Delaware – Limited Liability Company Act – Foreign Limited Liability Companies



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§ 18-901. |
§ 18-902. |
§ 18-903. |
§ 18-904. |
§ 18-905. |
§ 18-906. |
§ 18-907. |
§ 18-908. |
§ 18-909. |
§ 18-910. |
§ 18-911. |
§ 18-912.

Commerce and Trade

SUBTITLE II

Other Laws Relating to Commerce and Trade

CHAPTER 18. LIMITED LIABILITY COMPANY ACT

Subchapter IX. Foreign Limited Liability Companies

§ 18-901. Law governing.

(a) Subject to the Constitution of the State of Delaware:

(1) The laws of the state, territory,
possession, or other jurisdiction or country under which a foreign
limited liability company is organized govern its organization and
internal affairs and the liability of its members and managers; and

(2) A foreign limited liability company
may not be denied registration by reason of any difference between
those laws and the laws of the State of Delaware.

(b) A foreign limited liability company shall be subject to § 18-106 of this title. (68 Del. Laws, c. 434, § 1.)

§ 18-902. Registration required; application.

Before doing business in the State of
Delaware, a foreign limited liability company shall register with the
Secretary of State. In order to register, a foreign limited liability
company shall submit to the Secretary of State:

(1) A copy executed by an authorized
person of an application for registration as a foreign limited
liability company, setting forth:

a. The name of the foreign limited
liability company and, if different, the name under which it proposes
to register and do business in the State of Delaware;

b. The state, territory, possession or
other jurisdiction or country where formed, the date of its formation
and a statement from an authorized person that, as of the date of
filing, the foreign limited liability company validly exists as a
limited liability company under the laws of the jurisdiction of its
formation;

c. The nature of the business or purposes to be conducted or promoted in the State of Delaware;

d. The address of the registered office
and the name and address of the registered agent for service of process
required to be maintained by § 18-904(b) of this title;

e. A statement that the Secretary of
State is appointed the agent of the foreign limited liability company
for service of process under the circumstances set forth in § 18-910(b)
of this title; and

f. The date on which the foreign limited liability company first did, or intends to do, business in the State of Delaware.

(2) A fee as set forth in § 18-1105(a)(6) of this title shall be paid. (68 Del. Laws, c. 434, § 1; 75 Del. Laws, c. 51, § 17.)

§ 18-903. Issuance of registration.

(a) If the Secretary of State finds that
an application for registration conforms to law and all requisite fees
have been paid, the Secretary shall:

(1) Certify that the application has been
filed by endorsing upon the original application the word “Filed”, and
the date and hour of the filing. This endorsement is conclusive of the
date and time of its filing in the absence of actual fraud;

(2) File and index the endorsed application.

(b) The Secretary of State shall prepare
and return to the person who filed the application or the person’s
representative a copy of the original signed application, similarly
endorsed, and shall certify such copy as a true copy of the original
signed application.

(c) The filing of the application with
the Secretary of State shall make it unnecessary to file any other
documents under Chapter 31 of this title. (68 Del. Laws, c. 434, § 1;
69 Del. Laws, c. 260, § 34; 70 Del. Laws, c. 186, § 1.)

§ 18-904. Name; registered office; registered agent.

(a) A foreign limited liability company
may register with the Secretary of State under any name (whether or not
it is the name under which it is registered in the jurisdiction of its
formation) that includes the words “Limited Liability Company” or the
abbreviation “L.L.C.” or the designation “LLC” and that could be
registered by a domestic limited liability company; provided however,
that a foreign limited liability company may register under any name
which is not such as to distinguish it upon the records in the office
of the Secretary of State from the name on such records of any domestic
or foreign corporation, partnership, statutory trust, limited liability
company or limited partnership reserved, registered, formed or
organized under the laws of the State of Delaware with the written
consent of the other corporation, partnership, statutory trust, limited
liability company or limited partnership, which written consent shall
be filed with the Secretary of State.

(b) Each foreign limited liability company shall have and maintain in the State of Delaware:

(1) A registered office which may but need not be a place of its business in the State of Delaware; and

(2) A registered agent for service of
process on the foreign limited liability company, having a business
office identical with such registered office, which agent may be any of:

a. An individual resident in the State of Delaware,

b. A domestic limited liability company,
a domestic corporation, a domestic partnership (whether general
(including a limited liability partnership) or limited (including a
limited liability limited partnership)), or a domestic statutory trust,
or

c. A foreign corporation, a foreign
partnership (whether general (including a limited liability
partnership) or limited (including a limited liability limited
partnership)), a foreign limited liability company (other than the
foreign limited liability company itself), or a foreign statutory trust.

