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S1354.......................................by COMMERCE AND HUMAN RESOURCES
LIMITED LIABILITY COMPANIES - Amends, adds to and repeals existing law
relating to limited liability companies to provide for administrative
dissolution of a limited liability company by the Secretary of State, to
provide the procedure for and effect of administrative dissolution, to
provide for reinstatement following administrative dissolution, to provide
for administrative cancellation of registration of a foreign limited
liability company authorized to transact business in this state, to provide
for the procedure for and effect of administrative cancellation and to
provide for appeal from administrative cancellation.
01/28 Senate intro - 1st rdg - to printing
01/29 Rpt prt - to Com/HuRes
02/06 Rpt out - rec d/p - to 2nd rdg
02/09 2nd rdg - to 3rd rdg
02/12 3rd rdg - PASSED - 35-0-0
AYES--Andreason, Boatright, Branch, Bunderson, Burtenshaw, Cameron,
Crow, Danielson, Darrington, Deide, Dunklin, Frasure, Geddes, Hansen,
Hawkins, Ingram, Ipsen, Keough, King, Lee, McLaughlin, Noh, Parry,
Richardson, Riggs, Risch, Sandy, Schroeder, Sorensen, Stennett,
Sweeney, Thorne, Twiggs, Wheeler, Whitworth
NAYS--None
Absent and excused--None
Floor Sponsor - Andreason
Title apvd - to House
02/13 House intro - 1st rdg - to Bus
03/16 Rpt out - rec d/p - to 2nd rdg
03/17 2nd rdg - to 3rd rdg
03/18 3rd rdg - PASSED - 66-0-4
AYES -- Alltus, Barraclough, Barrett, Bell, Bieter, Bivens,
Black(15), Black(23), Boe, Bruneel, Callister, Campbell, Chase,
Clark, Crow, Cuddy, Deal, Denney, Ellsworth, Field(13), Field(20),
Gagner, Geddes, Gould, Hadley, Henbest, Hornbeck, Jaquet, Jones(9),
Jones(22), Jones(20), Judd, Kellogg, Kempton, Kendell, Kjellander,
Kunz, Lake, Linford, Loertscher, Mader, Marley, McKague, Meyer,
Mortensen, Newcomb, Pomeroy, Reynolds, Richman, Ridinger, Robison,
Sali, Schaefer, Stevenson, Stoicheff, Stone, Stubbs, Taylor, Tilman,
Tippets, Trail, Watson, Wheeler, Wood, Zimmermann, Mr Speaker
NAYS -- None
Absent and excused -- Crane, Hansen, Miller, Pischner
Floor Sponsor - Black(15)
Title apvd - to Senate
03/19 To enrol
03/20 Rpt enrol - Pres signed
03/23 Sp signed - to Governor
03/24 Governor signed
Session Law Chapter 268
Effective: 07/01/98
S1354|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fourth Legislature Second Regular Session - 1998IN THE SENATE SENATE BILL NO. 1354 BY COMMERCE AND HUMAN RESOURCES COMMITTEE 1 AN ACT 2 RELATING TO THE IDAHO LIMITED LIABILITY COMPANY ACT; AMENDING SECTION 53-604, 3 IDAHO CODE, TO PROVIDE THAT THE BUSINESS OFFICE OF THE REGISTERED AGENT 4 SHALL BE IDENTICAL WITH THE REGISTERED OFFICE, TO PROVIDE THE PROCEDURE 5 FOR A NEW REGISTERED AGENT'S CONSENT TO APPOINTMENT, TO PROVIDE WHEN A 6 CHANGE OF REGISTERED OFFICE OR REGISTERED AGENT IS EFFECTIVE, TO DELETE 7 CERTAIN REQUIREMENTS TO PROVIDE A REGISTERED AGENT'S ADDRESS AND TO DELETE 8 OBSOLETE LANGUAGE; AMENDING SECTION 53-605, IDAHO CODE, TO PROVIDE A COR- 9 RECT CODE REFERENCE; AMENDING SECTION 53-608, IDAHO CODE, TO DELETE THE 10 REQUIREMENT FOR A SEPARATE LISTING OF A REGISTERED AGENT'S ADDRESS; AMEND- 11 ING SECTION 53-613, IDAHO CODE, TO PROVIDE THE PERSON AUTHORIZED TO EXE- 12 CUTE THE ANNUAL REPORT, TO DELETE OBSOLETE LANGUAGE AND TO PROVIDE THE 13 DATE FOR FILING OF THE REPORT IF THE FILING DATE FALLS ON A WEEKEND; 14 REPEALING SECTION 53-614, IDAHO CODE; AMENDING SECTION 53-641, IDAHO CODE, 15 TO PROVIDE A CORRECT CODE REFERENCE; AMENDING SECTION 53-642, IDAHO CODE, 16 TO INCLUDE ADMINISTRATIVE DISSOLUTION BY THE SECRETARY OF STATE WITHIN THE 17 CATEGORIES OF DISSOLUTION; AMENDING SECTION 53-643, IDAHO CODE, TO PROVIDE 18 THAT THE COURT SHALL DIRECT THE WINDING UP AND LIQUIDATION OF THE 19 COMPANY'S AFFAIRS AND THE NOTIFICATION OF CLAIMANTS AFTER ENTERING A 20 DECREE OF DISSOLUTION AND TO PROVIDE FOR DELIVERY TO THE SECRETARY OF 21 STATE AND FILING OF A CERTIFIED COPY OF THE DECREE; AMENDING CHAPTER 6, 22 TITLE 53, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 53-643A, IDAHO 23 CODE, TO PROVIDE GROUNDS FOR ADMINISTRATIVE DISSOLUTION OF A LIMITED LIA- 24 BILITY COMPANY BY THE SECRETARY OF STATE; AMENDING CHAPTER 6, TITLE 53, 25 IDAHO CODE, BY THE ADDITION OF A NEW SECTION 53-643B, IDAHO CODE, TO PRO- 26 VIDE THE PROCEDURE FOR AND EFFECT OF ADMINISTRATIVE DISSOLUTION; AMENDING 27 CHAPTER 6, TITLE 53, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 28 53-643C, IDAHO CODE, TO PROVIDE FOR REINSTATEMENT FOLLOWING ADMINISTRATIVE 29 DISSOLUTION; AMENDING SECTION 53-647, IDAHO CODE, TO PROVIDE FOR APPLICA- 30 TION OF THE SECTION; AMENDING SECTION 53-655, IDAHO CODE, TO PROVIDE THE 31 PROCEDURE FOR VOLUNTARY CANCELLATION OF REGISTRATION BY A FOREIGN LIMITED 32 LIABILITY COMPANY AUTHORIZED TO