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S1256................................................by JUDICIARY AND RULES
UNIFORM LIMITED PARTNERSHIP ACT - Repeals and adds to existing law to
provide for the Uniform Limited Partnership Act; to define terms; to
provide for knowledge and notice; to set forth powers; to provide governing
law; to provide a rate of interest; to provide for names and reservation of
names; to set forth effect of partnership agreements; to set forth required
information; to provide for business transactions of partners with a
partnership; to provide for dual capacity; to provide for offices and
agents for service of process; to provide for service of process; to
provide for consent and proxies of partners; to provide for the formation
of limited partnerships; to provide for delivery and filing of records by
the Secretary of State; to provide for liability for false information in
filed records; to provide for annual reports; to limit the right or power
to bind limited partnerships; to limit liability; to provide for the right
to information; to set forth provisions applicable to becoming a general
partner; to provide for a general partner agent; to set forth general
standards of conduct; to provide for forms of contribution; to provide for
distributions; to provide for dissociation of persons as limited partners;
to provide for winding up of the partnership; to provide for the
disposition of assets; to set forth governing law for foreign limited
partnerships; to provide for conversions and mergers; to set forth
provisions applicable to the Electronic Signatures in Global and National
Commerce Act; and to provide for application to existing relationships.
01/16 Senate intro - 1st rdg - to printing
01/17 Rpt prt - to Jud
01/26 Rpt out - rec d/p - to 2nd rdg
01/27 2nd rdg - to 3rd rdg
01/31 3rd rdg - PASSED - 35-0-0
AYES -- Andreason, Brandt, Broadsword, Bunderson, Burkett,
Burtenshaw, Cameron, Coiner, Compton, Corder, Darrington, Davis,
Fulcher, Gannon, Geddes, Goedde, Hill, Jorgenson, Kelly, Keough,
Langhorst, Little, Lodge, Malepeai, Marley, McGee, McKenzie, Pearce,
Richardson, Schroeder, Stegner, Stennett, Sweet, Werk, Williams
NAYS -- None
Absent and excused -- None
Floor Sponsor - Davis
Title apvd - to House
01/31 House intro - 1st rdg - to Jud
02/03 Rpt out - Ref'd to Bus
02/28 Rpt out - rec d/p - to 2nd rdg
03/01 2nd rdg - to 3rd rdg
03/13 3rd rdg - PASSED - 65-1-4
AYES -- Anderson, Andrus, Barraclough, Barrett, Bastian, Bayer,
Bedke, Bell, Bilbao, Black, Boe, Bolz, Brackett, Bradford, Cannon,
Chadderdon, Clark, Collins, Deal, Denney, Edmunson, Ellsworth,
Eskridge, Field(18), Field(23), Garrett, Hart, Henbest, Henderson,
Jaquet, Kemp, Lake, LeFavour, Martinez, Mathews, McGeachin, McKague,
Miller, Mitchell, Moyle, Nielsen, Nonini, Pasley-Stuart, Pence,
Raybould, Ring, Ringo, Roberts, Rusche, Rydalch, Sali, Sayler,
Schaefer, Shepherd(2), Shepherd(8), Shirley, Skippen, Smith(30),
Smith(24), Smylie, Snodgrass, Stevenson, Trail, Wills, Wood
NAYS -- Loertscher
Absent and excused -- Block, Crow, Harwood, Mr. Speaker
Floor Sponsor - Deal
Title apvd - to Senate
03/14 To enrol
03/15 Rpt enrol - Pres signed
03/16 Sp signed
03/17 To Governor
03/22 Governor signed
Session Law Chapter 144
Effective: 07/01/06
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature Second Regular Session - 2006
IN THE SENATE
SENATE BILL NO. 1256
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO THE UNIFORM LIMITED PARTNERSHIP ACT; REPEALING CHAPTER 2, TITLE
3 53, IDAHO CODE; AMENDING TITLE 53, IDAHO CODE, BY THE ADDITION OF A NEW
4 CHAPTER 2, TITLE 53, IDAHO CODE, TO PROVIDE FOR THE UNIFORM LIMITED PART-
5 NERSHIP ACT, TO PROVIDE A SHORT TITLE, TO DEFINE TERMS, TO PROVIDE FOR
6 KNOWLEDGE AND NOTICE, TO PROVIDE FOR NATURE, PURPOSE AND DURATION OF ENTI-
7 TIES, TO SET FORTH POWERS, TO PROVIDE GOVERNING LAW, TO PROVIDE SUPPLEMEN-
8 TAL PRINCIPLES OF LAW, TO PROVIDE A RATE OF INTEREST, TO PROVIDE FOR NAMES
9 AND RESERVATION OF NAMES, TO SET FORTH EFFECT OF PARTNERSHIP AGREEMENTS,
10 TO PROVIDE NONWAIVABLE PROVISIONS, TO SET FORTH REQUIRED INFORMATION, TO
11 PROVIDE FOR BUSINESS TRANSACTIONS OF PARTNERS WITH A PARTNERSHIP, TO PRO-
12 VIDE FOR DUAL CAPACITY, TO PROVIDE FOR REGISTERED OFFICES AND AGENTS, TO
13 PROVIDE FOR CHANGES OF REGISTERED OFFICES OR AGENTS, TO PROVIDE FOR THE
14 RESIGNATION OF REGISTERED AGENTS, TO PROVIDE FOR SERVICE OF PROCESS, TO
15 PROVIDE FOR CONSENT AND PROXIES OF PARTNERS, TO PROVIDE FOR THE FORMATION
16 OF LIMITED PARTNERSHIPS AND CERTIFICATES OF LIMITED PARTNERSHIPS, TO PRO-
17 VIDE FOR AMENDMENT OR RESTATEMENT OF CERTIFICATES, TO PROVIDE FOR STATE-
18 MENTS OF TERMINATION, TO PROVIDE FOR THE SIGNING OF RECORDS, TO PROVIDE
19 FOR SIGNING AND FILING PURSUANT TO A JUDICIAL ORDER, TO PROVIDE FOR DELIV-
20 ERY TO AND FILING OF RECORDS BY THE SECRETARY OF STATE, TO SET FORTH
21 EFFECTIVE TIMES AND DATES, TO PROVIDE FOR CORRECTING FILED RECORDS, TO
22 PROVIDE FOR LIABILITY FOR FALSE INFORMATION IN FILED RECORDS, TO PROVIDE
23 FOR CERTIFICATES OF EXISTENCE OR AUTHORIZATION, TO PROVIDE FOR ANNUAL
24 REPORTS FOR THE SECRETARY OF STATE, TO SET FORTH PROVISIONS APPLICABLE TO
25 BECOMING A LIMITED PARTNER, TO LIMIT THE RIGHT OR POWER TO BIND LIMITED
26 PARTNERSHIP, TO LIMIT LIABILITY, TO PROVIDE FOR THE RIGHT TO INFORMATION,
27 TO SET FORTH LIMITED DUTIES OF LIMITED PARTNERS, TO SET FORTH PROVISIONS
28 APPLICABLE TO PERSONS WHO ERRONEOUSLY BELIEVE THEMSELVES TO BE A LIMITED
29 PARTNER, TO SET FORTH PROVISIONS APPLICABLE TO BECOMING A GENERAL PARTNER,
30 TO PROVIDE FOR A GENERAL PARTNER AGENT, TO PROVIDE FOR LIABILITY, TO PRO-
31 VIDE FOR ACTIONS BY AND AGAINST PARTNERSHIPS AND PARTNERS, TO PROVIDE FOR
32 MANAGEMENT RIGHTS, TO PROVIDE FOR THE RIGHT TO INFORMATION, TO SET FORTH
33 GENERAL STANDARDS OF CONDUCT, TO PROVIDE FOR FORMS OF CONTRIBUTION, TO
34 PROVIDE FOR LIABILITY FOR CONTRIBUTION, TO PROVIDE FOR THE SHARING OF DIS-
35 TRIBUTIONS, TO PROVIDE FOR INTERIM DISTRIBUTIONS, TO LIMIT THE RIGHT TO
36 RECEIVE DISTRIBUTIONS, TO PROVIDE FOR DISTRIBUTIONS IN KIND, TO PROVIDE
37 FOR THE RIGHT TO DISTRIBUTION, TO SET FORTH LIMITATIONS ON DISTRIBUTIONS,
38 TO PROVIDE FOR LIABILITY FOR IMPROPER DISTRIBUTIONS, TO PROVIDE FOR DISSO-
39 CIATION OF PERSONS AS LIMITED PARTNERS, TO SET FORTH THE EFFECT OF DISSO-
40 CIATION, TO PROVIDE FOR DISSOCIATION OF PERSONS AS GENERAL PARTNERS, TO
41 PROVIDE FOR A PERSON'S POWER TO DISSOCIATE AS GENERAL PARTNER, TO PROVIDE
42 FOR WRONGFUL DISSOCIATION, TO SET FORTH THE EFFECT OF DISSOCIATION, TO
43 PROVIDE FOR THE POWER TO BIND AND LIABILITY TO LIMITED PARTNERSHIPS BEFORE
44 DISSOLUTION OR DISSOCIATION, TO PROVIDE FOR LIABILITY TO OTHER PERSONS
45 DISSOCIATED AS GENERAL PARTNERS, TO PROVIDE FOR A PARTNER'S TRANSFERABLE
46 INTEREST, TO PROVIDE FOR TRANSFER OF A PARTNER'S TRANSFERABLE INTEREST, TO
2
1 PROVIDE RIGHTS OF CREDITORS, TO PROVIDE POWER OF ESTATE OF DECEASED PART-
2 NER, TO PROVIDE FOR NONJUDICIAL DISSOLUTION, TO PROVIDE FOR JUDICIAL DIS-
3 SOLUTION, TO PROVIDE FOR WINDING UP OF THE PARTNERSHIP, TO PROVIDE FOR THE
4 POWER OF CERTAIN PERSONS TO BIND PARTNERSHIP AFTER DISSOLUTION, TO PROVIDE
5 FOR LIABILITY, TO PROVIDE FOR KNOWN AND OTHER CLAIMS AGAINST A DISSOLVED
6 LIMITED PARTNERSHIP, TO PROVIDE FOR LIABILITY OF CERTAIN PERSONS WHEN
7 CLAIMS AGAINST A LIMITED PARTNERSHIP ARE BARRED, TO PROVIDE FOR ADMINIS-
8 TRATIVE DISSOLUTION, TO PROVIDE FOR REINSTATEMENT, TO PROVIDE FOR APPEALS
9 FROM A DENIAL OF REINSTATEMENT, TO PROVIDE FOR THE DISPOSITION OF ASSETS,
10 TO SET FORTH WHEN CONTRIBUTIONS ARE REQUIRED, TO SET FORTH GOVERNING LAW
11 FOR FOREIGN LIMITED PARTNERSHIPS, TO PROVIDE FOR APPLICATION FOR CERTIFI-
12 CATES OF AUTHORITY, TO SET FORTH ACTIVITIES NOT CONSTITUTING TRANSACTING
13 BUSINESS, TO PROVIDE FOR THE FILING OF CERTIFICATES OF AUTHORITY, TO PRO-
14 VIDE FOR NONCOMPLYING NAMES OF FOREIGN LIMITED PARTNERSHIPS, TO PROVIDE
15 FOR REVOCATION OF CERTIFICATES OF AUTHORITY, TO PROVIDE FOR CANCELLATION
16 OF CERTIFICATES OF AUTHORITY, TO SET FORTH THE EFFECT OF A FAILURE TO HAVE
17 A CERTIFICATE, TO PROVIDE FOR ACTION BY THE ATTORNEY GENERAL, TO PROVIDE
18 FOR DIRECT ACTION BY A PARTNER, TO PROVIDE FOR DERIVATIVE ACTIONS, TO
19 IDENTIFY PROPER PLAINTIFFS, TO PROVIDE FOR PLEADINGS, TO PROVIDE FOR PRO-
20 CEEDS AND EXPENSES, TO DEFINE TERMS RELATING TO CONVERSIONS AND MERGERS,
21 TO PROVIDE FOR CONVERSION, TO PROVIDE FOR ACTION ON PLANS OF CONVERSION,
22 TO SET FORTH FILINGS REQUIRED FOR CONVERSION, TO PROVIDE EFFECTIVE DATE OF
23 PLANS, TO SET FORTH THE EFFECT OF CONVERSION, TO PROVIDE FOR MERGERS, TO
24 PROVIDE FOR ACTION ON PLANS OF MERGER, TO SET FORTH FILINGS REQUIRED FOR
25 MERGERS, TO PROVIDE EFFECTIVE DATE OF PLANS, TO SET FORTH THE EFFECT OF
26 MERGER, TO SET FORTH RESTRICTIONS ON APPROVAL OF CONVERSIONS, MERGERS AND
27 ON RELINQUISHING CERTAIN STATUS, TO PROVIDE FOR LIABILITY AFTER CONVERSION
28 OR MERGER, TO PROVIDE FOR THE POWER OF CERTAIN PERSONS TO BIND AN ORGANI-
29 ZATION AFTER CONVERSION OR MERGER, TO PROVIDE FOR NONEXCLUSIVITY, TO PRO-
30 VIDE FOR UNIFORMITY OF APPLICATION AND CONSTRUCTION, TO PROVIDE FOR SEVER-
31 ABILITY, TO SET FORTH PROVISIONS APPLICABLE TO RELATION TO THE ELECTRONIC
32 SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT, TO PROVIDE FOR APPLICATION
33 TO EXISTING RELATIONSHIPS AND TO PROVIDE A SAVINGS CLAUSE; AMENDING SEC-
34 TION 30-1-401, IDAHO CODE, TO PROVIDE A CORRECT CODE REFERENCE; AND PRO-
35 VIDING AN EFFECTIVE DATE.
36 Be It Enacted by the Legislature of the State of Idaho:
37 SECTION 1. That Chapter 2, Title 53, Idaho Code, be, and the same is
38 hereby repealed.
39 SECTION 2. That Title 53, Idaho Code, be, and the same is hereby amended
40 by the addition thereto of a NEW CHAPTER, to be known and designated as Chap-
41 ter 2, Title 53, Idaho Code, and to read as follows:
42 CHAPTER 2
43 UNIFORM LIMITED PARTNERSHIP ACT
44 PART 1
45 GENERAL PROVISIONS
46 53-2-101. SHORT TITLE. This chapter may be cited as the "Uniform Limited
47 Partnership Act."
48 53-2-102. DEFINITIONS. In this chapter:
3
1 (1) "Certificate of limited partnership" means the certificate required
2 by section 53-2-201, Idaho Code. The term includes the certificate as amended
3 or restated.
4 (2) "Contribution," except in the phrase "right of contribution," means
5 any benefit provided by a person to a limited partnership in order to become a
6 partner or in the person's capacity as a partner.
7 (3) "Debtor in bankruptcy" means a person that is the subject of:
8 (a) An order for relief under title 11 of the United States Code or a
9 comparable order under a successor statute of general application; or
10 (b) A comparable order under federal, state, or foreign law governing
11 insolvency.
12 (4) "Distribution" means a transfer of money or other property from a
13 limited partnership to a partner in the partner's capacity as a partner or to
14 a transferee on account of a transferable interest owned by the transferee.
15 (5) "Foreign limited liability limited partnership" means a foreign lim-
16 ited partnership whose general partners have limited liability for the obliga-
17 tions of the foreign limited partnership under a provision similar to section
18 53-2-404(3), Idaho Code.
19 (6) "Foreign limited partnership" means a partnership formed under the
20 laws of a jurisdiction other than this state and required by those laws to
21 have one (1) or more general partners and one (1) or more limited partners.
22 The term includes a foreign limited liability limited partnership.
23 (7) "General partner" means:
24 (a) With respect to a limited partnership, a person that:
25 (i) Becomes a general partner under section 53-2-401, Idaho Code;
26 or
27 (ii) Was a general partner in a limited partnership when the limited
28 partnership became subject to this chapter under section 53-2-1204(1)
29 or (2), Idaho Code; and
30 (b) With respect to a foreign limited partnership, a person that has
31 rights, powers, and obligations similar to those of a general partner in a
32 limited partnership.
33 (8) "Limited liability limited partnership," except in the phrase
34 "foreign limited liability limited partnership," means a limited partnership
35 whose certificate of limited partnership states that the limited partnership
36 is a limited liability limited partnership.
37 (9) "Limited partner" means:
38 (a) With respect to a limited partnership, a person that:
39 (i) Becomes a limited partner under section 53-2-301, Idaho Code;
40 or
41 (ii) Was a limited partner in a limited partnership when the limited
42 partnership became subject to this chapter under section 53-2-1204(1)
43 or (2), Idaho Code; and
44 (b) With respect to a foreign limited partnership, a person that has
45 rights, powers, and obligations similar to those of a limited partner in a
46 limited partnership.
47 (10) "Limited partnership," except in the phrases "foreign limited part-
48 nership" and "foreign limited liability limited partnership," means an entity,
49 having one (1) or more general partners and one (1) or more limited partners,
50 which is formed under this chapter by two (2) or more persons or becomes sub-
51 ject to this chapter under part 11 of this chapter or section 53-2-1204(1) or
52 (2), Idaho Code. The term includes a limited liability limited partnership.
53 (11) "Partner" means a limited partner or general partner.
54 (12) "Partnership agreement" means the partners' agreement, whether oral,
55 implied, in a record, or in any combination, concerning the limited partner-
4
1 ship. The term includes the agreement as amended.
2 (13) "Person" means an individual, corporation, business trust, estate,
3 trust, partnership, limited liability company, association, joint venture,
4 government; governmental subdivision, agency, or instrumentality; public cor-
5 poration, or any other legal or commercial entity.
6 (14) "Person dissociated as a general partner" means a person dissociated
7 as a general partner of a limited partnership.
8 (15) "Principal office" means the office where the principal executive
9 office of a limited partnership or foreign limited partnership is located,
10 whether or not the office is located in this state.
