Rep. Barbara Flynn Currie

Filed: 5/8/2014

 

 


 

 


 
09800HB4160ham001LRB098 15713 JLS 58834 a

1
AMENDMENT TO HOUSE BILL 4160

2    AMENDMENT NO. ______. Amend House Bill 4160 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Business Corporation Act of 1983 is amended
5by changing Sections 8.65, 12.40, and 12.45 as follows:
 
6    (805 ILCS 5/8.65)  (from Ch. 32, par. 8.65)
7    Sec. 8.65. Liability of directors in certain cases.
8    (a) In addition to any other liabilities imposed by law
9upon directors of a corporation, they are liable as follows:
10        (1) The directors of a corporation who vote for or
11    assent to any distribution prohibited by Section 9.10 of
12    this Act shall be jointly and severally liable to the
13    corporation for the amount of such distribution.
14        (2) If a dissolved corporation shall proceed to bar any
15    known claims against it under Section 12.75, the directors
16    of such corporation who fail to take reasonable steps to

 

 

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1    cause the notice required by Section 12.75 of this Act to
2    be given to any known creditor of such corporation shall be
3    jointly and severally liable to such creditor for all loss
4    and damage occasioned thereby.
5        (3) Unless dissolution is subsequently revoked
6    pursuant to Section 12.25 of this Act, the The directors of
7    a corporation that carries on its business after the filing
8    by the Secretary of State of articles of dissolution with
9    respect to a voluntary dissolution authorized as provided
10    by this Act, otherwise than so far as may be necessary or
11    appropriate to wind up and liquidate its business and
12    affairs for the winding up thereof, shall be jointly and
13    severally liable to the creditors of such corporation for
14    all debts and liabilities of the corporation incurred in so
15    carrying on its business. Directors of a corporation that
16    carries on its business during a period of administrative
17    dissolution shall not be liable under this paragraph (a)(3)
18    if the Secretary of State subsequently files an application
19    for reinstatement under subsection (c) of Section 12.45,
20    which reinstatement shall have the effect described in
21    subsection (d) of Section 12.45.
22    (b) A director of a corporation who is present at a meeting
23of its board of directors at which action on any corporate
24matter is taken is conclusively presumed to have assented to
25the action taken unless his or her dissent is entered in the
26minutes of the meeting or unless he or she files his or her

 

 

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1written dissent to such action with the person acting as the
2secretary of the meeting before the adjournment thereof or
3forwards such dissent by registered or certified mail to the
4secretary of the corporation immediately after the adjournment
5of the meeting. Such right to dissent does not apply to a
6director who voted in favor of such action.
7    (c) A director shall not be liable for a distribution of
8assets to the shareholders of a corporation in excess of the
9amount authorized by Section 9.10 of this Act if he or she
10relied and acted in good faith upon a balance sheet and profit
11and loss statement of the corporation represented to him or her
12to be correct by the president or the officer of such
13corporation having charge of its books of account, or certified
14by an independent public or certified public accountant or firm
15of such accountants to fairly reflect the financial condition
16of such corporation, nor shall he or she be so liable if in
17good faith in determining the amount available for any such
18dividend or distribution he or she considered the assets to be
19of their book value.
20    (d) Any director against whom a claim is asserted under
21this Section and who is held liable thereon, is entitled to
22contribution from the other directors who are likewise liable
23thereon.
24    Any director against whom a claim is asserted for the
25improper distribution of assets of a corporation and who is
26held liable thereon, is entitled to contribution from the

 

 

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1shareholders who knowingly accepted or received any such
2distribution in proportion to the amounts received by them
3respectively.
4(Source: P.A. 84-924.)
 
