Delaware – Limited Liability Company Act – Formation

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§ 18-201. | § 18-202. | § 18-203. | § 18-204. | § 18-205. | § 18-206. | § 18-207. | § 18-208. | § 18-209. | § 18-210. | § 18-211. | § 18-212. | § 18-213. |

Commerce and Trade

SUBTITLE II

Other Laws Relating to Commerce and Trade

CHAPTER 18. LIMITED LIABILITY COMPANY ACT

Subchapter II. Formation; Certificate of Formation

§ 18-201. Certificate of formation.

(a) In order to form a limited liability
company, 1 or more authorized 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:

(1) The name of the limited liability company;

(2) The address of the registered office
and the name and address of the registered agent for service of process
required to be maintained by § 18-104 of this title; and

(3) Any other matters the members determine to include therein.

(b) A limited liability company is formed
at the time of the filing of the initial certificate of formation in
the office of the Secretary of State or at any later date or time
specified in the certificate of formation if, in either case, there has
been substantial compliance with the requirements of this section. 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.

(c) The filing of the certificate of
formation in the office of the Secretary of State shall make it
unnecessary to file any other documents under Chapter 31 of this title.

(d) A limited liability company agreement
shall be entered into or otherwise existing either before, after or at
the time of the filing of a certificate of formation and, whether
entered into or otherwise existing before, after or at the time of such
filing, may be made effective as of the formation of the limited
liability company or at such other time or date as provided in or
reflected by the limited liability company agreement. (68 Del. Laws, c.
434, § 1; 69 Del. Laws, c. 260, § 7; 70 Del. Laws, c. 75, § 5; 76 Del.
Laws, c. 105, § 9.)

§ 18-202. Amendment to certificate of formation.

(a) A certificate of formation is amended
by filing a certificate of amendment thereto in the office of the
Secretary of State. The certificate of amendment shall set forth:

(1) The name of the limited liability company; and

(2) The amendment to the certificate of formation.

(b) A manager or, if there is no manager,
then any member who becomes aware that any statement in a certificate
of formation was false when made, or that any matter described has
changed making the certificate of formation false in any material
respect, shall promptly amend the certificate of formation.

(c) A certificate of formation may be amended at any time for any other proper purpose.

(d) Unless otherwise provided in this
chapter or unless a later effective date or time (which shall be a date
or time certain) is provided for in the certificate of amendment, a
certificate of amendment shall be effective at the time of its filing
with the Secretary of State. (68 Del. Laws, c. 434, § 1.)

§ 18-203. Cancellation of certificate.

A certificate of formation shall be
canceled upon the dissolution and the completion of winding up of a
limited liability company, or as provided in § 18-104(d) or §
18-104(i)(4) or § 18-1108 of this title, or upon the filing of a
certificate of merger or consolidation if the limited liability company
is not the surviving or resulting entity in a merger or consolidation
or upon the future effective date or time of a certificate of merger or
consolidation if the limited liability company is not the surviving or
resulting entity in a merger or consolidation, or upon the filing of a
certificate of transfer or upon the future effective date or time of a
certificate of transfer, or upon the filing of a certificate of
conversion to non-Delaware entity or upon the future effective date or
time of a certificate of conversion to non-Delaware entity. A
certificate of cancellation shall be filed in the office of the
Secretary of State to accomplish the cancellation of a certificate of
formation upon the dissolution and the completion of winding up of a
limited liability company and shall set forth:

(1) The name of the limited liability company;

(2) The date of filing of its certificate of formation;

(3) The future effective date or time
(which shall be a date or time certain) of cancellation if it is not to
be effective upon the filing of the certificate; and

(4) Any other information the person filing the certificate of cancellation determines.

The Secretary of State shall not issue a
certificate of good standing with respect to a limited liability
company if its certificate of formation is canceled. (68 Del. Laws, c.
434, § 1; 70 Del. Laws, c. 75, § 6; 71 Del. Laws, c. 77, § 8; 71 Del.
Laws, c. 341, § 2; 72 Del. Laws, c. 389, §§ 4-6; 73 Del. Laws, c. 295,
§ 4; 74 Del. Laws, c. 85, § 1; 75 Del. Laws, c. 317, § 4; 76 Del. Laws,
c. 105, § 10.)

§ 18-204. Execution.

(a) Each certificate required by this
subchapter to be filed in the office of the Secretary of State shall be
executed by 1 or more authorized persons or, in the case of a
certificate of conversion to limited liability company or certificate
of limited liability company domestication, by any person authorized to
execute such certificate on behalf of the other entity or non-United
States entity, respectively.

(b) Unless otherwise provided in a
limited liability company agreement, any person may sign any
certificate or amendment thereof or enter into a limited liability
company agreement or amendment thereof by an agent, including an
attorney-in-fact. An authorization, including a power of attorney, to
sign any certificate or amendment thereof or to enter into a limited
liability company agreement or amendment thereof need not be in
writing, need not be sworn to, verified or acknowledged, and need not
be filed in the office of the Secretary of State, but if in writing,
must be retained by the limited liability company.

(c) The execution of a certificate by a
person who is authorized by this chapter to execute such certificate
constitutes an oath or affirmation, under the penalties of perjury in
the third degree, that, to the best of such person’s knowledge and
belief, the facts stated therein are true. (68 Del. Laws, c. 434, § 1;
76 Del. Laws, c. 387, §§ 4, 5.)