11 (16) "Record" means information that is inscribed on a tangible medium or
12 that is stored in an electronic or other medium and is retrievable in
13 perceivable form.
14 (17) "Required information" means the information that a limited partner-
15 ship is required to maintain under section 53-2-111, Idaho Code.
16 (18) "Sign" means:
17 (a) To execute or adopt a tangible symbol with the present intent to
18 authenticate a record; or
19 (b) To attach or logically associate an electronic symbol, sound, or
20 process to or with a record with the present intent to authenticate the
21 record.
22 (19) "State" means a state of the United States, the District of Columbia,
23 Puerto Rico, the United States Virgin Islands, or any territory or insular
24 possession subject to the jurisdiction of the United States.
25 (20) "Transfer" includes an assignment, conveyance, deed, bill of sale,
26 lease, mortgage, security interest, encumbrance, gift, and transfer by opera-
27 tion of law.
28 (21) "Transferable interest" means a partner's right to receive distribu-
29 tions.
30 (22) "Transferee" means a person to which all or part of a transferable
31 interest has been transferred, whether or not the transferor is a partner.
32 53-2-103. KNOWLEDGE AND NOTICE. (1) A person knows a fact if the person
33 has actual knowledge of it.
34 (2) A person has notice of a fact if the person:
35 (a) Knows of it;
36 (b) Has received a notification of it;
37 (c) Has reason to know it exists from all of the facts known to the per-
38 son at the time in question; or
39 (d) Has notice of it under subsection (3) or (4) of this section.
40 (3) A certificate of limited partnership on file in the office of the
41 secretary of state is notice that the partnership is a limited partnership and
42 the persons designated in the certificate as general partners are general
43 partners. Except as otherwise provided in subsection (4) of this section, the
44 certificate is not notice of any other fact.
45 (4) A person has notice of:
46 (a) Another person's dissociation as a general partner, ninety (90) days
47 after the effective date of an amendment to the certificate of limited
48 partnership which states that the other person has dissociated or ninety
49 (90) days after the effective date of a statement of dissociation pertain-
50 ing to the other person, whichever occurs first;
51 (b) A limited partnership's dissolution, ninety (90) days after the
52 effective date of an amendment to the certificate of limited partnership
53 stating that the limited partnership is dissolved;
54 (c) A limited partnership's termination, ninety (90) days after the
5
1 effective date of a statement of termination;
2 (d) A limited partnership's conversion under part 11 of this chapter,
3 ninety (90) days after the effective date of the articles of conversion;
4 or
5 (e) A merger under part 11 of this chapter, ninety (90) days after the
6 effective date of the articles of merger.
7 (5) A person notifies or gives a notification to another person by taking
8 steps reasonably required to inform the other person in ordinary course,
9 whether or not the other person learns of it.
10 (6) A person receives a notification when the notification:
11 (a) Comes to the person's attention; or
12 (b) Is delivered at the person's place of business or at any other place
13 held out by the person as a place for receiving communications.
14 (7) Except as otherwise provided in subsection (8) of this section, a
15 person other than an individual knows, has notice, or receives a notification
16 of a fact for purposes of a particular transaction when the individual con-
17 ducting the transaction for the person knows, has notice, or receives a noti-
18 fication of the fact, or in any event when the fact would have been brought to
19 the individual's attention if the person had exercised reasonable diligence.
20 A person other than an individual exercises reasonable diligence if it main-
21 tains reasonable routines for communicating significant information to the
22 individual conducting the transaction for the person and there is reasonable
23 compliance with the routines. Reasonable diligence does not require an indi-
24 vidual acting for the person to communicate information unless the communica-
25 tion is part of the individual's regular duties or the individual has reason
26 to know of the transaction and that the transaction would be materially
27 affected by the information.
28 (8) A general partner's knowledge, notice, or receipt of a notification
29 of a fact relating to the limited partnership is effective immediately as
30 knowledge of, notice to, or receipt of a notification by the limited partner-
31 ship, except in the case of a fraud on the limited partnership committed by or
32 with the consent of the general partner. A limited partner's knowledge,
33 notice, or receipt of a notification of a fact relating to the limited part-
34 nership is not effective as knowledge of, notice to, or receipt of a notifica-
35 tion by the limited partnership.
36 53-2-104. NATURE, PURPOSE AND DURATION OF ENTITY. (1) A limited partner-
37 ship is an entity distinct from its partners. A limited partnership is the
38 same entity regardless of whether its certificate states that the limited
39 partnership is a limited liability limited partnership.
40 (2) A limited partnership may be organized under this chapter for any
41 lawful purpose.
42 (3) A limited partnership has a perpetual duration.
43 53-2-105. POWERS. A limited partnership has the powers to do all things
44 necessary or convenient to carry on its activities, including the power to
45 sue, be sued, and defend in its own name and to maintain an action against a
46 partner for harm caused to the limited partnership by a breach of the partner-
47 ship agreement or violation of a duty to the partnership.
48 53-2-106. GOVERNING LAW. The law of this state governs relations among
49 the partners of a limited partnership and between the partners and the limited
50 partnership and the liability of partners as partners for an obligation of the
51 limited partnership.
6
1 53-2-107. SUPPLEMENTAL PRINCIPLES OF LAW -- RATE OF INTEREST. (1) Unless
2 displaced by particular provisions of this chapter, the principles of law and
3 equity supplement this chapter.
4 (2) If an obligation to pay interest arises under this chapter and the
5 rate is not specified, the rate is that specified in section 28-22-104(1),
6 Idaho Code.
7 53-2-108. NAME. (1) The name of a limited partnership may contain the
8 name of any partner.
9 (2) The name of a limited partnership that is not a limited liability
10 limited partnership must contain the phrase "limited partnership" or the
11 abbreviation "L.P." or "LP" and may not contain the phrase "limited liability
12 limited partnership" or the abbreviation "LLLP" or "L.L.L.P."
13 (3) The name of a limited liability limited partnership must contain the
14 phrase "limited liability limited partnership" or the abbreviation "LLLP" or
15 "L.L.L.P." and must not contain the abbreviation "L.P." or "LP."
16 (4) Unless authorized by subsection (5) of this section, the name of a
17 limited partnership must not falsely imply government affiliation and must be
18 distinguishable in the records of the secretary of state from:
19 (a) The name of each person other than an individual incorporated, orga-
20 nized, or authorized to transact business in this state; and
21 (b) Each name reserved under section 53-2-109, Idaho Code, or other state
22 law allowing the reservation or registration of business names.
23 (5) A limited partnership may apply to the secretary of state for autho-
24 rization to use a name that does not comply with subsection (4) of this sec-
25 tion. The secretary of state shall authorize use of the name applied for if,
26 as to each conflicting name:
27 (a) The present user, registrant, or owner of the conflicting name con-
28 sents in a signed record to the use and submits an undertaking in a form
29 satisfactory to the secretary of state to change the conflicting name to a
30 name that complies with subsection (4) of this section and is distinguish-
31 able in the records of the secretary of state from the name applied for;
32 (b) The applicant delivers to the secretary of state a certified copy of
33 the final judgment of a court of competent jurisdiction establishing the
34 applicant's right to use in this state the name applied for; or
35 (c) The applicant delivers to the secretary of state proof satisfactory
36 to the secretary of state that the present user, registrant, or owner of
37 the conflicting name:
38 (i) Has merged into the applicant;
39 (ii) Has been converted into the applicant; or
40 (iii) Has transferred substantially all of its assets, including the
41 conflicting name, to the applicant.
42 (6) Subject to section 53-2-905, Idaho Code, this section applies to any
43 foreign limited partnership transacting business in this state, having a cer-
44 tificate of authority to transact business in this state, or applying for a
45 certificate of authority.
46 53-2-109. RESERVATION OF NAME. (1) The exclusive right to the use of a
47 name that complies with section 53-2-108, Idaho Code, may be reserved by:
48 (a) A person intending to organize a limited partnership under this chap-
49 ter and to adopt the name;
50 (b) A limited partnership or a foreign limited partnership authorized to
51 transact business in this state intending to adopt the name;
52 (c) A foreign limited partnership intending to obtain a certificate of
53 authority to transact business in this state and adopt the name;
7
1 (d) A person intending to organize a foreign limited partnership and
2 intending to have it obtain a certificate of authority to transact busi-
3 ness in this state and adopt the name;
4 (e) A foreign limited partnership formed under the name; or
5 (f) A foreign limited partnership formed under a name that does not com-
6 ply with section 53-2-108(2) or (3), Idaho Code, but the name reserved
7 under this paragraph (f) may differ from the foreign limited partnership's
8 name only to the extent necessary to comply with section 53-2-108(2) and
9 (3), Idaho Code.
10 (2) A person may apply to reserve a name under subsection (1) of this
11 section by delivering to the secretary of state for filing an application that
12 states the name to be reserved and the paragraph of subsection (1) of this
13 section which applies. If the secretary of state finds that the name is avail-
14 able for use by the applicant, the secretary of state shall file a statement
15 of name reservation and thereby reserve the name for the exclusive use of the
16 applicant for one hundred twenty (120) days.
17 (3) An applicant that has reserved a name pursuant to subsection (2) of
18 this section may reserve the same name for additional one hundred twenty (120)
19 day periods. A person having a current reservation for a name may not apply
20 for another one hundred twenty (120) day period for the same name until ninety
21 (90) days have elapsed in the current reservation.
22 (4) A person that has reserved a name under this section may deliver to
23 the secretary of state for filing a notice of transfer that states the
24 reserved name, the name and street and mailing address of some other person to
25 which the reservation is to be transferred, and the paragraph of subsection
26 (1) of this section which applies to the other person. Subject to section
27 53-2-206(3), Idaho Code, the transfer is effective when the secretary of state
28 files the notice of transfer.
29 53-2-110. EFFECT OF PARTNERSHIP AGREEMENT -- NONWAIVABLE PROVISIONS. (1)
30 Except as otherwise provided in subsection (2) of this section, the partner-
31 ship agreement governs relations among the partners and between the partners
32 and the partnership. To the extent the partnership agreement does not other-
33 wise provide, this chapter governs relations among the partners and between
34 the partners and the partnership.
35 (2) A partnership agreement may not:
36 (a) Vary a limited partnership's power under section 53-2-105, Idaho
37 Code, to sue, be sued, and defend in its own name;
38 (b) Vary the law applicable to a limited partnership under section
39 53-2-106, Idaho Code;
40 (c) Vary the requirements of section 53-2-204, Idaho Code;
41 (d) Vary the information required under section 53-2-111, Idaho Code, or
42 unreasonably restrict the right to information under section 53-2-304 or
43 53-2-407, Idaho Code, but the partnership agreement may impose reasonable
44 restrictions on the availability and use of information obtained under
45 those sections and may define appropriate remedies, including liquidated
46 damages, for a breach of any reasonable restriction on use;
47 (e) Eliminate the duty of loyalty under section 53-2-408, Idaho Code, but
48 the partnership agreement may:
49 (i) Identify specific types or categories of activities that do not
50 violate the duty of loyalty, if not manifestly unreasonable; and
51 (ii) Specify the number or percentage of partners which may author-
52 ize or ratify, after full disclosure to all partners of all material
53 facts, a specific act or transaction that otherwise would violate the
54 duty of loyalty;
8
1 (f) Unreasonably reduce the duty of care under section 53-2-408(3), Idaho
2 Code;
3 (g) Eliminate the obligation of good faith and fair dealing under sec-
4 tions 53-2-305(2) and 53-2-408(4), Idaho Code, but the partnership agree-
5 ment may prescribe the standards by which the performance of the obliga-
6 tion is to be measured, if the standards are not manifestly unreasonable;
7 (h) Vary the power of a person to dissociate as a general partner under
8 section 53-2-604(1), Idaho Code, except to require that the notice under
9 section 53-2-603(1), Idaho Code, be in a record;
10 (i) Vary the power of a court to decree dissolution in the circumstances
11 specified in section 53-2-802, Idaho Code;
12 (j) Vary the requirement to wind up the partnership's business as speci-
13 fied in section 53-2-803, Idaho Code;
14 (k) Unreasonably restrict the right to maintain an action under part 10
15 of this chapter;
16 (l) Restrict the right of a partner under section 53-2-1110(1), Idaho
17 Code, to approve a conversion or merger or the right of a general partner
18 under section 53-2-1110(2), Idaho Code, to consent to an amendment to the
19 certificate of limited partnership which deletes a statement that the lim-
20 ited partnership is a limited liability limited partnership; or
21 (m) Restrict rights under this chapter of a person other than a partner
22 or a transferee.
23 53-2-111. REQUIRED INFORMATION. A limited partnership shall maintain at
24 its designated office the following information:
25 (1) A current list showing the full name and last known street and mail-
26 ing address of each partner, separately identifying the general partners, in
27 alphabetical order, and the limited partners, in alphabetical order;
28 (2) A copy of the initial certificate of limited partnership and all
29 amendments to and restatements of the certificate, together with signed copies
30 of any powers of attorney under which any certificate, amendment, or restate-
31 ment has been signed;
32 (3) A copy of any filed articles of conversion or merger;
33 (4) A copy of the limited partnership's federal, state, and local income
34 tax returns and reports, if any, for the three (3) most recent years;
35 (5) A copy of any partnership agreement made in a record and any amend-
36 ment made in a record to any partnership agreement;
37 (6) A copy of any financial statement of the limited partnership for the
38 three (3) most recent years;
39 (7) A copy of the three (3) most recent annual reports delivered by the
40 limited partnership to the secretary of state pursuant to section 53-2-210,
41 Idaho Code;
42 (8) A copy of any record made by the limited partnership during the past
43 three (3) years of any consent given by or vote taken of any partner pursuant
44 to this chapter or the partnership agreement; and
45 (9) Unless contained in a partnership agreement made in a record, a
46 record stating:
47 (a) The amount of cash, and a description and statement of the agreed
48 value of the other benefits, contributed and agreed to be contributed by
49 each partner;
50 (b) The times at which, or events on the happening of which, any addi-
51 tional contributions agreed to be made by each partner are to be made;
52 (c) For any person that is both a general partner and a limited partner,
53 a specification of what transferable interest the person owns in each
54 capacity; and
9
1 (d) Any events upon the happening of which the limited partnership is to
2 be dissolved and its activities wound up.
3 53-2-112. BUSINESS TRANSACTIONS OF PARTNER WITH PARTNERSHIP. A partner
4 may lend money to and transact other business with the limited partnership and
5 has the same rights and obligations with respect to the loan or other transac-
6 tion as a person that is not a partner.
7 53-2-113. DUAL CAPACITY. A person may be both a general partner and a
8 limited partner. A person that is both a general and limited partner has the
9 rights, powers, duties, and obligations provided by this chapter and the part-
10 nership agreement in each of those capacities. When the person acts as a gen-
11 eral partner, the person is subject to the obligations, duties and restric-
12 tions under this chapter and the partnership agreement for general partners.
13 When the person acts as a limited partner, the person is subject to the obli-
14 gations, duties and restrictions under this chapter and the partnership agree-
15 ment for limited partners.
16 53-2-114. REGISTERED OFFICE AND REGISTERED AGENT. (1) A limited partner-
17 ship shall designate and continuously maintain in this state:
18 (a) A registered office at a street address, which need not be a place of
19 its activity in this state; and
20 (b) A registered agent, who with reasonable diligence, may be found at
21 the address of the registered office for service of process.
22 (2) A foreign limited partnership shall designate and continuously main-
23 tain in this state a registered agent at the street address of its registered
24 office for service of process.
25 (3) A registered agent of a limited partnership or foreign limited part-
26 nership must be an individual who is a resident of this state or other person
27 authorized to transact business in this state.
28 53-2-115. CHANGE OF REGISTERED OFFICE OR REGISTERED AGENT. (1) In order
29 to change its registered agent or the address of its registered agent, a lim-
30 ited partnership or a foreign limited partnership may deliver to the secretary
31 of state for filing a statement of change containing:
32 (a) The name of the limited partnership or foreign limited partnership;
33 (b) The street address of its current registered agent and office;
34 (c) If the current registered office is to be changed, the new street
35 address of the registered agent and office; and
36 (d) If the current registered agent or an address of the registered agent
37 is to be changed, the new information.
38 (2) Subject to section 53-2-206(3), Idaho Code, a statement of change is
39 effective when filed by the secretary of state.
40 53-2-116. RESIGNATION OF REGISTERED AGENT. (1) In order to resign as a
41 registered agent of a limited partnership or foreign limited partnership, the
42 registered agent must deliver to the secretary of state for filing a statement
43 of resignation containing the name of the limited partnership or foreign lim-
44 ited partnership.
45 (2) After receiving a statement of resignation, the secretary of state
46 shall file it and mail a copy to the principal office of the limited partner-
47 ship or foreign limited partnership.
48 (3) An agency for service of process is terminated on the thirty-first
49 day after the secretary of state files the statement of resignation.
10
1 53-2-117. SERVICE OF PROCESS. (1) A registered agent appointed by a lim-
2 ited partnership or foreign limited partnership is an agent of the limited
3 partnership or foreign limited partnership for service of any process, notice,
4 or demand required or permitted by law to be served upon the limited partner-
5 ship or foreign limited partnership.
6 (2) If a limited partnership or foreign limited partnership does not
7 appoint or maintain a registered agent in this state or the registered agent
8 cannot with reasonable diligence be found at the address of the registered
9 office, the limited partnership or foreign limited partnership may be served
10 by registered or certified mail, return receipt requested, addressed to any
11 general partner at the principal address of the limited partnership.
12 (3) Service is effected under subsection (2) of this section at the ear-
13 liest of:
14 (a) The date the limited partnership or foreign limited partnership
15 receives the process, notice, or demand;
16 (b) The date shown on the return receipt, if signed on behalf of the lim-
17 ited partnership or foreign limited partnership; or
18 (c) Five (5) days after the process, notice, or demand is deposited in
19 the mail, if mailed postpaid and correctly addressed.
20 (4) This section does not affect the right to serve process, notice, or
21 demand in any other manner provided by law.
