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Public Act 098-0776 Public Act 0776 98TH GENERAL ASSEMBLY |
Public Act 098-0776 | SB1098 Enrolled | LRB098 05367 WGH 35401 b |
|
| AN ACT concerning business.
| Be it enacted by the People of the State of Illinois, | represented in the General Assembly:
| Section 5. The Business Corporation Act of 1983 is amended | by changing Sections 8.65, 12.40, 12.45, and 12.80 as follows:
| (805 ILCS 5/8.65) (from Ch. 32, par. 8.65)
| Sec. 8.65. Liability of directors in certain cases. | (a) In addition
to any other liabilities imposed by law | upon directors of a corporation,
they are liable as follows:
| (1) The directors of a corporation who vote for or | assent to any distribution
prohibited by Section 9.10 of | this Act shall be jointly and severally liable
to the | corporation for the amount of such distribution.
| (2) If a dissolved corporation shall proceed to bar any | known claims
against it under Section 12.75, the directors | of such corporation
who fail to take reasonable steps
to | cause the notice required by Section 12.75 of this Act to | be given to
any known creditor of such corporation shall be | jointly and severally liable
to such creditor for all loss | and damage occasioned thereby.
| (3) Unless dissolution is subsequently revoked | pursuant to Section 12.25 of this Act, the The directors of | a corporation that carries on its business after the
filing |
| by the Secretary of State of
articles of dissolution with | respect to a voluntary dissolution authorized as provided | by this Act , otherwise than so far as may be necessary or | appropriate to wind up and liquidate its business and | affairs for the
winding up thereof , shall be jointly and | severally liable to the creditors
of such corporation for | all debts and liabilities of the corporation
incurred in so | carrying on its business. Directors of a corporation that | carries on its business during a period of administrative | dissolution shall not be liable under this paragraph (a)(3) | if the Secretary of State subsequently files an application | for reinstatement under subsection (c) of Section 12.45, | which reinstatement shall have the effect described in | subsection (d) of Section 12.45.
| (b) A director of a corporation who is present at a meeting | of its board of
directors at which action on any corporate | matter is taken is conclusively
presumed to have assented to | the action taken unless his or her dissent
is entered in the | minutes of the meeting or unless he or she files his or
her | written dissent to such action with the person acting as the | secretary
of the meeting before the adjournment thereof or | forwards such dissent by
registered or certified mail to the
| secretary of the corporation immediately after the adjournment | of the
meeting. Such right to dissent does not apply to a | director who voted in
favor of such action.
| (c) A director shall not be liable for a
distribution of |
| assets to the shareholders of a corporation in excess of
the | amount authorized by Section 9.10 of this Act if he or she | relied and
acted in good faith
upon a balance sheet and profit | and loss statement of the corporation
represented to him or her | to be correct by the president or the officer of such
| corporation having charge of its books of account, or certified | by an
independent public or certified public accountant or firm | of such
accountants to fairly reflect the financial condition | of such corporation,
nor shall he or she be so liable if in | good faith in determining the amount
available for any such | dividend or distribution he or she considered the
assets to be | of their book value.
| (d) Any director against whom a claim is asserted under | this
Section and who is held liable thereon, is
entitled to | contribution from the other directors who are likewise liable
| thereon.
| Any director against whom a claim is asserted
for the | improper
distribution of assets of a corporation and who is | held
liable thereon, is entitled to contribution from the | shareholders who
knowingly accepted or received any such | distribution in proportion
to the amounts received by them | respectively.
| (Source: P.A. 84-924.)
| (805 ILCS 5/12.40) (from Ch. 32, par. 12.40)
| Sec. 12.40. Procedure for administrative dissolution.
|
| (a) After the
Secretary of State determines that one or | more grounds exist under Section
12.35 for the administrative | dissolution of a corporation, he or she shall
send by regular | mail to each delinquent corporation a Notice of Delinquency
to | its registered office, or, if the corporation has failed to | maintain
a registered office, then to the president or other | principal officer at
the last known office of said officer.
| (b) If the corporation does not correct the default
| described in paragraphs (a) through (e) of Section 12.35
within | 90 days following
such notice, the Secretary of State shall | thereupon dissolve the corporation
by issuing a certificate of | dissolution that recites the ground or grounds
for dissolution | and its effective date.