§ 18-205. Execution, amendment or cancellation by judicial order.

(a) If a person required to execute a
certificate required by this subchapter fails or refuses to do so, any
other person who is adversely affected by the failure or refusal may
petition the Court of Chancery to direct the execution of the
certificate. If the Court finds that the execution of the certificate
is proper and that any person so designated has failed or refused to
execute the certificate, it shall order the Secretary of State to
record an appropriate certificate.

(b) If a person required to execute a
limited liability company agreement or amendment thereof fails or
refuses to do so, any other person who is adversely affected by the
failure or refusal may petition the Court of Chancery to direct the
execution of the limited liability company agreement or amendment
thereof. If the Court finds that the limited liability company
agreement or amendment thereof should be executed and that any person
required to execute the limited liability company agreement or
amendment thereof has failed or refused to do so, it shall enter an
order granting appropriate relief. (68 Del. Laws, c. 434, § 1.)

§ 18-206. Filing.

(a) The signed copy of the certificate of
formation and of any certificates of amendment, correction, amendment
of a certificate with a future effective date or time, termination of a
certificate with a future effective date or time or cancellation (or of
any judicial decree of amendment or cancellation), and of any
certificate of merger or consolidation, any restated certificate, any
corrected certificate, any certificate of conversion to limited
liability company, any certificate of conversion to a non-Delaware
entity, any certificate of transfer, any certificate of transfer and
domestic continuance, any certificate of limited liability company
domestication, and of any certificate of revival shall be delivered to
the Secretary of State. A person who executes a certificate as an agent
or fiduciary need not exhibit evidence of that person’s authority as a
prerequisite to filing. Any signature on any certificate authorized to
be filed with the Secretary of State under any provision of this
chapter may be a facsimile, a conformed signature or an electronically
transmitted signature. Upon delivery of any certificate, the Secretary
of State shall record the date and time of its delivery. Unless the
Secretary of State finds that any certificate does not conform to law,
upon receipt of all filing fees required by law the Secretary of State
shall:

(1) Certify that the certificate of
formation, the certificate of amendment, the certificate of correction,
the certificate of amendment of a certificate with a future effective
date or time, the certificate of termination of a certificate with a
future effective date or time, the certificate of cancellation (or of
any judicial decree of amendment or cancellation), the certificate of
merger or consolidation, the restated certificate, the corrected
certificate, the certificate of conversion to limited liability
company, the certificate of conversion to a non-Delaware entity, the
certificate of transfer, the certificate of transfer and domestic
continuance, the certificate of limited liability company domestication
or the certificate of revival has been filed in the Secretary of
State’s office by endorsing upon the signed certificate the word
“Filed,” and the date and time of the filing. This endorsement is
conclusive of the date and time of its filing in the absence of actual
fraud. Except as provided in subdivision (a)(5) or (a)(6) of this
section, such date and time of filing of a certificate shall be the
date and time of delivery of the certificate;

(2) File and index the endorsed certificate;

(3) Prepare and return to the person who
filed it or that person’s representative a copy of the signed
certificate, similarly endorsed, and shall certify such copy as a true
copy of the signed certificate; and

(4) Cause to be entered such information
from the certificate as the Secretary of State deems appropriate into
the Delaware Corporation Information System or any system which is a
successor thereto in the office of the Secretary of State, and such
information and a copy of such certificate shall be permanently
maintained as a public record on a suitable medium. The Secretary of
State is authorized to grant direct access to such system to registered
agents subject to the execution of an operating agreement between the
Secretary of State and such registered agent. Any registered agent
granted such access shall demonstrate the existence of policies to
ensure that information entered into the system accurately reflects the
content of certificates in the possession of the registered agent at
the time of entry.

(5) Upon request made upon or prior to
delivery, the Secretary of State may, to the extent deemed practicable,
establish as the date and time of filing of a certificate a date and
time after its delivery. If the Secretary of State refuses to file any
certificate due to an error, omission or other imperfection, the
Secretary of State may hold such certificate in suspension, and in such
event, upon delivery of a replacement certificate in proper form for
filing and tender of the required fees within 5 days after
notice of such suspension is given to the filer, the Secretary of State
shall establish as the date and time of filing of such certificate the
date and time that would have been the date and time of filing of the
rejected certificate had it been accepted for filing. The Secretary of
State shall not issue a certificate of good standing with respect to
any limited liability company with a certificate held in suspension
pursuant to this subsection. The Secretary of State may establish as
the date and time of filing of a certificate the date and time at which
information from such certificate is entered pursuant to subdivision
(a)(4) of this section if such certificate is delivered on the same
date and within 4 hours after such information is entered.

(6) If:

a. Together with the actual delivery of a
certificate and tender of the required fees, there is delivered to the
Secretary of State a separate affidavit (which in its heading shall be
designated as an affidavit of extraordinary condition) attesting, on
the basis of personal knowledge of the affiant or a reliable source of
knowledge identified in the affidavit, that an earlier effort to
deliver such certificate and tender such fees was made in good faith,
specifying the nature, date and time of such good faith effort and
requesting that the Secretary of State establish such date and time as
the date and time of filing of such certificate; or

b. Upon the actual delivery of a
certificate and tender of the required fees, the Secretary of State in
the Secretary of State’s own discretion provides a written waiver of
the requirement for such an affidavit stating that it appears to the
Secretary of State that an earlier effort to deliver such certificate
and tender such fees was made in good faith and specifying the date and
time of such effort; and