5    (805 ILCS 5/12.40)  (from Ch. 32, par. 12.40)
6    Sec. 12.40. Procedure for administrative dissolution.
7    (a) After the Secretary of State determines that one or
8more grounds exist under Section 12.35 for the administrative
9dissolution of a corporation, he or she shall send by regular
10mail to each delinquent corporation a Notice of Delinquency to
11its registered office, or, if the corporation has failed to
12maintain a registered office, then to the president or other
13principal officer at the last known office of said officer.
14    (b) If the corporation does not correct the default
15described in paragraphs (a) through (e) of Section 12.35 within
1690 days following such notice, the Secretary of State shall
17thereupon dissolve the corporation by issuing a certificate of
18dissolution that recites the ground or grounds for dissolution
19and its effective date. If the corporation does not correct the
20default described in paragraphs (f) through (h) of Section
2112.35, within 30 days following such notice, the Secretary of
22State shall thereupon dissolve the corporation by issuing a
23certificate of dissolution as herein prescribed. The Secretary
24of State shall file the original of the certificate in his or
25her office and mail one copy to the corporation at its

 

 

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1registered office or, if the corporation has failed to maintain
2a registered office, then to the president or other principal
3officer at the last known office of said officer.
4    (c) The administrative dissolution of a corporation
5terminates its corporate existence and such a dissolved
6corporation shall not thereafter carry on any business,
7provided however, that such a dissolved corporation may take
8all action authorized under Section 12.75 or as otherwise
9necessary or appropriate to wind up and liquidate its business
10and affairs under Section 12.30.
11(Source: P.A. 96-1121, eff. 1-1-11.)
 
12    (805 ILCS 5/12.45)  (from Ch. 32, par. 12.45)
13    Sec. 12.45. Reinstatement following administrative
14dissolution.
15    (a) A domestic corporation administratively dissolved
16under Section 12.40 may be reinstated by the Secretary of State
17following the date of issuance of the certificate of
18dissolution upon:
19        (1) The filing of an application for reinstatement.
20        (2) The filing with the Secretary of State by the
21    corporation of all reports then due and theretofore
22    becoming due.
23        (3) The payment to the Secretary of State by the
24    corporation of all fees, franchise taxes, and penalties
25    then due and theretofore becoming due.

 

 

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1    (b) The application for reinstatement shall be executed and
2filed in duplicate in accordance with Section 1.10 of this Act
3and shall set forth:
4        (1) The name of the corporation at the time of the
5    issuance of the certificate of dissolution.
6        (2) If such name is not available for use as determined
7    by the Secretary of State at the time of filing the
8    application for reinstatement, the name of the corporation
9    as changed, provided however, and any change of name is
10    properly effected pursuant to Section 10.05 and Section
11    10.30 of this Act.
12        (3) The date of the issuance of the certificate of
13    dissolution.
14        (4) The address, including street and number, or rural
15    route number of the registered office of the corporation
16    upon reinstatement thereof, and the name of its registered
17    agent at such address upon the reinstatement of the
18    corporation, provided however, that any change from either
19    the registered office or the registered agent at the time
20    of dissolution is properly reported pursuant to Section
21    5.10 of this Act.
22    (c) When a dissolved corporation has complied with the
23provisions of this Section the Secretary of State shall file
24the application for reinstatement.
25    (d) Upon the filing of the application for reinstatement,
26the corporate existence for all purposes shall be deemed to

 

 

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1have continued without interruption from the date of the
2issuance of the certificate of dissolution, and the corporation
3shall stand revived with such powers, duties and obligations as
4if it had not been dissolved; and all acts and proceedings of
5its officers, directors and shareholders, directors, officers,
6employees, and agents, acting or purporting to act in that
7capacity as such, and which would have been legal and valid but
8for such dissolution, shall stand ratified and confirmed.
9    (e) Without limiting the generality of subsection (d), upon
10the filing of the application for reinstatement, no
11shareholder, director, or officer shall be personally liable,
12under Section 8.65 of this Act or otherwise, for the debts and
13liabilities of the corporation incurred during the period of
14administrative dissolution by reason of the fact that the
15corporation was administratively dissolved at the time the
16debts or liabilities were incurred.
17(Source: P.A. 96-328, eff. 8-11-09.)
 
