617.1408 Known claims against dissolved corporation.
617.1408 Known claims against dissolved corporation.
(1) A dissolved corporation or successor entity may dispose of the known claims against it by following the procedures described in subsections (2), (3), and (4).
(2) The dissolved corporation or successor entity shall deliver to each of its known claimants written notice of the dissolution at any time after its effective date. The written notice must:
(a) Provide a reasonable description of the claim that the claimant may be entitled to assert;
(b) State whether the claim is admitted or not admitted, in whole or in part, and, if admitted:
1. The amount that is admitted, which may be as of a given date; and
2. Any interest obligation if fixed by an instrument of indebtedness;
(c) Provide a mailing address where a claim may be sent;
(d) State the deadline, which must be at least 120 days after the effective date of the written notice, by which confirmation of the claim must be delivered to the dissolved corporation or successor entity; and
(e) State that the corporation or successor entity may make distributions thereafter to other claimants and the members of the corporation or persons interested as having been such without further notice.
(3) A dissolved corporation or successor entity may reject, in whole or in part, any claim made by a claimant pursuant to this section by mailing notice of such rejection to the claimant within 90 days after receipt of such claim and, in all events, at least 150 days before expiration of 3 years following the effective date of dissolution. The notice must be accompanied by a copy of this section.
(4) A dissolved corporation or successor entity electing to follow the procedures described in subsections (2) and (3) must also give notice of dissolution to persons having known claims that are contingent upon the occurrence or nonoccurrence of future events, or are otherwise conditional or unmatured, and request that such persons present such claims in accordance with the terms of the notice. The notice must be in substantially the same form, and sent in the same manner, as described in subsection (2).
(5) A dissolved corporation or successor entity shall offer any claimant whose known claim is contingent, conditional, or unmatured such security as the corporation or entity determines is sufficient to provide compensation to the claimant if the claim matures. The dissolved corporation or successor entity shall deliver such offer to the claimant within 90 days after receipt of such claim and, in all events, at least 150 days before expiration of 3 years following the effective date of dissolution. If the claimant offered such security does not deliver in writing to the dissolved corporation or successor entity a notice rejecting the offer within 120 days after receipt of such offer, the claimant is deemed to have accepted such security as the sole source from which to satisfy his or her claim against the corporation.
(6) A dissolved corporation or successor entity that has given notice in accordance with subsections (2) and (4) shall petition the circuit court in the county where the corporation’s principal office is located or was located on the effective date of dissolution to determine the amount and form of security which is sufficient to provide compensation to a claimant who has rejected the offer for security made pursuant to subsection (5).
(7) A dissolved corporation or successor entity that has given notice in accordance with subsection (2) shall petition the circuit court in the county where the corporation’s principal office is located or was located on the effective date of dissolution to determine the amount and form of security which is sufficient to provide compensation to claimants whose claims are known to the corporation or successor entity but whose identities are unknown. The court shall appoint a guardian ad litem to represent all claimants whose identities are unknown in any proceeding brought under this subsection. The reasonable fees and expenses of such guardian, including all reasonable expert witness fees, shall be paid by the petitioner in such proceeding.
(8) The giving of any notice or making of any offer pursuant to this section does not revive any claim then barred, does not constitute acknowledgment by the dissolved corporation or successor entity that any person to whom such notice is sent is a proper claimant, and does not operate as a waiver of any defense or counterclaim in respect of any claim asserted by any person to whom such notice is sent.
(9) A dissolved corporation or successor entity that has followed the procedures described in subsections (2)-(7) shall:
(a) Pay the claims admitted or made and not rejected in accordance with subsection (3);
(b) Post the security offered and not rejected pursuant to subsection (5);
(c) Post any security ordered by the circuit court in any proceeding under subsections (6) and (7); and
(d) Pay or make provision for all other known obligations of the corporation or the successor entity. Such claims or obligations shall be paid in full, and any provision for payments shall be made in full if there are sufficient funds. If there are insufficient funds, the claims and obligations shall be paid or provided for according to their priority and, among claims of equal priority, ratably to the extent of funds legally available for payment. Any remaining funds shall be distributed in accordance with s. 617.1406; however, such distribution may not be made until 150 days after the date of the last notice of rejections given pursuant to subsection (3). In the absence of actual fraud, the judgment of the directors of the dissolved corporation or the governing persons of the successor entity as to the provisions made for the payment of all obligations under this paragraph is conclusive.
(10) A dissolved corporation or successor entity that has not followed the procedures described in subsections (2) and (3) shall pay or make reasonable provision to pay all known claims and obligations, including all contingent, conditional, or unmatured claims known to the corporation or the successor entity and all claims that are known to the dissolved corporation or the successor entity but for which the identity of the claimant is unknown. Such claims shall be paid in full, and any provision for payment made shall be made in full if there are sufficient funds. If there are insufficient funds, such claims and obligations shall be paid or provided for according to their priority and, among claims of equal priority, ratably to the extent of funds legally available for payment thereof. Any remaining funds shall be distributed in accordance with s. 617.1406.
(11) Directors of a dissolved corporation or governing persons of a successor entity that has complied with subsection (9) or subsection (10) are not personally liable to the claimants of the dissolved corporation.
(12) A member of a dissolved corporation the assets of which were distributed pursuant to subsection (9) or subsection (10) is not liable for any claim against the corporation greater than the member’s pro rata share of the claim or the amount distributed to the member, whichever is less.
(13) A member of a dissolved corporation, the assets of which were distributed pursuant to subsection (9), is not liable for any claim against the corporation which is known to the corporation or successor entity and on which a proceeding is begun after the expiration of 3 years following the effective date of dissolution.
(14) The aggregate liability of any member of a dissolved corporation for claims against the dissolved corporation may not be greater than the amount distributed to the member in dissolution.
History. s. 41, ch. 2009-205.