If the corporation does not correct the | default described in paragraphs (f)
through (h) of
Section | 12.35, within 30 days following such notice, the Secretary of | State
shall
thereupon dissolve the corporation by issuing a | certificate of dissolution as
herein
prescribed.
The Secretary | of State shall file
the original of the certificate in his or | her office and mail one copy to the
corporation at its | registered office or,
if the corporation has failed to maintain | a registered office, then to
the president or
other principal | officer at the last known office of said officer.
| (c) The administrative dissolution of a corporation | terminates its corporate
existence and such a dissolved | corporation shall not thereafter carry on
any business, | provided however, that such a dissolved corporation may take
|
| all action authorized under Section 12.75 or as otherwise | necessary or appropriate to wind up and liquidate
its business | and affairs under Section 12.30.
| (Source: P.A. 96-1121, eff. 1-1-11.)
| (805 ILCS 5/12.45) (from Ch. 32, par. 12.45)
| Sec. 12.45. Reinstatement following administrative | dissolution.
| (a) A domestic corporation administratively dissolved | under Section 12.40
may
be reinstated by the Secretary of State | following the
date of issuance of the certificate of | dissolution upon:
| (1) The filing of an application for reinstatement.
| (2) The filing with the Secretary of State by the | corporation of all
reports then due and theretofore | becoming due.
| (3) The payment to the Secretary of State by the | corporation of all fees,
franchise taxes, and penalties | then due and theretofore becoming due.
| (b) The application for reinstatement shall be executed and | filed in
duplicate in accordance with Section 1.10 of this Act | and shall set forth:
| (1) The name of the corporation at the time of the | issuance of the
certificate of dissolution.
| (2) If such name is not available for use as determined | by the Secretary
of State at the time of filing the |
| application for reinstatement, the name
of the corporation | as changed, provided however, and any change of name
is | properly effected pursuant to Section 10.05 and Section | 10.30 of this Act.
| (3) The date of the issuance of the certificate of | dissolution.
| (4) The address, including street and number, or rural | route number
of the registered office of the corporation | upon reinstatement thereof, and
the name of its registered | agent at such address upon the reinstatement of
the | corporation, provided however, that any change from either | the
registered office or the registered agent at the time | of dissolution is
properly reported pursuant to Section | 5.10 of this Act.
| (c) When a dissolved corporation has complied with the | provisions of this Section
the Secretary of State shall file | the application for reinstatement.
| (d) Upon the filing of the application for reinstatement, | the corporate
existence for all purposes shall be deemed to | have continued without interruption from the
date of the | issuance of the certificate of dissolution, and the corporation
| shall stand revived with such powers, duties and obligations as | if it had
not been dissolved; and all acts and proceedings of | its officers, directors
and shareholders, directors, officers, | employees, and agents, acting or purporting to act in that | capacity as such , and which would have
been legal and valid but |
| for such dissolution, shall stand ratified and
confirmed.
| (e) Without limiting the generality of subsection (d), upon | the filing of the application for reinstatement, no | shareholder, director, or officer shall be personally liable, | under Section 8.65 of this Act or otherwise, for the debts and | liabilities of the corporation incurred during the period of | administrative dissolution by reason of the fact that the | corporation was administratively dissolved at the time the | debts or liabilities were incurred. | (Source: P.A. 96-328, eff. 8-11-09.)
