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(UK/CLE 2011) 2016-1 Cumulative Supplement to Chapters 5, 6, 7, 8, 9

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(UK/CLE 2011) 2016-1 Cumulative Supplement to Chapters 5, 6, 7, 8, 9 LIMITED LIABILITY COMPANIES IN KENTUCKY (UK/CLE 2011) 2016-1 Cumulative Supplement to Chapters 5, 6, 7, 8, 9 & 9A each fully restated Basics of LLC Formation Foreign LLCs Limited Liability Company Operations Statutory Transactions: Conversion, Mergers and Share Exchange Dissolution of a Limited Liability Company Developments in the Law of Kentucky LLCs Thomas E. Rutledge Stoll Keenon Ogden PLLC © The Author January 19, 2016 This Cumulative Supplement may be downloaded free of charge from http://ssrn.com/abstract=2129208 993053.873053/828996.12 Preface The treatise Limited Liability Companies in Kentucky was originally published by the UK CLE office in 2011 and contained the original versions of what are Chapters 5, 6, 7, 8 and 9. Thereafter, annual supplements to those chapters were prepared and made available on SSRN. Consequent to the magnitude of the revisions made to date, in 2014 Chapter 7, Limited Liability Company Operations, was entirely amended and restated. That same year, new Chapter 9A, Developments in the Law of Kentucky LLCs was added. For 2016, all of the chapters have been amended and entirely restated. In consequence, as set forth in the supplement, all of Chapters 5, 6, 7, 8 and 9 of the original treatise as published in 2011 have been superseded. LIMITED LIABILITY COMPANIES IN KENTUCKY (UKCLE 2011) 2016-1 Amendment & Restatement of Chapter 5 Basics of LLC Formation Thomas E. Rutledge Stoll Keenon Ogden PLLC © The Author January 19, 2016 Chapter 5 Basics of LLC Formation by Thomas E. Rutledge CONTENTS 5.1 Introduction 5.2 Articles of Organization 5.3 Annual Report 5.4 The Mythical Limited Liability Corporation 5.5 What is a Limited Liability Company? 5.6 The Absence of Grandfather Clauses [5.1] Introduction This chapter will examine issues incident to the formation of LLCs in Kentucky. The immediately following chapter will consider those provisions of the LLC Act dealing with ongoing cooperation of a domestic LLC, while subsequent chapters will consider issues incident to statutory transactions and dissolution. [5.2] Articles of Organization Organization of a Kentucky LLC is based upon the filing of Articles of Organization; it is the filing of the Articles of Organization by the Secretary of State, as contrasted with the delivery of that document for filing, that causes the LLC’s existence to begin.1 The Articles of Organization may have a delayed effective date,2 in which case the legal existence will not begin until that date (and time) is reached. It is not possible, however, to have the existence of the LLC commence at a time prior to the filing of the Articles of Organization. While the filing of the Articles of Organization by the Secretary of State constitutes “conclusive proof” that all conditions precedent to the organization have been satisfied,3 an LLC must at all times have at least one member.4 Subsequent to filing with the Secretary of State, the Articles of Organization must also be filed with the county clerk in which the LLC maintains its registered office.5 The Articles of Organization must include: • The name of the LLC, the requirements of which are set forth in KRS § 14A.3-010;6 • The registered office and initial registered agent, each satisfying the requirements of KRS § 14A.4-010;7 • The mailing address of the LLC’s principal office;8 and • A statement as to whether the LLC will be managed by managers or its members.9 1 KY. REV. STAT. ANN. § 275.020(2). 2 KY. REV. STAT. ANN. § 275.020(2); id. § 14A.2-070 (defining a permissible delayed effective date). 3 KY. REV. STAT. ANN. § 275.020(3). 4 See KY. REV. STAT. ANN. § 275.015(11). See also DONALD W. GLAZER, SCOTT FITZGIBBON AND STEVEN O. WIESE,FITZGIBBON AND GLAZER ON LEGAL OPINIONS § 19.2 atn. 15 (3rd ed. 2008). 5 KY. REV. STAT. ANN. § 275.045(11). See also id. § 14A.2-040(1)(b); id. § 64.012(2). The failure to file the Articles of Organization with the county clerk does not impact on the validity of the LLC’s organization. See id. § 275.060(3). 6 See KY. REV. STAT. ANN. § 275.025(1)(a); id. § 275.100. 7 See KY. REV. STAT. ANN. § 275.025(1)(b); see also id. § 275.115. 8 KY. REV. STAT. ANN. § 275.025(1)(c). 1 Additional requirements at times exist with respect to the Articles of Organization of certain special purpose LLCs. A limited liability company organized to render professional services10 is required to cite the professional service or services that will be practiced through the professional LLC.11 A nonprofit LLC must recite that it is a nonprofit and its nonprofit purpose.12 Discussed below are additional requirements in the Articles of Organization of an LLC formed by the conversion of a general or limited partnership or corporation. The Articles of Organization may contain additional information, not inconsistent with otherwise applicable law,13 but the recitation of the non-required information does not constitute, simply by making it of record of the Secretary of State, notice to third parties.14 Unless