BILL REQ. #: Z-1054.3
| State of Washington | 61st Legislature | 2010 Regular Session |
Read first time 01/11/10. Referred to Committee on Judiciary.
AN ACT Relating to the dissolution of limited liability companies; amending RCW 25.15.070, 25.15.085, 25.15.293, 25.15.295, and 25.15.303; adding a new section to chapter 25.15 RCW; and declaring an emergency.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1 RCW 25.15.070 and 1994 c 211 s 201 are each amended to
read as follows:
(1) In order to form a limited liability company, one or more
persons must execute a certificate of formation. The certificate of
formation shall be filed in the office of the secretary of state and
set forth:
(a) The name of the limited liability company;
(b) The address of the registered office and the name and address
of the registered agent for service of process required to be
maintained by RCW 25.15.020;
(c) The address of the principal place of business of the limited
liability company;
(d) If the limited liability company is to have a specific date of
dissolution, the latest date on which the limited liability company is
to dissolve;
(e) If management of the limited liability company is vested in a
manager or managers, a statement to that effect;
(f) Any other matters the members decide to include therein; and
(g) The name and address of each person executing the certificate
of formation.
(2) Effect of filing:
(a) Unless a delayed effective date is specified, a limited
liability company is formed when its certificate of formation is filed
by the secretary of state. A delayed effective date for a certificate
of formation may be no later than the ninetieth day after the date it
is filed.
(b) The secretary of state's filing of the certificate of formation
is conclusive proof that the persons executing the certificate
satisfied all conditions precedent to the formation ((except in a
proceeding by the state to cancel the certificate)).
(c) A limited liability company formed under this chapter shall be
a separate legal entity((, the existence of which as a separate legal
entity shall continue until cancellation of the limited liability
company's certificate of formation)).
Sec. 2 RCW 25.15.085 and 2002 c 74 s 17 are each amended to read
as follows:
(1) Each document required by this chapter to be filed in the
office of the secretary of state shall be executed in the following
manner, or in compliance with the rules established to facilitate
electronic filing under RCW 25.15.007, except as set forth in RCW
25.15.105(4)(b):
(a) Each original certificate of formation must be signed by the
person or persons forming the limited liability company;
(b) A reservation of name may be signed by any person;
(c) A transfer of reservation of name must be signed by, or on
behalf of, the applicant for the reserved name;
(d) A registration of name must be signed by any member or manager
of the foreign limited liability company;
(e) A certificate of amendment or restatement must be signed by at
least one manager, or by a member if management of the limited
liability company is reserved to the members;
(f) A certificate of dissolution or certificate of cancellation
must be signed by the person or persons authorized to wind up the
limited liability company's affairs pursuant to RCW 25.15.295(((1)))
(3);
(g) If a surviving domestic limited liability company is filing
articles of merger, the articles of merger must be signed by at least
one manager, or by a member if management of the limited liability
company is reserved to the members, or if the articles of merger are
being filed by a surviving foreign limited liability company, limited
partnership, or corporation, the articles of merger must be signed by
a person authorized by such foreign limited liability company, limited
partnership, or corporation; and
(h) A foreign limited liability company's application for
registration as a foreign limited liability company doing business
within the state must be signed by any member or manager of the foreign
limited liability company.
(2) Any person may sign a certificate, articles of merger, limited
liability company agreement, or other document by an attorney-in-fact
or other person acting in a valid representative capacity, so long as
each document signed in such manner identifies the capacity in which
the signator signed.
(3) The person executing the document shall sign it and state
beneath or opposite the signature the name of the person and capacity
in which the person signs. The document must be typewritten or
printed, and must meet such legibility or other standards as may be
prescribed by the secretary of state.
(4) The execution of a certificate or articles of merger by any
person constitutes an affirmation under the penalties of perjury that
the facts stated therein are true.
Sec. 3 RCW 25.15.293 and 2009 c 437 s 3 are each amended to read
as follows:
(1) A limited liability company ((voluntarily dissolved under RCW
25.15.270 may apply to the secretary of state for reinstatement within
one hundred twenty days after the effective date of dissolution. The
application must:)) that has dissolved pursuant to RCW
25.15.270 (2) or (3) and filed a certificate of dissolution under RCW
25.15.295 may revoke its dissolution and certificate of dissolution
within one hundred twenty days of the filing of the certificate of
dissolution.
(a) Recite the name of the limited liability company and the
effective date of its voluntary dissolution;
(b) State that the ground or grounds for voluntary dissolution have
been eliminated; and
(c) State that the limited liability company's name satisfies the
requirements of RCW 25.15.010.
