate secretary or other officer
613
or agent of the corporation having custody of the book in which
614
proceedings of meetings of members are recorded.
615
(c) Within 30 10 days after obtaining such authorization by
616
written consent, notice must be given to those members who are
617
entitled to vote on the action but who have not consented in
618
writing. The notice must fairly summarize the material features
619
of the authorized action.
620
(d) A consent signed under this section has the effect of a
621
meeting vote and may be described as such in any document.
622
(e) If the action to which the members consent is such as
623
would have required the filing of articles or a certificate under
624
any other section of this chapter act if such action had been
625
voted on by members at a meeting thereof, the articles or
626
certificate filed under such other section must state that
627
written consent has been given in accordance with the provisions
628
of this section.
629
(f) Whenever action is taken pursuant to this section, the
630
written consent of the members consenting to such action or the
631
written reports of inspectors appointed to tabulate such consents
632
must be filed with the minutes of member proceedings of members.
633
(6) Subsections (1) and (3) do not apply to any corporation
634
that is an association as defined in s. 720.301, or a corporation
635
regulated by chapter 718, chapter 719, chapter 720, chapter 721,
636
or chapter 723, or a corporation where membership in such
637
corporation is required pursuant to a document recorded in the
638
county property records.
639
Section 15. Section 617.0721, Florida Statutes, is amended
640
to read:
641
617.0721 Voting by members.--
642
(1) Members are not entitled to vote except as conferred by
643
the articles of incorporation or the bylaws.
644
(2) A member who is entitled to vote may vote in person or,
645
unless the articles of incorporation or the bylaws otherwise
646
provide, may vote by proxy executed in writing by the member or
647
by his or her duly authorized attorney in fact. An appointment of
648
a proxy is not valid after 11 months following the date of its
649
execution unless otherwise provided in the proxy.
650
(a) If directors or officers are to be elected by members,
651
the bylaws may provide that such elections may be conducted by
652
mail.
653
(b) A corporation may reject a vote, consent, waiver, or
654
proxy appointment if the secretary or other officer or agent
655
authorized to tabulate votes, acting in good faith, has a
656
reasonable basis for doubting the validity of the signature on it
657
or the signatory's authority to sign for the member.
658
(3) If authorized by the board of directors, and subject to
659
such guidelines and procedures as the board of directors may
660
adopt, members and proxy holders who are not physically present
661
at a meeting may, by means of remote communication:
662
(a) Participate in the meeting.
663
(b) Be deemed to be present in person and vote at the
664
meeting if:
665
1. The corporation implements reasonable means to verify
666
that each person deemed present and authorized to vote by means
667
of remote communication is a member or proxy holder; and
668
2. The corporation implements reasonable measures to
669
provide such members or proxy holders with a reasonable
670
opportunity to participate in the meeting and to vote on matters
671
submitted to the members, including an opportunity to communicate
672
and to read or hear the proceedings of the meeting substantially
673
concurrent with the proceedings.
674
675
If any member or proxy holder votes or takes other action by
676
means of remote communication, a record of that member's
677
participation in the meeting must be maintained by the
678
corporation in accordance with s. 617.1601.
679
(4)(3) If any corporation, whether for profit or not for
680
profit, is a member of a corporation organized under this chapter
681
act, the chair of the board, president, any vice president, the
682
secretary, or the treasurer of the member corporation, and any
683
such officer or cashier or trust officer of a banking or trust
684
corporation holding such membership, and any like officer of a
685
foreign corporation whether for profit or not for profit, holding
686
membership in a domestic corporation, shall be deemed by the
687
corporation in which membership is held to have the authority to
688
vote on behalf of the member corporation and to execute proxies
689
and written waivers and consents in relation thereto, unless,
690
before a vote is taken or a waiver or consent is acted upon, it
691
appears pursuant to is made to appear by a certified copy of the
692
bylaws or resolution of the board of directors or executive
693
committee of the member corporation that such authority does not
694
exist or is vested in some other officer or person. In the
695
absence of such certification, a person executing any such
696
proxies, waivers, or consents or presenting himself or herself at
697
a meeting as one of such officers of a corporate member shall be,
698
for the purposes of this section, conclusively deemed to be duly
699
elected, qualified, and acting as such officer and to be fully
700
authorized. In the case of conflicting representation, the
701
corporate member shall be deemed to be represented by its senior
702
officer, in the order first stated in this subsection.
703
(5)(4) The articles of incorporation or the bylaws may
704
provide that, in all elections for directors, every member
705
entitled to vote has the right to cumulate his or her votes and
706
to give one candidate a number of votes equal to the number of
707
votes he or she could give if one director were being elected
708
multiplied by the number of directors to be elected or to
709
distribute such votes on the same principles among any number of
710
such candidates. A corporation may not have cumulative voting
711
unless such voting is expressly authorized in the articles of
712
incorporation.
713
(6)(5) If a corporation has no members or its members do
714
not have the right to vote, the directors shall have the sole
715
voting power.
716
(7)(6) Subsections (1), (2), (5) (4), and (6) (5) do not
717
apply to a corporation that is an association as defined in s.
718
719
Section 16. Section 617.0725, Florida Statutes, is amended
720
to read:
721
617.0725 Quorum.--An amendment to the articles of
722
incorporation or the bylaws which adds, that changes, or deletes
723
a greater or lesser quorum or voting requirement must meet the
724
same quorum or voting requirement and be adopted by the same vote
725
and voting groups required to take action under the quorum and
726
voting requirements then in effect or proposed to be adopted,
727
whichever is greater prescribed in the provision being amended.
728
Section 17. Section 617.07401, Florida Statutes, is created
729
to read:
730
617.07401 Members' derivative actions.--
731
(1) A person may not commence a proceeding in the right of
732
a domestic or foreign corporation unless the person was a member
733
of the corporation when the transaction complained of occurred or
734
unless the person became a member through transfer by operation
735
of law from one who was a member at that time.