| (805 ILCS 5/12.80) (from Ch. 32, par. 12.80)
| Sec. 12.80. Survival of remedy after dissolution. The | dissolution
of a corporation either (1) by filing articles of | dissolution in accordance
with Section 12.20 of this Act, (2) | by the issuance of a
certificate of dissolution in accordance | with Section 12.40 of this Act, (3) by
a judgment
of | dissolution by a circuit court of this State, or (4) by
| expiration of
its period of duration, shall not take away nor | impair any civil remedy
available to or against such | corporation, its directors, or shareholders,
for any right or | claim existing, or any liability accrued or incurred, either | prior to , at the time of, or after such
dissolution if action | or other proceeding thereon is commenced within five
years | after the date of such dissolution. Any such action or | proceeding by
or against the corporation may be prosecuted or |
| defended by the corporation
in its corporate name. This | provision does not extend any applicable statute of | limitations.
| (Source: P.A. 92-33, eff. 7-1-01.)
| Section 10. The General Not For Profit Corporation Act of | 1986 is amended by changing Sections 108.65, 112.40, and 112.45 | as follows:
| (805 ILCS 105/108.65) (from Ch. 32, par. 108.65)
| Sec. 108.65. Liability of directors in certain cases. | (a) In addition to any other liabilities imposed by law
| upon directors of a corporation, they are liable as follows:
| (1) The directors of a corporation who vote for or
| assent to any distribution not authorized by Section 109.10
| or Article 12 of this Act shall be jointly and severally
| liable to the corporation for the amount of such
| distribution.
| (2) If a dissolved corporation shall proceed to bar
any | known claims against it under Section 112.75 of this
Act, | the directors of such corporation who fail to take
| reasonable steps to cause the notice required by Section
| 112.75 of this Act to be given to any known creditor of | such
corporation shall be jointly and severally liable to | such
creditor for all loss and damage occasioned thereby.
| (3) Unless dissolution is subsequently revoked |
| pursuant to Section 112.25 of this Act, the The directors | of a corporation that conducts its
affairs after the filing | by the Secretary of State of
articles of dissolution with | respect to a voluntary dissolution authorized as provided | by this Act , otherwise than so far as may be
necessary or | appropriate to wind up and liquidate its affairs for the | winding up thereof , shall be jointly and
severally liable | to the creditors of such corporation for
all debts and | liabilities of the corporation incurred in so
conducting | its affairs. Directors of a corporation that conducts its | affairs during a period of administrative dissolution | shall not be liable under this paragraph (a)(3) if the | Secretary of State subsequently files an application for | reinstatement under subsection (c) of Section 112.45, | which reinstatement shall have the effect described in | subsection (d) of Section 112.45.
| (b) A director of a corporation who is present at a meeting
| of its board of directors at which action on any corporate
| matter is taken is conclusively presumed to have assented to
| the action taken unless his or her dissent or abstention is
| entered in the minutes of the meeting or unless he or she
files | his or her written dissent or abstention to such
action with | the person acting as the secretary of the
meeting before the | adjournment thereof or forwards such
dissent or abstention by | registered or certified mail to the
secretary of the | corporation immediately after the
adjournment of the meeting. |
| Such right to dissent or
abstain does not apply to a director | who voted in favor of
such action.
| (c) A director shall not be liable for a distribution of
| assets to any person in excess of the amount authorized by
| Section 109.10 or Article 12 of this Act if he or she relied
| and acted in good faith upon a balance sheet and profit and
| loss statement of the corporation represented to him or her
to | be correct by the president or the officer of such
corporation | having charge of its books of account, or
certified by an | independent public or certified public
accountant or firm of | such accountants to fairly reflect the
financial condition of | such corporation, nor shall he or she
be so liable if in good | faith in determining the amount
available for any such | distribution he or she considered the
assets to be of their | book value.
| (d) Any director against whom a claim is asserted under
| this Section and who is held liable thereon, is entitled to
| contribution from the other directors who are likewise
liable | thereon. Any director against whom a claim is
asserted for the | improper distribution of assets of a
corporation, and who is | held liable thereon, is entitled to
contribution from the | persons who knowingly accepted or
received any such | distribution in proportion to the amounts
received by them | respectively.