c. The Secretary of State determines that
an extraordinary condition existed at such date and time, that such
earlier effort was unsuccessful as a result of the existence of such
extraordinary condition, and that such actual delivery and tender were
made within a reasonable period (not to exceed 2 days) after
the cessation of such extraordinary condition, then the Secretary of
State may establish such date and time as the date and time of filing
of such certificate. No fee shall be paid to the Secretary of State for
receiving an affidavit of extraordinary condition. For purposes of this
subsection, an extraordinary condition means: any emergency resulting
from an attack on, invasion or occupation by foreign military forces
of, or disaster, catastrophe, war or other armed conflict, revolution
or insurrection or rioting or civil commotion in, the United States or
a locality in which the Secretary of State conducts its business or in
which the good faith effort to deliver the certificate and tender the
required fees is made, or the immediate threat of any of the foregoing;
or any malfunction or outage of the electrical or telephone service to
the Secretary of State’s office, or weather or other condition in or
about a locality in which the Secretary of State conducts its business,
as a result of which the Secretary of State’s office is not open for
the purpose of the filing of certificates under this chapter or such
filing cannot be effected without extraordinary effort. The Secretary
of State may require such proof as it deems necessary to make the
determination required under this subparagraph of subdivision (a)(6),
and any such determination shall be conclusive in the absence of actual
fraud. If the Secretary of State establishes the date and time of
filing of a certificate pursuant to this subsection, the date and time
of delivery of the affidavit of extraordinary condition or the date and
time of the Secretary of State’s written waiver of such affidavit shall
be endorsed on such affidavit or waiver and such affidavit or waiver,
so endorsed, shall be attached to the filed certificate to which it
relates. Such filed certificate shall be effective as of the date and
time established as the date and time of filing by the Secretary of
State pursuant to this subsection, except as to those persons who are
substantially and adversely affected by such establishment and, as to
those persons, the certificate shall be effective from the date and
time endorsed on the affidavit of extraordinary condition or written
waiver attached thereto.

(b) Upon the filing of a certificate of
amendment (or judicial decree of amendment), certificate of correction,
corrected certificate or restated certificate in the office of the
Secretary of State, or upon the future effective date or time of a
certificate of amendment (or judicial decree thereof) or restated
certificate, as provided for therein, the certificate of formation
shall be amended, corrected or restated as set forth therein. Upon the
filing of a certificate of cancellation (or a judicial decree thereof),
or a certificate of merger or consolidation which acts as a certificate
of cancellation or a certificate of transfer, or a certificate of
conversion to a non-Delaware entity, or upon the future effective date
or time of a certificate of cancellation (or a judicial decree thereof)
or of a certificate of merger or consolidation which acts as a
certificate of cancellation or a certificate of transfer, or a
certificate of conversion to a non-Delaware entity, as provided for
therein, or as specified in § 18-104(d), § 18-104(i)(4) or § 18-1108(a)
of this title, the certificate of formation is canceled. Upon the
filing of a certificate of limited liability company domestication or
upon the future effective date or time of a certificate of limited
liability company domestication, the entity filing the certificate of
limited liability company domestication is domesticated as a limited
liability company with the effect provided in § 18-212 of this title.
Upon the filing of a certificate of conversion to limited liability
company or upon the future effective date or time of a certificate of
conversion to limited liability company, the entity filing the
certificate of conversion to limited liability company is converted to
a limited liability company with the effect provided in § 18-214 of
this title. Upon the filing of a certificate of revival, the limited
liability company is revived with the effect provided in § 18-1109 of
this title. Upon the filing of a certificate of transfer and domestic
continuance, or upon the future effective date or time of a certificate
of transfer and domestic continuance, as provided for therein, the
limited liability company filing the certificate of transfer and
domestic continuance shall continue to exist as a limited liability
company of the State of Delaware with the effect provided in § 18-213
of this title.

(c) If any certificate filed in
accordance with this chapter provides for a future effective date or
time and if, prior to such future effective date or time set forth in
such certificate, the transaction is terminated or its terms are
amended to change the future effective date or time or any other matter
described in such certificate so as to make such certificate false or
inaccurate in any respect, such certificate shall, prior to the future
effective date or time set forth in such certificate, be terminated or
amended by the filing of a certificate of termination or certificate of
amendment of such certificate, executed in accordance with § 18-204 of
this title, which shall identify the certificate which has been
terminated or amended and shall state that the certificate has been
terminated or the manner in which it has been amended. Upon the filing
of a certificate of amendment of a certificate with a future effective
date or time, the certificate identified in such certificate of
amendment is amended. Upon the filing of a certificate of termination
of a certificate with a future effective date or time, the certificate
identified in such certificate of termination is terminated.

(d) A fee as set forth in § 18-1105(a)(3)
of this title shall be paid at the time of the filing of a certificate
of formation, a certificate of amendment, a certificate of correction,
a certificate of amendment of a certificate with a future effective
date or time, a certificate of termination of a certificate with a
future effective date or time, a certificate of cancellation, a
certificate of merger or consolidation, a restated certificate, a
corrected certificate, a certificate of conversion to limited liability
company, a certificate of conversion to a non-Delaware entity, a
certificate of transfer, a certificate of transfer and domestic
continuance, a certificate of limited liability company domestication
or a certificate of revival.