22 53-2-118. CONSENT AND PROXIES OF PARTNERS. Action requiring the consent
23 of partners under this chapter may be taken without a meeting, and a partner
24 may appoint a proxy to consent or otherwise act for the partner by signing an
25 appointment record, either personally or by the partner's attorney in fact.
26 PART 2
27 FORMATION -- CERTIFICATE OF
28 LIMITED PARTNERSHIP AND OTHER FILINGS
29 53-2-201. FORMATION OF LIMITED PARTNERSHIP -- CERTIFICATE OF LIMITED
30 PARTNERSHIP. (1) In order for a limited partnership to be formed, a certifi-
31 cate of limited partnership must be delivered to the secretary of state for
32 filing. The certificate must state:
33 (a) The name of the limited partnership, which must comply with section
34 53-2-108, Idaho Code;
35 (b) The mailing address of the initial principal office and the name and
36 street address of the initial registered agent at the registered office;
37 (c) The name and mailing address of each general partner;
38 (d) Whether the limited partnership is a limited liability limited part-
39 nership; and
40 (e) Any additional information required by part 11 of this chapter.
41 (2) A certificate of limited partnership may also contain any other mat-
42 ters but may not vary or otherwise affect the provisions specified in section
43 53-2-110(2), Idaho Code, in a manner inconsistent with that section.
44 (3) If there has been substantial compliance with subsection (1) of this
45 section, subject to section 53-2-206(3), Idaho Code, a limited partnership is
46 formed when the secretary of state files the certificate of limited partner-
47 ship.
48 (4) Subject to subsection (2) of this section, if any provision of a
49 partnership agreement is inconsistent with the filed certificate of limited
50 partnership or with a filed statement of dissociation, termination, or change
51 or filed articles of conversion or merger:
52 (a) The partnership agreement prevails as to partners and transferees;
11
1 and
2 (b) The filed certificate of limited partnership, statement of dissocia-
3 tion, termination, or change or articles of conversion or merger prevail
4 as to persons, other than partners and transferees, that reasonably rely
5 on the filed record to their detriment.
6 53-2-202. AMENDMENT OR RESTATEMENT OF CERTIFICATE. (1) In order to amend
7 its certificate of limited partnership, a limited partnership must deliver to
8 the secretary of state for filing an amendment or, pursuant to part 11 of this
9 chapter, articles of merger stating:
10 (a) The name of the limited partnership;
11 (b) The date of filing of its initial certificate; and
12 (c) The changes the amendment makes to the certificate as most recently
13 amended or restated.
14 (2) A limited partnership shall promptly deliver to the secretary of
15 state for filing an amendment to a certificate of limited partnership to
16 reflect:
17 (a) The admission of a new general partner;
18 (b) The dissociation of a person as a general partner; or
19 (c) The appointment of a person to wind up the limited partnership's
20 activities under section 53-2-803(3) or (4), Idaho Code.
21 (3) A general partner that knows that any information in a filed certifi-
22 cate of limited partnership was false when the certificate was filed or has
23 become false due to changed circumstances shall promptly:
24 (a) Cause the certificate to be amended; or
25 (b) If appropriate, deliver to the secretary of state for filing a state-
26 ment of change pursuant to section 53-2-115, Idaho Code, or a statement of
27 correction pursuant to section 53-2-207, Idaho Code.
28 (4) A certificate of limited partnership may be amended at any time for
29 any other proper purpose as determined by the limited partnership.
30 (5) A restated certificate of limited partnership may be delivered to the
31 secretary of state for filing in the same manner as an amendment.
32 (6) Subject to section 53-2-206(3), Idaho Code, an amendment or restated
33 certificate is effective when filed by the secretary of state.
34 53-2-203. STATEMENT OF TERMINATION. A dissolved limited partnership that
35 has completed winding up may deliver to the secretary of state for filing a
36 statement of termination that states:
37 (1) The name of the limited partnership;
38 (2) The date of filing of its initial certificate of limited partnership;
39 and
40 (3) Any other information as determined by the general partners filing
41 the statement or by a person appointed pursuant to section 53-2-803(3) or (4),
42 Idaho Code.
43 53-2-204. SIGNING OF RECORDS. (1) Each record delivered to the secretary
44 of state for filing pursuant to this chapter must be signed in the following
45 manner:
46 (a) An initial certificate of limited partnership must be signed by all
47 general partners listed in the certificate.
48 (b) An amendment adding or deleting a statement that the limited partner-
49 ship is a limited liability limited partnership must be signed by all gen-
50 eral partners listed in the certificate.
51 (c) An amendment designating as general partner a person admitted under
52 section 53-2-801(4), Idaho Code, following the dissociation of a limited
12
1 partnership's last general partner must be signed by that person.
2 (d) An amendment required by section 53-2-803(3), Idaho Code, following
3 the appointment of a person to wind up the dissolved limited partnership's
4 activities must be signed by that person.
5 (e) Any other amendment must be signed by:
6 (i) At least one (1) general partner listed in the certificate;
7 (ii) Each other person designated in the amendment as a new general
8 partner; and
9 (iii) Each person that the amendment indicates has dissociated as a
10 general partner, unless:
11 (A) The person is deceased or a guardian or general conservator
12 has been appointed for the person and the amendment so states;
13 or
14 (B) The person has previously delivered to the secretary of
15 state for filing a statement of dissociation.
16 (f) A restated certificate of limited partnership must be signed by at
17 least one (1) general partner listed in the certificate, and, to the
18 extent the restated certificate effects a change under any other paragraph
19 of this subsection, the certificate must be signed in a manner that satis-
20 fies that paragraph.
21 (g) A statement of termination must be signed by all general partners
22 listed in the certificate or, if the certificate of a dissolved limited
23 partnership lists no general partners, by the person appointed pursuant to
24 section 53-2-803(3) or (4), Idaho Code, to wind up the dissolved limited
25 partnership's activities.
26 (h) Articles of conversion must be signed by each general partner listed
27 in the certificate of limited partnership.
28 (i) Articles of merger must be signed as provided in section
29 53-2-1108(1), Idaho Code.
30 (j) Any other record delivered on behalf of a limited partnership to the
31 secretary of state for filing must be signed by at least one (1) general
32 partner listed in the certificate.
33 (k) A statement by a person pursuant to section 53-2-605(1)(d), Idaho
34 Code, stating that the person has dissociated as a general partner must be
35 signed by that person.
36 (l) A statement of withdrawal by a person pursuant to section 53-2-306,
37 Idaho Code, must be signed by that person.
38 (m) A record delivered on behalf of a foreign limited partnership to the
39 secretary of state for filing must be signed by at least one (1) general
40 partner of the foreign limited partnership.
41 (n) Any other record delivered on behalf of any person to the secretary
42 of state for filing must be signed by that person.
43 (2) Any person may sign by an attorney in fact any record to be filed
44 pursuant to this chapter.
45 53-2-205. SIGNING AND FILING PURSUANT TO JUDICIAL ORDER. (1) If a person
46 required by this chapter to sign a record or deliver a record to the secretary
47 of state for filing does not do so, any other person that is aggrieved may
48 petition the court to order:
49 (a) The person to sign the record;
50 (b) Deliver the record to the secretary of state for filing; or
51 (c) The secretary of state to file the record unsigned.
52 (2) If the person aggrieved under subsection (1) of this section is not
53 the limited partnership or foreign limited partnership to which the record
54 pertains, the aggrieved person shall make the limited partnership or foreign
13
1 limited partnership a party to the action. A person aggrieved under subsection
2 (1) of this section may seek the remedies provided in subsection (1) of this
3 section in the same action in combination or in the alternative.
4 (3) A record filed unsigned pursuant to this section is effective without
5 being signed.
6 53-2-206. DELIVERY TO AND FILING OF RECORDS BY SECRETARY OF STATE --
7 EFFECTIVE TIME AND DATE. (1) A record authorized or required to be delivered
8 to the secretary of state for filing under this chapter must be captioned to
9 describe the record's purpose, be in a medium permitted by the secretary of
10 state, and be delivered to the secretary of state. The secretary of state
11 shall provide forms which may be used for filing records. Unless the secretary
12 of state determines that a record does not comply with the filing requirements
13 of this chapter, and if all filing fees have been paid, the secretary of state
14 shall file the record and:
15 (a) For a statement of dissociation, send:
16 (i) A copy of the filed statement and a receipt for the fees to the
17 person which the statement indicates has dissociated as a general
18 partner; and
19 (ii) A copy of the filed statement and receipt to the limited part-
20 nership;
21 (b) For a statement of withdrawal, send:
22 (i) A copy of the filed statement and a receipt for the fees to the
23 person on whose behalf the record was filed; and
24 (ii) If the statement refers to an existing limited partnership, a
25 copy of the filed statement and receipt to the limited partnership;
26 and
27 (c) For all other records, send a copy of the filed record and a receipt
28 for the fees to the person on whose behalf the record was filed.
29 (2) Upon request and payment of a fee, the secretary of state shall send
30 to the requester a certified copy of the requested record.
31 (3) Except as otherwise provided in sections 53-2-116 and 53-2-207, Idaho
32 Code, a record delivered to the secretary of state for filing under this chap-
33 ter may specify an effective time and a delayed effective date. Except as
34 otherwise provided in this chapter, a record filed by the secretary of state
35 is effective:
36 (a) If the record does not specify an effective time and does not specify
37 a delayed effective date, on the date and at the time the record is filed
38 as evidenced by the secretary of state's endorsement of the date and time
39 on the record;
40 (b) If the record specifies an effective time but not a delayed effective
41 date, on the date the record is filed at the time specified in the record;
42 (c) If the record specifies a delayed effective date but not an effective
43 time, at 12:01 a.m. on the earlier of:
44 (i) The specified date; or
45 (ii) The ninetieth day after the record is filed; or
46 (d) If the record specifies an effective time and a delayed effective
47 date, at the specified time on the earlier of:
48 (i) The specified date; or
49 (ii) The ninetieth day after the record is filed.
50 53-2-207. CORRECTING FILED RECORD. (1) A limited partnership or foreign
51 limited partnership may deliver to the secretary of state for filing a state-
52 ment of correction to correct a record previously delivered by the limited
53 partnership or foreign limited partnership to the secretary of state and filed
14
1 by the secretary of state, if at the time of filing the record contained false
2 or erroneous information or was defectively signed.
3 (2) A statement of correction may not state a delayed effective date and
4 must:
5 (a) Describe the record to be corrected, including its filing date, or
6 attach a copy of the record as filed;
7 (b) Specify the incorrect information and the reason it is incorrect or
8 the manner in which the signing was defective; and
9 (c) Correct the incorrect information or defective signature.
10 (3) When filed by the secretary of state, a statement of correction is
11 effective retroactively as of the effective date of the record the statement
12 corrects, but the statement is effective when filed:
13 (a) For the purposes of section 53-2-103(3) and (4), Idaho Code; and
14 (b) As to persons relying on the uncorrected record and adversely
15 affected by the correction.
16 (4) No filing may be effective prior to the time it is received and filed
17 by the secretary of state.
18 53-2-208. LIABILITY FOR FALSE INFORMATION IN FILED RECORD. (1) If a
19 record delivered to the secretary of state for filing under this chapter and
20 filed by the secretary of state contains false information, a person that suf-
21 fers loss by reliance on the information may recover damages for the loss
22 from:
23 (a) A person that signed the record, or caused another to sign it on the
24 person's behalf, and knew the information to be false at the time the
25 record was signed; and
26 (b) A general partner that has notice that the information was false when
27 the record was filed or has become false because of changed circumstances,
28 if the general partner has notice for a reasonably sufficient time before
29 the information is relied upon to enable the general partner to effect an
30 amendment under section 53-2-202, Idaho Code, file a petition pursuant to
31 section 53-2-205, Idaho Code, or deliver to the secretary of state for
32 filing a statement of change pursuant to section 53-2-115, Idaho Code, or
33 a statement of correction pursuant to section 53-2-207, Idaho Code.
34 (2) Signing a record authorized or required to be filed under this chap-
35 ter constitutes an affirmation under the penalties of perjury that the facts
36 stated in the record are true.
37 53-2-209. CERTIFICATE OF EXISTENCE OR AUTHORIZATION. (1) The secretary of
38 state, upon request and payment of the requisite fee, shall furnish a certifi-
39 cate of existence for a limited partnership if the records filed in the office
40 of the secretary of state show that the secretary of state has filed a certif-
41 icate of limited partnership and has not filed a statement of termination. A
42 certificate of existence must state:
43 (a) The limited partnership's name;
44 (b) That it was duly formed under the laws of this state and the date of
45 formation;
46 (c) Whether all fees, taxes, and penalties due to the secretary of state
47 under this chapter or other law have been paid;
48 (d) Whether the limited partnership's most recent annual report required
49 by section 53-2-210, Idaho Code, has been filed by the secretary of state;
50 (e) Whether the secretary of state has administratively dissolved the
51 limited partnership;
52 (f) Whether the limited partnership's certificate of limited partnership
53 has been amended to state that the limited partnership is dissolved;
15
1 (g) That a statement of termination has not been filed by the secretary
2 of state; and
3 (h) Other facts of record in the office of the secretary of state which
4 may be requested by the applicant.
5 (2) The secretary of state, upon request and payment of the requisite
6 fee, shall furnish a certificate of authorization for a foreign limited part-
7 nership if the records filed in the office of the secretary of state show that
8 the secretary of state has filed a certificate of authority, has not revoked
9 the certificate of authority, and has not filed a notice of cancellation. A
10 certificate of authorization must state:
11 (a) The foreign limited partnership's name and any alternate name adopted
12 under section 53-2-905(1), Idaho Code, for use in this state;
13 (b) That it is authorized to transact business in this state;
14 (c) Whether all fees, taxes, and penalties due to the secretary of state
15 under this chapter or other law have been paid;
16 (d) Whether the foreign limited partnership's most recent annual report
17 required by section 53-2-210, Idaho Code, has been filed by the secretary
18 of state;
19 (e) That the secretary of state has not revoked its certificate of
20 authority and has not filed a notice of cancellation; and
21 (f) Other facts of record in the office of the secretary of state which
22 may be requested by the applicant.
23 (3) Subject to any qualification stated in the certificate, a certificate
24 of existence or authorization issued by the secretary of state may be relied
25 upon as conclusive evidence that the limited partnership or foreign limited
26 partnership is in existence or is authorized to transact business in this
27 state.
28 53-2-210. ANNUAL REPORT FOR SECRETARY OF STATE. (1) A limited partnership
29 or a foreign limited partnership authorized to transact business in this state
30 shall deliver to the secretary of state for filing an annual report that
31 states:
32 (a) The name of the limited partnership or foreign limited partnership;
33 (b) The mailing address of its principal office and the name and street
34 address of its registered agent and registered office in this state;
35 (c) In the case of a foreign limited partnership, the state or other
36 jurisdiction under whose law the foreign limited partnership is formed and
37 any alternate name adopted under section 53-2-905(1), Idaho Code; and
38 (d) The name and mailing address of one (1) or more general partners.
39 (2) Information in an annual report must be current as of the date the
40 annual report is delivered to the secretary of state for filing.
41 (3) No annual report need be filed during the first year after a limited
42 partnership is formed or authorized to transact business in this state. The
43 first and all subsequent annual reports shall be delivered to the secretary of
44 state each year before the end of the month during which a limited partnership
45 was originally formed or a foreign limited partnership was initially autho-
46 rized to transact business.
47 (4) If an annual report does not contain the information required in sub-
48 section (1) of this section, the secretary of state shall promptly notify the
49 reporting limited partnership or foreign limited partnership and return the
50 report to it for correction. If the report is corrected to contain the infor-
51 mation required in subsection (1) of this section and delivered to the secre-
52 tary of state within thirty (30) days after the effective date of the notice,
53 it is timely delivered.
54 (5) If a filed annual report contains an address of a registered office
16
1 or the name or address of a registered agent which differs from the informa-
2 tion shown in the records of the secretary of state immediately before the
3 filing, the differing information in the annual report is considered a state-
4 ment of change under section 53-2-115, Idaho Code, provided the change in
5 information is with the consent of any new registered agent.
6 PART 3
7 LIMITED PARTNERS
8 53-2-301. BECOMING LIMITED PARTNER. A person becomes a limited partner:
9 (1) As provided in the partnership agreement;
10 (2) As the result of a conversion or merger under part 11 of this chap-
11 ter; or
12 (3) With the consent of all the partners.
13 53-2-302. NO RIGHT OR POWER AS LIMITED PARTNER TO BIND LIMITED PARTNER-
14 SHIP. A limited partner does not have the right or the power as a limited
15 partner to act for or bind the limited partnership.
16 53-2-303. NO LIABILITY AS LIMITED PARTNER FOR LIMITED PARTNERSHIP OBLIGA-
17 TIONS. An obligation of a limited partnership, whether arising in contract,
18 tort, or otherwise, is not the obligation of a limited partner. A limited
19 partner is not personally liable, directly or indirectly, by way of contribu-
20 tion or otherwise, for an obligation of the limited partnership solely by rea-
21 son of being a limited partner, even if the limited partner participates in
22 the management and control of the limited partnership.
23 53-2-304. RIGHT OF LIMITED PARTNER AND FORMER LIMITED PARTNER TO INFORMA-
24 TION. (1) On ten (10) days' demand, made in a record received by the limited
25 partnership, a limited partner may inspect and copy required information dur-
26 ing regular business hours in the limited partnership's designated office. The
27 limited partner need not have any particular purpose for seeking the informa-
28 tion.
29 (2) During regular business hours and at a reasonable location specified
30 by the limited partnership, a limited partner may obtain from the limited
31 partnership and inspect and copy true and full information regarding the state
32 of the activities and financial condition of the limited partnership and
33 other information regarding the activities of the limited partnership as is
34 just and reasonable if:
35 (a) The limited partner seeks the information for a purpose reasonably
36 related to the partner's interest as a limited partner;
37 (b) The limited partner makes a demand in a record received by the lim-
38 ited partnership, describing with reasonable particularity the information
39 sought and the purpose for seeking the information; and
40 (c) The information sought is directly connected to the limited partner's
41 purpose.