736
(2) A complaint in a proceeding brought in the right of a
737
domestic or foreign corporation must be verified and allege with
738
particularity the demand made to obtain action by the board of
739
directors and that the demand was refused or ignored by the board
740
of directors for at least 90 days after the date of the first
741
demand unless, before the expiration of the 90 days, the person
742
was notified in writing that the corporation rejected the demand,
743
or unless irreparable injury to the corporation would result by
744
waiting for the expiration of the 90-day period. If the
745
corporation commences an investigation of the charges made in the
746
demand or complaint, the court may stay any proceeding until the
747
investigation is completed.
748
(3) The court may dismiss a derivative proceeding if, on
749
motion by the corporation, the court finds that one of the groups
750
specified in paragraphs (a)-(c) has made a good faith
751
determination after conducting a reasonable investigation upon
752
which its conclusions are based that the maintenance of the
753
derivative suit is not in the best interests of the corporation.
754
The corporation has the burden of proving the independence and
755
good faith of the group making the determination and the
756
reasonableness of the investigation. The determination shall be
757
made by:
758
(a) A majority vote of independent directors present at a
759
meeting of the board of directors, if the independent directors
760
constitute a quorum;
761
(b) A majority vote of a committee consisting of two or
762
more independent directors appointed by a majority vote of
763
independent directors present at a meeting of the board of
764
directors, whether or not such independent directors constitute a
765
quorum; or
766
(c) A panel of one or more independent persons appointed by
767
the court upon motion by the corporation.
768
(4) A proceeding commenced under this section may not be
769
discontinued or settled without the approval of the court. If the
770
court determines that a proposed discontinuance or settlement
771
substantially affects the interest of the members of the
772
corporation, or a class, series, or voting group of members, the
773
court shall direct that notice be given to the members affected.
774
The court may determine which party or parties to the proceeding
775
shall bear the expense of giving the notice.
776
(5) Upon termination of the proceeding, the court may
777
require the plaintiff to pay any defendant's reasonable expenses,
778
including reasonable attorney's fees, incurred in defending the
779
proceeding if it finds that the proceeding was commenced without
780
reasonable cause.
781
(6) The court may award reasonable expenses for maintaining
782
the proceeding, including reasonable attorney's fees, to a
783
successful plaintiff or to the person commencing the proceeding
784
who receives any relief, whether by judgment, compromise, or
785
settlement, and may require that the person account for the
786
remainder of any proceeds to the corporation; however, this
787
subsection does not apply to any relief rendered for the benefit
788
of injured members only and limited to a recovery of the loss or
789
damage of the injured members.
790
Section 18. Section 617.0801, Florida Statutes, is amended
791
to read:
792
617.0801 Requirement for and Duties of board of
793
directors.--All corporate powers must be exercised by or under
794
the authority of, and the affairs of the corporation managed
795
under the direction of, its board of directors, subject to any
796
limitation set forth in the articles of incorporation.
797
Section 19. Section 617.0806, Florida Statutes, is amended
798
to read:
799
617.0806 Staggered terms for directors.--The articles of
800
incorporation or bylaws may provide that directors may be divided
801
into classes and the terms of office of the several classes need
802
not be uniform. Each director shall hold office for the term to
803
which he or she is elected or appointed and until his or her
804
successor has been elected or appointed and qualified or until
805
his or her earlier resignation, removal from office, or death.
806
Section 20. Section 617.0808, Florida Statutes, is amended
807
to read:
808
617.0808 Removal of directors.--
809
(1) Subject to subsection (2), a director may be removed
810
from office pursuant to procedures provided in the articles of
811
incorporation or the bylaws, which shall provide the following,
812
and if they do not do so, shall be deemed to include the
813
following:
814
(a)(1) Any member of the board of directors may be removed
815
from office with or without cause by:
816
1. A majority of all votes of the directors, if the
817
director was elected or appointed by the directors; or
818
2. A majority of all votes of the members, if the director
819
was elected or appointed by the members.
820
(b) If a director is elected by a class, chapter, or other
821
organizational unit, or by region or other geographic grouping,
822
the director may be removed only by the members of that class,
823
chapter, unit, or grouping. However:
824
1. A director may be removed only if the number of votes
825
cast to remove the director would be sufficient to elect the
826
director at a meeting to elect directors, except as provided in
827
subparagraphs 2. and 3.
828
2. If cumulative voting is authorized, a director may not
829
be removed if the number of votes sufficient to elect the
830
director under cumulative voting is voted against the removal of
831
the director.
832
3. If at the beginning of the term of a director the
833
articles of incorporation or bylaws provide that the director may
834
be removed for missing a specified number of board meetings, the
835
board may remove the director for failing to attend the specified
836
number of meetings. The director may be removed only if a
837
majority of the directors then in office vote for the removal the
838
vote or agreement in writing by a majority of all votes of the
839
membership.
840
(c)(2) The notice of a meeting of the members to recall a
841
member or members of the board of directors shall state the
842
specific directors sought to be removed.
843
(d)(3) A proposed removal of a director at a meeting shall
844
require a separate vote for each director whose removal is board
845
member sought to be removed. Where removal is sought by written
846
consent agreement, a separate consent agreement is required for
847
each director board member to be removed.
848
(e)(4) If removal is effected at a meeting, any vacancies
849
created thereby shall be filled by the members or directors
850
eligible to vote for the removal at the same meeting.
851
(f)(5) Any director who is removed from the board is shall
852
not be eligible to stand for reelection until the next annual
853
meeting at which directors are elected of the members.
854
(g)(6) Any director removed from office shall turn over to
855
the board of directors within 72 hours any and all records of the
856
corporation in his or her possession.
857
(h)(7) If a director who is removed does shall not
858
relinquish his or her office or turn over records as required
859
under this section, the circuit court in the county where the
860
corporation's principal office is located may summarily order the
861
director to relinquish his or her office and turn over corporate
862
records upon application of any member.