(2) If the secretary of state determines that the application
contains the information required by subsection (1) of this section and
that the name is available, the secretary of state shall reinstate the
limited liability company and give the limited liability company
written notice of the reinstatement that recites the effective date of
reinstatement. If the name is not available, the limited liability
company must file with its application for reinstatement an amendment
to its certificate of formation reflecting a change of name.
(3) When the reinstatement is
(2) Revocation of dissolution must be approved in the same manner
as the dissolution was approved unless that approval permitted
revocation in some other manner, in which event the dissolution may be
revoked in the manner permitted.
(3) After the revocation of dissolution is approved, the limited
liability company may revoke the dissolution and certificate of
dissolution by delivering to the secretary of state for filing a
certificate of revocation of dissolution, together with a copy of its
certificate of dissolution, that sets forth:
(a) The name of the limited liability company and a statement that
such name satisfies the requirements of RCW 25.15.010; if the name is
not available, the limited liability company must file a certificate of
amendment changing its name with the certificate of revocation of
dissolution;
(b) The effective date of the dissolution that was revoked;
(c) The date that the revocation of dissolution was approved;
(d) If the limited liability company's managers revoked the
dissolution, a statement to that effect;
(e) If the limited liability company's managers revoked a
dissolution approved by the company's members, a statement that
revocation was permitted by action by the managers alone pursuant to
that approval; and
(f) If member approval was required to revoke the dissolution, a
statement that revocation of the dissolution was duly approved by the
members in accordance with subsection (2) of this section.
(4) Revocation of dissolution and the certificate of dissolution is
effective upon filing of the certificate of revocation of dissolution.
(5) When the revocation of dissolution and the certificate of
dissolution is effective, it relates back to and takes effect as of the
effective date of the ((voluntary)) dissolution and the limited
liability company ((may)) resumes carrying on its business as if ((the
voluntary)) dissolution had never occurred.
(((4) If an application for reinstatement is not made within the
one hundred twenty-day period set forth in subsection (1) of this
section, or if the application made within this period is not granted,
the secretary of state shall cancel the limited liability company's
certificate of formation.))
Sec. 4 RCW 25.15.295 and 1994 c 211 s 806 are each amended to
read as follows:
(1) ((Unless otherwise provided in a limited liability company
agreement, a manager who has not wrongfully dissolved a limited
liability company or, if none, the members or a person approved by the
members or, if there is more than one class or group of members, then
by each class or group of members, in either case, by members
contributing, or required to contribute, more than fifty percent of the
agreed value (as stated in the records of the limited liability company
required to be kept pursuant to RCW 25.15.135) of the contributions
made, or required to be made, by all members, or by the members in each
class or group, as appropriate, may wind up the limited liability
company's affairs. The superior courts, upon cause shown, may wind up
the limited liability company's affairs upon application of any member
or manager, his or her legal representative or assignee, and in
connection therewith, may appoint a receiver.)) A dissolved limited
liability company shall wind up its activities, and the company
continues after dissolution only for the purpose of winding up.
(2) Upon dissolution of a limited liability company and until the
filing of a certificate of cancellation as provided in RCW 25.15.080,
the persons winding up the limited liability company's affairs may, in
the name of, and for and on behalf of, the limited liability company,
prosecute and defend suits, whether civil, criminal, or administrative,
gradually settle and close the limited liability company's business,
dispose of and convey the limited liability company's property,
discharge or make reasonable provision for the limited liability
company's liabilities, and distribute to the members any remaining
assets of the limited liability company.
(2) In winding up its activities, a limited liability company may:
(a) Deliver to the secretary of state for filing a certificate of
dissolution stating the name of the company and that the company is
dissolved;
(b) Preserve the company's activities and property as a going
concern for a reasonable time;
(c) Prosecute and defend actions and proceedings, whether civil,
criminal, or administrative;
(d) Transfer the company's property;
(e) Settle disputes; and
(f) Perform other acts necessary or appropriate to the winding up.
(3) The persons responsible for managing the business and affairs
of a limited liability company under RCW 25.15.150 are responsible for
winding up the activities of a dissolved limited liability company. If
the limited liability company has no managers or members, the legal
representative of the last person to have been a member may wind up the
activities of the limited liability company. If the person does so,
the person is deemed to be a manager for the purposes of RCW 25.15.155.
(4) If the persons responsible for winding up the activities of a
dissolved limited liability company under subsection (3) of this
section decline or fail to wind up the limited liability company's
activities, a person may be appointed to do so by the consent of such
person and transferees owning a majority of the rights to receive
distributions as transferees at the time consent is to be effective.