42 (3) Within ten (10) days after receiving a demand pursuant to subsection
43 (2) of this section, the limited partnership in a record shall inform the lim-
44 ited partner that made the demand:
45 (a) What information the limited partnership will provide in response to
46 the demand;
47 (b) When and where the limited partnership will provide the information;
48 and
49 (c) If the limited partnership declines to provide any demanded informa-
50 tion, the limited partnership's reasons for declining.
17
1 (4) Subject to subsection (6) of this section, a person dissociated as a
2 limited partner may inspect and copy required information during regular busi-
3 ness hours in the limited partnership's designated office if:
4 (a) The information pertains to the period during which the person was a
5 limited partner;
6 (b) The person seeks the information in good faith; and
7 (c) The person meets the requirements of subsection (2) of this section.
8 (5) The limited partnership shall respond to a demand made pursuant to
9 subsection (4) of this section in the same manner as provided in subsection
10 (3) of this section.
11 (6) If a limited partner dies, section 53-2-704, Idaho Code, applies.
12 (7) The limited partnership may impose reasonable restrictions on the use
13 of information obtained under this section. In a dispute concerning the rea-
14 sonableness of a restriction under this subsection, the limited partnership
15 has the burden of proving reasonableness.
16 (8) A limited partnership may charge a person that makes a demand under
17 this section reasonable costs of copying, limited to the costs of labor and
18 material.
19 (9) Whenever this chapter or a partnership agreement provides for a lim-
20 ited partner to give or withhold consent to a matter, before the consent is
21 given or withheld, the limited partnership shall, without demand, provide the
22 limited partner with all information material to the limited partner's deci-
23 sion that the limited partnership knows.
24 (10) A limited partner or person dissociated as a limited partner may
25 exercise the rights under this section through an attorney or other agent. Any
26 restriction imposed under subsection (7) of this section or by the partnership
27 agreement applies both to the attorney or other agent and to the limited part-
28 ner or person dissociated as a limited partner.
29 (11) The rights stated in this section do not extend to a person as trans-
30 feree, but may be exercised by the legal representative of an individual under
31 legal disability who is a limited partner or person dissociated as a limited
32 partner.
33 53-2-305. LIMITED DUTIES OF LIMITED PARTNERS. (1) A limited partner does
34 not have any fiduciary duty to the limited partnership or to any other partner
35 solely by reason of being a limited partner.
36 (2) A limited partner shall discharge the duties to the partnership and
37 the other partners under this chapter or under the partnership agreement and
38 exercise any rights consistently with the obligation of good faith and fair
39 dealing.
40 (3) A limited partner does not violate a duty or obligation under this
41 chapter or under the partnership agreement merely because the limited
42 partner's conduct furthers the limited partner's own interest.
43 53-2-306. PERSON ERRONEOUSLY BELIEVING SELF TO BE LIMITED PARTNER. (1)
44 Except as otherwise provided in subsection (2) of this section, a person that
45 makes an investment in a business enterprise and erroneously but in good faith
46 believes that the person has become a limited partner in the enterprise is not
47 liable for the enterprise's obligations by reason of making the investment,
48 receiving distributions from the enterprise, or exercising any rights of or
49 appropriate to a limited partner, if, on ascertaining the mistake, the person:
50 (a) Causes an appropriate certificate of limited partnership, amendment,
51 or statement of correction to be signed and delivered to the secretary of
52 state for filing; or
53 (b) Withdraws from future participation as an owner in the enterprise by
18
1 signing and delivering to the secretary of state for filing a statement of
2 withdrawal under this section.
3 (2) A person that makes an investment described in subsection (1) of this
4 section is liable to the same extent as a general partner to any third party
5 that enters into a transaction with the enterprise, believing in good faith
6 that the person is a general partner, before the secretary of state files a
7 statement of withdrawal, certificate of limited partnership, amendment, or
8 statement of correction to show that the person is not a general partner.
9 (3) If a person makes a diligent effort in good faith to comply with sub-
10 section (1)(a) of this section and is unable to cause the appropriate certifi-
11 cate of limited partnership, amendment, or statement of correction to be
12 signed and delivered to the secretary of state for filing, the person has the
13 right to withdraw from the enterprise pursuant to subsection (1)(b) of this
14 section even if the withdrawal would otherwise breach an agreement with others
15 that are or have agreed to become co-owners of the enterprise.
16 PART 4
17 GENERAL PARTNERS
18 53-2-401. BECOMING GENERAL PARTNER. A person becomes a general partner:
19 (1) As provided in the partnership agreement;
20 (2) Under section 53-2-801(4), Idaho Code, following the dissociation of
21 a limited partnership's last general partner;
22 (3) As the result of a conversion or merger under part 11 of this chap-
23 ter; or
24 (4) With the consent of all the partners.
25 53-2-402. GENERAL PARTNER AGENT OF LIMITED PARTNERSHIP. (1) Each general
26 partner is an agent of the limited partnership for the purposes of its activi-
27 ties. An act of a general partner, including the signing of a record in the
28 partnership's name, for apparently carrying on in the ordinary course the lim-
29 ited partnership's activities or activities of the kind carried on by the lim-
30 ited partnership binds the limited partnership, unless the general partner did
31 not have authority to act for the limited partnership in the particular matter
32 and the person with which the general partner was dealing knew, had received a
33 notification, or had notice under section 53-2-103(4), Idaho Code, that the
34 general partner lacked authority.
35 (2) An act of a general partner which is not apparently for carrying on
36 in the ordinary course the limited partnership's activities or activities of
37 the kind carried on by the limited partnership binds the limited partnership
38 only if the act was actually authorized by all the other partners.
39 53-2-403. LIMITED PARTNERSHIP LIABLE FOR GENERAL PARTNER'S ACTIONABLE
40 CONDUCT. (1) A limited partnership is liable for loss or injury caused to a
41 person, or for a penalty incurred, as a result of a wrongful act or omission,
42 or other actionable conduct, of a general partner acting in the ordinary
43 course of activities of the limited partnership or with authority of the lim-
44 ited partnership.
45 (2) If, in the course of the limited partnership's activities or while
46 acting with authority of the limited partnership, a general partner receives
47 or causes the limited partnership to receive money or property of a person not
48 a partner, and the money or property is misapplied by a general partner, the
49 limited partnership is liable for the loss.
50 53-2-404. GENERAL PARTNER'S LIABILITY. (1) Except as otherwise provided
19
1 in subsections (2) and (3) of this section, all general partners are liable
2 jointly and severally for all obligations of the limited partnership unless
3 otherwise agreed by the claimant or provided by law.
4 (2) A person that becomes a general partner of an existing limited part-
5 nership is not personally liable for an obligation of a limited partnership
6 incurred before the person became a general partner.
7 (3) An obligation of a limited partnership incurred while the limited
8 partnership is a limited liability limited partnership, whether arising in
9 contract, tort, or otherwise, is solely the obligation of the limited partner-
10 ship. A general partner is not personally liable, directly or indirectly, by
11 way of contribution or otherwise, for such an obligation solely by reason of
12 being or acting as a general partner. This subsection (3) applies despite any-
13 thing inconsistent in the partnership agreement that existed immediately
14 before the consent required to become a limited liability limited partnership
15 under section 53-2-406(2)(b), Idaho Code.
16 53-2-405. ACTIONS BY AND AGAINST PARTNERSHIP AND PARTNERS. (1) To the
17 extent not inconsistent with section 53-2-404, Idaho Code, a general partner
18 may be joined in an action against the limited partnership or named in a sepa-
19 rate action.
20 (2) A judgment against a limited partnership is not by itself a judgment
21 against a general partner. A judgment against a limited partnership may not be
22 satisfied from a general partner's assets unless there is also a judgment
23 against the general partner.
24 (3) A judgment creditor of a general partner may not levy execution
25 against the assets of the general partner to satisfy a judgment based on a
26 claim against the limited partnership, unless the partner is personally liable
27 for the claim under section 53-2-404, Idaho Code, and:
28 (a) A judgment based on the same claim has been obtained against the lim-
29 ited partnership and a writ of execution on the judgment has been returned
30 unsatisfied in whole or in part;
31 (b) The limited partnership is a debtor in bankruptcy;
32 (c) The general partner has agreed that the creditor need not exhaust
33 limited partnership assets;
34 (d) A court grants permission to the judgment creditor to levy execution
35 against the assets of a general partner based on a finding that limited
36 partnership assets subject to execution are clearly insufficient to sat-
37 isfy the judgment, that exhaustion of limited partnership assets is exces-
38 sively burdensome, or that the grant of permission is an appropriate exer-
39 cise of the court's equitable powers; or
40 (e) Liability is imposed on the general partner by law or contract inde-
41 pendent of the existence of the limited partnership.
42 53-2-406. MANAGEMENT RIGHTS OF GENERAL PARTNER. (1) Each general partner
43 has equal rights in the management and conduct of the limited partnership's
44 activities. Except as expressly provided in this chapter, any matter relating
45 to the activities of the limited partnership may be exclusively decided by the
46 general partner or, if there is more than one (1) general partner, by a major-
47 ity of the general partners.
48 (2) The consent of each partner is necessary to:
49 (a) Amend the partnership agreement;
50 (b) Amend the certificate of limited partnership to add or, subject to
51 section 53-2-1110, Idaho Code, delete a statement that the limited part-
52 nership is a limited liability limited partnership; and
53 (c) Sell, lease, exchange, or otherwise dispose of all, or substantially
20
1 all, of the limited partnership's property, with or without the good will,
2 other than in the usual and regular course of the limited partnership's
3 activities.
4 (3) A limited partnership shall reimburse a general partner for payments
5 made and indemnify a general partner for liabilities incurred by the general
6 partner in the ordinary course of the activities of the partnership or for the
7 preservation of its activities or property.
8 (4) A limited partnership shall reimburse a general partner for an
9 advance to the limited partnership beyond the amount of capital the general
10 partner agreed to contribute.
11 (5) A payment or advance made by a general partner which gives rise to an
12 obligation of the limited partnership under subsection (3) or (4) of this sec-
13 tion constitutes a loan to the limited partnership which accrues interest from
14 the date of the payment or advance.
15 53-2-407. RIGHT OF GENERAL PARTNER AND FORMER GENERAL PARTNER TO INFORMA-
16 TION. (1) A general partner, without having any particular purpose for seeking
17 the information, may inspect and copy during regular business hours:
18 (a) In the limited partnership's designated office, required information;
19 and
20 (b) At a reasonable location specified by the limited partnership, any
21 other records maintained by the limited partnership regarding the limited
22 partnership's activities and financial condition.
23 (2) Each general partner and the limited partnership shall furnish to a
24 general partner:
25 (a) Without demand, any information concerning the limited partnership's
26 activities and activities reasonably required for the proper exercise of
27 the general partner's rights and duties under the partnership agreement or
28 this chapter; and
29 (b) On demand, any other information concerning the limited partnership's
30 activities, except to the extent the demand or the information demanded is
31 unreasonable or otherwise improper under the circumstances.
32 (3) Subject to subsection (5) of this section, on ten (10) days' demand
33 made in a record received by the limited partnership, a person dissociated as
34 a general partner may have access to the information and records described in
35 subsection (1) of this section at the location specified in subsection (1) of
36 this section if:
37 (a) The information or record pertains to the period during which the
38 person was a general partner;
39 (b) The person seeks the information or record in good faith; and
40 (c) The person satisfies the requirements imposed on a limited partner by
41 section 53-2-304(2), Idaho Code.
42 (4) The limited partnership shall respond to a demand made pursuant to
43 subsection (3) of this section in the same manner as provided in section
44 53-2-304(3), Idaho Code.
45 (5) If a general partner dies, section 53-2-704, Idaho Code, applies.
46 (6) The limited partnership may impose reasonable restrictions on the use
47 of information under this section. In any dispute concerning the reasonable-
48 ness of a restriction under this subsection, the limited partnership has the
49 burden of proving reasonableness.
50 (7) A limited partnership may charge a person dissociated as a general
51 partner that makes a demand under this section reasonable costs of copying,
52 limited to the costs of labor and material.
53 (8) A general partner or person dissociated as a general partner may
54 exercise the rights under this section through an attorney or other agent. Any
21
1 restriction imposed under subsection (6) of this section or by the partnership
2 agreement applies both to the attorney or other agent and to the general part-
3 ner or person dissociated as a general partner.
4 (9) The rights under this section do not extend to a person as trans-
5 feree, but the rights under subsection (3) of this section of a person
6 dissociated as a general partner may be exercised by the legal representative
7 of an individual who dissociated as a general partner under section
8 53-2-603(7)(b) or (c), Idaho Code.
9 53-2-408. GENERAL STANDARDS OF GENERAL PARTNER'S CONDUCT. (1) The only
10 fiduciary duties that a general partner has to the limited partnership and the
11 other partners are the duties of loyalty and care under subsections (2) and
12 (3) of this section.
13 (2) A general partner's duty of loyalty to the limited partnership and
14 the other partners is limited to the following:
15 (a) To account to the limited partnership and hold as trustee for it any
16 property, profit, or benefit derived by the general partner in the conduct
17 and winding up of the limited partnership's activities or derived from a
18 use by the general partner of limited partnership property, including the
19 appropriation of a limited partnership opportunity;
20 (b) To refrain from dealing with the limited partnership in the conduct
21 or winding up of the limited partnership's activities as or on behalf of a
22 party having an interest adverse to the limited partnership; and
23 (c) To refrain from competing with the limited partnership in the conduct
24 or winding up of the limited partnership's activities.
25 (3) A general partner's duty of care to the limited partnership and the
26 other partners in the conduct and winding up of the limited partnership's
27 activities is limited to refraining from engaging in grossly negligent or
28 reckless conduct, intentional misconduct, or a knowing violation of law.
29 (4) A general partner shall discharge the duties to the partnership and
30 the other partners under this chapter or under the partnership agreement and
31 exercise any rights consistently with the obligation of good faith and fair
32 dealing.
33 (5) A general partner does not violate a duty or obligation under this
34 chapter or under the partnership agreement merely because the general
35 partner's conduct furthers the general partner's own interest.
36 PART 5
37 CONTRIBUTIONS AND DISTRIBUTIONS
38 53-2-501. FORM OF CONTRIBUTION. A contribution of a partner may consist
39 of tangible or intangible property or other benefit to the limited partner-
40 ship, including money, services performed, promissory notes, other agreements
41 to contribute cash or property, and contracts for services to be performed.
42 53-2-502. LIABILITY FOR CONTRIBUTION. (1) A partner's obligation to con-
43 tribute money or other property or other benefit to, or to perform services
44 for, a limited partnership is not excused by the partner's death, disability,
45 or other inability to perform personally.
46 (2) If a partner does not make a promised nonmonetary contribution, the
47 partner is obligated at the option of the limited partnership to contribute
48 money equal to that portion of the value, as stated in the required informa-
49 tion, of the stated contribution which has not been made.
50 (3) The obligation of a partner to make a contribution or return money or
51 other property paid or distributed in violation of this chapter may be compro-
22
1 mised only by consent of all partners. A creditor of a limited partnership
2 which extends credit or otherwise acts in reliance on an obligation described
3 in subsection (1) of this section, without notice of any compromise under this
4 subsection, may enforce the original obligation.
5 53-2-503. SHARING OF DISTRIBUTIONS. A distribution by a limited partner-
6 ship must be shared among the partners on the basis of the value, as stated in
7 the required records when the limited partnership decides to make the distri-
8 bution, of the contributions the limited partnership has received from each
9 partner.
10 53-2-504. INTERIM DISTRIBUTIONS. A partner does not have a right to any
11 distribution before the dissolution and winding up of the limited partnership
12 unless the limited partnership decides to make an interim distribution.
13 53-2-505. NO DISTRIBUTION ON ACCOUNT OF DISSOCIATION. A person does not
14 have a right to receive a distribution on account of dissociation.
15 53-2-506. DISTRIBUTION IN KIND. A partner does not have a right to demand
16 or receive any distribution from a limited partnership in any form other than
17 cash. Subject to section 53-2-812(2), Idaho Code, a limited partnership may
18 distribute an asset in kind to the extent each partner receives a percentage
19 of the asset equal to the partner's share of distributions.
20 53-2-507. RIGHT TO DISTRIBUTION. When a partner or transferee becomes
21 entitled to receive a distribution, the partner or transferee has the status
22 of, and is entitled to all remedies available to, a creditor of the limited
23 partnership with respect to the distribution. However, the limited
24 partnership's obligation to make a distribution is subject to offset for any
25 amount owed to the limited partnership by the partner or dissociated partner
26 on whose account the distribution is made.
27 53-2-508. LIMITATIONS ON DISTRIBUTION. (1) A limited partnership may not
28 make a distribution in violation of the partnership agreement.
29 (2) A limited partnership may not make a distribution if after the dis-
30 tribution:
31 (a) The limited partnership would not be able to pay its debts as they
32 become due in the ordinary course of the limited partnership's activities;
33 or
34 (b) The limited partnership's total assets would be less than the sum of
35 its total liabilities plus the amount that would be needed, if the limited
36 partnership were to be dissolved, wound up, and terminated at the time of
37 the distribution, to satisfy the preferential rights upon dissolution,
38 winding up, and termination of partners whose preferential rights are
39 superior to those of persons receiving the distribution.
40 (3) A limited partnership may base a determination that a distribution is
41 not prohibited under subsection (2) of this section on financial statements
42 prepared on the basis of accounting practices and principles that are reason-
43 able in the circumstances or on a fair valuation or other method that is rea-
44 sonable in the circumstances.