863
(i) A director elected or appointed by the board may be
864
removed without cause by a vote of two-thirds of the directors
865
then in office or such greater number as is set forth in the
866
articles of incorporation or bylaws.
867
(2) A director of a corporation described in s. 501(c) of
868
the Internal Revenue Code may be removed from office pursuant to
869
procedures provided in the articles of incorporation or the
870
bylaws, and the corporation may provide in the articles of
871
incorporation or the bylaws that it is subject to the provisions
872
of subsection (1).
873
Section 21. Section 617.0809, Florida Statutes, is amended
874
to read:
875
617.0809 Board vacancy on board.--
876
(1) Except as provided in s. 617.0808(1)(f), any vacancy
877
occurring on the board of directors may be filled by the
878
affirmative vote of the majority of the remaining directors, even
879
though the remaining directors constitute less than a quorum, or
880
by the sole remaining director, as the case may be, or, if the
881
vacancy is not so filled or if no director remains, by the
882
members or, on the application of any person, by the circuit
883
court of the county where the registered office of the
884
corporation is located.
885
(2) Whenever a vacancy occurs with respect to a director
886
elected by a class, chapter, unit, or group, the vacancy may be
887
filled only by members of that class, chapter, unit, or group, or
888
by a majority of the directors then in office elected by such
889
class, chapter, unit, or group.
890
(3)(2) The term of a director elected or appointed to fill
891
a vacancy expires at the next annual meeting at which directors
892
are elected shall be elected or appointed for the unexpired term
893
of his or her predecessor in office. Any directorship to be
894
filled by reason of an increase in the number of directors may be
895
filled by the board of directors, but only for a term of office
896
continuing until the next election of directors by the members
897
or, if the corporation has no members or no members having the
898
right to vote thereon, for such term of office as is provided in
899
the articles of incorporation or the bylaws.
900
(4)(3) A vacancy that will occur at a specific later date,
901
by reason of a resignation effective at a later date under s.
902
617.0807 or otherwise, may be filled before the vacancy occurs.
903
However, the new director may not take office until the vacancy
904
occurs.
905
Section 22. Subsection (2) of section 617.0832, Florida
906
Statutes, is amended, and subsection (3) is added to that
907
section, to read:
908
617.0832 Director conflicts of interest.--
909
(2) For purposes of paragraph (1)(a) only, a conflict-of-
910
interest transaction is authorized, approved, or ratified if it
911
receives the affirmative vote of a majority of the directors on
912
the board of directors, or on the committee, who have no
913
relationship or interest in the transaction described in
914
subsection (1), but a transaction may not be authorized,
915
approved, or ratified under this section by a single director. If
916
a majority of the directors who have no relationship or interest
917
in the transaction vote to authorize, approve, or ratify the
918
transaction, a quorum is present for the purpose of taking action
919
under this section. The presence of, or a vote cast by, a
920
director having a relationship or interest in the transaction
921
does not affect the validity of any action taken under paragraph
922
(1)(a) if the transaction is otherwise authorized, approved, or
923
ratified as provided in subsection (1), but such presence or vote
924
of such a director may be counted for purposes of determining
925
whether the transaction is approved under other sections of this
926
chapter.
927
(3) For purposes of paragraph (1)(b), a conflict-of-
928
interest transaction is authorized, approved, or ratified if it
929
receives the vote of a majority in interest of the members
930
entitled to vote under this subsection. A director who has a
931
relationship or interest in the transaction described in
932
subsection (1) may not vote to determine whether to authorize,
933
approve, or ratify a conflict-of-interest transaction under
934
paragraph (1)(b). However, the vote of that director is counted
935
in determining whether the transaction is approved under other
936
sections of this chapter. A majority in interest of the members
937
entitled to vote on the transaction under this subsection
938
constitutes a quorum for the purpose of taking action under this
939
section. Common or interested directors may be counted in
940
determining the presence of a quorum at a meeting of the board of
941
directors or a committee thereof which authorizes, approves, or
942
ratifies such contract or transaction.
943
Section 23. Section 617.0833, Florida Statutes, is amended
944
to read:
945
617.0833 Loans to directors or officers.--Loans, other than
946
through the purchase of bonds, debentures, or similar obligations
947
of the type customarily sold in public offerings, or through
948
ordinary deposit of funds in a bank, may not be made by a
949
corporation to its directors or officers, or to any other
950
corporation, firm, association, or other entity in which one or
951
more of its directors or officers is a director or officer or
952
holds a substantial financial interest, except a loan by one
953
corporation which is exempt from federal income taxation under s.
954
501(c)(3) of the Internal Revenue Code of 1986, as amended, to
955
another corporation which is exempt from federal income taxation
956
under s. 501(c)(3) of the Internal Revenue Code of 1986, as
957
amended. A loan made in violation of this section is a violation
958
of the duty to the corporation of the directors or officers
959
authorizing it or participating in it, but the obligation of the
960
borrower with respect to the loan is shall not be affected
961
thereby.
962
Section 24. Subsection (1) of section 617.0834, Florida
963
Statutes, is amended to read:
964
617.0834 Officers and directors of certain corporations and
965
associations not for profit; immunity from civil liability.--
966
(1) An officer or director of a nonprofit organization
967
recognized under s. 501(c)(3) or s. 501(c)(4) or s. 501(c)(6) of
968
the Internal Revenue Code of 1986, as amended, or of an
969
agricultural or a horticultural organization recognized under s.