(c) A registered agent may change the
address of the registered office of the foreign limited liability
company or companies for which the agent is registered agent to another
address in the State of Delaware by paying a fee as set forth in §
18-1105(a)(7) of this title and filing with the Secretary of State a
certificate, executed by such registered agent, setting forth the
address at which such registered agent has maintained the registered
office for each of the foreign limited liability companies for which it
is a registered agent, and further certifying to the new address to
which each such registered office will be changed on a given day, and
at which new address such registered agent will thereafter maintain the
registered office for each of the foreign limited liability companies
for which it is registered agent. Upon the filing of such certificate,
the Secretary of State shall furnish to the registered agent a
certified copy of the same under the Secretary’s hand and seal of
office, and thereafter, or until further change of address, as
authorized by law, the registered office in the State of Delaware of
each of the foreign limited liability companies for which the agent is
a registered agent shall be located at the new address of the
registered agent thereof as given in the certificate. In the event of a
change of name of any person acting as a registered agent of a foreign
limited liability company, such registered agent shall file with the
Secretary of State a certificate, executed by such registered agent,
setting forth the new name of such registered agent, the name of such
registered agent before it was changed and the address at which such
registered agent has maintained the registered office for each of the
foreign limited liability companies for which it is registered agent,
and shall pay a fee as set forth in § 18-1105(a)(7) of this title. Upon
the filing of such certificate, the Secretary of State shall furnish to
the registered agent a certified copy of the same under the Secretary
of State’s own hand and seal of office. A change of name of any person
acting as a registered agent of a foreign limited liability company as
a result of the merger or consolidation of the registered agent with or
into another person which succeeds to its assets and liabilities by
operation of law shall be deemed a change of name for purposes of this
section. Filing a certificate under this section shall be deemed to be
an amendment of the application of each foreign limited liability
company affected thereby and each such foreign limited liability
company shall not be required to take any further action with respect
thereto to amend its application under § 18-905 of this title. Any
registered agent filing a certificate under this section shall
promptly, upon such filing, deliver a copy of any such certificate to
each foreign limited liability company affected thereby.

(d) The registered agent of 1 or more
foreign limited liability companies may resign and appoint a successor
registered agent by paying a fee as set forth in § 18-1105(a)(7) of
this title and filing a certificate with the Secretary of State stating
that it resigns and the name and address of the successor registered
agent. There shall be attached to such certificate a statement of each
affected foreign limited liability company ratifying and approving such
change of registered agent. Upon such filing, the successor registered
agent shall become the registered agent of such foreign limited
liability companies as have ratified and approved such substitution and
the successor registered agent’s address, as stated in such
certificate, shall become the address of each such foreign limited
liability company’s registered office in the State of Delaware. The
Secretary of State shall then issue a certificate that the successor
registered agent has become the registered agent of the foreign limited
liability companies so ratifying and approving such change and setting
out the names of such foreign limited liability companies. Filing of
such certificate of resignation shall be deemed to be an amendment of
the application of each foreign limited liability company affected
thereby and each such foreign limited liability company shall not be
required to take any further action with respect thereto to amend its
application under § 18-905 of this title.

(e) The registered agent of 1 or more
foreign limited liability companies may resign without appointing a
successor registered agent by paying a fee as set forth in §
18-1105(a)(7) of this title and filing a certificate of resignation
with the Secretary of State, but such resignation shall not become
effective until 30 days after the certificate is filed. The certificate
shall contain a statement that written notice of resignation was given
to each affected foreign limited liability company at least 30 days
prior to the filing of the certificate by mailing or delivering such
notice to the foreign limited liability company at its address last
known to the registered agent and shall set forth the date of such
notice. After receipt of the notice of the resignation of its
registered agent, the foreign limited liability company for which such
registered agent was acting shall obtain and designate a new registered
agent to take the place of the registered agent so resigning. If such
foreign limited liability company fails to obtain and designate a new
registered agent as aforesaid prior to the expiration of the period of
30 days after the filing by the registered agent of the certificate of
resignation, such foreign limited liability company shall not be
permitted to do business in the State of Delaware and its registration
shall be canceled. After the resignation of the registered agent shall
have become effective as provided in this section and if no new
registered agent shall have been obtained and designated in the time
and manner aforesaid, service of legal process against each foreign
limited liability company for which the resigned registered agent had
been acting shall thereafter be upon the Secretary of State in
accordance with § 18-911 of this title. (68 Del. Laws, c. 434, § 1; 70
Del. Laws, c. 75, § 22; 70 Del. Laws, c. 186, § 1; 71 Del. Laws, c. 77,
§§ 32, 33; 73 Del. Laws, c. 295, §§ 9, 10; 73 Del. Laws, c. 329, § 31;
76 Del. Laws, c. 105, §§ 32, 33.)

§ 18-905. Amendments to application.