TRANSACT BUSINESS IN THIS STATE; AMENDING 33 CHAPTER 6, TITLE 53, IDAHO CODE, BY THE ADDITION OF A NEW SECTION 53-655A, 34 IDAHO CODE, TO PROVIDE FOR ADMINISTRATIVE CANCELLATION OF REGISTRATION OF 35 A FOREIGN LIMITED LIABILITY COMPANY AUTHORIZED TO TRANSACT BUSINESS IN 36 THIS STATE; AMENDING CHAPTER 6, TITLE 53, IDAHO CODE, BY THE ADDITION OF A 37 NEW SECTION 53-655B, IDAHO CODE, TO PROVIDE THE PROCEDURE FOR AND EFFECT 38 OF ADMINISTRATIVE CANCELLATION; AMENDING CHAPTER 6, TITLE 53, IDAHO CODE, 39 BY THE ADDITION OF A NEW SECTION 53-655C, IDAHO CODE, TO PROVIDE FOR 40 APPEAL FROM ADMINISTRATIVE CANCELLATION; AND AMENDING SECTION 53-665, 41 IDAHO CODE, TO PROVIDE THE FEE FOR FILING AN APPLICATION FOR REINSTATEMENT 42 FOLLOWING ADMINISTRATIVE DISSOLUTION, TO PROVIDE FOR FILING A CERTIFIED 43 COPY OF A DECREE OF JUDICIAL DISSOLUTION AT NO FEE AND TO PROVIDE THE FEE 44 FOR FILING AN APPLICATION FOR VOLUNTARY CANCELLATION OF REGISTRATION OF A 45 FOREIGN LIMITED LIABILITY COMPANY. 2 1 Be It Enacted by the Legislature of the State of Idaho: 2 SECTION 1. That Section 53-604, Idaho Code, be, and the same is hereby 3 amended to read as follows: 4 53-604. REGISTERED OFFICE AND REGISTERED AGENT. (1) A limited liability 5 company shall continuously maintain in this state: 6 (a) A registered office that may, but need not, be the same as its place 7 of business; and 8 (b) A registered agent for service of process on the limited liability 9 company that is an individual resident of this state, a limited liability 10 company, a foreign limited liability company authorized to transact busi- 11 ness in this state or a corporation formed under the laws of or authorized 12 to transact business in this state. The business office of the reg- 13 istered agent shall be identical with the registered office. 14 (2)Unless the registered agent signed the document making the15appointment, the appointment of a registered agent or a successor registered16agent on whom process may be served is not effective until the agent delivers17a statement in writing to the secretary of state accepting the appointment18If at any time after filing the articles of organization the lim- 19 ited liability company appoints a new registered agent, the new registered 20 agent shall consent to the appointment either: 21 (a) By signing the annual report or the statement of change of registered 22 office or registered agent by which the change is made; or 23 (b) In a writing which shall be kept available for inspection at the reg- 24 istered office . 25 (3) A limited liability company may change its registered office or reg- 26 istered agent, or both, by indicating the change on the annual report pre- 27 scribed in section 53-613, Idaho Code, or by delivering to the secretary of 28 state a statement setting forth: 29 (a) The name of the limited liability company; 30 (b) The address of its current registered office; 31 (c) If the address of its registered office is to be changed, the address 32 to which the registered office is to be changed; 33 (d) The nameand addressof its current registered agent; 34 (e) If its registered agentor the registered agent's address35is to be changed, the nameand addressof its succes- 36 sor registered agent .or the registered agent's new37address.38 (4) The change ofaddress of theregistered office or regis- 39 tered agent is effective on delivery of the annual report or 40 statement to the secretary of state.The appointment of a new registered41agent is effective on delivery of the statement to the secretary of state and42on receipt by the secretary of state of evidence that the new registered agent43has accepted appointment pursuant to subsection (2) of this section.44 (5) A registered agent of a limited liability company may resign as reg- 45 istered agent by delivering a written notice of resignation, executed in 46 duplicate, to the secretary of state. The secretary of state shall mail a 47 copy of the notice to the limited liability company at its registered office. 48 The appointment of the registered agent terminates thirty (30) days after 49 receipt of the notice by the secretary of state or on the appointment of a 50 successor registered agent, whichever occurs first.If a limited liabil-51ity company has not appointed a new registered agent by the thirtieth day52after receipt of the notice by the secretary of state, it may not thereafter53maintain any action, suit or proceeding in any court of this state until it3 1has appointed a registered agent as provided in this section.2 (6) If a registered agent changes its address to another place in this 3 state, it may change the address by delivering a statement to the secretary 4 of state as required in subsection (3) of this section, except that the state- 5 ment need be signed only by the registered agent. The statement shall recite 6 that a copy of it has been mailed to the limited liability company. 