18    Section 10. The General Not For Profit Corporation Act of
191986 is amended by changing Sections 108.65, 112.40, and 112.45
20as follows:
 
21    (805 ILCS 105/108.65)  (from Ch. 32, par. 108.65)
22    Sec. 108.65. Liability of directors in certain cases.
23    (a) In addition to any other liabilities imposed by law
24upon directors of a corporation, they are liable as follows:

 

 

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1        (1) The directors of a corporation who vote for or
2    assent to any distribution not authorized by Section 109.10
3    or Article 12 of this Act shall be jointly and severally
4    liable to the corporation for the amount of such
5    distribution.
6        (2) If a dissolved corporation shall proceed to bar any
7    known claims against it under Section 112.75 of this Act,
8    the directors of such corporation who fail to take
9    reasonable steps to cause the notice required by Section
10    112.75 of this Act to be given to any known creditor of
11    such corporation shall be jointly and severally liable to
12    such creditor for all loss and damage occasioned thereby.
13        (3) Unless dissolution is subsequently revoked
14    pursuant to Section 112.25 of this Act, the The directors
15    of a corporation that conducts its affairs after the filing
16    by the Secretary of State of articles of dissolution with
17    respect to a voluntary dissolution authorized as provided
18    by this Act, otherwise than so far as may be necessary or
19    appropriate to wind up and liquidate its affairs for the
20    winding up thereof, shall be jointly and severally liable
21    to the creditors of such corporation for all debts and
22    liabilities of the corporation incurred in so conducting
23    its affairs. Directors of a corporation that conducts its
24    affairs during a period of administrative dissolution
25    shall not be liable under this paragraph (a)(3) if the
26    Secretary of State subsequently files an application for

 

 

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1    reinstatement under subsection (c) of Section 112.45,
2    which reinstatement shall have the effect described in
3    subsection (d) of Section 112.45.
4    (b) A director of a corporation who is present at a meeting
5of its board of directors at which action on any corporate
6matter is taken is conclusively presumed to have assented to
7the action taken unless his or her dissent or abstention is
8entered in the minutes of the meeting or unless he or she files
9his or her written dissent or abstention to such action with
10the person acting as the secretary of the meeting before the
11adjournment thereof or forwards such dissent or abstention by
12registered or certified mail to the secretary of the
13corporation immediately after the adjournment of the meeting.
14Such right to dissent or abstain does not apply to a director
15who voted in favor of such action.
16    (c) A director shall not be liable for a distribution of
17assets to any person in excess of the amount authorized by
18Section 109.10 or Article 12 of this Act if he or she relied
19and acted in good faith upon a balance sheet and profit and
20loss statement of the corporation represented to him or her to
21be correct by the president or the officer of such corporation
22having charge of its books of account, or certified by an
23independent public or certified public accountant or firm of
24such accountants to fairly reflect the financial condition of
25such corporation, nor shall he or she be so liable if in good
26faith in determining the amount available for any such

 

 

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1distribution he or she considered the assets to be of their
2book value.
3    (d) Any director against whom a claim is asserted under
4this Section and who is held liable thereon, is entitled to
5contribution from the other directors who are likewise liable
6thereon. Any director against whom a claim is asserted for the
7improper distribution of assets of a corporation, and who is
8held liable thereon, is entitled to contribution from the
9persons who knowingly accepted or received any such
10distribution in proportion to the amounts received by them
11respectively.
12(Source: P.A. 84-1423.)
 