970
501(c)(5), of the Internal Revenue Code of 1986, as amended, is
971
not personally liable for monetary damages to any person for any
972
statement, vote, decision, or failure to take an action,
973
regarding organizational management or policy by an officer or
974
director, unless:
975
(a) The officer or director breached or failed to perform
976
his or her duties as an officer or director; and
977
(b) The officer's or director's breach of, or failure to
978
perform, his or her duties constitutes:
979
1. A violation of the criminal law, unless the officer or
980
director had reasonable cause to believe his or her conduct was
981
lawful or had no reasonable cause to believe his or her conduct
982
was unlawful. A judgment or other final adjudication against an
983
officer or director in any criminal proceeding for violation of
984
the criminal law estops that officer or director from contesting
985
the fact that his or her breach, or failure to perform,
986
constitutes a violation of the criminal law, but does not estop
987
the officer or director from establishing that he or she had
988
reasonable cause to believe that his or her conduct was lawful or
989
had no reasonable cause to believe that his or her conduct was
990
unlawful;
991
2. A transaction from which the officer or director derived
992
an improper personal benefit, either directly or indirectly; or
993
3. Recklessness or an act or omission that which was
994
committed in bad faith or with malicious purpose or in a manner
995
exhibiting wanton and willful disregard of human rights, safety,
996
or property.
997
Section 25. Subsections (2) and (3) of section 617.1007,
998
Florida Statutes, are amended to read:
999
617.1007 Restated articles of incorporation.--
1000
(2) The restatement may include one or more amendments to
1001
the articles of incorporation. If the restatement includes an
1002
amendment requiring member approval, it must be adopted as
1003
provided in s. 617.1002.
1004
(3) A corporation restating its articles of incorporation
1005
shall deliver to the department of State for filing articles of
1006
restatement, executed in accordance with the provisions of s.
1007
617.01201, setting forth the name of the corporation and the text
1008
of the restated articles of incorporation together with a
1009
certificate setting forth:
1010
(a) Whether the restatement contains an amendment to the
1011
articles of incorporation requiring member approval and, if it
1012
does not, that the board of directors adopted the restatement; or
1013
(b) If the restatement contains an amendment to the
1014
articles of incorporation requiring member approval, the
1015
information required by s. 617.1006.
1016
Section 26. Subsection (2) of section 617.1101, Florida
1017
Statutes, is amended, and subsection (3) is added to that
1018
section, to read:
1019
617.1101 Plan of merger.--
1020
(2) Each corporation must adopt a plan of merger setting
1021
forth:
1022
(a) The names of the corporations proposing to merge and
1023
the name of the surviving corporation into which each other
1024
corporation plans to merge, which is hereinafter designated as
1025
the surviving corporation;
1026
(b) The terms and conditions of the proposed merger;
1027
(c) A statement of any changes in the articles of
1028
incorporation of the surviving corporation to be effected by such
1029
merger; and
1030
(d) The manner and basis, if any, of converting the
1031
memberships of each merging corporation into memberships,
1032
obligations, or securities of the surviving corporation or any
1033
other corporation or, in whole or in part, into cash or other
1034
property. Such other provisions with respect to the proposed
1035
merger as are deemed necessary or desirable.
1036
(3) The plan of merger may set forth:
1037
(a) Amendments to, or a restatement of, the articles of
1038
incorporation of the surviving corporation;
1039
(b) The effective date of the merger, which may be on or
1040
after the date of filing the articles of incorporation or merger;
1041
or
1042
(c) Other provisions relating to the merger.
1043
Section 27. Section 617.1102, Florida Statutes, is created
1044
to read:
1045
617.1102 Limitation on merger.--A corporation not for
1046
profit organized under this chapter may merge with one or more
1047
other business entities, as identified in s. 607.1108(1), only if
1048
the surviving entity of such merger is a corporation not for
1049
profit or other business entity that has been organized as a not-
1050
for-profit entity under a governing statute or other applicable
1051
law that allows such a merger.
1052
Section 28. Section 617.1301, Florida Statutes, is created
1053
to read:
1054
617.1301 Prohibited distributions.--Except as authorized in
1055
ss. 617.0505 and 617.1302, a corporation may not make any
1056
distributions to its members.
1057
Section 29. Section 617.1302, Florida Statutes, is created
1058
to read:
1059
617.1302 Authorized distributions.--
1060
(1) A mutual benefit corporation may purchase its
1061
memberships pursuant to s. 617.0608 only if, after the purchase
1062
is completed:
1063
(a) The mutual benefit corporation is able to pay its debts
1064
as they become due in the usual course of its activities; and
1065
(b) The total assets of the mutual benefit corporation at
1066
least equal the sum of its total liabilities.
1067
(2) A corporation may make distributions upon dissolution
1068
in conformity with the dissolution provisions of this chapter.
1069
Section 30. Subsection (4) of section 617.1405, Florida
1070
Statutes, is amended to read:
1071
617.1405 Effect of dissolution.--
1072
(4) The name of a dissolved corporation is shall not be
1073
available for assumption or use by another corporation until
1074
after 120 days after the effective date of dissolution unless the
1075
dissolved corporation provides the department with an affidavit,
1076
executed pursuant to s. 617.01201, authorizing the immediate
1077
assumption or use of the name by another corporation.
1078
Section 31. Section 617.1407, Florida Statutes, is created
1079
to read:
1080
617.1407 Unknown claims against dissolved corporation.--
1081
(1) A dissolved corporation or successor entity may execute
1082
one of the following procedures to resolve payment of unknown
1083
claims:
1084
(a) A dissolved corporation or successor entity may file
1085
notice of its dissolution with the department on the form
1086
prescribed by the department and request that persons having
1087
claims against the corporation which are not known to the
1088
corporation or successor entity present them in accordance with
1089
the notice. The notice must:
1090
1. State the name of the corporation and the date of
1091
dissolution;
1092
2. Describe the information that must be included in a
1093
claim and provide a mailing address to which the claim may be
1094
sent; and
1095
3. State that a claim against the corporation under this
1096
subsection is barred unless a proceeding to enforce the claim is
1097
commenced within 4 years after the filing of the notice.