7 SECTION 2. That Section 53-605, Idaho Code, be, and the same is hereby 8 amended to read as follows: 9 53-605. NATURE OF BUSINESS. (1) A limited liability company may be orga- 10 nized under this chapter for any lawful purpose. If the purpose for which a 11 limited liability company is organized or its activities make it subject to a 12 special provision of law, the limited liability company shall also comply with 13 that provision. 14 (2) Except as limited in the articles of organization or operating agree- 15 ment, the limited liability company shall have and exercise all powers neces- 16 sary or convenient to effect its purposes including the power to render pro- 17 fessional services, if each member of a limited liability company who renders 18 professional services in Idaho is licensed or registered to render those pro- 19 fessional services pursuant to applicable Idaho law and section 53-614205 , Idaho Code. 21 SECTION 3. That Section 53-608, Idaho Code, be, and the same is hereby 22 amended to read as follows: 23 53-608. ARTICLES OF ORGANIZATION. The articles of organization shall be 24 set forth in a form prescribed by the secretary of state: 25 (1) A name for the limited liability company that satisfies the require- 26 ments of section 53-602, Idaho Code; 27 (2) The address of the registered office and the nameand business,28residence, or mailing addressof the registered agent at that 29 address, as required to be maintained by the provisions of section 30 53-604, Idaho Code; 31 (3) If management of the limited liability company is vested in a manager 32 or managers, a statement to that effect; 33 (4) If the management of the limited liability company is vested in its 34 members, the name and address of one (1) or more of the initial members of 35 the limited liability company; 36 (5) If the management of the limited liability company is vested in a 37 manager or managers, the name and address of one (1) or more of the initial 38 managers of the limited liability company; 39 (6) If the limited liability company is a professional service limited 40 liability company, the principal profession for which members are duly 41 licensed or otherwise legally authorized to render professional services. 42 SECTION 4. That Section 53-613, Idaho Code, be, and the same is hereby 43 amended to read as follows: 44 53-613. ANNUAL REPORT OF DOMESTIC AND FOREIGN LIMITED LIABILITY COMPA- 45 NIES. (1) Each domestic limited liability company, and each foreign limited 46 liability company authorized to do business in this state, shall file an 47 annual report setting forth: 48 (a) The name of the limited liability company and the state or country 49 under the laws of which it is organized; 4 1 (b) The address of the registered office of the limited liability company 2 in this state, and the name of its registered agent in this state at such 3 address, and the address of its principal office; 4 (c) If the management of the limited liability company is vested in its 5 members, the name and address of one (1) or more of the current members of 6 the limited liability company; 7 (d) If the management of the limited liability company is vested in a 8 manager or managers, the name and address of one (1) or more of the cur- 9 rent managers of the limited liability company. 10 (2) Such annual report shall be madeonin a 11 formsprescribedand furnishedby the secretary of 12 state, and the information therein contained shall be given as of the date of 13 the execution of the report. It shall be executedbyfor 14 the limited liability company by a person authorized by the 15 member s if management is vested in the members, or by a 16 person authorized by the manager s if management is 17 vested in the managers. Execution by such a person constitutes a repre- 18 sentation that the authority was granted. If the limited liability com- 19 pany is in the hands of a receiver or trustee, it shall be executed on behalf 20 of the limited liability company by such receiver or trustee.If the21annual report indicates a change of registered agent or the appointment of a22new registered agent, it must be accompanied by the statement described in23section 53-604(2), Idaho Code.24 (3) Such annual report of a domestic or foreign limited liability company 25 shall be delivered to the secretary of state between the 1st day of July and 26 the 30th day of November of each year, except that the first annual report of 27 a domestic or foreign limited liability company shall be filed between the 1st 28 day of July and the 30th day of November of the state fiscal year (July 29 1--June 30) next succeeding the state fiscal year in which its articles of 30 organization were filed with the secretary of state, or when the certificate 31 of registration was issued by the secretary of state, as the case may be. The 32 report must be received in the office of the secretary of state not later than 33 the close of business on the 30th day of November, or if that date falls on a 34 weekend, on thelastnext business day . 