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