| (Source: P.A. 84-1423.)
|
| (805 ILCS 105/112.40) (from Ch. 32, par. 112.40)
| Sec. 112.40. Procedure for administrative dissolution.
| (a) After the Secretary of State determines that one or
| more grounds exist under Section 112.35 of this Act for the
| administrative dissolution of a corporation, he or she shall
| send by regular mail to each delinquent corporation a Notice
of | Delinquency to its registered office, or, if the
corporation | has failed to maintain a registered office, then
to the | president or other principal officer at the last
known office | of said officer.
| (b) If the corporation does not correct the default within
| 90 days following such notice, the Secretary of State shall
| thereupon dissolve the corporation by issuing a certificate
of | dissolution that recites the ground or grounds for
dissolution | and its effective date. The Secretary of State
shall file the | original of the certificate in his or her
office and mail one | copy to the corporation at its
registered
office
or, if the | corporation has failed to maintain a registered office, then to
| the president or
other principal officer at the last known | office of said officer.
| (c) The administrative dissolution of a corporation
| terminates its corporate existence and such a dissolved
| corporation shall not thereafter carry on any affairs,
provided | however, that such a dissolved corporation may take
all action | authorized under Section 112.75 of this Act or as otherwise
| necessary or appropriate to wind up and liquidate its affairs |
| under Section
112.30 of this Act.
| (Source: P.A. 96-1121, eff. 1-1-11.)
| (805 ILCS 105/112.45) (from Ch. 32, par. 112.45)
| Sec. 112.45. Reinstatement following administrative
| dissolution. | (a) A domestic corporation administratively
dissolved | under Section 112.40 of this Act may be reinstated
by the | Secretary of State following the
date of issuance of the | certificate of dissolution upon:
| (1) The filing of an application for reinstatement;
| (2) The filing with the Secretary of State by the
| corporation of all reports then due and theretofore | becoming
due;
| (3) The payment to the Secretary of State by the
| corporation of all fees and penalties then due and
| theretofore becoming due.
| (b) The application for reinstatement shall be executed and
| filed in duplicate in accordance with Section 101.10 of this
| Act and shall set forth:
| (1) The name of the corporation at the time of the
| issuance of the certificate of dissolution;
| (2) If such name is not available for use as
determined | by the Secretary of State at the time of filing
the | application for reinstatement, the name of the
corporation | as changed; provided, however, that any change
of name is |
| properly effected pursuant to Section 110.05 and
Section | 110.30 of this Act;
| (3) The date of the issuance of the certificate of
| dissolution;
| (4) The address, including street and number, or rural | route number, of
the registered office of the corporation | upon reinstatement thereof, and
the name of its registered | agent at such address upon the reinstatement of
the | corporation, provided however, that any change from either | the
registered office or the registered agent at the time | of dissolution is
properly reported pursuant to Section | 105.10 of this Act.
| (c) When a dissolved corporation has complied with the
| provisions of this Section, the Secretary of State shall
file | the application for reinstatement.
| (d) Upon the filing of the application for reinstatement,
| the corporate existence for all purposes shall be deemed to | have continued
without interruption from the date of the | issuance of the
certificate of dissolution, and the corporation | shall stand
revived with such powers, duties and obligations as | if it
had not been dissolved; and all acts and proceedings of | its shareholders, members, officers, employees, and agents
| officers, directors and members , acting or purporting to act in | that capacity
as such , and which would have been legal and | valid but for such
dissolution, shall stand ratified and | confirmed.
|
| (e) Without limiting the generality of subsection (d), upon | filing of the application for reinstatement, no shareholder, | director, or officer shall be personally liable, under Section | 108.65 of this Act or otherwise, for the debts and liabilities | of the corporation incurred during the period of administrative | dissolution by reason of the fact that the corporation was | administratively dissolved at the time the debts or liabilities | were incurred. | (Source: P.A. 94-605, eff. 1-1-06.)