45 (4) Except as otherwise provided in subsection (6) of this section, the
46 effect of a distribution under subsection (2) of this section is measured:
47 (a) In the case of distribution by purchase, redemption, or other acqui-
48 sition of a transferable interest in the limited partnership, as of the
49 date money or other property is transferred or debt incurred by the lim-
23
1 ited partnership; and
2 (b) In all other cases, as of the date:
3 (i) The distribution is authorized, if the payment occurs within
4 one hundred twenty (120) days after that date; or
5 (ii) The payment is made, if payment occurs more than one hundred
6 twenty (120) days after the distribution is authorized.
7 (5) A limited partnership's indebtedness to a partner incurred by reason
8 of a distribution made in accordance with this section is at parity with the
9 limited partnership's indebtedness to its general, unsecured creditors.
10 (6) A limited partnership's indebtedness, including indebtedness issued
11 in connection with or as part of a distribution, is not considered a liability
12 for purposes of subsection (2) of this section if the terms of the indebted-
13 ness provide that payment of principal and interest are made only to the
14 extent that a distribution could then be made to partners under this section.
15 (7) If indebtedness is issued as a distribution, each payment of princi-
16 pal or interest on the indebtedness is treated as a distribution, the effect
17 of which is measured on the date the payment is made.
18 53-2-509. LIABILITY FOR IMPROPER DISTRIBUTIONS. (1) A general partner
19 that consents to a distribution made in violation of section 53-2-508, Idaho
20 Code, is personally liable to the limited partnership for the amount of the
21 distribution which exceeds the amount that could have been distributed without
22 the violation if it is established that in consenting to the distribution the
23 general partner failed to comply with section 53-2-408, Idaho Code.
24 (2) A partner or transferee that received a distribution knowing that the
25 distribution to that partner or transferee was made in violation of section
26 53-2-508, Idaho Code, is personally liable to the limited partnership but only
27 to the extent that the distribution received by the partner or transferee
28 exceeded the amount that could have been properly paid under section 53-2-508,
29 Idaho Code.
30 (3) A general partner against which an action is commenced under subsec-
31 tion (1) of this section may:
32 (a) Implead in the action any other person that is liable under subsec-
33 tion (1) of this section and compel contribution from the person; and
34 (b) Implead in the action any person that received a distribution in
35 violation of subsection (2) of this section and compel contribution from
36 the person in the amount the person received in violation of subsection
37 (2) of this section.
38 (4) An action under this section is barred if it is not commenced within
39 two (2) years after the distribution.
40 PART 6
41 DISSOCIATION
42 53-2-601. DISSOCIATION AS LIMITED PARTNER. (1) A person does not have a
43 right to dissociate as a limited partner before the termination of the limited
44 partnership.
45 (2) A person is dissociated from a limited partnership as a limited part-
46 ner upon the occurrence of any of the following events:
47 (a) The limited partnership's having notice of the person's express will
48 to withdraw as a limited partner or on a later date specified by the per-
49 son, provided however, a limited partner dissociating under this section
50 shall thereafter have the status of a mere transferee as provided in sec-
51 tion 53-2-602(1)(c), Idaho Code;
52 (b) An event agreed to in the partnership agreement as causing the
24
1 person's dissociation as a limited partner;
2 (c) The person's expulsion as a limited partner pursuant to the partner-
3 ship agreement;
4 (d) The person's expulsion as a limited partner by the unanimous consent
5 of the other partners if:
6 (i) It is unlawful to carry on the limited partnership's activities
7 with the person as a limited partner;
8 (ii) There has been a transfer of all of the person's transferable
9 interest in the limited partnership, other than a transfer for secu-
10 rity purposes, or a court order charging the person's interest, which
11 has not been foreclosed;
12 (iii) The person is a corporation and, within ninety (90) days after
13 the limited partnership notifies the person that it will be expelled
14 as a limited partner because it has filed a certificate of dissolu-
15 tion or the equivalent, its charter has been revoked, or its right to
16 conduct business has been suspended by the jurisdiction of its incor-
17 poration, there is no revocation of the certificate of dissolution or
18 no reinstatement of its charter or its right to conduct business; or
19 (iv) The person is a limited liability company or partnership that
20 has been dissolved and whose business is being wound up;
21 (e) On application by the limited partnership, the person's expulsion as
22 a limited partner by judicial order because:
23 (i) The person engaged in wrongful conduct that adversely and mate-
24 rially affected the limited partnership's activities;
25 (ii) The person willfully or persistently committed a material
26 breach of the partnership agreement or of the obligation of good
27 faith and fair dealing under section 53-2-305(2), Idaho Code; or
28 (iii) The person engaged in conduct relating to the limited
29 partnership's activities which makes it not reasonably practicable to
30 carry on the activities with the person as limited partner;
31 (f) In the case of a person who is an individual, the person's death;
32 (g) In the case of a person that is a trust or is acting as a limited
33 partner by virtue of being a trustee of a trust, distribution of the
34 trust's entire transferable interest in the limited partnership, but not
35 merely by reason of the substitution of a successor trustee;
36 (h) In the case of a person that is an estate or is acting as a limited
37 partner by virtue of being a personal representative of an estate, distri-
38 bution of the estate's entire transferable interest in the limited part-
39 nership, but not merely by reason of the substitution of a successor per-
40 sonal representative;
41 (i) Termination of a limited partner that is not an individual, partner-
42 ship, limited liability company, corporation, trust, or estate;
43 (j) The limited partnership's participation in a conversion or merger
44 under part 11 of this chapter, if the limited partnership:
45 (i) Is not the converted or surviving entity; or
46 (ii) Is the converted or surviving entity but, as a result of the
47 conversion or merger, the person ceases to be a limited partner.
48 53-2-602. EFFECT OF DISSOCIATION AS LIMITED PARTNER. (1) Upon a person's
49 dissociation as a limited partner:
50 (a) Subject to section 53-2-704, Idaho Code, the person does not have
51 further rights as a limited partner;
52 (b) The person's obligation of good faith and fair dealing as a limited
53 partner under section 53-2-305(2), Idaho Code, continues only as to mat-
54 ters arising and events occurring before the dissociation; and
25
1 (c) Subject to section 53-2-704, Idaho Code, and part 11 of this chapter,
2 any transferable interest owned by the person in the person's capacity as
3 a limited partner immediately before dissociation is owned by the person
4 as a mere transferee.
5 (2) A person's dissociation as a limited partner does not of itself dis-
6 charge the person from any obligation to the limited partnership or the other
7 partners which the person incurred while a limited partner.
8 53-2-603. DISSOCIATION AS GENERAL PARTNER. A person is dissociated from a
9 limited partnership as a general partner upon the occurrence of any of the
10 following events:
11 (1) The limited partnership's having notice of the person's express will
12 to withdraw as a general partner or on a later date specified by the person;
13 (2) An event agreed to in the partnership agreement as causing the
14 person's dissociation as a general partner;
15 (3) The person's expulsion as a general partner pursuant to the partner-
16 ship agreement;
17 (4) The person's expulsion as a general partner by the unanimous consent
18 of the other partners if:
19 (a) It is unlawful to carry on the limited partnership's activities with
20 the person as a general partner;
21 (b) There has been a transfer of all or substantially all of the person's
22 transferable interest in the limited partnership, other than a transfer
23 for security purposes, or a court order charging the person's interest,
24 which has not been foreclosed;
25 (c) The person is a corporation and, within ninety (90) days after the
26 limited partnership notifies the person that it will be expelled as a gen-
27 eral partner because it has filed a certificate of dissolution or the
28 equivalent, its charter has been revoked, or its right to conduct business
29 has been suspended by the jurisdiction of its incorporation, there is no
30 revocation of the certificate of dissolution or no reinstatement of its
31 charter or its right to conduct business; or
32 (d) The person is a limited liability company or partnership that has
33 been dissolved and whose business is being wound up;
34 (5) On application by the limited partnership, the person's expulsion as
35 a general partner by judicial determination because:
36 (a) The person engaged in wrongful conduct that adversely and materially
37 affected the limited partnership activities;
38 (b) The person willfully or persistently committed a material breach of
39 the partnership agreement or of a duty owed to the partnership or the
40 other partners under section 53-2-408, Idaho Code; or
41 (c) The person engaged in conduct relating to the limited partnership's
42 activities which makes it not reasonably practicable to carry on the
43 activities of the limited partnership with the person as a general part-
44 ner;
45 (6) The person's:
46 (a) Becoming a debtor in bankruptcy;
47 (b) Execution of an assignment for the benefit of creditors;
48 (c) Seeking, consenting to, or acquiescing in the appointment of a
49 trustee, receiver, or liquidator of the person or of all or substantially
50 all of the person's property; or
51 (d) Failure, within ninety (90) days after the appointment, to have
52 vacated or stayed the appointment of a trustee, receiver, or liquidator of
53 the general partner or of all or substantially all of the person's prop-
54 erty obtained without the person's consent or acquiescence, or failing
26
1 within ninety (90) days after the expiration of a stay to have the
2 appointment vacated;
3 (7) In the case of a person who is an individual:
4 (a) The person's death;
5 (b) The appointment of a guardian or general conservator for the person;
6 or
7 (c) A judicial determination that the person has otherwise become incapa-
8 ble of performing the person's duties as a general partner under the part-
9 nership agreement;
10 (8) In the case of a person that is a trust or is acting as a general
11 partner by virtue of being a trustee of a trust, distribution of the trust's
12 entire transferable interest in the limited partnership, but not merely by
13 reason of the substitution of a successor trustee;
14 (9) In the case of a person that is an estate or is acting as a general
15 partner by virtue of being a personal representative of an estate, distribu-
16 tion of the estate's entire transferable interest in the limited partnership,
17 but not merely by reason of the substitution of a successor personal represen-
18 tative;
19 (10) Termination of a general partner that is not an individual, partner-
20 ship, limited liability company, corporation, trust, or estate; or
21 (11) The limited partnership's participation in a conversion or merger
22 under part 11 of this chapter, if the limited partnership:
23 (a) Is not the converted or surviving entity; or
24 (b) Is the converted or surviving entity but, as a result of the conver-
25 sion or merger, the person ceases to be a general partner.
26 53-2-604. PERSON'S POWER TO DISSOCIATE AS GENERAL PARTNER -- WRONGFUL
27 DISSOCIATION. (1) A person has the power to dissociate as a general partner at
28 any time, rightfully or wrongfully, by express will pursuant to section
29 53-2-603(1), Idaho Code.
30 (2) A person's dissociation as a general partner is wrongful only if:
31 (a) It is in breach of an express provision of the partnership agreement;
32 or
33 (b) It occurs before the termination of the limited partnership, and:
34 (i) The person withdraws as a general partner by express will;
35 (ii) The person is expelled as a general partner by judicial deter-
36 mination under section 53-2-603(5), Idaho Code;
37 (iii) The person is dissociated as a general partner by becoming a
38 debtor in bankruptcy; or
39 (iv) In the case of a person that is not an individual, trust other
40 than a business trust, or estate, the person is expelled or otherwise
41 dissociated as a general partner because it willfully dissolved or
42 terminated.
43 (3) A person that wrongfully dissociates as a general partner is liable
44 to the limited partnership and, subject to section 53-2-1001, Idaho Code, to
45 the other partners for damages caused by the dissociation. The liability is in
46 addition to any other obligation of the general partner to the limited part-
47 nership or to the other partners.
48 53-2-605. EFFECT OF DISSOCIATION AS GENERAL PARTNER. (1) Upon a person's
49 dissociation as a general partner:
50 (a) The person's right to participate as a general partner in the manage-
51 ment and conduct of the partnership's activities terminates;
52 (b) The person's duty of loyalty as a general partner under section
53 53-2-408(2)(c), Idaho Code, terminates;
27
1 (c) The person's duty of loyalty as a general partner under section
2 53-2-408(2)(a) and (b), Idaho Code, and duty of care under section
3 53-2-408(3), Idaho Code, continue only with regard to matters arising and
4 events occurring before the person's dissociation as a general partner;
5 (d) The person may sign and deliver to the secretary of state for filing
6 a statement of dissociation pertaining to the person and, at the request
7 of the limited partnership, shall sign an amendment to the certificate of
8 limited partnership which states that the person has dissociated; and
9 (e) Subject to section 53-2-704, Idaho Code, and part 11 of this chapter,
10 any transferable interest owned by the person immediately before dissocia-
11 tion in the person's capacity as a general partner is owned by the person
12 as a mere transferee.
13 (2) A person's dissociation as a general partner does not of itself dis-
14 charge the person from any obligation to the limited partnership or the other
15 partners which the person incurred while a general partner.
16 53-2-606. POWER TO BIND AND LIABILITY TO LIMITED PARTNERSHIP BEFORE DIS-
17 SOLUTION OF PARTNERSHIP OF PERSON DISSOCIATED AS GENERAL PARTNER. (1) After a
18 person is dissociated as a general partner and before the limited partnership
19 is dissolved, converted under part 11 of this chapter, or merged out of exis-
20 tence under part 11 of this chapter, the limited partnership is bound by an
21 act of the person only if:
22 (a) The act would have bound the limited partnership under section
23 53-2-402, Idaho Code, before the dissociation; and
24 (b) At the time the other party enters into the transaction:
25 (i) Less than two (2) years has passed since the dissociation; and
26 (ii) The other party does not have notice of the dissociation and
27 reasonably believes that the person is a general partner.
28 (2) If a limited partnership is bound under subsection (1) of this sec-
29 tion, the person dissociated as a general partner which caused the limited
30 partnership to be bound is liable:
31 (a) To the limited partnership for any damage caused to the limited part-
32 nership arising from the obligation incurred under subsection (1) of this
33 section; and
34 (b) If a general partner or another person dissociated as a general part-
35 ner is liable for the obligation, to the general partner or other person
36 for any damage caused to the general partner or other person arising from
37 the liability.
38 53-2-607. LIABILITY TO OTHER PERSONS OF PERSON DISSOCIATED AS GENERAL
39 PARTNER. (1) A person's dissociation as a general partner does not of itself
40 discharge the person's liability as a general partner for an obligation of the
41 limited partnership incurred before dissociation. Except as otherwise provided
42 in subsections (2) and (3) of this section, the person is not liable for a
43 limited partnership's obligation incurred after dissociation.
44 (2) A person whose dissociation as a general partner resulted in a disso-
45 lution and winding up of the limited partnership's activities is liable to the
46 same extent as a general partner under section 53-2-404, Idaho Code, on an
47 obligation incurred by the limited partnership under section 53-2-804, Idaho
48 Code.
49 (3) A person that has dissociated as a general partner but whose dissoci-
50 ation did not result in a dissolution and winding up of the limited
51 partnership's activities is liable on a transaction entered into by the lim-
52 ited partnership after the dissociation only if:
53 (a) A general partner would be liable on the transaction; and
28
1 (b) At the time the other party enters into the transaction:
2 (i) Less than two (2) years has passed since the dissociation; and
3 (ii) The other party does not have notice of the dissociation and
4 reasonably believes that the person is a general partner.
5 (4) By agreement with a creditor of a limited partnership and the limited
6 partnership, a person dissociated as a general partner may be released from
7 liability for an obligation of the limited partnership.
8 (5) A person dissociated as a general partner is released from liability
9 for an obligation of the limited partnership if the limited partnership's
10 creditor, with notice of the person's dissociation as a general partner but
11 without the person's consent, agrees to a material alteration in the nature or
12 time of payment of the obligation.
13 PART 7
14 TRANSFERABLE INTERESTS AND RIGHTS
15 OF TRANSFEREES AND CREDITORS
16 53-2-701. PARTNER'S TRANSFERABLE INTEREST. The only interest of a partner
17 which is transferable is the partner's transferable interest. A transferable
18 interest is personal property.
19 53-2-702. TRANSFER OF PARTNER'S TRANSFERABLE INTEREST. (1) A transfer, in
20 whole or in part, of a partner's transferable interest:
21 (a) Is permissible;
22 (b) Does not by itself cause the partner's dissociation or a dissolution
23 and winding up of the limited partnership's activities; and
24 (c) Does not, as against the other partners or the limited partnership,
25 entitle the transferee to participate in the management or conduct of the
26 limited partnership's activities, to require access to information con-
27 cerning the limited partnership's transactions except as otherwise pro-
28 vided in subsection (3) of this section, or to inspect or copy the
29 required information or the limited partnership's other records.
30 (2) A transferee has a right to receive, in accordance with the transfer:
31 (a) Distributions to which the transferor would otherwise be entitled;
32 and
33 (b) Upon the dissolution and winding up of the limited partnership's
34 activities the net amount otherwise distributable to the transferor.
35 (3) In a dissolution and winding up, a transferee is entitled to an
36 account of the limited partnership's transactions only from the date of disso-
37 lution.
38 (4) Upon transfer, the transferor retains the rights of a partner other
39 than the interest in distributions transferred and retains all duties and
40 obligations of a partner.
41 (5) A limited partnership need not give effect to a transferee's rights
42 under this section until the limited partnership has notice of the transfer.
43 (6) A transfer of a partner's transferable interest in the limited part-
44 nership in violation of a restriction on transfer contained in the partnership
45 agreement is ineffective as to a person having notice of the restriction at
46 the time of transfer.
47 (7) A transferee that becomes a partner with respect to a transferable
48 interest is liable for the transferor's obligations under sections 53-2-502
49 and 53-2-509, Idaho Code. However, the transferee is not obligated for liabil-
50 ities unknown to the transferee at the time the transferee became a partner.
51 53-2-703. RIGHTS OF CREDITOR OF PARTNER OR TRANSFEREE. (1) On application
29
1 to a court of competent jurisdiction by any judgment creditor of a partner or
2 transferee, the court may charge the transferable interest of the judgment
3 debtor with payment of the unsatisfied amount of the judgment with interest.
4 To the extent so charged, the judgment creditor has only the rights of a
5 transferee. The court may appoint a receiver of the share of the distributions
6 due or to become due to the judgment debtor in respect of the partnership and
7 make all other orders, directions, accounts, and inquiries the judgment debtor
8 might have made or which the circumstances of the case may require to give
9 effect to the charging order.
10 (2) A charging order constitutes a lien on the judgment debtor's trans-
11 ferable interest. The court may order a foreclosure upon the interest subject
12 to the charging order at any time. The purchaser at the foreclosure sale has
13 the rights of a transferee.
