Florida Senate - 2015                          SENATOR AMENDMENT
       Bill No. CS for CS for CS for SB 554
       
       
       
       
       
       
                                Ì7839041Î783904                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 1/AD/2R         .                                
             04/14/2015 11:41 AM       .                                
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       Senator Simmons moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete lines 145 - 375
    4  and insert:
    5         (2) To the extent that, at law or in equity, a member,
    6  manager, or other person has duties, including fiduciary duties,
    7  to a limited liability company or to another member or manager
    8  or to another person that is a party to or is otherwise bound by
    9  an operating agreement, the duties of the member, manager, or
   10  other person may be restricted, expanded, or eliminated,
   11  including in the determination of applicable duties and
   12  obligations under this chapter, by the operating agreement, to
   13  the extent allowed by s. 605.0105.
   14         (3) Unless displaced by particular provisions of this
   15  chapter, the principles of law and equity, including the common
   16  law principles relating to the fiduciary duties of loyalty and
   17  care, supplement this chapter.
   18         Section 4. Subsection (4) of section 605.04073, Florida
   19  Statutes, is amended to read:
   20         605.04073 Voting rights of members and managers.—
   21         (4) An action requiring the vote or consent of members
   22  under this chapter may be taken without a meeting if the action
   23  is approved in a record by members with at least the minimum
   24  number of votes that would be necessary to authorize or take the
   25  action at a meeting of the members., and A member may appoint a
   26  proxy or other agent to vote or consent for the member by
   27  signing an appointing record, personally or by the member’s
   28  agent. On an action taken by fewer than all of the members
   29  without a meeting, notice of the action must be given to those
   30  members who did not consent in writing to the action or who were
   31  not entitled to vote on the action within 10 days after the
   32  action was taken.
   33         Section 5. Subsections (2) and (3) of section 605.04091,
   34  Florida Statutes, are amended to read:
   35         605.04091 Standards of conduct for members and managers.—
   36         (2) The duty of loyalty includes is limited to:
   37         (a) Accounting to the limited liability company and holding
   38  as trustee for it any property, profit, or benefit derived by
   39  the manager or member, as applicable:
   40         1. In the conduct or winding up of the company’s activities
   41  and affairs;
   42         2. From the use by the member or manager of the company’s
   43  property; or
   44         3. From the appropriation of a company opportunity;
   45         (b) Refraining from dealing with the company in the conduct
   46  or winding up of the company’s activities and affairs as, or on
   47  behalf of, a person having an interest adverse to the company,
   48  except to the extent that a transaction satisfies the
   49  requirements of this section; and
   50         (c) Refraining from competing with the company in the
   51  conduct of the company’s activities and affairs before the
   52  dissolution of the company.
   53         (3) The duty of care in the conduct or winding up of the
   54  company’s activities and affairs is limited to refrain
   55  refraining from engaging in grossly negligent or reckless
   56  conduct, willful or intentional misconduct, or a knowing
   57  violation of law.
   58         Section 6. Subsection (2), paragraph (a) of subsection (3),
   59  and subsection (4) of section 605.0410, Florida Statutes, are
   60  amended to read:
   61         605.0410 Records to be kept; rights of member, manager, and
   62  person dissociated to information.—
   63         (2) In a member-managed limited liability company, the
   64  following rules apply:
   65         (a) Upon reasonable notice, a member may inspect and copy
   66  during regular business hours, at a reasonable location
   67  specified by the company:
   68         1. The records described in subsection (1); and
   69         2. Each other record maintained by the company regarding
   70  the company’s activities, affairs, financial condition, and
   71  other circumstances, to the extent the information is material
   72  to the member’s rights and duties under the operating agreement
   73  or this chapter.
   74         (b) The company shall furnish to each member:
   75         1. Without demand, any information concerning the company’s
   76  activities, affairs, financial condition, and other
   77  circumstances that the company knows and is material to the
   78  proper exercise of the member’s rights and duties under the
   79  operating agreement or this chapter, except to the extent the
   80  company can establish that it reasonably believes the member
   81  already knows the information; and
   82         2. On demand, other information concerning the company’s
   83  activities, affairs, financial condition, and other
   84  circumstances, except to the extent the demand or information
   85  demanded is unreasonable or otherwise improper under the
   86  circumstances.
   87         (c) Within 10 days after receiving a demand pursuant to
   88  subparagraph (b)2., the company shall provide to the member who
   89  made the demand a record of:
   90         1. The information that the company will provide in
   91  response to the demand and when and where the company will
   92  provide such information.