| Section 15. The Limited Liability Company Act is amended by | changing Sections 35-30 and 35-40 as follows:
| (805 ILCS 180/35-30)
| Sec. 35-30. Procedure for administrative dissolution.
| (a) After the Secretary of State determines that one or | more grounds exist
under Section 35-25 for the administrative | dissolution of a limited liability
company, the Secretary of | State shall send a notice of delinquency by regular
mail to | each delinquent limited liability company at its registered | office or,
if the limited liability company has failed to | maintain a registered office,
then to the last known address | shown on the records of the Secretary of State
for the | principal place of business of the limited liability company.
| (b) If the limited liability company does not correct
the | default described in paragraphs (1) or (2) of Section 35-25 |
| within 120 days following the date of the notice
of | delinquency, the Secretary of State shall thereupon
dissolve | the limited liability company by issuing a certificate of | dissolution that
recites the grounds for dissolution and its | effective date. If the limited liability company does not | correct the default described in paragraphs (2.5), (3), (4), or | (5) of Section 35-25 within 60 days following the notice, the | Secretary of State shall dissolve the limited liability company | by issuing a certificate of dissolution that recites the | grounds for dissolution and its effective date. The Secretary | of
State shall file the original of the certificate in his or | her office and mail one
copy to the limited liability company | at its registered office or, if the
limited liability company | has failed to maintain a registered office, then to
the last | known address shown on the records of the Secretary of State | for the
principal place of business of the limited liability | company.
| (c) Upon the administrative dissolution of a limited | liability company, a
dissolved limited liability company shall | continue for only the purpose of
winding up its business. A | dissolved
limited liability company may take all action | authorized
under Section 1-30 or otherwise necessary or | appropriate to wind up its
business and affairs and terminate.
| (Source: P.A. 98-171, eff. 8-5-13.)
| (805 ILCS 180/35-40)
|
| Sec. 35-40. Reinstatement following administrative
| dissolution. | (a) A limited liability company administratively
dissolved | under Section 35-25 may be reinstated by the
Secretary of State | following the date of
issuance of the notice of dissolution | upon:
| (1) The filing of an application for
reinstatement.
| (2) The filing with the Secretary of State by the
| limited liability company of all reports then due and
| theretofore becoming due.
| (3) The payment to the Secretary of State by the
| limited liability company of all fees and penalties then
| due and theretofore becoming due.
| (b) The application for reinstatement shall be executed
and | filed in duplicate in accordance with Section 5-45 of
this Act | and shall set forth all of the following:
| (1) The name of the limited liability company at
the | time of the issuance of the notice of dissolution.
| (2) If the name is not available for use as
determined | by the Secretary of State at the time of
filing the | application for reinstatement, the name of
the limited | liability company as changed, provided
that any change of | name is properly effected under
Section 1-10 and Section | 5.25 of this Act.
| (3) The date of issuance of the notice of
dissolution.
| (4) The address, including street and number
or
rural |
| route number of the registered office of the
limited | liability company upon reinstatement thereof
and the name | of its registered agent at that address
upon the | reinstatement of the limited liability
company,
provided | that any change from either the
registered office or the | registered agent at the
time of
dissolution is properly | reported under Section
1-35 of this Act.
| (c) When a dissolved limited liability company has
complied | with the provisions of the Section, the Secretary of
State | shall file the application for
reinstatement.
| (d) Upon the filing of the application for
reinstatement, | the limited liability company existence shall
be deemed to have | continued without interruption from the
date of the issuance of | the notice of dissolution, and the
limited liability company | shall stand revived with the
powers, duties, and obligations as | if it had not been
dissolved; and all acts and proceedings of | its members , or
managers, officers, employees, and agents, | acting or purporting to act in that capacity, and which that
| would have been legal and valid but for the dissolution,
shall | stand ratified and confirmed.