the Articles of Organization are otherwise executed by the registered agent, they must be accompanied by a statement from the registered agent consenting to serve in that capacity.15 The Articles of Organization may be amended to add or modify a provision required or permitted therein or to delete a provision that is not otherwise required.16 Absent private ordering to the contrary, the Articles of Organization may be amended by a majority-in-interest of the members.17 Any manager in a manager-managed LLC or any member in a member- managed LLC may cause the amendment to the Articles of Organization to delete the name and address of the initial registered agent or office if the change thereof is otherwise of record with the Secretary of State or to delete the mailing address of the initial principal office if the current principal office is otherwise of record with the Secretary of State.18 A nonprofit limited liability company may not amend its Articles of Organization to delete either the statement that it is a nonprofit limited liability company or its nonprofit purpose unless it shall have given written notice to the Kentucky Attorney General not less than ten (10) business days prior to the filing of that amendment.19 Articles of Organization may be restated.20 9 KY. REV. STAT. ANN. § 275.025(1)(d). 10 “Professional services” is defined at KRS § 275.015(25). Note that this definition is different from the corresponding definition as utilized in the Professional Services Corporation Act. See KY. REV. STAT. ANN. § 274.005(2). 11 KY. REV. STAT. ANN. § 275.025(3). 12 KY. REV. STAT. ANN. § 275.025(6). 13 See KY. REV. STAT. ANN. § 275.025(4). 14 See KY. REV. STAT. ANN. § 275.025(7). 15 KY. REV. STAT. ANN. § 14A.4-010(2). 16 KY. REV. STAT. ANN. § 275.030(1). 17 KY. REV. STAT. ANN. § 275.030(2). See also id. § 275.175(2)(c). 18 KY. REV. STAT. ANN. § 275.030(3). 19 KY. REV. STAT. ANN. § 275.025(6). 20 KY. REV. STAT. ANN. § 275.035. 2 A change in the registered office, the registered agent or the principal place of business of an LLC is recorded not by amending the Articles of Organization, but rather by means of independent filings with the Secretary of State’s office.21 From the initial adoption of the LLC Act in 1994 through its amendment in 1998, it was required that the Articles of Organization recite the LLC had at least two members.22 This requirement was deleted in 1998. Still, while this presentation is no longer required, attention should be given to LLCs that continue to contain this statement in the Articles of Organization as it is unclear what would be the consequences should an LLC with that provision be reduced to having a single member. Likewise, between 1994 and the Act’s amendment in 1998, the statute expressly permitted the Articles to recite a date by which the LLC would dissolve. With the 1998 amendment of the Act and the express adoption of a default rule that LLCs have perpetual existence,23 there was removed the suggestion that a definite date of dissolution be employed. Still, to the extent that such limitations are set forth in the Articles of Organization, they remain binding upon the LLC. [5.2.1] LLCs Formed by the Conversion of a Partnership, a Limited Partnership or a Business Corporation A general partnership, a limited partnerships or a business corporation may convert into the form of a LLC. The statutory requirements for action by any of these business organizations in order approve the conversion transaction and the legal effect of a conversion are elsewhere reviewed. All conversions culminate in the filing of Articles of Organization that effect the conversion. In addition to the otherwise applicable requirements for the Articles of Organization, those effecting a conversion must include as well: 21 See KY. REV. STAT. ANN. § 275.040; id. § 14A.5-010 (change of principal office address); id. § 14A.4- 020 (change of registered office or registered agent). 22 See Thomas E. Rutledge and Lady E. Booth, The Limited Liability Company Act: Understanding Kentucky’s New Organizational Option, 83 KY. L.J. 1 at 10, n. 29 (1994-95). 23 See KY. REV. STAT. ANN. § 275.025(2). 3 Converting Entity is a Converting Entity is a Converting Entity is a General Partnership24 Limited Partnership25 Business Corporation26 • A statement that the • A statement that the • A statement that the partnership was limited partnership was corporation was converted to an LLC converted to an LLC converted to an LLC; from a partnership; from a limited • The name of the • The name of the partnership; former corporation; former partnership; • The name of the and and former limited • Information with • Information with partnership; and respect to the vote in respect to the vote of • Information with favor of the conversion the partners approving respect to the vote of the conversion the partners approving the conversion The conversion is effective upon the effective date of the Articles of Organization.27 [5.2.2] The Registered Office and Agent From January 1, 2011, the requirements for the registered office and agent of a LLC are set forth in the Business Entity Filing Act28 and specifically KRS § 14A.4-010.
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