   93         2. For any demanded information that the company is not
   94  providing, the reasons that the company will not provide the
   95  information.
   96         (d)(c) The duty to furnish information under this
   97  subsection also applies to each member to the extent the member
   98  knows any of the information described in this subsection.
   99         (3) In a manager-managed limited liability company, the
  100  following rules apply:
  101         (a) The informational rights stated in subsection (2) and
  102  the duty stated in paragraph (2)(d) (2)(c) apply to the managers
  103  and not to the members.
  104         (4) Subject to subsection (10) (9), on 10 days’ demand made
  105  in a record received by a limited liability company, a person
  106  dissociated as a member may have access to information to which
  107  the person was entitled while a member if:
  108         (a) The information pertains to the period during which the
  109  person was a member;
  110         (b) The person seeks the information in good faith; and
  111         (c) The person satisfies the requirements imposed on a
  112  member by paragraph (3)(b).
  113         Section 7. Subsection (6) of section 605.0602, Florida
  114  Statutes, is amended to read:
  115         605.0602 Events causing dissociation.—A person is
  116  dissociated as a member if any of the following occur:
  117         (6) On application by the company or a member in a direct
  118  action under s. 605.0801, the person is expelled as a member by
  119  judicial order because the person:
  120         (a) Has engaged or is engaging in wrongful conduct that has
  121  affected adversely and materially, or will affect adversely and
  122  materially, the company’s activities and affairs;
  123         (b) Has committed willfully or persistently, or is
  124  committing willfully or and persistently, a material breach of
  125  the operating agreement or a duty or obligation under s.
  126  605.04091; or
  127         (c) Has engaged or is engaging in conduct relating to the
  128  company’s activities and affairs which makes it not reasonably
  129  practicable to carry on the activities and affairs with the
  130  person as a member.
  131         Section 8. Section 605.0715, Florida Statutes, is amended
  132  to read:
  133         605.0715 Reinstatement.—
  134         (1) A limited liability company that is administratively
  135  dissolved under s. 605.0714 or former s. 608.4481 may apply to
  136  the department for reinstatement at any time after the effective
  137  date of dissolution. The company must submit a form of
  138  application for reinstatement prescribed and furnished by the
  139  department and provide all of the information required by the
  140  department, together with all fees and penalties then owed by
  141  the company at the rates provided by law at the time the company
  142  applies for reinstatement together with an application for
  143  reinstatement prescribed and furnished by the department, which
  144  is signed by both the registered agent and an authorized
  145  representative of the company and states:
  146         (a) The name of the limited liability company.
  147         (b) The street address of the company’s principal office
  148  and mailing address.
  149         (c) The date of the company’s organization.
  150         (d) The company’s federal employer identification number
  151  or, if none, whether one has been applied for.
  152         (e) The name, title or capacity, and address of at least
  153  one person who has authority to manage the company.
  154         (f) Additional information that is necessary or appropriate
  155  to enable the department to carry out this chapter.
  156         (2) In lieu of the requirement to file an application for
  157  reinstatement as described in subsection (1), an
  158  administratively dissolved limited liability company may submit
  159  all fees and penalties owed by the company at the rates provided
  160  by law at the time the company applies for reinstatement,
  161  together with a current annual report, signed by both the
  162  registered agent and an authorized representative of the
  163  company, which contains the information described in subsection
  164  (1).
  165         (3)(2) If the department determines that an application for
  166  reinstatement contains the information required under subsection
  167  (1) or subsection (2) and that the information is correct, upon
  168  payment of all required fees and penalties, the department shall
  169  reinstate the limited liability company.
  170         (4)(3) When reinstatement under this section becomes
  171  effective:
  172         (a) The reinstatement relates back to and takes effect as
  173  of the effective date of the administrative dissolution.
  174         (b) The limited liability company may resume its activities
  175  and affairs as if the administrative dissolution had not
  176  occurred.
  177         (c) The rights of a person arising out of an act or
  178  omission in reliance on the dissolution before the person knew
  179  or had notice of the reinstatement are not affected.
  180         (5)(4) The name of the dissolved limited liability company
  181  is not available for assumption or use by another business
  182  entity until 1 year after the effective date of dissolution
  183  unless the dissolved limited liability company provides the
  184  department with a record executed as required pursuant to s.
  185  605.0203 permitting the immediate assumption or use of the name
  186  by another limited liability company.