| (e) Without limiting the generality of subsection (d), upon | the filing of the application for reinstatement, no member, | manager, or officer shall be personally liable for the debts | and liabilities of the limited liability company incurred | during the period of administrative dissolution by reason of | the fact that the limited liability company was |
| administratively dissolved at the time the debts or liabilities | were incurred. | (Source: P.A. 94-605, eff. 1-1-06.)
| Section 20. The
Uniform Limited Partnership Act (2001) is | amended by changing Sections 809 and 810 as follows: | (805 ILCS 215/809)
| Sec. 809. Administrative dissolution. | (a) The Secretary of State may dissolve a limited | partnership administratively if the limited partnership does | not, within 60 days after the due date: | (1) pay any fee, tax, or penalty due to the Secretary | of State under this Act or other law; | (2) file its annual report with the Secretary of State; | or | (3) appoint and maintain an agent for service of | process in Illinois after a registered agent's notice of | resignation under Section 116. | (b) If the Secretary of State determines that a ground | exists for administratively dissolving a limited partnership, | the Secretary of State shall file a record of the determination | and send a copy of the filed record to the limited | partnership's agent for service of process in this State, or if | the limited partnership does not appoint and maintain a proper | agent, to the limited partnership's designated office. |
| (c) If within 60 days after service of the copy of the | record of determination the limited partnership does not | correct each ground for dissolution or demonstrate to the | reasonable satisfaction of the Secretary of State that each | ground determined by the Secretary of State does not exist, the | Secretary of State shall administratively dissolve the limited | partnership by preparing, signing, and filing a declaration of | dissolution that states the grounds for dissolution. The | Secretary of State shall send a copy to the limited | partnership's agent for service of process in this State, or if | the limited partnership does not appoint and maintain a proper | agent, to the limited partnership's designated office. | (d) A limited partnership administratively dissolved | continues its existence but may carry on only activities | necessary or appropriate to wind up its activities and | liquidate its assets under Sections 803 and 812 and to notify | claimants under Sections 806 and 807. | (e) The administrative dissolution of a limited | partnership does not terminate the authority of its agent for | service of process.
| (Source: P.A. 97-839, eff. 7-20-12.) | (805 ILCS 215/810)
| Sec. 810. Reinstatement following administrative | dissolution. | (a) A limited partnership that has been administratively |
| dissolved under Section 809 may be reinstated by the Secretary | of State following the date of dissolution upon: | (1) the filing of an application for reinstatement; | (2) the filing with the Secretary of State of all | reports then due and becoming due; and | (3) the payment to the Secretary of State of all fees | and penalties then due and becoming due. | (b) The application for reinstatement shall be executed and | filed in duplicate in accordance with Section 204 and shall set | forth all of the following: | (1) the name of the limited partnership at the time of | dissolution; | (2) the date of dissolution; | (3) the agent for service of process and the address of | the agent for service of process; provided that any change | to either the agent for service of process or the address | of the agent for service of process is properly reported | under Section 115. | (c) When a limited partnership that has been | administratively dissolved has complied with the provisions of | this Section, the Secretary of State shall file the application | for reinstatement. | (d) Upon filing of the application for reinstatement , : (i) | the limited partnership existence shall be deemed to have | continued without interruption from the date of dissolution and | shall stand revived with such the powers, duties, and |
| obligations, as if it had not been dissolved . , and (ii) All | all acts and proceedings of its partners, officers, employees, | and agents, acting or purporting to act in that capacity, and | which that would have been legal and valid but for the | dissolution shall stand ratified and confirmed.
| (e) Without limiting the generality of subsection (d), upon | the filing of the application for reinstatement, no limited | partner or officer of the partnership shall be personally | liable for the debts and liabilities of the limited partnership | incurred during the period of administrative dissolution by | reason of the fact that the limited partnership was | administratively dissolved at the time the debts or liabilities | were incurred. | (Source: P.A. 97-839, eff. 7-20-12.) |
Effective Date: 1/1/2015
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