If any statement in the application for
registration of a foreign limited liability company was false when made
or any arrangements or other facts described have changed, making the
application false in any respect, the foreign limited liability company
shall promptly file in the office of the Secretary of State a
certificate, executed by an authorized person, correcting such
statement, together with a fee as set forth in § 18-1105(a)(6) of this
title. (68 Del. Laws, c. 434, § 1.)

§ 18-906. Cancellation of registration.

A foreign limited liability company may
cancel its registration by filing with the Secretary of State a
certificate of cancellation, executed by an authorized person, together
with a fee as set forth in § 18-1105(a)(6) of this title. The
registration of a foreign limited liability company shall be canceled
as provided in §§ 18-104(i)(4), 18-904(e) and 18-1107(h) of this title.
A cancellation does not terminate the authority of the Secretary of
State to accept service of process on the foreign limited liability
company with respect to causes of action arising out of the doing of
business in the State of Delaware. (68 Del. Laws, c. 434, § 1; 75 Del.
Laws, c. 317, § 35; 76 Del. Laws, c. 105, § 34.)

§ 18-907. Doing business without registration.

(a) A foreign limited liability company
doing business in the State of Delaware may not maintain any action,
suit or proceeding in the State of Delaware until it has registered in
the State of Delaware, and has paid to the State of Delaware all fees
and penalties for the years or parts thereof, during which it did
business in the State of Delaware without having registered.

(b) The failure of a foreign limited liability company to register in the State of Delaware does not impair:

(1) The validity of any contract or act of the foreign limited liability company;

(2) The right of any other party to the contract to maintain any action, suit or proceeding on the contract; or

(3) Prevent the foreign limited liability
company from defending any action, suit or proceeding in any court of
the State of Delaware.

(c) A member or a manager of a foreign
limited liability company is not liable for the obligations of the
foreign limited liability company solely by reason of the limited
liability company’s having done business in the State of Delaware
without registration.

(d) Any foreign limited liability company
doing business in the State of Delaware without first having registered
shall be fined and shall pay to the Secretary of State $200 for each
year or part thereof during which the foreign limited liability company
failed to register in the State of Delaware. (68 Del. Laws, c. 434, §
1.)

§ 18-908. Foreign limited liability companies doing business without having qualified; injunctions.

The Court of Chancery shall have
jurisdiction to enjoin any foreign limited liability company, or any
agent thereof, from doing any business in the State of Delaware if such
foreign limited liability company has failed to register under this
subchapter or if such foreign limited liability company has secured a
certificate of the Secretary of State under § 18-903 of this title on
the basis of false or misleading representations. Upon the motion of
the Attorney General or upon the relation of proper parties, the
Attorney General shall proceed for this purpose by complaint in any
county in which such foreign limited liability company is doing or has
done business. (68 Del. Laws, c. 434, § 1; 70 Del. Laws, c. 186, § 1.)

§ 18-909. Execution; liability.

Section 18-204 (c) of this title shall be
applicable to foreign limited liability companies as if they were
domestic limited liability companies. (68 Del. Laws, c. 434, § 1.)

§ 18-910. Service of process on registered foreign limited liability companies.

(a) Service of legal process upon any
foreign limited liability company shall be made by delivering a copy
personally to any managing or general agent or manager of the foreign
limited liability company in the State of Delaware or the registered
agent of the foreign limited liability company in the State of
Delaware, or by leaving it at the dwelling house or usual place of
abode in the State of Delaware of any such managing or general agent,
manager or registered agent (if the registered agent be an individual),
or at the registered office or other place of business of the foreign
limited liability company in the State of Delaware. If the registered
agent be a corporation, service of process upon it as such may be made
by serving, in the State of Delaware, a copy thereof on the president,
vice-president, secretary, assistant secretary or any director of the
corporate registered agent. Service by copy left at the dwelling house
or usual place of abode of any managing or general agent, manager or
registered agent, or at the registered office or other place of
business of the foreign limited liability company in the State of
Delaware, to be effective must be delivered thereat at least 6 days
before the return date of the process, and in the presence of an adult
person, and the officer serving the process shall distinctly state the
manner of service in the officer’s return thereto. Process returnable
forthwith must be delivered personally to the managing or general
agent, manager or registered agent.