1098
(b) A dissolved corporation or successor entity may, within
1099
10 days after filing articles of dissolution with the department,
1100
publish a "Notice of Corporate Dissolution." The notice must
1101
appear once a week for 2 consecutive weeks in a newspaper of
1102
general circulation in the county in the state in which the
1103
corporation has its principal office, if any, or, if none, in a
1104
county in the state in which the corporation owns real or
1105
personal property. Such newspaper shall meet the requirements as
1106
are prescribed by law for such purposes. The notice must:
1107
1. State the name of the corporation and the date of
1108
dissolution;
1109
2. Describe the information that must be included in a
1110
claim and provide a mailing address to which the claim may be
1111
sent; and
1112
3. State that a claim against the corporation under this
1113
subsection is barred unless a proceeding to enforce the claim is
1114
commenced within 4 years after the date of the second consecutive
1115
weekly publication of the notice.
1116
(2) If the dissolved corporation or successor entity
1117
complies with paragraph (1)(a) or paragraph (1)(b), the claim of
1118
each of the following claimants is barred unless the claimant
1119
commences a proceeding to enforce the claim against the dissolved
1120
corporation within 4 years after the date of filing the notice
1121
with the department or the date of the second consecutive weekly
1122
publication, as applicable:
1123
(a) A claimant who did not receive written notice under s.
1124
617.1408(9), or whose claim is not provided for under s.
1125
617.1408(10), regardless of whether such claim is based on an
1126
event occurring before or after the effective date of
1127
dissolution.
1128
(b) A claimant whose claim was timely sent to the dissolved
1129
corporation but on which no action was taken.
1130
(3) A claim may be entered under this section:
1131
(a) Against the dissolved corporation, to the extent of its
1132
undistributed assets; or
1133
(b) If the assets have been distributed in liquidation,
1134
against a member of the dissolved corporation to the extent of
1135
such member's pro rata share of the claim or the corporate assets
1136
distributed to such member in liquidation, whichever is less;
1137
however, the aggregate liability of any member of a dissolved
1138
corporation may not exceed the amount distributed to the member
1139
in dissolution.
1140
Section 32. Section 617.1408, Florida Statutes, is created
1141
to read:
1142
617.1408 Known claims against dissolved corporation.--
1143
(1) A dissolved corporation or successor entity may dispose
1144
of the known claims against it by following the procedures
1145
described in subsections (2), (3), and (4).
1146
(2) The dissolved corporation or successor entity shall
1147
deliver to each of its known claimants written notice of the
1148
dissolution at any time after its effective date. The written
1149
notice must:
1150
(a) Provide a reasonable description of the claim that the
1151
claimant may be entitled to assert;
1152
(b) State whether the claim is admitted or not admitted, in
1153
whole or in part, and, if admitted:
1154
1. The amount that is admitted, which may be as of a given
1155
date; and
1156
2. Any interest obligation if fixed by an instrument of
1157
indebtedness;
1158
(c) Provide a mailing address where a claim may be sent;
1159
(d) State the deadline, which must be at least 120 days
1160
after the effective date of the written notice, by which
1161
confirmation of the claim must be delivered to the dissolved
1162
corporation or successor entity; and
1163
(e) State that the corporation or successor entity may make
1164
distributions thereafter to other claimants and the members of
1165
the corporation or persons interested as having been such without
1166
further notice.
1167
(3) A dissolved corporation or successor entity may reject,
1168
in whole or in part, any claim made by a claimant pursuant to
1169
this section by mailing notice of such rejection to the claimant
1170
within 90 days after receipt of such claim and, in all events, at
1171
least 150 days before expiration of 3 years following the
1172
effective date of dissolution. The notice must be accompanied by
1173
a copy of this section.
1174
(4) A dissolved corporation or successor entity electing to
1175
follow the procedures described in subsections (2) and (3) must
1176
also give notice of dissolution to persons having known claims
1177
that are contingent upon the occurrence or nonoccurrence of
1178
future events, or are otherwise conditional or unmatured, and
1179
request that such persons present such claims in accordance with
1180
the terms of the notice. The notice must be in substantially the
1181
form, and sent in the same manner, as described in subsection
1182
(2).
1183
(5) A dissolved corporation or successor entity shall offer
1184
any claimant whose known claim is contingent, conditional, or
1185
unmatured such security as the corporation or entity determines
1186
is sufficient to provide compensation to the claimant if the
1187
claim matures. The dissolved corporation or successor entity
1188
shall deliver such offer to the claimant within 90 days after
1189
receipt of such claim and, in all events, at least 150 days
1190
before expiration of 3 years following the effective date of
1191
dissolution. If the claimant offered such security does not
1192
deliver in writing to the dissolved corporation or successor
1193
entity a notice rejecting the offer within 120 days after receipt
1194
of such offer, the claimant is deemed to have accepted such
1195
security as the sole source from which to satisfy his or her
1196
claim against the corporation.
1197
(6) A dissolved corporation or successor entity that has
1198
given notice in accordance with subsections (2) and (4) shall
1199
petition the circuit court in the county where the corporation's
1200
principal office is located or was located on the effective date
1201
of dissolution to determine the amount and form of security which
1202
is sufficient to provide compensation to a claimant who has
1203
rejected the offer for security made pursuant to subsection (5).
1204
(7) A dissolved corporation or successor entity that has
1205
given notice in accordance with subsection (2) shall petition the
1206
circuit court in the county where the corporation's principal
1207
office is located or was located on the effective date of
1208
dissolution to determine the amount and form of security which is
1209
sufficient to provide compensation to claimants whose claims are
1210
known to the corporation or successor entity but whose identities
1211
are unknown. The court shall appoint a guardian ad litem to
1212
represent all claimants whose identities are unknown in any
1213
proceeding brought under this subsection. The reasonable fees and
1214
expenses of such guardian, including all reasonable expert
1215
witness fees, shall be paid by the petitioner in such proceeding.
1216
(8) The giving of any notice or making of any offer
1217
pursuant to this section does not revive any claim then barred,
1218
does not constitute acknowledgment by the dissolved corporation
1219
or successor entity that any person to whom such notice is sent
1220
is a proper claimant, and does not operate as a waiver of any
1221
defense or counterclaim in respect of any claim asserted by any
1222
person to whom such notice is sent.