13    (805 ILCS 105/112.40)  (from Ch. 32, par. 112.40)
14    Sec. 112.40. Procedure for administrative dissolution.
15    (a) After the Secretary of State determines that one or
16more grounds exist under Section 112.35 of this Act for the
17administrative dissolution of a corporation, he or she shall
18send by regular mail to each delinquent corporation a Notice of
19Delinquency to its registered office, or, if the corporation
20has failed to maintain a registered office, then to the
21president or other principal officer at the last known office
22of said officer.
23    (b) If the corporation does not correct the default within
2490 days following such notice, the Secretary of State shall
25thereupon dissolve the corporation by issuing a certificate of

 

 

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1dissolution that recites the ground or grounds for dissolution
2and its effective date. The Secretary of State shall file the
3original of the certificate in his or her office and mail one
4copy to the corporation at its registered office or, if the
5corporation has failed to maintain a registered office, then to
6the president or other principal officer at the last known
7office of said officer.
8    (c) The administrative dissolution of a corporation
9terminates its corporate existence and such a dissolved
10corporation shall not thereafter carry on any affairs, provided
11however, that such a dissolved corporation may take all action
12authorized under Section 112.75 of this Act or as otherwise
13necessary or appropriate to wind up and liquidate its affairs
14under Section 112.30 of this Act.
15(Source: P.A. 96-1121, eff. 1-1-11.)
 
16    (805 ILCS 105/112.45)  (from Ch. 32, par. 112.45)
17    Sec. 112.45. Reinstatement following administrative
18dissolution.
19    (a) A domestic corporation administratively dissolved
20under Section 112.40 of this Act may be reinstated by the
21Secretary of State following the date of issuance of the
22certificate of dissolution upon:
23        (1) The filing of an application for reinstatement;
24        (2) The filing with the Secretary of State by the
25    corporation of all reports then due and theretofore

 

 

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1    becoming due;
2        (3) The payment to the Secretary of State by the
3    corporation of all fees and penalties then due and
4    theretofore becoming due.
5    (b) The application for reinstatement shall be executed and
6filed in duplicate in accordance with Section 101.10 of this
7Act and shall set forth:
8        (1) The name of the corporation at the time of the
9    issuance of the certificate of dissolution;
10        (2) If such name is not available for use as determined
11    by the Secretary of State at the time of filing the
12    application for reinstatement, the name of the corporation
13    as changed; provided, however, that any change of name is
14    properly effected pursuant to Section 110.05 and Section
15    110.30 of this Act;
16        (3) The date of the issuance of the certificate of
17    dissolution;
18        (4) The address, including street and number, or rural
19    route number, of the registered office of the corporation
20    upon reinstatement thereof, and the name of its registered
21    agent at such address upon the reinstatement of the
22    corporation, provided however, that any change from either
23    the registered office or the registered agent at the time
24    of dissolution is properly reported pursuant to Section
25    105.10 of this Act.
26    (c) When a dissolved corporation has complied with the

 

 

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1provisions of this Section, the Secretary of State shall file
2the application for reinstatement.
3    (d) Upon the filing of the application for reinstatement,
4the corporate existence for all purposes shall be deemed to
5have continued without interruption from the date of the
6issuance of the certificate of dissolution, and the corporation
7shall stand revived with such powers, duties and obligations as
8if it had not been dissolved; and all acts and proceedings of
9its shareholders, members, officers, employees, and agents
10officers, directors and members, acting or purporting to act in
11that capacity as such, and which would have been legal and
12valid but for such dissolution, shall stand ratified and
13confirmed.
14    (e) Without limiting the generality of subsection (d), upon
15filing of the application for reinstatement, no shareholder,
16director, or officer shall be personally liable, under Section
17108.65 of this Act or otherwise, for the debts and liabilities
18of the corporation incurred during the period of administrative
19dissolution by reason of the fact that the corporation was
20administratively dissolved at the time the debts or liabilities
21were incurred.
22(Source: P.A. 94-605, eff. 1-1-06.)
 