35prior thereto.If the secretary of state finds that such report 36 conforms to the requirements of this chapter, he shall file the same. If he 37 finds that it does not so conform, he shall promptly return the same to the 38 limited liability company for any necessary corrections. 39 SECTION 5. That Section 53-614, Idaho Code, be, and the same is hereby 40 repealed. 41 SECTION 6. That Section 53-641, Idaho Code, be, and the same is hereby 42 amended to read as follows: 43 53-641. EVENTS OF DISSOCIATION. (1) A person ceases to be a member of a 44 limited liability company upon the occurrence of one (1) or more of the fol- 45 lowing events: 46 (a) The member withdraws by voluntary act from the limited liability com- 47 pany as provided in subsection (3) of this section; 48 (b) This member ceases to be a member of the limited liability company as 49 provided in section 53-638, Idaho Code; 50 (c) The member is removed as a member: 51 (i) In accordance with an operating agreement; or 52 (ii) Unless otherwise provided in writing in an operating agreement, 5 1 when the member assigns all of his interest in the limited liability 2 company, by an affirmative vote of a majority of the members who have 3 not assigned their interests; 4 (d) Unless otherwise provided in writing in an operating agreement or by 5 the written consent of all members at the time, the member (i) makes an 6 assignment for the benefit of creditors; (ii) files a voluntary petition 7 in bankruptcy; (iii) is adjudicated a bankrupt or insolvent; (iv) files a 8 petition or answer seeking for the member any reorganization, arrangement, 9 composition, readjustment, liquidation, dissolution, or similar relief 10 under any statute, law or regulation; (v) files an answer or other plead- 11 ing admitting or failing to contest the material allegations of a petition 12 filed against the member in any proceeding of this nature; or (vi) seeks, 13 consents to, or acquiesces to the appointment of a trustee, receiver or 14 liquidator of the member or of all or any substantial part of the member's 15 properties; 16 (e) Unless otherwise provided in writing in an operating agreement or by 17 the written consent of all members at the time, if within one hundred 18 twenty (120) days after the commencement of any proceeding against the 19 member seeking reorganization, arrangement, composition, readjustment, 20 liquidation, dissolution or similar relief under any statute, law or regu- 21 lation, the proceeding has not been dismissed, or if within one hundred 22 twenty (120) days after the appointment without his consent or acquies- 23 cence of a trustee, receiver or liquidator of the member or of all or any 24 substantial part of his properties, the appointment is not vacated or 25 stayed or if within one hundred twenty (120) days after the expiration of 26 any stay, the appointment is not vacated; 27 (f) Unless otherwise provided in writing in an operating agreement or by 28 the written consent of all members at the time, in the case of a member 29 who is an individual; 30 (i) The member's death; or 31 (ii) The entry of an order by a court of competent jurisdiction 32 adjudicating the member incompetent to manage his person or estate; 33 (g) Unless otherwise provided in writing in an operating agreement or by 34 the written consent of all members at the time, in the case of a member 35 who is a trust or is acting as a member by virtue of being a trustee of a 36 trust, the termination of the trust, but not merely the substitution of a 37 new trustee; 38 (h) Unless otherwise provided in writing in an operating agreement or by 39 the written consent of all members at the time, in the case of a member 40 that is a separate limited liability company, the dissolution and com- 41 mencement of winding up of the separate limited liability company; 42 (i) Unless otherwise provided in writing in an operating agreement or by 43 the written consent of all members at the time, in the case of a member 44 that is a corporation, the filing of articles of dissolution or forfeiture 45 of its corporate powers or right to do business; 46 (j) Unless otherwise provided in writing in an operating agreement or by 47 the written consent of all members at the time, in the case of an estate, 48 the distribution by the fiduciary of the estate's entire interest in the 49 limited liability company; or 50 (k) In the case of a professional services limited liability company, 51 restrictions or limitations are placed upon a member's ability to continue 52 to render professional services as described in section 53-614535 (5), Idaho Code. 54 (2) The members may provide in writing in an operating agreement for 55 other events the occurrence of which shall result in a person ceasing to be a 6 1 member of the limited liability company. 