(e) The Secretary of State, acting as
agent, shall collect and deposit in a separate account established
exclusively for that purpose, a courthouse municipality fee with
respect to each filed instrument and shall thereafter monthly remit
funds from such account to the treasuries of the municipalities
designated in § 301 of Title 10. Said fees shall be for the purposes of
defraying certain costs incurred by such municipalities in hosting the
primary locations for the Delaware Courts. The fee to such
municipalities shall be $20 for each instrument filed with the
Secretary of State in accordance with this section. The municipality to
receive the fee shall be the municipality designated in § 301 of Title
10 in the county in which the limited liability company’s registered
office in this State is, or is to be, located, except that a fee shall
not be charged for a document filed in accordance with subchapter IX of
this chapter.

(f) A fee as set forth in § 18-1105(a)(4)
of this title shall be paid for a certified copy of any paper on file
as provided for by this chapter, and a fee as set forth in §
18-1105(a)(5) of this title shall be paid for each page copied. (68
Del. Laws, c. 434, § 1; 69 Del. Laws, c. 260, §§ 8-11; 70 Del. Laws, c.
75, §§ 7-15; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 360, §§ 1-4;
71 Del. Laws, c. 77, §§ 9-12; 73 Del. Laws, c. 83, §§ 4-10; 73 Del.
Laws, c. 295, § 5; 74 Del. Laws, c. 85, §§ 2-10; 74 Del. Laws, c. 119,
§ 1; 75 Del. Laws, c. 317, § 5; 76 Del. Laws, c. 105, §§ 11-14.)

§ 18-207. Notice.

The fact that a certificate of formation
is on file in the office of the Secretary of State is notice that the
entity formed in connection with the filing of the certificate of
formation is a limited liability company formed under the laws of the
State of Delaware and is notice of all other facts set forth therein
which are required to be set forth in a certificate of formation by §
18-201(a)(1) and (2) of this title and which are permitted to be set
forth in a certificate of formation by § 18-215(b) of this title. (68
Del. Laws, c. 434, § 1; 70 Del. Laws, c. 360, § 5.)

§ 18-208. Restated certificate.

(a) A limited liability company may,
whenever desired, integrate into a single instrument all of the
provisions of its certificate of formation which are then in effect and
operative as a result of there having theretofore been filed with the
Secretary of State 1 or more certificates or other instruments pursuant
to any of the sections referred to in this subchapter, and it may at
the same time also further amend its certificate of formation by
adopting a restated certificate of formation.

(b) If a restated certificate of
formation merely restates and integrates but does not further amend the
initial certificate of formation, as theretofore amended or
supplemented by any instrument that was executed and filed pursuant to
any of the sections in this subchapter, it shall be specifically
designated in its heading as a “Restated Certificate of Formation”
together with such other words as the limited liability company may
deem appropriate and shall be executed by an authorized person and
filed as provided in § 18-206 of this title in the office of the
Secretary of State. If a restated certificate restates and integrates
and also further amends in any respect the certificate of formation, as
theretofore amended or supplemented, it shall be specifically
designated in its heading as an “Amended and Restated Certificate of
Formation” together with such other words as the limited liability
company may deem appropriate and shall be executed by at least 1
authorized person, and filed as provided in § 18-206 of this title in
the office of the Secretary of State.

(c) A restated certificate of formation
shall state, either in its heading or in an introductory paragraph, the
limited liability company’s present name, and, if it has been changed,
the name under which it was originally filed, and the date of filing of
its original certificate of formation with the Secretary of State, and
the future effective date or time (which shall be a date or time
certain) of the restated certificate if it is not to be effective upon
the filing of the restated certificate. A restated certificate shall
also state that it was duly executed and is being filed in accordance
with this section. If a restated certificate only restates and
integrates and does not further amend a limited liability company’s
certificate of formation as theretofore amended or supplemented and
there is no discrepancy between those provisions and the restated
certificate, it shall state that fact as well.

(d) Upon the filing of a restated
certificate of formation with the Secretary of State, or upon the
future effective date or time of a restated certificate of formation as
provided for therein, the initial certificate of formation, as
theretofore amended or supplemented, shall be superseded; thenceforth,
the restated certificate of formation, including any further amendment
or changes made thereby, shall be the certificate of formation of the
limited liability company, but the original effective date of formation
shall remain unchanged.

(e) Any amendment or change effected in
connection with the restatement and integration of the certificate of
formation shall be subject to any other provision of this chapter, not
inconsistent with this section, which would apply if a separate
certificate of amendment were filed to effect such amendment or change.
(68 Del. Laws, c. 434, § 1.)

§ 18-209. Merger and consolidation.

(a) As used in this section, “other
business entity” means a corporation, a statutory trust, a business
trust, an association, a real estate investment trust, a common-law
trust, or any other unincorporated business or entity, including a
partnership (whether general (including a limited liability
partnership) or limited (including a limited liability limited
partnership)), and a foreign limited liability company, but excluding a
domestic limited liability company.