23    Section 15. The Limited Liability Company Act is amended by
24changing Sections 35-30 and 35-40 as follows:
 

 

 

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1    (805 ILCS 180/35-30)
2    Sec. 35-30. Procedure for administrative dissolution.
3    (a) After the Secretary of State determines that one or
4more grounds exist under Section 35-25 for the administrative
5dissolution of a limited liability company, the Secretary of
6State shall send a notice of delinquency by regular mail to
7each delinquent limited liability company at its registered
8office or, if the limited liability company has failed to
9maintain a registered office, then to the last known address
10shown on the records of the Secretary of State for the
11principal place of business of the limited liability company.
12    (b) If the limited liability company does not correct the
13default described in paragraphs (1) or (2) of Section 35-25
14within 120 days following the date of the notice of
15delinquency, the Secretary of State shall thereupon dissolve
16the limited liability company by issuing a certificate of
17dissolution that recites the grounds for dissolution and its
18effective date. If the limited liability company does not
19correct the default described in paragraphs (2.5), (3), (4), or
20(5) of Section 35-25 within 60 days following the notice, the
21Secretary of State shall dissolve the limited liability company
22by issuing a certificate of dissolution that recites the
23grounds for dissolution and its effective date. The Secretary
24of State shall file the original of the certificate in his or
25her office and mail one copy to the limited liability company
26at its registered office or, if the limited liability company

 

 

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1has failed to maintain a registered office, then to the last
2known address shown on the records of the Secretary of State
3for the principal place of business of the limited liability
4company.
5    (c) Upon the administrative dissolution of a limited
6liability company, a dissolved limited liability company shall
7continue for only the purpose of winding up its business. A
8dissolved limited liability company may take all action
9authorized under Section 1-30 or otherwise necessary or
10appropriate to wind up its business and affairs and terminate.
11(Source: P.A. 98-171, eff. 8-5-13.)
 
12    (805 ILCS 180/35-40)
13    Sec. 35-40. Reinstatement following administrative
14dissolution.
15    (a) A limited liability company administratively dissolved
16under Section 35-25 may be reinstated by the Secretary of State
17following the date of issuance of the notice of dissolution
18upon:
19        (1) The filing of an application for reinstatement.
20        (2) The filing with the Secretary of State by the
21    limited liability company of all reports then due and
22    theretofore becoming due.
23        (3) The payment to the Secretary of State by the
24    limited liability company of all fees and penalties then
25    due and theretofore becoming due.

 

 

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1    (b) The application for reinstatement shall be executed and
2filed in duplicate in accordance with Section 5-45 of this Act
3and shall set forth all of the following:
4        (1) The name of the limited liability company at the
5    time of the issuance of the notice of dissolution.
6        (2) If the name is not available for use as determined
7    by the Secretary of State at the time of filing the
8    application for reinstatement, the name of the limited
9    liability company as changed, provided that any change of
10    name is properly effected under Section 1-10 and Section
11    5.25 of this Act.
12        (3) The date of issuance of the notice of dissolution.
13        (4) The address, including street and number or rural
14    route number of the registered office of the limited
15    liability company upon reinstatement thereof and the name
16    of its registered agent at that address upon the
17    reinstatement of the limited liability company, provided
18    that any change from either the registered office or the
19    registered agent at the time of dissolution is properly
20    reported under Section 1-35 of this Act.
21    (c) When a dissolved limited liability company has complied
22with the provisions of the Section, the Secretary of State
23shall file the application for reinstatement.
24    (d) Upon the filing of the application for reinstatement,
25the limited liability company existence shall be deemed to have
26continued without interruption from the date of the issuance of

 

 

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1the notice of dissolution, and the limited liability company
2shall stand revived with the powers, duties, and obligations as
3if it had not been dissolved; and all acts and proceedings of
4its members, or managers, officers, employees, and agents,
5acting or purporting to act in that capacity, and which that
6would have been legal and valid but for the dissolution, shall
7stand ratified and confirmed.
8    (e) Without limiting the generality of subsection (d), upon
9the filing of the application for reinstatement, no member,
10manager, or officer shall be personally liable for the debts
11and liabilities of the limited liability company incurred
12during the period of administrative dissolution by reason of
13the fact that the limited liability company was
14administratively dissolved at the time the debts or liabilities
15were incurred.
16(Source: P.A. 94-605, eff. 1-1-06.)
 