2 (3) Unless an operating agreement provides in writing that a member has 3 no power to withdraw by voluntary act from a limited liability company, the 4 member may do so at any time by giving thirty (30) days' written notice to the 5 other members, or such other notice as is provided for in writing in an oper- 6 ating agreement. If the member has the power to withdraw but the withdrawal is 7 a breach of an operating agreement, or the withdrawal occurs as a result of 8 otherwise wrongful conduct of the member, the limited liability company may 9 recover from the withdrawing member damages for breach of the operating agree- 10 ment or as a result of the wrongful conduct, including the reasonable costs of 11 obtaining replacement of the services the withdrawn member was obligated to 12 perform and may offset the damages against the amount otherwise distributable 13 to him, in addition to pursuing any remedies provided for in an operating 14 agreement or otherwise available under applicable law. Unless otherwise pro- 15 vided in an operating agreement, in the case of a limited liability company 16 for a definite term or particular undertaking, a withdrawal by a member before 17 the expiration of that term is a breach of the operating agreement. 18 SECTION 7. That Section 53-642, Idaho Code, be, and the same is hereby 19 amended to read as follows: 20 53-642. DISSOLUTION. A limited liability company is dissolved and its 21 affairs shall be wound up upon the happening of the first to occur of the fol- 22 lowing: 23 (1) At the time or upon the occurrence of events specified in writing in 24 the articles of organization or an operating agreement; 25 (2) The written consent of all members; 26 (3) An event of dissociation of a member, unless: 27 (a) The business of the limited liability company is continued by the 28 consent of all the remaining members on or before the 90th day following 29 the occurrence of any such event; or 30 (b) Otherwise provided in writing in an operating agreement;or3132 (4) Entry of a decree of judicial dissolution under section 53-643, Idaho 33 Code ; or 34 (5) Administrative dissolution by the secretary of state pursuant to sec- 35 tion 53-643B, Idaho Code . 36 SECTION 8. That Section 53-643, Idaho Code, be, and the same is hereby 37 amended to read as follows: 38 53-643. JUDICIAL DISSOLUTION. (1) On application by or for a 39 member, the district court may decree dissolution of a limited liability com- 40 pany when it is established: 41 (1a ) That the managers or members are dead- 42 locked in the management of the limited liability company's affairs, and 43 that irreparable injury to the limited liability company is being suf- 44 fered or is threatened by reason thereof; or 45 (2b ) That the acts of the managers or members 46 in control of the limited liability company are illegal, oppressive or 47 fraudulent and that irreparable injury to the limited liability company is 48 being suffered or is threatened by reason thereof. 49 (2) After entering the decree of dissolution, the court shall 50 direct the winding up and liquidation of the limited liability company's busi- 51 ness and affairs in accordance with section 53-644, Idaho Code, and the noti- 7 1 fication of claimants in accordance with sections 53-648 and 53-649, Idaho 2 Code. The clerk of the court shall deliver a certified copy of the decree to 3 the secretary of state, who shall file it. 4 SECTION 9. That Chapter 6, Title 53, Idaho Code, be, and the same is 5 hereby amended by the addition thereto of a NEW SECTION , to be 6 known and designated as Section 53-643A, Idaho Code, and to read as follows: 7 53-643A. GROUNDS FOR ADMINISTRATIVE DISSOLUTION. The secretary of state 8 may administratively dissolve a limited liability company under section 9 53-643B, Idaho Code, if: 10 (1) The limited liability company does not deliver its annual report to 11 the secretary of state by the date on which it is due; 12 (2) The limited liability company is without a registered agent or regis- 13 tered office in this state for sixty (60) days or more; or 14 (3) The secretary of state has credible information that the limited lia- 15 bility company has failed to notify the secretary of state within sixty (60) 16 days after the occurrence that its registered agent or registered office has 17 been changed, that its registered agent has resigned, or that its registered 18 office has been discontinued. 