(b) Pursuant to an agreement of merger or
consolidation, 1 or more domestic limited liability companies may merge
or consolidate with or into 1 or more domestic limited liability
companies or 1 or more other business entities formed or organized
under the laws of the State of Delaware or any other state or the
United States or any foreign country or other foreign jurisdiction, or
any combination thereof, with such domestic limited liability company
or other business entity as the agreement shall provide being the
surviving or resulting domestic limited liability company or other
business entity. Unless otherwise provided in the limited liability
company agreement, a merger or consolidation shall be approved by each
domestic limited liability company which is to merge or consolidate 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 who
own more than 50 percent of the then current percentage or other
interest in the profits of the domestic limited liability company owned
by all of the members or by the members in each class or group, as
appropriate. In connection with a merger or consolidation hereunder,
rights or securities of, or interests in, a domestic limited liability
company or other business entity which is a constituent party to the
merger or consolidation may be exchanged for or converted into cash,
property, rights or securities of, or interests in, the surviving or
resulting domestic limited liability company or other business entity
or, in addition to or in lieu thereof, may be exchanged for or
converted into cash, property, rights or securities of, or interests
in, a domestic limited liability company or other business entity which
is not the surviving or resulting limited liability company or other business entity in the merger or consolidation or may be cancelled.
Notwithstanding prior approval, an agreement of merger or consolidation
may be terminated or amended pursuant to a provision for such
termination or amendment contained in the agreement of merger or
consolidation.

(c) If a domestic limited liability
company is merging or consolidating under this section, the domestic
limited liability company or other business entity surviving or
resulting in or from the merger or consolidation shall file a
certificate of merger or consolidation executed by 1 or more authorized
persons on behalf of the domestic limited liability company when it is
the surviving or resulting entity in the office of the Secretary of
State. The certificate of merger or consolidation shall state:

(1) The name and jurisdiction of
formation or organization of each of the domestic limited liability
companies and other business entities which is to merge or consolidate;

(2) That an agreement of merger or
consolidation has been approved and executed by each of the domestic
limited liability companies and other business entities which is to
merge or consolidate;

(3) The name of the surviving or resulting domestic limited liability company or other business entity;

(4) In the case of a merger in which a
domestic limited liability company is the surviving entity, such
amendments, if any, to the certificate of formation of the surviving
domestic limited liability company to change its name as are desired to
be effected by the merger;

(5) The future effective date or time
(which shall be a date or time certain) of the merger or consolidation
if it is not to be effective upon the filing of the certificate of
merger or consolidation;

(6) That the agreement of merger or
consolidation is on file at a place of business of the surviving or
resulting domestic limited liability company or other business entity,
and shall state the address thereof;

(7) That a copy of the agreement of
merger or consolidation will be furnished by the surviving or resulting
domestic limited liability company or other business entity, on request
and without cost, to any member of any domestic limited liability
company or any person holding an interest in any other business entity
which is to merge or consolidate; and

(8) If the surviving or resulting entity
is not a domestic limited liability company, or a corporation,
partnership (whether general (including a limited liability
partnership) or limited (including a limited liability limited
partnership)) or statutory trust organized under the laws of the State
of Delaware, a statement that such surviving or resulting other
business entity agrees that it may be served with process in the State
of Delaware in any action, suit or proceeding for the enforcement of
any obligation of any domestic limited liability company which is to
merge or consolidate, irrevocably appointing the Secretary of State as
its agent to accept service of process in any such action, suit or
proceeding and specifying the address to which a copy of such process
shall be mailed to it by the Secretary of State. In the event of
service hereunder upon the Secretary of State, the procedures set forth
in § 18-911(c) of this title shall be applicable, except that the
plaintiff in any such action, suit or proceeding shall furnish the
Secretary of State with the address specified in the certificate of
merger or consolidation provided for in this section and any other
address which the plaintiff may elect to furnish, together with copies
of such process as required by the Secretary of State, and the
Secretary of State shall notify such surviving or resulting other
business entity at all such addresses furnished by the plaintiff in
accordance with the procedures set forth in § 18-911(c) of this title.

(d) Unless a future effective date or
time is provided in a certificate of merger or consolidation, in which
event a merger or consolidation shall be effective at any such future
effective date or time, a merger or consolidation shall be effective
upon the filing in the office of the Secretary of State of a
certificate of merger or consolidation.

(e) A certificate of merger or
consolidation shall act as a certificate of cancellation for a domestic
limited liability company which is not the surviving or resulting
entity in the merger or consolidation. A certificate of merger that
sets forth any amendment in accordance with subsection (c)(4) of this
section shall be deemed to be an amendment to the certificate of
formation of the limited liability company, and the limited liability
company shall not be required to take any further action to amend its
certificate of formation under § 18-202 of this title with respect to
such amendments set forth in the certificate of merger. Whenever this
section requires the filing of a certificate of merger or
consolidation, such requirement shall be deemed satisfied by the filing
of an agreement of merger or consolidation containing the information
required by this section to be set forth in the certificate of merger
or consolidation.

(f) An agreement of merger or consolidation approved in accordance with subsection (b) of this section may:

(1) Effect any amendment to the limited liability company agreement; or

(2) Effect the adoption of a new limited
liability company agreement, for a limited liability company if it is
the surviving or resulting limited liability company in the merger or
consolidation.

Any amendment to a limited liability
company agreement or adoption of a new limited liability company
agreement made pursuant to the foregoing sentence shall be effective at
the effective time or date of the merger or consolidation. The
provisions of this subsection shall not be construed to limit the
accomplishment of a merger or of any of the matters referred to herein
by any other means provided for in a limited liability company
agreement or other agreement or as otherwise permitted by law,
including that the limited liability company agreement of any
constituent limited liability company to the merger or consolidation
(including a limited liability company formed for the purpose of
consummating a merger or consolidation) shall be the limited liability
company agreement of the surviving or resulting limited liability
company.