  187         Section 9. Section 605.0909, Florida Statutes, is amended
  188  to read:
  189         605.0909 Reinstatement following revocation of certificate
  190  of authority.—
  191         (1) A foreign limited liability company whose certificate
  192  of authority has been revoked may apply to the department for
  193  reinstatement at any time after the effective date of the
  194  revocation. The foreign limited liability company applying for
  195  reinstatement must submit provide information in a form
  196  prescribed and furnished by the department and pay all fees and
  197  penalties then owed by the foreign limited liability company at
  198  rates provided by law at the time the foreign limited liability
  199  company applies for reinstatement together with an application
  200  for reinstatement prescribed and furnished by the department,
  201  which is signed by both the registered agent and an authorized
  202  representative of the company and states:
  203         (a) The name under which the foreign limited liability
  204  company is registered to transact business in this state.
  205         (b) The street address of the company’s principal office
  206  and its mailing address.
  207         (c) The jurisdiction of the company’s formation and the
  208  date on which it became qualified to transact business in this
  209  state.
  210         (d) The company’s federal employer identification number
  211  or, if none, whether one has been applied for.
  212         (e) The name, title or capacity, and address of at least
  213  one person who has authority to manage the company.
  214         (f) Additional information that is necessary or appropriate
  215  to enable the department to carry out this chapter.
  216         (2) In lieu of the requirement to file an application for
  217  reinstatement as described in subsection (1), a foreign limited
  218  liability company whose certificate of authority has been
  219  revoked may submit all fees and penalties owed by the company at
  220  the rates provided by law at the time the company applies for
  221  reinstatement, together with a current annual report, signed by
  222  both the registered agent and an authorized representative of
  223  the company, which contains the information described in
  224  subsection (1).
  225         (3)(2) If the department determines that an application for
  226  reinstatement contains the information required under subsection
  227  (1) or subsection (2) and that the information is correct, upon
  228  payment of all required fees and penalties, the department shall
  229  reinstate the foreign limited liability company’s certificate of
  230  authority.
  231         (4)(3) When a reinstatement becomes effective, it relates
  232  back to and takes effect as of the effective date of the
  233  revocation of authority and the foreign limited liability
  234  company may resume its activities in this state as if the
  235  revocation of authority had not occurred.
  236         (5)(4) The name of the foreign limited liability company
  237  whose certificate of authority has been revoked is not available
  238  for assumption or use by another business entity until 1 year
  239  after the effective date of revocation of authority unless the
  240  limited liability company provides the department with a record
  241  executed pursuant to s. 605.0203 which authorizes the immediate
  242  assumption or use of its name by another limited liability
  243  company.
  244         (6)(5) If the name of the foreign limited liability company
  245  applying for reinstatement has been lawfully assumed in this
  246  state by another business entity, the department shall require
  247  the foreign limited liability company to comply with s. 605.0906
  248  before accepting its application for reinstatement.
  249         Section 10. Subsection (2) of section 605.1072, Florida
  250  Statutes, is amended to read:
  251         605.1072 Other remedies limited.—
  252         (2) Subsection (1) does not apply to an appraisal event
  253  that:
  254         (a) Was not authorized and approved in accordance with the
  255  applicable provisions of this chapter, the organic rules of the
  256  limited liability company, or the resolutions of the members
  257  authorizing the appraisal event; or
  258         (b) Was procured as a result of fraud, a material
  259  misrepresentation, or an omission of a material fact that is
  260  necessary to make statements made, in light of the circumstances
  261  in which they were made, not misleading.; or
  262  
  263  ================= T I T L E  A M E N D M E N T ================
  264  And the title is amended as follows:
  265         Delete lines 18 - 31
  266  and insert:
  267         that the duties of the member, manager, or other
  268         person may be restricted, expanded, or eliminated in
  269         certain circumstances; amending s. 605.04073, F.S.;
  270         requiring certain conditions for members of a limited
  271         liability company, without a meeting, to take certain
  272         actions requiring the vote or consent of the members;
  273         amending s. 605.04091, F.S.; providing that the duty
  274         of loyalty includes, but is not limited to, specified
  275         actions; revising the duty of care in the conduct or
  276         winding up of the company’s activities and affairs;
  277         amending s. 605.0410, F.S.; requiring a limited
  278         liability company to provide a record of certain
  279         information within a specified period to a member who
  280         makes a demand; amending s. 605.0602, F.S.; revising
  281         the events that cause a person to be dissociated as a
  282         member; amending s. 605.0715, F.S.; revising