14 (3) At any time before foreclosure, an interest charged may be redeemed:
15 (a) By the judgment debtor;
16 (b) With property other than limited partnership property, by one (1) or
17 more of the other partners; or
18 (c) With limited partnership property, by the limited partnership with
19 the consent of all partners whose interests are not so charged.
20 (4) This chapter does not deprive any partner or transferee of the bene-
21 fit of any exemption laws applicable to the partner's or transferee's trans-
22 ferable interest.
23 (5) This section provides the exclusive remedy by which a judgment credi-
24 tor of a partner or transferee may satisfy a judgment out of the judgment
25 debtor's transferable interest.
26 53-2-704. POWER OF ESTATE OF DECEASED PARTNER. If a partner dies, the
27 deceased partner's personal representative or other legal representative may
28 exercise the rights of a transferee as provided in section 53-2-702, Idaho
29 Code, and, for the purposes of settling the estate, may exercise the rights of
30 a current limited partner under section 53-2-304, Idaho Code.
31 PART 8
32 DISSOLUTION
33 53-2-801. NONJUDICIAL DISSOLUTION. Except as otherwise provided in sec-
34 tion 53-2-802, Idaho Code, a limited partnership is dissolved, and its activi-
35 ties must be wound up, only upon the occurrence of any of the following:
36 (1) The dissolution date, if any, specified in the certificate of limited
37 partnership, provided however, that if a dissolution date is not specified in
38 the certificate of limited partnership, the limited partnership's existence
39 shall continue until the first to occur of the events described in subsections
40 (2) through (6) of this section. If a dissolution date is specified in the
41 certificate of limited partnership, and unless the limited partnership agree-
42 ment provides otherwise, the certificate of limited partnership may be amended
43 and the existence of the limited partnership may be extended by the vote of
44 all the general partners and of all limited partners owning the rights to
45 receive distributions as limited partners at the time consent is to be effec-
46 tive;
47 (2) The happening of an event specified in the partnership agreement;
48 (3) The written consent of all general partners and of all limited part-
49 ners owning the rights to receive distributions as limited partners at the
50 time consent is to be effective;
51 (4) After the dissociation of the last remaining general partner, if by
52 the ninetieth day following such dissociation, the limited partners owning a
30
1 majority of the rights to receive distributions as limited partners have
2 failed to vote to admit one (1) or more general partners;
3 (5) The passage of ninety (90) days after the dissociation of the limited
4 partnership's last limited partner, unless before the end of the period the
5 limited partnership admits at least one (1) limited partner; or
6 (6) The signing and filing of a declaration of dissolution by the secre-
7 tary of state under section 53-2-809(3), Idaho Code.
8 53-2-802. JUDICIAL DISSOLUTION. On application by at least one (1) gen-
9 eral partner and a majority of the limited partners owning the rights to
10 receive distributions as limited partners at the time of the application, the
11 court may order dissolution of a limited partnership if it is not reasonably
12 practicable to carry on the activities of the limited partnership in confor-
13 mity with the partnership agreement.
14 53-2-803. WINDING UP. (1) A limited partnership continues after dissolu-
15 tion only for the purpose of winding up its activities.
16 (2) In winding up its activities, the limited partnership:
17 (a) May amend its certificate of limited partnership to state that the
18 limited partnership is dissolved, preserve the limited partnership busi-
19 ness or property as a going concern for a reasonable time, prosecute and
20 defend actions and proceedings, whether civil, criminal, or administra-
21 tive, transfer the limited partnership's property, settle disputes by
22 mediation or arbitration, file a statement of termination as provided in
23 section 53-2-203, Idaho Code, and perform other necessary acts; and
24 (b) Shall discharge the limited partnership's liabilities, settle and
25 close the limited partnership's activities, and marshal and distribute the
26 assets of the partnership.
27 (3) If a dissolved limited partnership does not have a general partner, a
28 person to wind up the dissolved limited partnership's activities may be
29 appointed by the consent of limited partners owning a majority of the rights
30 to receive distributions as limited partners at the time the consent is to be
31 effective. A person appointed under this subsection:
32 (a) Has the powers of a general partner under section 53-2-804, Idaho
33 Code; and
34 (b) Shall promptly amend the certificate of limited partnership to state:
35 (i) That the limited partnership does not have a general partner;
36 (ii) The name of the person that has been appointed to wind up the
37 limited partnership; and
38 (iii) The street and mailing address of the person.
39 (4) On the application of any partner, the court may order judicial
40 supervision of the winding up, including the appointment of a person to wind
41 up the dissolved limited partnership's activities, if:
42 (a) A limited partnership does not have a general partner and within a
43 reasonable time following the dissolution no person has been appointed
44 pursuant to subsection (3) of this section; or
45 (b) The applicant establishes other good cause.
46 53-2-804. POWER OF GENERAL PARTNER AND PERSON DISSOCIATED AS GENERAL
47 PARTNER TO BIND PARTNERSHIP AFTER DISSOLUTION. (1) A limited partnership is
48 bound by a general partner's act after dissolution which:
49 (a) Is appropriate for winding up the limited partnership's activities;
50 or
51 (b) Would have bound the limited partnership under section 53-2-402,
52 Idaho Code, before dissolution, if, at the time the other party enters
31
1 into the transaction, the other party does not have notice of the dissolu-
2 tion.
3 (2) A person dissociated as a general partner binds a limited partnership
4 through an act occurring after dissolution if:
5 (a) At the time the other party enters into the transaction:
6 (i) Less than two (2) years have passed since the dissociation; and
7 (ii) The other party does not have notice of the dissociation and
8 reasonably believes that the person is a general partner; and
9 (b) The act:
10 (i) Is appropriate for winding up the limited partnership's activi-
11 ties; or
12 (ii) Would have bound the limited partnership under section
13 53-2-402, Idaho Code, before dissolution and at the time the other
14 party enters into the transaction the other party does not have
15 notice of the dissolution.
16 53-2-805. LIABILITY AFTER DISSOLUTION OF GENERAL PARTNER AND PERSON
17 DISSOCIATED AS GENERAL PARTNER TO LIMITED PARTNERSHIP, OTHER GENERAL PARTNERS,
18 AND PERSONS DISSOCIATED AS GENERAL PARTNER. (1) If a general partner having
19 knowledge of the dissolution causes a limited partnership to incur an obliga-
20 tion under section 53-2-804(1), Idaho Code, by an act that is not appropriate
21 for winding up the partnership's activities, the general partner is liable:
22 (a) To the limited partnership for any damage caused to the limited part-
23 nership arising from the obligation; and
24 (b) If another general partner or a person dissociated as a general part-
25 ner is liable for the obligation, to that other general partner or person
26 for any damage caused to that other general partner or person arising from
27 the liability.
28 (2) If a person dissociated as a general partner causes a limited part-
29 nership to incur an obligation under section 53-2-804(2), Idaho Code, the per-
30 son is liable:
31 (a) To the limited partnership for any damage caused to the limited part-
32 nership arising from the obligation; and
33 (b) If a general partner or another person dissociated as a general part-
34 ner is liable for the obligation, to the general partner or other person
35 for any damage caused to the general partner or other person arising from
36 the liability.
37 53-2-806. KNOWN CLAIMS AGAINST DISSOLVED LIMITED PARTNERSHIP. (1) A dis-
38 solved limited partnership may dispose of the known claims against it by fol-
39 lowing the procedure described in subsection (2) of this section.
40 (2) A dissolved limited partnership may notify its known claimants of the
41 dissolution in a record. The notice must:
42 (a) Specify the information required to be included in a claim;
43 (b) Provide a mailing address to which the claim is to be sent;
44 (c) State the deadline for receipt of the claim, which may not be less
45 than one hundred twenty (120) days after the date the notice is received
46 by the claimant;
47 (d) State that the claim will be barred if not received by the deadline;
48 and
49 (e) Unless the limited partnership has been throughout its existence a
50 limited liability limited partnership, state that the barring of a claim
51 against the limited partnership will also bar any corresponding claim
52 against any general partner or person dissociated as a general partner
53 which is based on section 53-2-404, Idaho Code.
32
1 (3) A claim against a dissolved limited partnership is barred if the
2 requirements of subsection (2) of this section are met and:
3 (a) The claim is not received by the specified deadline; or
4 (b) In the case of a claim that is timely received but rejected by the
5 dissolved limited partnership, the claimant does not commence an action to
6 enforce the claim against the limited partnership within ninety (90) days
7 after the receipt of the notice of the rejection.
8 (4) This section does not apply to a claim based on an event occurring
9 after the effective date of dissolution or a liability that is contingent on
10 that date.
11 53-2-807. OTHER CLAIMS AGAINST DISSOLVED LIMITED PARTNERSHIP. (1) A dis-
12 solved limited partnership may publish notice of its dissolution and request
13 persons having claims against the limited partnership to present them in
14 accordance with the notice.
15 (2) The notice must:
16 (a) Be published at least once in a newspaper of general circulation in
17 the county in which the dissolved limited partnership's principal office
18 is located or, if it has none in this state, in the county in which the
19 limited partnership's designated office is or was last located;
20 (b) Describe the information required to be contained in a claim and pro-
21 vide a mailing address to which the claim is to be sent;
22 (c) State that a claim against the limited partnership is barred unless
23 an action to enforce the claim is commenced within five (5) years after
24 publication of the notice; and
25 (d) Unless the limited partnership has been throughout its existence a
26 limited liability limited partnership, state that the barring of a claim
27 against the limited partnership will also bar any corresponding claim
28 against any general partner or person dissociated as a general partner
29 which is based on section 53-2-404, Idaho Code.
30 (3) If a dissolved limited partnership publishes a notice in accordance
31 with subsection (2) of this section, the claim of each of the following claim-
32 ants is barred unless the claimant commences an action to enforce the claim
33 against the dissolved limited partnership within five (5) years after the pub-
34 lication date of the notice:
35 (a) A claimant that did not receive notice in a record under section
36 53-2-806, Idaho Code;
37 (b) A claimant whose claim was timely sent to the dissolved limited part-
38 nership but not acted on; and
39 (c) A claimant whose claim is contingent or based on an event occurring
40 after the effective date of dissolution.
41 (4) A claim not barred under this section may be enforced:
42 (a) Against the dissolved limited partnership, to the extent of its
43 undistributed assets;
44 (b) If the assets have been distributed in liquidation, against a partner
45 or transferee to the extent of that person's proportionate share of the
46 claim or the limited partnership's assets distributed to the partner or
47 transferee in liquidation, whichever is less, but a person's total liabil-
48 ity for all claims under this paragraph does not exceed the total amount
49 of assets distributed to the person as part of the winding up of the dis-
50 solved limited partnership; or
51 (c) Against any person liable on the claim under section 53-2-404, Idaho
52 Code.
53 53-2-808. LIABILITY OF GENERAL PARTNER AND PERSON DISSOCIATED AS GENERAL
33
1 PARTNER WHEN CLAIM AGAINST LIMITED PARTNERSHIP BARRED. If a claim against a
2 dissolved limited partnership is barred under section 53-2-806 or 53-2-807,
3 Idaho Code, any corresponding claim under section 53-2-404, Idaho Code, is
4 also barred.
5 53-2-809. ADMINISTRATIVE DISSOLUTION. (1) The secretary of state may dis-
6 solve a limited partnership administratively if:
7 (a) The limited partnership does not deliver its annual report to the
8 secretary of state within sixty (60) days of its due date; or
9 (b) The limited partnership is without a registered agent or registered
10 office in this state for sixty (60) days or more.
11 (2) If the secretary of state determines that a ground exists for admin-
12 istratively dissolving a limited partnership, the secretary of state shall
13 mail a notice of dissolution to the limited partnership.
14 (3) If within sixty (60) days after service of the copy the limited part-
15 nership does not correct each ground for dissolution or demonstrate to the
16 reasonable satisfaction of the secretary of state that each ground determined
17 by the secretary of state does not exist, the secretary of state shall admin-
18 istratively dissolve the limited partnership by noting the fact of dissolution
19 and the effective date thereof in his records. The secretary of state shall
20 give notice of the dissolution to the limited partnership by first class mail
21 addressed to its mailing address as indicated on its most recent annual report
22 or, if the limited partnership has not yet filed an annual report, to its
23 principal office.
24 (4) A limited partnership administratively dissolved continues its exis-
25 tence but may carry on only activities necessary to wind up its activities and
26 liquidate its assets under sections 53-2-803 and 53-2-812, Idaho Code, and to
27 notify claimants under sections 53-2-806 and 53-2-807, Idaho Code.
28 (5) The administrative dissolution of a limited partnership does not ter-
29 minate the authority of its registered agent.
30 53-2-810. REINSTATEMENT FOLLOWING ADMINISTRATIVE DISSOLUTION. (1) A lim-
31 ited partnership administratively dissolved under section 53-2-809, Idaho
32 Code, may apply to the secretary of state for reinstatement within ten (10)
33 years after the effective date of dissolution. The application must:
34 (a) Recite the name of the limited partnership at the time of its disso-
35 lution and the date of its organization;
36 (b) State that the limited partnership applies for reinstatement;
37 (c) State that the limited partnership's proposed name satisfies the
38 requirements of section 53-2-108, Idaho Code; and
39 (d) Be accompanied by a current annual report or appointment of regis-
40 tered agent, as appropriate to the reason for administrative dissolution.
41 (2) If the secretary of state determines that the application contains
42 the information required by subsection (1) of this section and that the infor-
43 mation is correct, he shall cancel the dissolution and prepare a certificate
44 of reinstatement that recites the fact and effective date of the reinstate-
45 ment, file a copy thereof and return the original to the limited partnership.
46 (3) When the reinstatement becomes effective, it relates back to and
47 takes effect as of the effective date of the administrative dissolution and
48 the limited partnership resumes carrying on its business as if the adminis-
49 trative dissolution had never occurred.
50 53-2-811. APPEAL FROM DENIAL OF REINSTATEMENT. (1) If the secretary of
51 state denies a limited partnership's application for reinstatement following
52 administrative dissolution, the secretary of state shall prepare, sign and
34
1 file a notice that explains the reason or reasons for denial and serve the
2 limited partnership with a copy of the notice.
3 (2) Within thirty (30) days after service of the notice of denial, the
4 limited partnership may appeal from the denial of reinstatement by petitioning
5 the court to set aside the dissolution. The petition must be served on the
6 secretary of state and contain a copy of the secretary of state's declaration
7 of dissolution, the limited partnership's application for reinstatement, and
8 the secretary of state's notice of denial.
9 (3) The court may summarily order the secretary of state to reinstate the
10 dissolved limited partnership or may take other action the court considers
11 appropriate.
12 53-2-812. DISPOSITION OF ASSETS -- WHEN CONTRIBUTIONS REQUIRED. (1) In
13 winding up a limited partnership's activities, the assets of the limited part-
14 nership, including the contributions required by this section, must be applied
15 to satisfy the limited partnership's obligations to creditors, including, to
16 the extent permitted by law, partners that are creditors.
17 (2) Any surplus remaining after the limited partnership complies with
18 subsection (1) of this section must be paid in cash as a distribution.
19 (3) If a limited partnership's assets are insufficient to satisfy all of
20 its obligations under subsection (1) of this section, with respect to each
21 unsatisfied obligation incurred when the limited partnership was not a limited
22 liability limited partnership, the following rules apply:
23 (a) Each person that was a general partner when the obligation was incur-
24 red and that has not been released from the obligation under section
25 53-2-607, Idaho Code, shall contribute to the limited partnership for the
26 purpose of enabling the limited partnership to satisfy the obligation. The
27 contribution due from each of those persons is in proportion to the right
28 to receive distributions in the capacity of general partner in effect for
29 each of those persons when the obligation was incurred.
30 (b) If a person does not contribute the full amount required under para-
31 graph (a) of this subsection with respect to an unsatisfied obligation of
32 the limited partnership, the other persons required to contribute by para-
33 graph (a) of this subsection on account of the obligation shall contribute
34 the additional amount necessary to discharge the obligation. The addi-
35 tional contribution due from each of those other persons is in proportion
36 to the right to receive distributions in the capacity of general partner
37 in effect for each of those other persons when the obligation was incur-
38 red.
39 (c) If a person does not make the additional contribution required by
40 paragraph (b) of this subsection, further additional contributions are
41 determined and due in the same manner as provided in that paragraph.
42 (4) A person that makes an additional contribution under subsection
43 (3)(b) or (c) of this section may recover from any person whose failure to
44 contribute under subsection (3)(a) or (b) of this section necessitated the
45 additional contribution. A person may not recover under this subsection more
46 than the amount additionally contributed. A person's liability under this sub-
47 section may not exceed the amount the person failed to contribute.
48 (5) The estate of a deceased individual is liable for the person's obli-
49 gations under this section.
50 (6) An assignee for the benefit of creditors of a limited partnership or
51 a partner, or a person appointed by a court to represent creditors of a lim-
52 ited partnership or a partner, may enforce a person's obligation to contribute
53 under subsection (3) of this section.
35
1 PART 9
2 FOREIGN LIMITED PARTNERSHIPS
3 53-2-901. GOVERNING LAW. (1) The laws of the state or other jurisdiction
4 under which a foreign limited partnership is organized govern relations among
5 the partners of the foreign limited partnership and between the partners and
6 the foreign limited partnership and the liability of partners as partners for
7 an obligation of the foreign limited partnership.
8 (2) A foreign limited partnership may not be denied a certificate of
9 authority by reason of any difference between the laws of the jurisdiction
10 under which the foreign limited partnership is organized and the laws of this
11 state.
12 (3) A certificate of authority does not authorize a foreign limited part-
13 nership to engage in any business or exercise any power that a limited part-
14 nership may not engage in or exercise in this state.
15 53-2-902. APPLICATION FOR CERTIFICATE OF AUTHORITY. (1) A foreign limited
16 partnership may apply for a certificate of authority to transact business in
17 this state by delivering an application to the secretary of state for filing.