(g) When any merger or consolidation
shall have become effective under this section, for all purposes of the
laws of the State of Delaware, all of the rights, privileges and powers
of each of the domestic limited liability companies and other business
entities that have merged or consolidated, and all property, real,
personal and mixed, and all debts due to any of said domestic limited
liability companies and other business entities, as well as all other
things and causes of action belonging to each of such domestic limited
liability companies and other business entities, shall be vested in the
surviving or resulting domestic limited liability company or other
business entity, and shall thereafter be the property of the surviving
or resulting domestic limited liability company or other business
entity as they were of each of the domestic limited liability companies
and other business entities that have merged or consolidated, and the
title to any real property vested by deed or otherwise, under the laws
of the State of Delaware, in any of such domestic limited liability
companies and other business entities, shall not revert or be in any
way impaired by reason of this chapter; but all rights of creditors and
all liens upon any property of any of said domestic limited liability
companies and other business entities shall be preserved unimpaired,
and all debts, liabilities and duties of each of the said domestic
limited liability companies and other business entities that have
merged or consolidated shall thenceforth attach to the surviving or
resulting domestic limited liability company or other business entity,
and may be enforced against it to the same extent as if said debts,
liabilities and duties had been incurred or contracted by it. Unless
otherwise agreed, a merger or consolidation of a domestic limited
liability company, including a domestic limited liability company which
is not the surviving or resulting entity in the merger or
consolidation, shall not require such domestic limited liability
company to wind up its affairs under § 18-803 of this title or pay its
liabilities and distribute its assets under § 18-804 of this title, and
the merger or consolidation shall not constitute a dissolution of such
limited liability company.

(h) A limited liability company agreement
may provide that a domestic limited liability company shall not have
the power to merge or consolidate as set forth in this section. (68
Del. Laws, c. 434, § 1; 69 Del. Laws, c. 260, §§ 12, 13; 70 Del. Laws,
c. 75, §§ 16, 17; 71 Del. Laws, c. 341, §§ 3-7; 72 Del. Laws, c. 389, §
7; 73 Del. Laws, c. 83, § 11; 73 Del. Laws, c. 329, §§ 27, 28; 74 Del.
Laws, c. 275, §§ 2-4; 75 Del. Laws, c. 317, § 6; 76 Del. Laws, c. 105,
§§ 15-18.)

§ 18-210. Contractual appraisal rights.

A limited liability company agreement or
an agreement of merger or consolidation may provide that contractual
appraisal rights with respect to a limited liability company interest
or another interest in a limited liability company shall be available
for any class or group or series of members or limited liability
company interests in connection with any amendment of a limited
liability company agreement, any merger or consolidation in which the
limited liability company is a constituent party to the merger or
consolidation, any conversion of the limited liability company to
another business form, any transfer to or domestication or continuance
in any jurisdiction by the limited liability company, or the sale of
all or substantially all of the limited liability company’s assets. The
Court of Chancery shall have jurisdiction to hear and determine any
matter relating to any such appraisal rights. (69 Del. Laws, c. 260, §
14; 73 Del. Laws, c. 295, § 6; 76 Del. Laws, c. 105, § 19.)

§ 18-211. Certificate of correction.

(a) Whenever any certificate authorized
to be filed with the office of the Secretary of State under any
provision of this chapter has been so filed and is an inaccurate record
of the action therein referred to, or was defectively or erroneously
executed, such certificate may be corrected by filing with the office
of the Secretary of State a certificate of correction of such
certificate. The certificate of correction shall specify the inaccuracy
or defect to be corrected, shall set forth the portion of the
certificate in corrected form, and shall be executed and filed as
required by this chapter. The certificate of correction shall be
effective as of the date the original certificate was filed, except as
to those persons who are substantially and adversely affected by the
correction, and as to those persons the certificate of correction shall
be effective from the filing date.

(b) In lieu of filing a certificate of
correction, a certificate may be corrected by filing with the Secretary
of State a corrected certificate which shall be executed and filed as
if the corrected certificate were the certificate being corrected, and
a fee equal to the fee payable to the Secretary of State if the
certificate being corrected were then being filed shall be paid and
collected by the Secretary of State for the use of the State of
Delaware in connection with the filing of the corrected certificate.
The corrected certificate shall be specifically designated as such in
its heading, shall specify the inaccuracy or defect to be corrected and
shall set forth the entire certificate in corrected form. A certificate
corrected in accordance with this section shall be effective as of the
date the original certificate was filed, except as to those persons who
are substantially and adversely affected by the correction and as to
those persons the certificate as corrected shall be effective from the
filing date. (69 Del. Laws, c. 260, § 15; 71 Del. Laws, c. 77, § 13.)

§ 18-212. Domestication of non-United States entities.

(a) As used in this section and in §
18-204 of this title, “non-United States entity” means a foreign
limited liability company (other than one formed under the laws of a
state) or a corporation, a statutory trust, a business trust, an
association, a real estate investment trust, a common-law trust or any
other unincorporated business or entity, including a partnership
(whether general (including a limited liability partnership) or limited
(including a limited liability limited partnership)) formed,
incorporated, created or that otherwise came into being under the laws
of any foreign country or other foreign jurisdiction (other than any
state).

(b) Any non-United States entity may
become domesticated as a limited liability company in the State of
Delaware by complying with subsection (g) of this section and filing in
the office of the Secretary of State in accordance with § 18-206 of
this title:

(1) A certificate of limited liability
company domestication that has been executed in accordance with §
18-204 of this title; and

(2) A certificate of formation that
complies with § 18-201 of this title and has been executed by 1 or more
authorized persons in accordance with § 18-204 of this title.