A person appointed under this subsection:
(a) Is deemed to be a manager for the purposes of RCW 25.15.155;
and
(b) Shall promptly deliver to the secretary of state for filing an
amendment to the limited liability company's certificate of formation
to:
(i) State that the person has been appointed pursuant to this
subsection to wind up the limited liability company; and
(ii) Provide the street and mailing address of the person.
(5) The superior courts may order judicial supervision of the
winding up of a dissolved limited liability company, including the
appointment of a person to wind up the limited liability company's
activities:
(a) On application of a member, if the applicant establishes good
cause;
(b) On the application of a transferee, if:
(i) The limited liability company does not have any managers or
members;
(ii) The legal representative of the last person to have been a
member declines or fails to wind up the limited liability company's
activities; and
(iii) Within a reasonable time following the dissolution a person
has not been appointed pursuant to subsection (4) of this section; or
(c) In connection with a proceeding under RCW 25.15.275.
NEW SECTION. Sec. 5 A new section is added to chapter 25.15 RCW
to read as follows:
(1) A dissolved limited liability company that has filed a
certificate of dissolution under RCW 25.15.295 may dispose of any or
all of the known claims against it by giving written notice of its
dissolution to the holders of the known claims at any time after the
effective date of dissolution. The written notice of dissolution must:
(a) Provide, for each known claim of the holder to whom the notice
is addressed that is sought to be disposed of under this section,
either (i) a general description of the known facts specified in
subsection (3)(b)(i) or (ii) of this section relating to a matured and
legally assertable claim or liability, or (ii) an identification of the
executory contract with respect to which unmatured, conditional, or
contingent claims or liabilities are sought to be disposed of under
this section;
(b) Provide a mailing address where a notice of claim may be sent;
(c) State the deadline, which may not be fewer than one hundred
twenty days from the effective date of the written notice of
dissolution, by which a written notice of claim must be delivered to
the dissolved limited liability company;
(d) State that the known claim will be barred if a written notice
of claim describing the known claim with reasonable particularity is
not delivered to the dissolved limited liability company by the
deadline; and
(e) State that the known claim or any executory contract on which
the known claim is based may be rejected by the dissolved limited
liability company, in which case the holder of the known claim will
have a limited period of ninety days from the effective date of the
rejection notice in which to commence a proceeding to enforce the known
claim.
(2) A known claim against the dissolved limited liability company
is barred and that claim is not a liability of the company:
(a) If the holder of the known claim who was given written notice
of dissolution under subsection (1) of this section does not deliver
the written notice of claim to the dissolved limited liability company
by the deadline; or
(b) If a holder of a known claim that was rejected by the dissolved
limited liability company does not commence a proceeding to enforce the
known claim within ninety days from the effective date of the rejection
notice.
(3) For purposes of this section, "known claim" means any claim or
liability:
(a) That either: (i) Has matured sufficiently, before or after the
effective date of the dissolution, to be legally capable of assertion
against the dissolved limited liability company, whether or not the
amount of the claim or liability is known or determinable; or (ii) is
unmatured, conditional, or otherwise contingent but may subsequently
arise under any executory contract to which the dissolved limited
liability company is a party, other than under an implied or statutory
warranty as to any product manufactured, sold, distributed, or handled
by the dissolved limited liability company; and
(b) As to which the dissolved limited liability company has
knowledge of the identity and the mailing address of the holder of the
claim or liability and, in the case of a matured and legally assertable
claim or liability, actual knowledge of existing facts that either (i)
could be asserted to give rise to, or (ii) indicate an intention by the
holder to assert, such a matured claim or liability.
Sec. 6 RCW 25.15.303 and 2006 c 325 s 1 are each amended to read
as follows:
Neither the dissolution of a limited liability company ((does not
take away or impair)) nor the filing of a certificate of dissolution or
certificate of cancellation in itself takes away or impairs any remedy
available to or against that limited liability company, its managers,
or its members for any right or claim existing, or any liability
incurred at any time, whether prior to or after dissolution, unless an
action or other proceeding thereon is not commenced within three years
after the ((effective date)) filing of the certificate of dissolution.
Such an action or proceeding by or against the limited liability
company may be prosecuted or defended by the limited liability company
in its own name.
NEW SECTION. Sec. 7 This act is necessary for the immediate
preservation of the public peace, health, or safety, or support of the
state government and its existing public institutions, and takes effect
immediately.