1223
(9) A dissolved corporation or successor entity that has
1224
followed the procedures described in subsections (2)-(7) shall:
1225
(a) Pay the claims admitted or made and not rejected in
1226
accordance with subsection (3);
1227
(b) Post the security offered and not rejected pursuant to
1228
subsection (5);
1229
(c) Post any security ordered by the circuit court in any
1230
proceeding under subsections (6) and (7); and
1231
(d) Pay or make provision for all other known obligations
1232
of the corporation or the successor entity. Such claims or
1233
obligations shall be paid in full, and any provision for payments
1234
shall be made in full if there are sufficient funds. If there are
1235
insufficient funds, the claims and obligations shall be paid or
1236
provided for according to their priority and, among claims of
1237
equal priority, ratably to the extent of funds legally available
1238
for payment. Any remaining funds shall be distributed in
1239
accordance with s. 617.1406; however, such distribution may not
1240
be made until 150 days after the date of the last notice of
1241
rejections given pursuant to subsection (3). In the absence of
1242
actual fraud, the judgment of the directors of the dissolved
1243
corporation or the governing persons of the successor entity as
1244
to the provisions made for the payment of all obligations under
1245
this paragraph is conclusive.
1246
(10) A dissolved corporation or successor entity that has
1247
not followed the procedures described in subsections (2) and (3)
1248
shall pay or make reasonable provision to pay all known claims
1249
and obligations, including all contingent, conditional, or
1250
unmatured claims known to the corporation or the successor entity
1251
and all claims that are known to the dissolved corporation or the
1252
successor entity but for which the identity of the claimant is
1253
unknown. Such claims shall be paid in full, and any provision for
1254
payment made shall be made in full if there are sufficient funds.
1255
If there are insufficient funds, such claims and obligations
1256
shall be paid or provided for according to their priority and,
1257
among claims of equal priority, ratably to the extent of funds
1258
legally available for payment thereof. Any remaining funds shall
1259
be distributed in accordance with s. 617.1406.
1260
(11) Directors of a dissolved corporation or governing
1261
persons of a successor entity that has complied with subsection
1262
(9) or subsection (10) are not personally liable to the claimants
1263
of the dissolved corporation.
1264
(12) A member of a dissolved corporation the assets of
1265
which were distributed pursuant to subsection (9) or subsection
1266
(10) is not liable for any claim against the corporation greater
1267
than the member's pro rata share of the claim or the amount
1268
distributed to the member, whichever is less.
1269
(13) A member of a dissolved corporation, the assets of
1270
which were distributed pursuant to subsection (9), is not liable
1271
for any claim against the corporation which is known to the
1272
corporation or successor entity and on which a proceeding is
1273
begun after the expiration of 3 years following the effective
1274
date of dissolution.
1275
(14) The aggregate liability of any member of a dissolved
1276
corporation for claims against the dissolved corporation may not
1277
be greater than the amount distributed to the member in
1278
dissolution.
1279
Section 33. Subsection (6) of section 617.1421, Florida
1280
Statutes, is repealed.
1281
Section 34. Section 617.1422, Florida Statutes, is amended
1282
to read:
1283
617.1422 Reinstatement following administrative
1284
dissolution.--
1285
(1)(a) A corporation administratively dissolved under s.
1286
617.1421 may apply to the department of State for reinstatement
1287
at any time after the effective date of dissolution. The
1288
corporation must submit a reinstatement form prescribed and
1289
furnished by the department or a current uniform business report
1290
signed by a registered agent and an officer or director and
1291
submit application must:
1292
1. Recite the name of the corporation and the effective
1293
date of its administrative dissolution;
1294
2. State that the ground or grounds for dissolution either
1295
did not exist or have been eliminated and that no further grounds
1296
currently exist for dissolution;
1297
3. State that the corporation's name satisfies the
1298
requirements of s. 617.0401; and
1299
4. State that all fees owed by the corporation and computed
1300
at the rate provided by law at the time the corporation applies
1301
for reinstatement. have been paid; or
1302
(b) Submit a current annual report, signed by the
1303
registered agent and an officer or director, which substantially
1304
complies with the requirements of paragraph (a).
1305
(2) If the department of State determines that the
1306
application contains the information required by subsection (1)
1307
and that the information is correct, it shall file the document,
1308
cancel the certificate of dissolution, and reinstate the
1309
corporation effective on the date which the reinstatement
1310
document is filed.
1311
(3) When the reinstatement is effective, it relates back to
1312
and takes effect as of the effective date of the administrative
1313
dissolution and the corporation resumes carrying on its business
1314
affairs as if the administrative dissolution had never occurred.
1315
(4) The name of the dissolved corporation is not available
1316
for assumption or use by another corporation until 1 year after
1317
the effective date of dissolution unless the dissolved
1318
corporation provides the department with an affidavit executed
1319
pursuant to s. 617.01201 authorizing the immediate assumption or
1320
use of the name by another corporation.
1321
(5)(4) If the name of the dissolved corporation has been
1322
lawfully assumed in this state by another corporation, the
1323
department of State shall require the dissolved corporation to
1324
amend its articles of incorporation to change its name before
1325
accepting its application for reinstatement.
1326
Section 35. Subsection (2) of section 617.1430, Florida
1327
Statutes, is amended to read:
1328
617.1430 Grounds for judicial dissolution.--A circuit court
1329
may dissolve a corporation:
1330
(2) In a proceeding brought by at least 50 members or
1331
members holding at least 10 percent of the voting power,
1332
whichever is less, or by a member or group or percentage of
1333
members as otherwise provided in the articles of incorporation or
1334
bylaws, or by a director or any person authorized in the articles
1335
of incorporation, by a member if it is established that:
1336
(a) The directors are deadlocked in the management of the
1337
corporate affairs, the members are unable to break the deadlock,
1338
and irreparable injury to the corporation is threatened or being
1339
suffered;
1340
(b) The members are deadlocked in voting power and have
1341
failed to elect successors to directors whose terms have expired
1342
or would have expired upon qualification of their successors; or
1343
(c) The corporate assets are being misapplied or wasted.