19 SECTION 10. That Chapter 6, Title 53, Idaho Code, be, and the same is 20 hereby amended by the addition thereto of a NEW SECTION , to be 21 known and designated as Section 53-643B, Idaho Code, and to read as follows: 22 53-643B. PROCEDURE FOR AND EFFECT OF ADMINISTRATIVE DISSOLUTION. (1) If 23 the secretary of state determines that one (1) or more grounds exist under 24 section 53-643A, Idaho Code, for dissolving a limited liability company, he 25 shall give notice of his determination to the limited liability company by 26 first class mail addressed to its principal office as indicated on its most 27 recent annual report or, if it has not yet filed an annual report, to its reg- 28 istered office. 29 (2) If the limited liability company does not correct each ground for 30 dissolution or demonstrate to the reasonable satisfaction of the secretary of 31 state that each ground determined by the secretary of state does not exist 32 within sixty (60) days after receipt of the notice of determination, the sec- 33 retary of state shall administratively dissolve the limited liability company 34 by noting the fact of dissolution and the effective date thereof in his 35 records. The secretary of state shall give notice of the dissolution to the 36 limited liability company by first class mail addressed to its principal 37 office as indicated on its most recent annual report or, if it has not yet 38 filed an annual report, to its registered office. 39 (3) A limited liability company administratively dissolved continues its 40 existence but may not carry on any business except that necessary to wind up 41 and liquidate its business and affairs under section 53-644, Idaho Code, and 42 notify claimants under sections 53-648 and 53-649, Idaho Code. 43 (4) The administrative dissolution of a limited liability company does 44 not terminate the authority of its registered agent. 45 SECTION 11. That Chapter 6, Title 53, Idaho Code, be, and the same is 46 hereby amended by the addition thereto of a NEW SECTION , to be 47 known and designated as Section 53-643C, Idaho Code, and to read as follows: 48 53-643C. REINSTATEMENT FOLLOWING ADMINISTRATIVE DISSOLUTION. (1) A lim- 49 ited liability company administratively dissolved under section 53-643B, Idaho 8 1 Code, may apply to the secretary of state for reinstatement within ten (10) 2 years after the effective date of dissolution. The application must: 3 (a) Recite the name of the limited liability company and the date of its 4 organization; 5 (b) State that the limited liability company applies for reinstatement; 6 (c) If the limited liability company's name or one deceptively similar 7 thereto has been appropriated by another entity whose organizational docu- 8 ments are filed with the secretary of state, be accompanied either by a 9 consent to the use of a deceptively similar name executed by the other 10 entity or by articles of amendment by which the limited liability company 11 adopts a new name which complies with the requirements of section 53-602, 12 Idaho Code; and 13 (d) Be accompanied by a current annual report or appointment of regis- 14 tered agent, as appropriate to the reason for administrative dissolution. 15 (2) If the secretary of state determines that the application contains 16 the information required by subsection (1) of this section and that the infor- 17 mation is correct, he shall cancel the dissolution and prepare a certificate 18 of reinstatement that recites the fact and effective date of the reinstate- 19 ment, file a copy thereof and return the original to the limited liability 20 company. 21 (3) When the reinstatement is effective, it relates back to and takes 22 effect as of the effective date of the administrative dissolution and the lim- 23 ited liability company resumes carrying on its business as if the administra- 24 tive dissolution had never occurred. 25 SECTION 12. That Section 53-647, Idaho Code, be, and the same is hereby 26 amended to read as follows: 27 53-647. ARTICLES OF DISSOLUTION. After the dissolution of the limited 28 liability company pursuant to subsection (1), (2) or (3) of sec- 29 tion 53-642, Idaho Code, the limited liability company shall file articles of 30 dissolution with the secretary of state which set forth: 31 (1) The name of the limited liability company; 32 (2) The date of filing of its articles of organization; 33 (3) The reason for filing the articles of dissolution; and 34 (4) Any other information the members or managers filing the certificate 35 shall deem proper. 