18 The application must state:
19 (a) The name of the foreign limited partnership and, if the name does not
20 comply with section 53-2-108, Idaho Code, an alternate name adopted pursu-
21 ant to section 53-2-905(1), Idaho Code;
22 (b) The name of the state or other jurisdiction under whose law the for-
23 eign limited partnership is organized;
24 (c) The street and mailing address of the foreign limited partnership's
25 principal office and, if the laws of the jurisdiction under which the for-
26 eign limited partnership is organized require the foreign limited partner-
27 ship to maintain an office in that jurisdiction, the street and mailing
28 address of the required office;
29 (d) The name and street and mailing address of the foreign limited
30 partnership's initial agent for service of process in this state;
31 (e) The name and street and mailing address of each of the foreign lim-
32 ited partnership's general partners; and
33 (f) Whether the foreign limited partnership is a foreign limited liabil-
34 ity limited partnership.
35 (2) A foreign limited partnership shall deliver with the completed appli-
36 cation a certificate of existence or a record of similar import signed by the
37 secretary of state or other official having custody of the foreign limited
38 partnership's publicly filed records in the state or other jurisdiction under
39 whose law the foreign limited partnership is organized.
40 53-2-903. ACTIVITIES NOT CONSTITUTING TRANSACTING BUSINESS. (1) Activi-
41 ties of a foreign limited partnership which do not constitute transacting
42 business in this state within the meaning of this part 9 include:
43 (a) Maintaining, defending, and settling an action or proceeding;
44 (b) Holding meetings of its partners or carrying on any other activity
45 concerning its internal affairs;
46 (c) Maintaining accounts in financial institutions;
47 (d) Maintaining offices or agencies for the transfer, exchange, and reg-
48 istration of the foreign limited partnership's own securities or maintain-
49 ing trustees or depositories with respect to those securities;
50 (e) Selling through independent contractors;
51 (f) Soliciting or obtaining orders, whether by mail or electronic means
52 or through employees or agents or otherwise, if the orders require accep-
36
1 tance outside this state before they become contracts;
2 (g) Creating or acquiring indebtedness, mortgages, or security interests
3 in real or personal property;
4 (h) Securing or collecting debts or enforcing mortgages or other security
5 interests in property securing the debts, and holding, protecting, and
6 maintaining property so acquired;
7 (i) Conducting an isolated transaction that is completed within thirty
8 (30) days and is not one in the course of similar transactions of a like
9 manner; and
10 (j) Transacting business in interstate commerce.
11 (2) For purposes of this part 9, the ownership in this state of income-
12 producing real property or tangible personal property, other than property
13 excluded under subsection (1) of this section, constitutes transacting busi-
14 ness in this state.
15 (3) This section does not apply in determining the contacts or activities
16 that may subject a foreign limited partnership to service of process, taxa-
17 tion, or regulation under any other law of this state.
18 53-2-904. FILING OF CERTIFICATE OF AUTHORITY. Unless the secretary of
19 state determines that an application for a certificate of authority does not
20 comply with the filing requirements of this chapter, the secretary of state,
21 upon payment of all filing fees, shall file the application, prepare, sign and
22 file a certificate of authority to transact business in this state, and send a
23 copy of the filed certificate, together with a receipt for the fees, to the
24 foreign limited partnership or its representative.
25 53-2-905. NONCOMPLYING NAME OF FOREIGN LIMITED PARTNERSHIP. (1) A foreign
26 limited partnership whose name does not comply with section 53-2-108, Idaho
27 Code, may not obtain a certificate of authority until it adopts, for the pur-
28 pose of transacting business in this state, an alternate name that complies
29 with section 53-2-108, Idaho Code. After obtaining a certificate of authority
30 with an alternate name, a foreign limited partnership shall transact business
31 in this state under the name.
32 (2) If a foreign limited partnership authorized to transact business in
33 this state changes its name to one that does not comply with section 53-2-108,
34 Idaho Code, it may not thereafter transact business in this state until it
35 complies with subsection (1) of this section and obtains an amended certifi-
36 cate of authority.
37 53-2-906. REVOCATION OF CERTIFICATE OF AUTHORITY. (1) A certificate of
38 authority of a foreign limited partnership to transact business in this state
39 may be revoked by the secretary of state in the manner provided in subsections
40 (2) and (3) of this section if the foreign limited partnership does not:
41 (a) Pay, within sixty (60) days after the due date, any fee, tax or pen-
42 alty due to the secretary of state under this chapter or other law;
43 (b) Deliver, within sixty (60) days after the due date, its annual report
44 required under section 53-2-210, Idaho Code;
45 (c) Appoint and maintain an agent for service of process as required by
46 section 53-2-114(2), Idaho Code; or
47 (d) Deliver for filing a statement of a change under section 53-2-115,
48 Idaho Code, within thirty (30) days after a change has occurred in the
49 name or address of the agent.
50 (2) In order to revoke a certificate of authority, the secretary of state
51 must prepare, sign, and file a notice of revocation and send a copy to the
52 foreign limited partnership's agent for service of process in this state, or
37
1 if the foreign limited partnership does not appoint and maintain a proper
2 agent in this state, to the foreign limited partnership's designated office.
3 The notice must state:
4 (a) The revocation's effective date, which must be at least sixty (60)
5 days after the date the secretary of state sends the copy; and
6 (b) The foreign limited partnership's failures to comply with subsection
7 (1) of this section which are the reason for the revocation.
8 (3) The authority of the foreign limited partnership to transact business
9 in this state ceases on the effective date of the notice of revocation unless
10 before that date the foreign limited partnership cures each failure to comply
11 with subsection (1) of this section stated in the notice. If the foreign lim-
12 ited partnership cures the failures, the secretary of state shall so indicate
13 on the filed notice.
14 53-2-907. CANCELLATION OF CERTIFICATE OF AUTHORITY -- EFFECT OF FAILURE
15 TO HAVE CERTIFICATE. (1) In order to cancel its certificate of authority to
16 transact business in this state, a foreign limited partnership must deliver to
17 the secretary of state for filing a notice of cancellation. The certificate is
18 canceled when the notice becomes effective under section 53-2-206, Idaho Code.
19 (2) A foreign limited partnership transacting business in this state may
20 not maintain an action or proceeding in this state unless it has a certificate
21 of authority to transact business in this state.
22 (3) The failure of a foreign limited partnership to have a certificate of
23 authority to transact business in this state does not impair the validity of a
24 contract or act of the foreign limited partnership or prevent the foreign lim-
25 ited partnership from defending an action or proceeding in this state.
26 (4) A partner of a foreign limited partnership is not liable for the
27 obligations of the foreign limited partnership solely by reason of the foreign
28 limited partnership's having transacted business in this state without a cer-
29 tificate of authority.
30 (5) If a foreign limited partnership transacts business in this state
31 without a certificate of authority or cancels its certificate of authority, it
32 appoints the secretary of state as its agent for service of process for rights
33 of action arising out of the transaction of business in this state.
34 53-2-908. ACTION BY ATTORNEY GENERAL. The attorney general may maintain
35 an action to restrain a foreign limited partnership from transacting business
36 in this state in violation of this part 9.
37 PART 10
38 ACTIONS BY PARTNERS
39 53-2-1001. DIRECT ACTION BY PARTNER. (1) Subject to subsection (2) of
40 this section, a partner may maintain a direct action against the limited part-
41 nership or another partner for legal or equitable relief, with or without an
42 accounting as to the partnership's activities, to enforce the rights and
43 otherwise protect the interests of the partner, including rights and interests
44 under the partnership agreement or this chapter or arising independently of
45 the partnership relationship.
46 (2) A partner commencing a direct action under this section is required
47 to plead and prove an actual or threatened injury that is not solely the
48 result of an injury suffered or threatened to be suffered by the limited part-
49 nership.
50 (3) The accrual of, and any time limitation on, a right of action for a
51 remedy under this section is governed by other law. A right to an accounting
38
1 upon a dissolution and winding up does not revive a claim barred by law.
2 53-2-1002. DERIVATIVE ACTION. A partner may maintain a derivative action
3 to enforce a right of a limited partnership if:
4 (1) The partner first makes a demand on the general partners, requesting
5 that they cause the limited partnership to bring an action to enforce the
6 right, and the general partners do not bring the action within a reasonable
7 time; or
8 (2) A demand would be futile.
9 53-2-1003. PROPER PLAINTIFF. A derivative action may be maintained only
10 by a person that is a partner at the time the action is commenced and:
11 (1) That was a partner when the conduct giving rise to the action
12 occurred; or
13 (2) Whose status as a partner devolved upon the person by operation of
14 law or pursuant to the terms of the partnership agreement from a person that
15 was a partner at the time of the conduct.
16 53-2-1004. PLEADING. In a derivative action, the complaint must state
17 with particularity:
18 (1) The date and content of plaintiff's demand and the general partners'
19 response to the demand; or
20 (2) Why demand should be excused as futile.
21 53-2-1005. PROCEEDS AND EXPENSES. (1) Except as otherwise provided in
22 subsection (2) of this section:
23 (a) Any proceeds or other benefits of a derivative action, whether by
24 judgment, compromise, or settlement, belong to the limited partnership and
25 not to the derivative plaintiff;
26 (b) If the derivative plaintiff receives any proceeds, the derivative
27 plaintiff shall immediately remit them to the limited partnership.
28 (2) If a derivative action is successful in whole or in part, the court
29 may award the plaintiff reasonable expenses, including reasonable attorney's
30 fees, from the recovery of the limited partnership.
31 PART 11
32 CONVERSION AND MERGER
33 53-2-1101. DEFINITIONS. In this part 11:
34 (1) "Constituent limited partnership" means a constituent organization
35 that is a limited partnership.
36 (2) "Constituent organization" means an organization that is party to a
37 merger.
38 (3) "Converted organization" means the organization into which a convert-
39 ing organization converts pursuant to sections 53-2-1102 through 53-2-1105,
40 Idaho Code.
41 (4) "Converting limited partnership" means a converting organization that
42 is a limited partnership.
43 (5) "Converting organization" means an organization that converts into
44 another organization pursuant to section 53-2-1102, Idaho Code.
45 (6) "General partner" means a general partner of a limited partnership.
46 (7) "Governing statute" of an organization means the statute that governs
47 the organization's internal affairs.
48 (8) "Organization" means a general partnership, including a limited lia-
49 bility partnership; limited partnership, including a limited liability limited
39
1 partnership; limited liability company; business trust; corporation; or any
2 other person having a governing statute. The term includes domestic and for-
3 eign organizations whether or not organized for profit.
4 (9) "Organizational documents" means:
5 (a) For a domestic or foreign general partnership, its partnership agree-
6 ment;
7 (b) For a limited partnership or foreign limited partnership, its certif-
8 icate of limited partnership and partnership agreement;
9 (c) For a domestic or foreign limited liability company, its articles of
10 organization and operating agreement, or comparable records as provided in
11 its governing statute;
12 (d) For a business trust, its agreement of trust and declaration of
13 trust;
14 (e) For a domestic or foreign corporation for profit, its articles of
15 incorporation, bylaws, and other agreements among its shareholders which
16 are authorized by its governing statute, or comparable records as provided
17 in its governing statute; and
18 (f) For any other organization, the basic records that create the organi-
19 zation and determine its internal governance and the relations among the
20 persons that own it, have an interest in it, or are members of it.
21 (10) "Personal liability" means personal liability for a debt, liability,
22 or other obligation of an organization which is imposed on a person that co-
23 owns, has an interest in, or is a member of the organization:
24 (a) By the organization's governing statute solely by reason of the per-
25 son co-owning, having an interest in, or being a member of the organiza-
26 tion; or
27 (b) By the organization's organizational documents under a provision of
28 the organization's governing statute authorizing those documents to make
29 one (1) or more specified persons liable for all or specified debts, lia-
30 bilities, and other obligations of the organization solely by reason of
31 the person or persons co-owning, having an interest in, or being a member
32 of the organization.
33 (11) "Surviving organization" means an organization into which one (1) or
34 more other organizations are merged. A surviving organization may preexist the
35 merger or be created by the merger.
36 53-2-1102. CONVERSION. (1) An organization other than a limited partner-
37 ship may convert to a limited partnership, and a limited partnership may con-
38 vert to another organization pursuant to this section and sections 53-2-1103
39 through 53-2-1105, Idaho Code, and a plan of conversion, if:
40 (a) The other organization's governing statute authorizes the conversion;
41 (b) The conversion is not prohibited by the law of the jurisdiction that
42 enacted the governing statute; and
43 (c) The other organization complies with its governing statute in effect-
44 ing the conversion.
45 (2) A plan of conversion must be in a record and must include:
46 (a) The name and form of the organization before conversion;
47 (b) The name and form of the organization after conversion; and
48 (c) The terms and conditions of the conversion, including the manner and
49 basis for converting interests in the converting organization into any
50 combination of money, interests in the converted organization, and other
51 consideration; and
52 (d) The organizational documents of the converted organization.
53 53-2-1103. ACTION ON PLAN OF CONVERSION BY CONVERTING LIMITED PARTNER-
40
1 SHIP. (1) Subject to section 53-2-1110, Idaho Code, a plan of conversion must
2 be consented to by all the partners of a converting limited partnership.
3 (2) Subject to section 53-2-1110, Idaho Code, and any contractual rights,
4 after a conversion is approved, and at any time before a filing is made under
5 section 53-2-1104, Idaho Code, a converting limited partnership may amend the
6 plan or abandon the planned conversion:
7 (a) As provided in the plan; and
8 (b) Except as prohibited by the plan, by the same consent as was required
9 to approve the plan.
10 53-2-1104. FILINGS REQUIRED FOR CONVERSION -- EFFECTIVE DATE. (1) After a
11 plan of conversion is approved:
12 (a) A converting limited partnership shall deliver to the secretary of
13 state for filing articles of conversion, which must include:
14 (i) A statement that the limited partnership has been converted
15 into another organization;
16 (ii) The name and form of the organization and the jurisdiction of
17 its governing statute;
18 (iii) The date the conversion is effective under the governing stat-
19 ute of the converted organization;
20 (iv) A statement that the conversion was approved as required by
21 this chapter;
22 (v) A statement that the conversion was approved as required by the
23 governing statute of the converted organization; and
24 (vi) If the converted organization is a foreign organization not
25 authorized to transact business in this state, the street and mailing
26 address of an office which the secretary of state may use for the
27 purposes of section 53-2-1105(3), Idaho Code; and
28 (b) If the converting organization is not a converting limited partner-
29 ship, the converting organization shall deliver to the secretary of state
30 for filing a certificate of limited partnership, which must include, in
31 addition to the information required by section 53-2-201, Idaho Code:
32 (i) A statement that the limited partnership was converted from
33 another organization;
34 (ii) The name and form of the organization and the jurisdiction of
35 its governing statute; and
36 (iii) A statement that the conversion was approved in a manner that
37 complied with the organization's governing statute.
38 (2) A conversion becomes effective:
39 (a) If the converted organization is a limited partnership, when the cer-
40 tificate of limited partnership takes effect; and
41 (b) If the converted organization is not a limited partnership, as pro-
42 vided by the governing statute of the converted organization.
43 53-2-1105. EFFECT OF CONVERSION. (1) An organization that has been con-
44 verted pursuant to this part 11 is for all purposes the same entity that
45 existed before the conversion.
46 (2) When a conversion takes effect:
47 (a) All property owned by the converting organization remains vested in
48 the converted organization;
49 (b) All debts, liabilities, and other obligations of the converting orga-
50 nization continue as obligations of the converted organization;
51 (c) An action or proceeding pending by or against the converting organi-
52 zation may be continued as if the conversion had not occurred;
53 (d) Except as prohibited by other law, all of the rights, privileges,
41
1 immunities, powers, and purposes of the converting organization remain
2 vested in the converted organization;
3 (e) Except as otherwise provided in the plan of conversion, the terms and
4 conditions of the plan of conversion take effect; and
5 (f) Except as otherwise agreed, the conversion does not dissolve a con-
6 verting limited partnership for the purposes of part 8 of this chapter.
7 (3) A converted organization that is a foreign organization consents to
8 the jurisdiction of the courts of this state to enforce any obligation owed by
9 the converting limited partnership, if before the conversion the converting
10 limited partnership was subject to suit in this state on the obligation. A
11 converted organization that is a foreign organization and not authorized to
12 transact business in this state appoints the secretary of state as its agent
13 for service of process for purposes of enforcing an obligation under this sub-
14 section. Service on the secretary of state under this subsection (3) is made
15 in the same manner and with the same consequences as in section 53-2-117(3)
16 and (4), Idaho Code.
17 53-2-1106. MERGER. (1) A limited partnership may merge with one (1) or
18 more other constituent organizations pursuant to this section and sections
19 53-2-1107 through 53-2-1109, Idaho Code, and a plan of merger, if:
20 (a) The governing statute of each of the other organizations authorizes
21 the merger;
22 (b) The merger is not prohibited by the law of a jurisdiction that
23 enacted any of those governing statutes; and
24 (c) Each of the other organizations complies with its governing statute
25 in effecting the merger.
26 (2) A plan of merger must be in a record and must include:
27 (a) The name and form of each constituent organization;
28 (b) The name and form of the surviving organization and, if the surviving
29 organization is to be created by the merger, a statement to that effect;
30 (c) The terms and conditions of the merger, including the manner and
31 basis for converting the interests in each constituent organization into
32 any combination of money, interests in the surviving organization, and
33 other consideration;
34 (d) If the surviving organization is to be created by the merger, the
35 surviving organization's organizational documents; and
36 (e) If the surviving organization is not to be created by the merger, any
37 amendments to be made by the merger to the surviving organization's orga-
38 nizational documents.
39 53-2-1107. ACTION ON PLAN OF MERGER BY CONSTITUENT LIMITED PARTNERSHIP.
40 (1) Subject to section 53-2-1110, Idaho Code, a plan of merger must be con-
41 sented to by all the partners of a constituent limited partnership.