(b) In case the officer whose duty it is
to serve legal process cannot by due diligence serve the process in any
manner provided for by subsection (a) of this section, it shall be
lawful to serve the process against the foreign limited liability
company upon the Secretary of State, and such service shall be as
effectual for all intents and purposes as if made in any of the ways
provided for in subsection (a) of this section. In the event service is
effected through the Secretary of State in accordance with this
subsection, the Secretary of State shall forthwith notify the foreign
limited liability company by letter, certified mail, return receipt
requested, directed to the foreign limited liability company at its
last registered office. Such letter shall enclose a copy of the process
and any other papers served on the Secretary of State pursuant to this
subsection. It shall be the duty of the plaintiff in the event of such
service to serve process and any other papers in duplicate, to notify
the Secretary of State that service is being effected pursuant to this
subsection, and to pay to the Secretary of State the sum of $50 for the
use of the State of Delaware, which sum shall be taxed as a part of the
costs in the proceeding if the plaintiff shall prevail therein. The
Secretary of State shall maintain an alphabetical record of any such
service setting forth the name of the plaintiff and defendant, the
title, docket number and nature of the proceeding in which process has
been served upon the Secretary, the fact that service has been effected
pursuant to this subsection, the return date thereof and the day and
hour when the service was made. The Secretary of State shall not be
required to retain such information for a period longer than 5 years
from the Secretary’s receipt of the service of process. (68 Del. Laws,
c. 434, § 1; 70 Del. Laws, c. 186, § 1.)

§ 18-911. Service of process on unregistered foreign limited liability companies.

(a) Any foreign limited liability company
which shall do business in the State of Delaware without having
registered under § 18-902 of this title shall be deemed to have thereby
appointed and constituted the Secretary of State of the State of
Delaware its agent for the acceptance of legal process in any civil
action, suit or proceeding against it in any state or federal court in
the State of Delaware arising or growing out of any business done by it
within the State of Delaware. The doing of business in the State of
Delaware by such foreign limited liability company shall be a
signification of the agreement of such foreign limited liability
company that any such process when so served shall be of the same legal
force and validity as if served upon an authorized manager or agent
personally within the State of Delaware.

(b) Whenever the words “doing business,”
“the doing of business” or “business done in this State,” by any such
foreign limited liability company are used in this section, they shall
mean the course or practice of carrying on any business activities in
the State of Delaware, including, without limiting the generality of
the foregoing, the solicitation of business or orders in the State of
Delaware.

(c) In the event of service upon the
Secretary of State in accordance with subsection (a) of this section,
the Secretary of State shall forthwith notify the foreign limited
liability company thereof by letter, certified mail, return receipt
requested, directed to the foreign limited liability company at the
address furnished to the Secretary of State by the plaintiff in such
action, suit or proceeding. Such letter shall enclose a copy of the
process and any other papers served upon the Secretary of State. It
shall be the duty of the plaintiff in the event of such service to
serve process and any other papers in duplicate, to notify the
Secretary of State that service is being made pursuant to this
subsection, and to pay to the Secretary of State the sum of $50 for the
use of the State of Delaware, which sum shall be taxed as part of the
costs in the proceeding, if the plaintiff shall prevail therein. The
Secretary of State shall maintain an alphabetical record of any such
process setting forth the name of the plaintiff and defendant, the
title, docket number and nature of the proceeding in which process has
been served upon the Secretary, the return date thereof, and the day
and hour when the service was made. The Secretary of State shall not be
required to retain such information for a period longer than 5 years
from the receipt of the service of process. (68 Del. Laws, c. 434, § 1;
70 Del. Laws, c. 186, § 1.)

§ 18-912. Activities not constituting doing business.

(a) Activities of a foreign limited
liability company in the State of Delaware that do not constitute doing
business for the purpose of this subchapter include:

(1) Maintaining, defending or settling an action or proceeding;

(2) Holding meetings of its members or managers or carrying on any other activity concerning its internal affairs;

(3) Maintaining bank accounts;

(4) Maintaining offices or agencies for
the transfer, exchange or registration of the limited liability
company’s own securities or maintaining trustees or depositories with
respect to those securities;

(5) Selling through independent contractors;

(6) Soliciting or obtaining orders,
whether by mail or through employees or agents or otherwise, if the
orders require acceptance outside the State of Delaware before they
become contracts;

(7) Selling, by contract consummated
outside the State of Delaware, and agreeing, by the contract, to
deliver into the State of Delaware, machinery, plants or equipment, the
construction, erection or installation of which within the State of
Delaware requires the supervision of technical engineers or skilled
employees performing services not generally available, and as part of
the contract of sale agreeing to furnish such services, and such
services only, to the vendee at the time of construction, erection or
installation;

(8) Creating, as borrower or lender, or
acquiring indebtedness with or without a mortgage or other security
interest in property;

(9) Collecting debts or foreclosing
mortgages or other security interests in property securing the debts,
and holding, protecting and maintaining property so acquired;

(10) Conducting an isolated transaction that is not 1 in the course of similar transactions;

(11) Doing business in interstate commerce; and

(12) Doing business in the State of Delaware as an insurance company.

(b) A person shall not be deemed to be
doing business in the State of Delaware solely by reason of being a
member or manager of a domestic limited liability company or a foreign
limited liability company.

(c) This section does not apply in
determining whether a foreign limited liability company is subject to
service of process, taxation or regulation under any other law of the
State of Delaware. (75 Del. Laws, c. 51, § 18.)

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