17    Section 20. The Uniform Limited Partnership Act (2001) is
18amended by changing Sections 809 and 810 as follows:
 
19    (805 ILCS 215/809)
20    Sec. 809. Administrative dissolution.
21    (a) The Secretary of State may dissolve a limited
22partnership administratively if the limited partnership does
23not, within 60 days after the due date:
24        (1) pay any fee, tax, or penalty due to the Secretary

 

 

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1    of State under this Act or other law;
2        (2) file its annual report with the Secretary of State;
3    or
4        (3) appoint and maintain an agent for service of
5    process in Illinois after a registered agent's notice of
6    resignation under Section 116.
7    (b) If the Secretary of State determines that a ground
8exists for administratively dissolving a limited partnership,
9the Secretary of State shall file a record of the determination
10and send a copy of the filed record to the limited
11partnership's agent for service of process in this State, or if
12the limited partnership does not appoint and maintain a proper
13agent, to the limited partnership's designated office.
14    (c) If within 60 days after service of the copy of the
15record of determination the limited partnership does not
16correct each ground for dissolution or demonstrate to the
17reasonable satisfaction of the Secretary of State that each
18ground determined by the Secretary of State does not exist, the
19Secretary of State shall administratively dissolve the limited
20partnership by preparing, signing, and filing a declaration of
21dissolution that states the grounds for dissolution. The
22Secretary of State shall send a copy to the limited
23partnership's agent for service of process in this State, or if
24the limited partnership does not appoint and maintain a proper
25agent, to the limited partnership's designated office.
26    (d) A limited partnership administratively dissolved

 

 

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1continues its existence but may carry on only activities
2necessary or appropriate to wind up its activities and
3liquidate its assets under Sections 803 and 812 and to notify
4claimants under Sections 806 and 807.
5    (e) The administrative dissolution of a limited
6partnership does not terminate the authority of its agent for
7service of process.
8(Source: P.A. 97-839, eff. 7-20-12.)
 
9    (805 ILCS 215/810)
10    Sec. 810. Reinstatement following administrative
11dissolution.
12    (a) A limited partnership that has been administratively
13dissolved under Section 809 may be reinstated by the Secretary
14of State following the date of dissolution upon:
15        (1) the filing of an application for reinstatement;
16        (2) the filing with the Secretary of State of all
17    reports then due and becoming due; and
18        (3) the payment to the Secretary of State of all fees
19    and penalties then due and becoming due.
20    (b) The application for reinstatement shall be executed and
21filed in duplicate in accordance with Section 204 and shall set
22forth all of the following:
23        (1) the name of the limited partnership at the time of
24    dissolution;
25        (2) the date of dissolution;

 

 

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1        (3) the agent for service of process and the address of
2    the agent for service of process; provided that any change
3    to either the agent for service of process or the address
4    of the agent for service of process is properly reported
5    under Section 115.
6    (c) When a limited partnership that has been
7administratively dissolved has complied with the provisions of
8this Section, the Secretary of State shall file the application
9for reinstatement.
10    (d) Upon filing of the application for reinstatement, : (i)
11the limited partnership existence shall be deemed to have
12continued without interruption from the date of dissolution and
13shall stand revived with such the powers, duties, and
14obligations, as if it had not been dissolved. , and (ii) All
15all acts and proceedings of its partners, officers, employees,
16and agents, acting or purporting to act in that capacity, and
17which that would have been legal and valid but for the
18dissolution shall stand ratified and confirmed.
19    (e) Without limiting the generality of subsection (d), upon
20the filing of the application for reinstatement, no limited
21partner or officer of the partnership shall be personally
22liable for the debts and liabilities of the limited partnership
23incurred during the period of administrative dissolution by
24reason of the fact that the limited partnership was
25administratively dissolved at the time the debts or liabilities
26were incurred.

 

 

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1(Source: P.A. 97-839, eff. 7-20-12.)".