(c) The certificate of limited liability company domestication shall state:

(1) The date on which and jurisdiction
where the non-United States entity was first formed, incorporated,
created or otherwise came into being;

(2) The name of the non-United States
entity immediately prior to the filing of the certificate of limited
liability company domestication;

(3) The name of the limited liability
company as set forth in the certificate of formation filed in
accordance with subsection (b) of this section;

(4) The future effective date or time
(which shall be a date or time certain) of the domestication as a
limited liability company if it is not to be effective upon the filing
of the certificate of limited liability company domestication and the
certificate of formation;

(5) The jurisdiction that constituted the
seat, siege social, or principal place of business or central
administration of the non-United States entity, or any other equivalent
thereto under applicable law, immediately prior to the filing of the
certificate of limited liability company domestication; and

(6) That the domestication has been
approved in the manner provided for by the document, instrument,
agreement or other writing, as the case may be, governing the internal
affairs of the non-United States entity and the conduct of its business
or by applicable non-Delaware law, as appropriate.

(d) Upon the filing in the office of the
Secretary of State of the certificate of limited liability company
domestication and the certificate of formation or upon the future
effective date or time of the certificate of limited liability company
domestication and the certificate of formation, the non-United States
entity shall be domesticated as a limited liability company in the
State of Delaware and the limited liability company shall thereafter be
subject to all of the provisions of this chapter, except that
notwithstanding § 18-201 of this title, the existence of the limited
liability company shall be deemed to have commenced on the date the
non-United States entity commenced its existence in the jurisdiction in
which the non-United States entity was first formed, incorporated,
created or otherwise came into being.

(e) The domestication of any non-United
States entity as a limited liability company in the State of Delaware
shall not be deemed to affect any obligations or liabilities of the
non-United States entity incurred prior to its domestication as a
limited liability company in the State of Delaware, or the personal
liability of any person therefor.

(f) The filing of a certificate of
limited liability company domestication shall not affect the choice of
law applicable to the non-United States entity, except that from the
effective date or time of the domestication, the law of the State of
Delaware, including the provisions of this chapter, shall apply to the
non-United States entity to the same extent as if the non-United States
entity had been formed as a limited liability company on that date.

(g) Prior to the filing of a certificate
of limited liability company domestication with the Office of the
Secretary of State, the domestication shall be approved in the manner
provided for by the document, instrument, agreement or other writing,
as the case may be, governing the internal affairs of the non-United
States entity and the conduct of its business or by applicable
non-Delaware law, as appropriate, and a limited liability company
agreement shall be approved by the same authorization required to
approve the domestication.

(h) When any domestication shall have
become effective under this section, for all purposes of the laws of
the State of Delaware, all of the rights, privileges and powers of the
non-United States entity that has been domesticated, and all property,
real, personal and mixed, and all debts due to such non-United States
entity, as well as all other things and causes of action belonging to
such non-United States entity, shall remain vested in the domestic
limited liability company to which such non-United States entity has
been domesticated (and also in the non-United States entity, if and for
so long as the non-United States entity continues its existence in the
foreign jurisdiction in which it was existing immediately prior to the
domestication) and shall be the property of such domestic limited
liability company (and also of the non-United States entity, if and for
so long as the non-United States entity continues its existence in the
foreign jurisdiction in which it was existing immediately prior to the
domestication), and the title to any real property vested by deed or
otherwise in such non-United States entity shall not revert or be in
any way impaired by reason of this chapter; but all rights of creditors
and all liens upon any property of such non-United States entity shall
be preserved unimpaired, and all debts, liabilities and duties of the
non-United States entity that has been domesticated shall remain
attached to the domestic limited liability company to which such
non-United States entity has been domesticated (and also to the
non-United States entity, if and for so long as the non-United States
entity continues its existence in the foreign jurisdiction in which it
was existing immediately prior to the domestication), and may be
enforced against it to the same extent as if said debts, liabilities and duties had originally been incurred or contracted by it in its
capacity as a domestic limited liability company. The rights,
privileges, powers and interests in property of the non-United States
entity, as well as the debts, liabilities and duties of the non-United
States entity, shall not be deemed, as a consequence of the
domestication, to have been transferred to the domestic limited
liability company to which such non-United States entity has
domesticated for any purpose of the laws of the State of Delaware.

(i) When a non-United States entity has
become domesticated as a limited liability company pursuant to this
section, for all purposes of the laws of the State of Delaware, the
limited liability company shall be deemed to be the same entity as the
domesticating non-United States entity and the domestication shall
constitute a continuation of the existence of the domesticating
non-United States entity in the form of a domestic limited liability
company. Unless otherwise agreed, for all purposes of the laws of the
State of Delaware, the domesticating non-United States entity shall not
be required to wind up its affairs or pay its liabilities and
distribute its assets, and the domestication shall not be deemed to
constitute a dissolution of such non-United States entity. If,
following domestication, a non-United States entity that has become
domesticated as a limited liability company continues its existence in
the foreign country or other foreign jurisdiction in which it was
existing immediately prior to domestication, the limited liability
company and such non-United States entity shall, for all purposes of
the laws of the State of Delaware, constitute a single entity formed,
incorporated, created or otherwise having come into being, as
applicable, and existing under the laws of the State of Delaware and
the laws of such foreign country or other foreign jurisdiction.