1344
Section 36. Subsection (2) of section 617.1503, Florida
1345
Statutes, is amended to read:
1346
617.1503 Application for certificate of authority.--
1347
(2) The foreign corporation shall deliver with the
1348
completed application a certificate of existence, (or a document
1349
of similar import,) duly authenticated, within not more than 90
1350
days prior to delivery of the application to the department of
1351
State, by the Secretary of State or other official having custody
1352
of corporate records in the jurisdiction under the law of which
1353
it is incorporated. A translation of the certificate, under oath
1354
of the translator, must be attached to a certificate that which
1355
is in a language other than the English language.
1356
Section 37. Subsection (2) of section 617.1504, Florida
1357
Statutes, is amended to read:
1358
617.1504 Amended certificate of authority.--
1359
(2) Such application shall be made within 90 30 days after
1360
the occurrence of any change mentioned in subsection (1), shall
1361
be made on forms prescribed by the department of State, shall be
1362
executed and filed in the same manner as an original application
1363
for authority, and shall set forth:
1364
(a) The name of the foreign corporation as it appears on
1365
the department's records of the Department of State;
1366
(b) The jurisdiction of its incorporation;
1367
(c) The date it was authorized to conduct its affairs in
1368
this state;
1369
(d) If the name of the foreign corporation has been
1370
changed, the name relinquished, the new name, a statement that
1371
the change of name has been effected under the laws of the
1372
jurisdiction of its incorporation, and the date the change was
1373
effected;
1374
(e) If the period of duration has been changed, a statement
1375
of such change and the date the change was effected;
1376
(f) If the jurisdiction of incorporation has been changed,
1377
a statement of such change and the date the change was effected;
1378
and
1379
(g) If the purpose or purposes that which the corporation
1380
intends to pursue in this state have been changed, a statement of
1381
such new purpose or purposes, and a further statement that the
1382
corporation is authorized to pursue such purpose or purposes in
1383
the jurisdiction of its incorporation.
1384
Section 38. Section 617.1506, Florida Statutes, is amended
1385
to read:
1386
617.1506 Corporate name of foreign corporation.--
1387
(1) A foreign corporation may is not entitled to file an
1388
application for a certificate of authority unless the corporate
1389
name of such corporation satisfies the requirements of s.
1390
617.0401. To obtain or maintain a certificate of authority to
1391
transact business in this state, the foreign corporation:
1392
(a) May add the word "corporation" or "incorporated" or the
1393
abbreviation "corp." or "inc." or words of like import, which as
1394
will clearly indicate that it is a corporation instead of a
1395
natural person or partnership or other business entity; however,
1396
to its corporate name for use in this state, provided, the name
1397
of a foreign corporation may not contain the word "company" or
1398
the abbreviation "co."; or
1399
(b) May use an alternate name to transact business in this
1400
state if its real name is unavailable. Any alternate corporate
1401
name adopted for use in this state must be cross-referenced to
1402
the real corporate name in the records of the Division of
1403
Corporations. If the real corporate name of the corporation
1404
becomes available in this state or if the corporation chooses to
1405
change its alternate name and it delivers to the Department of
1406
State, for filing, a copy of the resolution of its board of
1407
directors, changing or withdrawing the alternate name and
1408
executed as required by s. 617.01201, must be delivered for
1409
filing adopting an alternate name.
1410
(2) The corporate name, including the alternate name, of a
1411
foreign corporation must be distinguishable, within the records
1412
of the Division of Corporations, from:
1413
(a) Any corporate name of a corporation for profit
1414
incorporated or authorized to transact business in this state.
1415
(b)(a) The alternate name of another foreign corporation
1416
authorized to transact business in this state.
1417
(c)(b) The corporate name of a not-for-profit corporation
1418
incorporated or authorized to transact business in this state.
1419
(d)(c) The names of all other entities or filings, except
1420
fictitious name registrations pursuant to s. 865.09, organized,
1421
or registered under the laws of this state, that are on file with
1422
the Division of Corporations.
1423
(3) If a foreign corporation authorized to transact
1424
business in this state changes its corporate name to one that
1426
corporation may not transact business in this state under the
1427
changed name until the corporation adopts a name satisfying the
1429
(4) The corporate name must be distinguishable from the
1430
names of all other entities or filings, organized, registered, or
1431
reserved under the laws of the state that are on file with the
1432
Division of Corporations, except fictitious name registrations
1433
pursuant to s. 865.09.
1434
Section 39. Subsection (6) of section 617.1530, Florida
1435
Statutes, is amended to read:
1436
617.1530 Grounds for revocation of authority to conduct
1437
affairs.--The department of State may commence a proceeding under
1438
s. 617.1531 to revoke the certificate of authority of a foreign
1439
corporation authorized to conduct its affairs in this state if:
1440
(6) The department of State receives a duly authenticated
1441
certificate from the secretary of state or other official having
1442
custody of corporate records in the jurisdiction under the law of
1443
which the foreign corporation is incorporated stating that it has
1444
been dissolved or disappeared as the result of a merger.
1445
Section 40. Paragraph (a) of subsection (5) of section
1446
617.1601, Florida Statutes, is amended to read:
1447
617.1601 Corporate records.--
1448
(5) A corporation shall keep a copy of the following
1449
records:
1450
(a) Its articles of incorporation or restated articles of
1451
incorporation and all amendments to them currently in effect.
1452
Section 41. Subsections (1), (2), and (4) of section
1453
617.1602, Florida Statutes, are amended to read:
1454
617.1602 Inspection of records by members.--
1455
(1) A member of a corporation is entitled to inspect and
1456
copy, during regular business hours at the corporation's
1457
principal office or at a reasonable location specified by the
1458
corporation, any of the records of the corporation described in
1459
s. 617.1601(5), if the member gives the corporation written
1460
notice of his or her demand at least 10 5 business days before
1461
the date on which he or she wishes to inspect and copy.