36 SECTION 13. That Section 53-655, Idaho Code, be, and the same is hereby 37 amended to read as follows: 38 53-655. VOLUNTARY CANCELLATION OF REGISTRATION. (1) A for- 39 eign limited liability company authorized to transact business in this state 40 may cancel its registrationupon procuring from the secretary of state a41certificate of cancellation. In order to procure such certificate, the foreign42limited liability company shall deliver toby filing with 43 the secretary of state an application for cancellation, which shall set forth: 44 (a) The name of the foreign limited liability company and the state or 45 other jurisdiction under the laws of which it is formed; 46 (b) That the foreign limited liability company is not transacting busi- 47 ness in this state; 48 (c) That the foreign limited liability company surrenders its registra- 49 tion to transact business in this state; 50 (d) That the foreign limited liability company revokes the authority of 51 its registered agent for service of process in this state and consents 9 1 that service of process in any action, suit or proceeding based upon any 2 cause of action arising in this state during the time the foreign limited 3 liability company was authorized to transact business in this state may 4 thereafter be made on such limited liability by service thereon in the 5 manner provided in section 53-606, Idaho Code; 6 (e) A post-office address to which a copy of any process against the lim- 7 ited liability company may be served on it pursuant to the provisions of 8 section 53-606, Idaho Code. 9 (2) The application for cancellation shall be in the form and manner des- 10 ignated by the secretary of state and shall be executed on behalf of the for- 11 eign limited liability company by a person with authority to do so under the 12 laws of the state or other jurisdiction of its formation, or, if the foreign 13 limited liability company is in the hands of a receiver, trustee or other 14 court-appointed fiduciary, by that fiduciary. 15 SECTION 14. That Chapter 6, Title 53, Idaho Code, be, and the same is 16 hereby amended by the addition thereto of a NEW SECTION , to be 17 known and designated as Section 53-655A, Idaho Code, and to read as follows: 18 53-655A. ADMINISTRATIVE CANCELLATION OF REGISTRATION. The secretary of 19 state may commence a proceeding under section 53-655B, Idaho Code, to adminis- 20 tratively cancel the registration of a foreign limited liability company 21 authorized to transact business in this state if: 22 (1) The foreign limited liability company does not deliver its annual 23 report to the secretary of state by the date on which it is due; 24 (2) The foreign limited liability company is without a registered agent 25 or registered office in this state for sixty (60) days or more; 26 (3) The secretary of state has credible information that the foreign lim- 27 ited liability company has failed to notify the secretary of state within 28 sixty (60) days of the occurrence that its registered agent or registered 29 office has changed, that its registered agent has resigned, or that its regis- 30 tered office has been discontinued; 31 (4) The secretary of state has credible information that a member or man- 32 ager of the foreign limited liability company signed a document he knew was 33 false in any material respect with intent that the document be delivered to 34 the secretary of state for filing; or 35 (5) The secretary of state receives a duly authenticated certificate from 36 the official having custody of the records of limited liability companies in 37 the state or country under whose law the foreign limited liability company is 38 organized, stating that it has been dissolved or has disappeared as a result 39 of a merger. 40 SECTION 15. That Chapter 6, Title 53, Idaho Code, be, and the same is 41 hereby amended by the addition thereto of a NEW SECTION , to be 42 known and designated as Section 53-655B, Idaho Code, and to read as follows: 43 53-655B. PROCEDURE FOR AND EFFECT OF ADMINISTRATIVE CANCELLATION. (1) If 44 the secretary of state determines that one (1) or more grounds exist under 45 section 53-655A, Idaho Code, for administrative cancellation of registration, 46 he shall give notice of his determination to the foreign limited liability 47 company by first class mail addressed to its principal office as indicated on 48 its most recent annual report or, if it has not yet filed an annual report, to 49 its registered office. 50 (2) If the foreign limited liability company does not correct each ground 51 for administrative cancellation or demonstrate to the reasonable satisfaction 10 1 of the secretary of state that each ground determined by the secretary of 2 state does not exist within sixty (60) days after receipt of the notice of 3 determination, the secretary of state may cancel the foreign limited liability 4 company's registration by noting the fact of cancellation and the effective 5 date thereof in his records. The secretary of state shall give notice of the 6 cancellation to the foreign limited liability company by first class mail 7 addressed to its principal office as indicated on its most recent annual 8 report, or if it has not yet filed an annual report, to its registered office. 