42 (2) Subject to section 53-2-1110, Idaho Code, and any contractual rights,
43 after a merger is approved, and at any time before a filing is made under sec-
44 tion 53-2-1108, Idaho Code, a constituent limited partnership may amend the
45 plan or abandon the planned merger:
46 (a) As provided in the plan; and
47 (b) Except as prohibited by the plan, with the same consent as was
48 required to approve the plan.
49 53-2-1108. FILINGS REQUIRED FOR MERGER -- EFFECTIVE DATE. (1) After each
50 constituent organization has approved a merger, articles of merger must be
51 signed on behalf of:
52 (a) Each preexisting constituent limited partnership, by each general
42
1 partner listed in the certificate of limited partnership; and
2 (b) Each other preexisting constituent organization, by an authorized
3 representative.
4 (2) The articles of merger must include:
5 (a) The name and form of each constituent organization and the jurisdic-
6 tion of its governing statute;
7 (b) The name and form of the surviving organization, the jurisdiction of
8 its governing statute, and, if the surviving organization is created by
9 the merger, a statement to that effect;
10 (c) The date the merger is effective under the governing statute of the
11 surviving organization;
12 (d) If the surviving organization is to be created by the merger:
13 (i) If it will be a limited partnership, the limited partnership's
14 certificate of limited partnership; or
15 (ii) If it will be an organization other than a limited partnership,
16 the organizational document that creates the organization;
17 (e) If the surviving organization preexists the merger, any amendments
18 provided for in the plan of merger for the organizational document that
19 created the organization;
20 (f) A statement as to each constituent organization that the merger was
21 approved as required by the organization's governing statute;
22 (g) If the surviving organization is a foreign organization not autho-
23 rized to transact business in this state, the street and mailing address
24 of an office which the secretary of state may use for the purposes of sec-
25 tion 53-2-1109(2), Idaho Code; and
26 (h) Any additional information required by the governing statute of any
27 constituent organization.
28 (3) Each constituent limited partnership shall deliver the articles of
29 merger for filing in the office of the secretary of state.
30 (4) A merger becomes effective under this part 11:
31 (a) If the surviving organization is a limited partnership, upon the
32 later of:
33 (i) Compliance with subsection (3) of this section; or
34 (ii) Subject to section 53-2-206(3), Idaho Code, as specified in the
35 articles of merger; or
36 (b) If the surviving organization is not a limited partnership, as pro-
37 vided by the governing statute of the surviving organization.
38 53-2-1109. EFFECT OF MERGER. (1) When a merger becomes effective:
39 (a) The surviving organization continues or comes into existence;
40 (b) Each constituent organization that merges into the surviving organi-
41 zation ceases to exist as a separate entity;
42 (c) All property owned by each constituent organization that ceases to
43 exist vests in the surviving organization;
44 (d) All debts, liabilities, and other obligations of each constituent
45 organization that ceases to exist continue as obligations of the surviving
46 organization;
47 (e) An action or proceeding pending by or against any constituent organi-
48 zation that ceases to exist may be continued as if the merger had not
49 occurred;
50 (f) Except as prohibited by other law, all of the rights, privileges,
51 immunities, powers, and purposes of each constituent organization that
52 ceases to exist vest in the surviving organization;
53 (g) Except as otherwise provided in the plan of merger, the terms and
54 conditions of the plan of merger take effect; and
43
1 (h) Except as otherwise agreed, if a constituent limited partnership
2 ceases to exist, the merger does not dissolve the limited partnership for
3 the purposes of part 8 of this chapter;
4 (i) If the surviving organization is created by the merger:
5 (i) If it is a limited partnership, the certificate of limited
6 partnership becomes effective; or
7 (ii) If it is an organization other than a limited partnership, the
8 organizational document that creates the organization becomes effec-
9 tive; and
10 (j) If the surviving organization preexists the merger, any amendments
11 provided for in the articles of merger for the organizational document
12 that created the organization become effective.
13 (2) A surviving organization that is a foreign organization consents to
14 the jurisdiction of the courts of this state to enforce any obligation owed
15 by a constituent organization, if before the merger the constituent organiza-
16 tion was subject to suit in this state on the obligation. A surviving organi-
17 zation that is a foreign organization and not authorized to transact business
18 in this state appoints the secretary of state as its agent for service of
19 process for the purposes of enforcing an obligation under this subsection.
20 Service on the secretary of state under this subsection is made in the same
21 manner and with the same consequences as in section 53-2-117(3) and (4), Idaho
22 Code.
23 53-2-1110. RESTRICTIONS ON APPROVAL OF CONVERSIONS AND MERGERS AND ON
24 RELINQUISHING LLLP STATUS. (1) If a partner of a converting or constituent
25 limited partnership will have personal liability with respect to a converted
26 or surviving organization, approval and amendment of a plan of conversion or
27 merger are ineffective without the consent of the partner, unless:
28 (a) The limited partnership's partnership agreement provides for the
29 approval of the conversion or merger with the consent of fewer than all
30 the partners; and
31 (b) The partner has consented to the provision of the partnership agree-
32 ment.
33 (2) An amendment to a certificate of limited partnership which deletes a
34 statement that the limited partnership is a limited liability limited partner-
35 ship is ineffective without the consent of each general partner unless:
36 (a) The limited partnership's partnership agreement provides for the
37 amendment with the consent of less than all the general partners; and
38 (b) Each general partner that does not consent to the amendment has con-
39 sented to the provision of the partnership agreement.
40 (3) A partner does not give the consent required by subsection (1) or (2)
41 of this section merely by consenting to a provision of the partnership agree-
42 ment which permits the partnership agreement to be amended with the consent of
43 fewer than all the partners.
44 53-2-1111. LIABILITY OF GENERAL PARTNER AFTER CONVERSION OR MERGER. (1) A
45 conversion or merger under this part 11 does not discharge any liability under
46 sections 53-2-404 and 53-2-607, Idaho Code, of a person that was a general
47 partner in or dissociated as a general partner from a converting or constitu-
48 ent limited partnership, but:
49 (a) The provisions of this chapter pertaining to the collection or dis-
50 charge of the liability continue to apply to the liability;
51 (b) For the purposes of applying those provisions, the converted or sur-
52 viving organization is deemed to be the converting or constituent limited
53 partnership; and
44
1 (c) If a person is required to pay any amount under this subsection:
2 (i) The person has a right of contribution from each other person
3 that was liable as a general partner under section 53-2-404, Idaho
4 Code, when the obligation was incurred and has not been released from
5 the obligation under section 53-2-607, Idaho Code; and
6 (ii) The contribution due from each of those persons is in propor-
7 tion to the right to receive distributions in the capacity of general
8 partner in effect for each of those persons when the obligation was
9 incurred.
10 (2) In addition to any other liability provided by law:
11 (a) A person that immediately before a conversion or merger became effec-
12 tive was a general partner in a converting or constituent limited partner-
13 ship that was not a limited liability limited partnership is personally
14 liable for each obligation of the converted or surviving organization
15 arising from a transaction with a third party after the conversion or
16 merger becomes effective, if, at the time the third party enters into the
17 transaction, the third party:
18 (i) Does not have notice of the conversion or merger; and
19 (ii) Reasonably believes that:
20 (A) The converted or surviving business is the converting or
21 constituent limited partnership;
22 (B) The converting or constituent limited partnership is not a
23 limited liability limited partnership; and
24 (C) The person is a general partner in the converting or con-
25 stituent limited partnership; and
26 (b) A person that was dissociated as a general partner from a converting
27 or constituent limited partnership before the conversion or merger became
28 effective is personally liable for each obligation of the converted or
29 surviving organization arising from a transaction with a third party after
30 the conversion or merger becomes effective, if:
31 (i) Immediately before the conversion or merger became effective
32 the converting or surviving limited partnership was not a limited
33 liability limited partnership; and
34 (ii) At the time the third party enters into the transaction less
35 than two (2) years have passed since the person dissociated as a gen-
36 eral partner and the third party:
37 (A) Does not have notice of the dissociation;
38 (B) Does not have notice of the conversion or merger; and
39 (C) Reasonably believes that the converted or surviving organi-
40 zation is the converting or constituent limited partnership, the
41 converting or constituent limited partnership is not a limited
42 liability limited partnership, and the person is a general part-
43 ner in the converting or constituent limited partnership.
44 53-2-1112. POWER OF GENERAL PARTNERS AND PERSONS DISSOCIATED AS GENERAL
45 PARTNERS TO BIND ORGANIZATION AFTER CONVERSION OR MERGER. (1) An act of a per-
46 son that immediately before a conversion or merger became effective was a gen-
47 eral partner in a converting or constituent limited partnership binds the con-
48 verted or surviving organization after the conversion or merger becomes effec-
49 tive, if:
50 (a) Before the conversion or merger became effective, the act would have
51 bound the converting or constituent limited partnership under section
52 53-2-402, Idaho Code; and
53 (b) At the time the third party enters into the transaction, the third
54 party:
45
1 (i) Does not have notice of the conversion or merger; and
2 (ii) Reasonably believes that the converted or surviving business is
3 the converting or constituent limited partnership and that the person
4 is a general partner in the converting or constituent limited part-
5 nership.
6 (2) An act of a person that before a conversion or merger became effec-
7 tive was dissociated as a general partner from a converting or constituent
8 limited partnership binds the converted or surviving organization after the
9 conversion or merger becomes effective, if:
10 (a) Before the conversion or merger became effective, the act would have
11 bound the converting or constituent limited partnership under section
12 53-2-402, Idaho Code, if the person had been a general partner; and
13 (b) At the time the third party enters into the transaction, less than
14 two (2) years have passed since the person dissociated as a general part-
15 ner and the third party:
16 (i) Does not have notice of the dissociation;
17 (ii) Does not have notice of the conversion or merger; and
18 (iii) Reasonably believes that the converted or surviving organiza-
19 tion is the converting or constituent limited partnership and that
20 the person is a general partner in the converting or constituent lim-
21 ited partnership.
22 (3) If a person having knowledge of the conversion or merger causes a
23 converted or surviving organization to incur an obligation under subsection
24 (1) or (2) of this section, the person is liable:
25 (a) To the converted or surviving organization for any damage caused to
26 the organization arising from the obligation; and
27 (b) If another person is liable for the obligation, to that other person
28 for any damage caused to that other person arising from the liability.
29 53-2-1113. PART NOT EXCLUSIVE. This part 11 does not preclude an entity
30 from being converted or merged under other law.
31 PART 12
32 MISCELLANEOUS PROVISIONS
33 53-2-1201. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and
34 construing this chapter, consideration must be given to the need to promote
35 uniformity of the law with respect to its subject matter among states that
36 enact it.
37 53-2-1202. SEVERABILITY CLAUSE. If any provision of this act or its
38 application to any person or circumstance is held invalid, the invalidity does
39 not affect other provisions or applications of this act which can be given
40 effect without the invalid provision or application, and to this end the pro-
41 visions of this act are severable.
42 53-2-1203. RELATION TO ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COM-
43 MERCE ACT. This chapter modifies, limits, or supersedes the federal electronic
44 signatures in global and national commerce act, 15 U.S.C. section 7001 et
45 seq., but this chapter does not modify, limit, or supersede section 101(c) of
46 that act or authorize electronic delivery of any of the notices described in
47 section 103(b) of that act.
48 53-2-1204. APPLICATION TO EXISTING RELATIONSHIPS. (1) This chapter gov-
49 erns only:
46
1 (a) A limited partnership formed on or after July 1, 2006; and
2 (b) Except as otherwise provided in subsections (3) and (4) of this sec-
3 tion, a limited partnership formed before July 1, 2006, which elects, in
4 the manner provided in its partnership agreement or by law for amending
5 the partnership agreement, to be subject to this chapter.
6 (2) Except as otherwise provided in subsection (3) of this section, on
7 and after July 1, 2006, this chapter governs all limited partnerships.
8 (3) With respect to a limited partnership formed before July 1, 2006, the
9 following rules apply except as the partners otherwise elect in the manner
10 provided in the partnership agreement or by law for amending the partnership
11 agreement:
12 (a) Section 53-2-104(3), Idaho Code, does not apply and the limited part-
13 nership has whatever duration it had under the law applicable immediately
14 before July 1, 2006.
15 (b) The limited partnership is not required to amend its certificate of
16 limited partnership to comply with section 53-2-201(1)(d), Idaho Code.
17 (c) Sections 53-2-601 and 53-2-602, Idaho Code, do not apply and a lim-
18 ited partner has the same right and power to dissociate from the limited
19 partnership, with the same consequences, as existed immediately before
20 July 1, 2006.
21 (d) Section 53-2-603(4), Idaho Code, does not apply.
22 (e) Section 53-2-603(5), Idaho Code, does not apply and a court has the
23 same power to expel a general partner as the court had immediately before
24 July 1, 2006.
25 (f) Section 53-2-801(4) and (5), Idaho Code, does not apply and the con-
26 nection between a person's dissociation as a general partner and the dis-
27 solution of the limited partnership is the same as existed immediately
28 before July 1, 2006.
29 (4) With respect to a limited partnership that elects pursuant to subsec-
30 tion (1)(b) of this section to be subject to this chapter, after the election
31 takes effect the provisions of this chapter relating to the liability of the
32 limited partnership's general partners to third parties apply:
33 (a) Before July 1, 2006, to:
34 (i) A third party that had not done business with the limited part-
35 nership in the year before the election took effect; and
36 (ii) A third party that had done business with the limited partner-
37 ship in the year before the election took effect only if the third
38 party knows or has received a notification of the election; and
39 (b) On and after July 1, 2006, to all third parties, but those provisions
40 remain inapplicable to any obligation incurred while those provisions were
41 inapplicable under subsection (4)(a)(ii) of this section.
42 53-2-1205. SAVINGS CLAUSE. This act does not affect an action commenced,
43 proceeding brought, or right accrued before this act takes effect.
44 SECTION 3. That Section 30-1-401, Idaho Code, be, and the same is hereby
45 amended to read as follows:
46 30-1-401. CORPORATE NAME. (1) A corporate name:
47 (a) Must contain the word "corporation," "incorporated," "company," or
48 "limited," or the abbreviation "corp.," "inc.," "co.," or "ltd.," or words
49 or abbreviations of like import in another language; provided however,
50 that if the word "company" or its abbreviation is used it shall not be
51 immediately preceded by the word "and" or by an abbreviation of or symbol
52 representing the word "and";
47
1 (b) May not contain language falsely stating or implying government
2 affiliation or stating or implying that the corporation is organized for a
3 purpose other than that permitted by section 30-1-301, Idaho Code, and its
4 articles of incorporation.
5 (2) Except as authorized by subsections (3) and (4) of this section, a
6 corporate name must be distinguishable upon the records of the secretary of
7 state from:
8 (a) The corporate name of a corporation incorporated or authorized to
9 transact business in this state;
10 (b) A name reserved or registered under section 30-1-402 or 30-1-403,
11 Idaho Code, or reserved under section 53-203 53-2-109 or 53-603, Idaho
12 Code;
13 (c) The fictitious name adopted by a foreign corporation authorized to
14 transact business in this state because its real name is unavailable;
15 (d) The corporate name of a nonprofit corporation incorporated or autho-
16 rized to transact business in this state; and
17 (e) The name of any limited partnership, limited liability partnership or
18 limited liability company which is organized under the laws of this state
19 or registered to do business in this state.
20 (3) A corporation may apply to the secretary of state for authorization
21 to use a name that is not distinguishable on his records from one (1) or more
22 of the names described in subsection (2) of this section. The secretary of
23 state shall authorize use of the name applied for if:
24 (a) The other corporation, holder of a reserved or registered name, lim-
25 ited partnership, limited liability partnership or limited liability com-
26 pany consents to the use in writing and submits an undertaking in a form
27 satisfactory to the secretary of state to change its name to a name that
28 is distinguishable upon the records of the secretary of state from the
29 name of the applying corporation; or
30 (b) The applicant delivers to the secretary of state a certified copy of
31 the final judgment of a court of competent jurisdiction establishing the
32 applicant's right to use the name applied for in this state.
33 (4) A corporation may use the name, including the fictitious name, of
34 another domestic or foreign corporation or limited liability company that is
35 used in this state if the other corporation or limited liability company is
36 organized or authorized to transact business in this state and the proposed
37 user corporation:
38 (a) Has merged with the other corporation or limited liability company;
39 (b) Has been formed by reorganization of the other corporation or limited
40 liability company; or
41 (c) Has acquired all or substantially all of the assets, including the
42 name, of the other corporation or limited liability company.
43 (5) This chapter does not control the use of assumed business names, gov-
44 erned by "The Assumed Business Names Act of 1997," chapter 5, title 53, Idaho
45 Code.
46 (6) Nothing in this section shall abrogate or limit the law as to unfair
47 competition or unfair practice in the use of trade names, nor derogate from
48 the common law, the principles of equity, or the statutes of this state or of
49 the United States with respect to the right to acquire and protect trade
50 names.
51 (7) The assumption of a name in violation of this section shall not
52 affect or vitiate the corporate existence, but the courts of this state, hav-
53 ing equity jurisdiction, may, upon the application of the state, or of any
54 person, unincorporated association, or corporation interested or affected,
55 enjoin such corporation in violation from doing business under any name
48
1 assumed in violation of this section.
2 SECTION 4. This act shall be in full force and effect on and after July
3 1, 2006.
STATEMENT OF PURPOSE
RS 15326
The Uniform Limited Partnership Act (2001) provides a more
flexible and stable basis for the organization of limited
partnerships, and helps states stimulate new limited partnership
business ventures. The 2001 revision recognizes modern-day uses
of limited partnerships, including family limited partnerships
for estate planning purposes.
FISCAL NOTE
There will be no impact on the state's general fund.
Contact
Name: Senator Bart Davis
Phone: 208-332-1305
Dale G. Higer, Uniform Law Commissioner
Phone: 208-345-1432
STATEMENT OF PURPOSE/FISCAL NOTE S 1256