1462
(2) A member of a corporation is entitled to inspect and
1463
copy, during regular business hours at a reasonable location
1464
specified by the corporation, any of the following records of the
1465
corporation if the member meets the requirements of subsection
1466
(3) and gives the corporation written notice of his or her demand
1467
at least 10 5 business days before the date on which he or she
1468
wishes to inspect and copy:
1469
(a) Excerpts from minutes of any meeting of the board of
1470
directors, records of any action of a committee of the board of
1471
directors while acting in place of the board of directors on
1472
behalf of the corporation, minutes of any meeting of the members,
1473
and records of action taken by the members or board of directors
1474
without a meeting, to the extent not subject to inspection under
1475
subsection (1).
1476
(b) Accounting records of the corporation.
1477
(c) The record of members.
1478
(d) Any other books and records.
1479
(4) This section does not affect:
1480
(a) The right of a member to inspect and copy records under
1481
s. 617.0730(6), or, if the member is in litigation with the
1482
corporation to inspect and copy records, to the same extent as
1483
any other litigant.
1484
(b) The power of a court, independently of this chapter
1485
act, to compel the production of corporate records for
1486
examination.
1487
Section 42. Section 617.1605, Florida Statutes, is amended
1488
to read:
1489
617.1605 Financial reports for members.--A corporation,
1490
upon a member's written demand, shall furnish that member its
1491
latest annual financial statements, which may be consolidated or
1492
combined statements of the corporation and one or more of its
1493
subsidiaries or affiliates, as appropriate, and which include a
1494
balance sheet as of the end of the fiscal year and a statement of
1495
operations for that year. If financial statements are prepared
1496
for the corporation on the basis of generally accepted accounting
1497
principles, the annual financial statements must also be prepared
1498
on such basis. Within 60 days following the end of the fiscal or
1499
calendar year or annually on such date as is otherwise provided
1500
in the bylaws of the corporation, the board of directors of the
1501
corporation shall mail or furnish by personal delivery to each
1502
member a complete financial report of actual receipts and
1503
expenditures for the previous 12 months. The report shall show
1504
the amounts of receipts by accounts and receipt classifications
1505
and shall show the amounts of expenses by accounts and expense
1506
classifications.
1507
Section 43. Section 617.1703, Florida Statutes, is created
1508
to read:
1509
617.1703 Application of chapter.--In the event of any
1510
conflict between the provisions of this chapter and chapter 718
1511
regarding condominiums, chapter 719 regarding cooperatives,
1512
chapter 720 regarding homeowners' associations, chapter 721
1513
regarding timeshares, or chapter 723 regarding mobile home
1514
owners' associations, the provisions of such other chapters shall
1515
apply. The provisions of ss. 617.0605-617.0608 do not apply to
1516
corporations regulated by any of the foregoing chapters or to any
1517
other corporation where membership in the corporation is required
1518
pursuant to a document recorded in the county property records.
1519
Section 44. Subsection (8) is added to section 617.1803,
1520
Florida Statutes, to read:
1521
617.1803 Domestication of foreign not-for-profit
1522
corporations.--
1523
(8) When a domestication becomes effective:
1524
(a) The title to all real and personal property, both
1525
tangible and intangible, of the foreign corporation remains in
1526
the domesticated corporation without reversion or impairment;
1527
(b) The liabilities of the foreign corporation remain the
1528
liabilities of the domesticated corporation;
1529
(c) An action or proceeding against the foreign corporation
1530
continues against the domesticated corporation as if the
1531
domestication had not occurred;
1532
(d) The articles of incorporation attached to the
1533
certificate of domestication constitute the articles of
1534
incorporation of the domesticated corporation; and
1535
(e) Membership interests in the foreign corporation remain
1536
identical in the domesticated corporation.
1537
Section 45. Section 617.1806, Florida Statutes, is amended
1538
to read:
1539
617.1806 Conversion to corporation not for profit; petition
1540
and contents.--A petition for conversion to a corporation not for
1541
profit pursuant to s. 617.1805 shall be accompanied by the
1542
written consent of all the shareholders authorizing the change in
1543
the corporate nature and directing an authorized officer to file
1544
such petition before the court, together with a statement
1545
agreeing to accept all the property of the petitioning
1546
corporation and agreeing to assume and pay all its indebtedness
1547
and liabilities, and the proposed articles of incorporation
1548
signed by the president and secretary of the petitioning
1549
corporation which shall set forth the provisions required in
1550
original articles of incorporation by s. 617.0202.
1551
Section 46. Section 617.1907, Florida Statutes, is amended
1552
to read:
1553
617.1907 Effect of repeal or amendment of prior acts.--
1554
(1) Except as provided in subsection (2), the repeal or
1555
amendment of a statute by this act does not affect:
1556
(a) The operation of the statute or any action taken under
1557
it before its repeal or amendment;
1558
(b) Any ratification, right, remedy, privilege, obligation,
1559
or liability acquired, accrued, or incurred under the statute
1560
before its repeal or amendment;
1561
(c) Any violation of the statute, or any penalty,
1562
forfeiture, or punishment incurred because of the violation,
1563
before its repeal or amendment; or
1564
(d) Any proceeding, reorganization, or dissolution
1565
commenced under the statute before its repeal or amendment, and
1566
the proceeding, reorganization, or dissolution may be completed
1567
in accordance with the statute as if it had not been repealed or
1568
amended.
1569
(2) If a penalty or punishment imposed for violation of a
1570
statute repealed or amended by this act is reduced by this act,
1571
the penalty or punishment if not already imposed shall be imposed
1572
in accordance with this act.
1573
Section 47. Section 617.2103, Florida Statutes, is
1574
repealed.
1575
Section 48. This act shall take effect October 1, 2008.
CODING: Words stricken are deletions; words underlined are additions.