9 (3) The authority of a foreign limited liability company to transact 10 business in this state ceases on the date shown on the notice of administra- 11 tive cancellation of its registration. 12 (4) Service of process on a foreign limited liability company whose reg- 13 istration has been administratively canceled may be made upon its registered 14 agent, if any, or if there be none, by registered or certified mail, return 15 receipt requested, to a member or manager listed on the most recent annual 16 report, if any, or otherwise to the address of its office in the jurisdiction 17 of its formation as disclosed on its application for registration. 18 (5) Cancellation of a foreign limited liability company's registration 19 does not terminate the authority of its registered agent. 20 SECTION 16. That Chapter 6, Title 53, Idaho Code, be, and the same is 21 hereby amended by the addition thereto of a NEW SECTION , to be 22 known and designated as Section 53-655C, Idaho Code, and to read as follows: 23 53-655C. APPEAL FROM ADMINISTRATIVE CANCELLATION. (1) A foreign limited 24 liability company may appeal the secretary of state's cancellation of its reg- 25 istration to the fourth district court, Ada county, Idaho, within thirty (30) 26 days after receipt of the notice of cancellation. The foreign limited liabil- 27 ity company appeals by petitioning the court to set aside the cancellation and 28 attaching to the petition copies of its application for registration with the 29 secretary of state's filing endorsement stamp and the notice of cancellation 30 from the secretary of state. 31 (2) The court may summarily order the secretary of state to reinstate the 32 registration or may take any other action the court considers appropriate. 33 (3) The court's final decision may be appealed as in other civil proceed- 34 ings. 35 SECTION 17. That Section 53-665, Idaho Code, be, and the same is hereby 36 amended to read as follows: 37 53-665. FILING, SERVICE, AND COPYING FEES. The secretary of state shall 38 charge and collect: 39 (1) For filing the original articles of organization, a fee of one hun- 40 dred dollars ($100) if typed and completely included on the standard form pre- 41 scribed by the secretary of state or one hundred twenty dollars ($120) if not 42 typed or if attachments are included; 43 (2) For filing notice of amendment and issuing a certificate of amend- 44 ment, a fee of thirty dollars ($30.00); 45 (3) For filing articles of merger or consolidation and issuing a certifi- 46 cate of merger or consolidation, a fee of thirty dollars ($30.00); 47 (4) For filing articles of dissolution and issuing a certificate of dis- 48 solution, a fee of thirty dollars ($30.00); 49 (5) For accepting an application for reservation of a name, or for filing 50 a notice of the transfer or cancellation of any name reservation, a fee of 51 twenty dollars ($20.00); 11 1 (6) For issuing a certificate of registration to a foreign limited lia- 2 bility company, a fee of one hundred dollars ($100) if typed and completely 3 included on the standard form prescribed by the secretary of state or one hun- 4 dred twenty dollars ($120) if not typed or if attachments are included;5and6 (7) For filing an application for rR7einstatementfees for involuntary cancellation of a limited lia-8bility company's articles of organization or registration of ten dollars9($10.00) for each year or part of a year of suspension and/or cancellation and10ten dollars ($10.00) for a certificatefollowing administrative 11 dissolution, a fee of thirty dollars ($30.00); 12 (8) For filing a certified copy of a decree of judicial dissolution, no 13 fee; and 14 (9) For filing an application for voluntary cancellation of registration 15 of a foreign limited liability company, twenty dollars ($20.00) .
STATEMENT OF PURPOSE
RS07538
This bill brings the Idaho Limited Liability Company Act into line with the procedures of the
Idaho Business Corporation Act as to: (l) Consequences for failure to file the annual report; and
(2) Authorized signatures on the annual report. The purpose in both cases is to make
requirements consistent and more easily used and understood. The bill also corrects
typographical errors in the existing law.
FISCAL IMPACT
There will be a nominal saving in processing and forms costs for the Secretary of State.
Otherwise, there is no fiscal impact.
CONTACTS
Names and phones:
Ben Ysursa, 332-2813
Bill Farnsworth, 332-2846
Of Office of the Secretary of State
Statement of Purpose/Fiscal Impact
S 1354