(j) In connection with a domestication
hereunder, rights or securities of, or interests in, the non-United
States entity that is to be domesticated as a domestic limited
liability company may be exchanged for or converted into cash,
property, rights or securities of, or interests in, such domestic
limited liability company or, in addition to or in lieu thereof, may be
exchanged for or converted into cash, property, rights or securities
of, or interests in, another domestic limited liability company or
other entity or may be cancelled. (70 Del. Laws, c. 360, § 6; 71 Del.
Laws, c. 77, § 14; 72 Del. Laws, c. 129, § 4; 72 Del. Laws, c. 389, §§
8, 9; 73 Del. Laws, c. 83, § 12; 74 Del. Laws, c. 275, § 5; 75 Del.
Laws, c. 51, § 3; 75 Del. Laws, c. 317, §§ 7-13; 76 Del. Laws, c. 387,
§§ 6, 7.)

§ 18-213. Transfer or continuance of domestic limited liability companies.

(a) Upon compliance with this section,
any limited liability company may transfer to or domesticate or
continue in any jurisdiction, other than any state, and, in connection
therewith, may elect to continue its existence as a limited liability
company in the State of Delaware.

(b) If the limited liability company
agreement specifies the manner of authorizing a transfer or
domestication or continuance described in subsection (a) of this
section, the transfer or domestication or continuance shall be
authorized as specified in the limited liability company agreement. If
the limited liability company agreement does not specify the manner of
authorizing a transfer or domestication or continuance described in
subsection (a) of this section and does not prohibit such a transfer or
domestication or continuance, the transfer or domestication or
continuance shall be authorized in the same manner as is specified in
the limited liability company agreement for authorizing a merger or
consolidation that involves the limited liability company as a
constituent party to the merger or consolidation. If the limited
liability company agreement does not specify the manner of authorizing
a transfer or domestication or continuance described in subsection (a)
of this section or a merger or consolidation that involves the limited
liability company as a constituent party and does not prohibit such a
transfer or domestication or continuance, the transfer or domestication
or continuance shall be authorized by the approval by the members or,
if there is more than 1 class or group of members, then by each class
or group of members, in either case, by the members who own more than
50% of the then current percentage or other interest in the profits of
the domestic limited liability company owned by all of the members or
by the members in each class or group, as appropriate. If a transfer or
domestication or continuance described in subsection (a) of this
section shall be authorized as provided in this subsection (b), a
certificate of transfer if the limited liability company’s existence as
a limited liability company of the State of Delaware is to cease, or a
certificate of transfer and domestic continuance if the limited
liability company’s existence as a limited liability company in the
State of Delaware is to continue, executed in accordance with § 18-204
of this title, shall be filed in the office of the Secretary of State
in accordance with § 18-206 of this title. The certificate of transfer
or the certificate of transfer and domestic continuance shall state:

(1) The name of the limited liability
company and, if it has been changed, the name under which its
certificate of formation was originally filed;

(2) The date of the filing of its original certificate of formation with the Secretary of State;

(3) The jurisdiction to which the limited
liability company shall be transferred or in which it shall be
domesticated or continued and the name of the entity or business form
formed, incorporated, created or that otherwise comes into being as a
consequence of the transfer of the limited liability company to, or its
domestication or continuance in, such foreign jurisdiction;

(4) The future effective date or time
(which shall be a date or time certain) of the transfer to or
domestication or continuance in the jurisdiction specified in
subsection (b)(3) of this section if it is not to be effective upon the
filing of the certificate of transfer or the certificate of transfer
and domestic continuance;

(5) That the transfer or domestication or
continuance of the limited liability company has been approved in
accordance with this section;

(6) In the case of a certificate of
transfer, (i) that the existence of the limited liability company as a
limited liability company of the State of Delaware shall cease when the
certificate of transfer becomes effective, and (ii) the agreement of
the limited liability company that it may be served with process in the
State of Delaware in any action, suit or proceeding for enforcement of
any obligation of the limited liability company arising while it was a
limited liability company of the State of Delaware, and that it
irrevocably appoints the Secretary of State as its agent to accept
service of process in any such action, suit or proceeding;

(7) The address to which a copy of the
process referred to in subsection (b)(6) of this section shall be
mailed to it by the Secretary of State. In the event of service
hereunder upon the Secretary of State, the procedures set forth in §
18-911(c) of this title shall be applicable, except that the plaintiff
in any such action, suit or proceeding shall furnish the Secretary of
State with the address specified in this subsection and any other
address that the plaintiff may elect to furnish, together with copies
of such process as required by the Secretary of State, and the
Secretary of State shall notify the limited liability company that has
transferred or domesticated or continued out of the State of Delaware
at all such addresses furnished by the plaintiff in accordance with the
procedures set forth in § 18-911(c) of this title; and

(8) In the case of a certificate of
transfer and domestic continuance, that the limited liability company
will continue to exist as a limited liability company of the State of
Delaware after the certificate of transfer and domestic continuance
becomes effective.

(c) Upon the filing in the office of the
Secretary of State of the certificate of transfer or upon the future
effective date or time of the certificate of transfer and payment to
the Secretary of State of all fees prescribed in this chapter, the
Secretary of State shall certify that the limited liability company has
filed all documents and paid all fees required by this chapter, and
thereupon the limited liability company shall cease to exist as a
limited liability company of the State of Delaware. Such certificate of
the Secretary of State shall be prima facie evidence of the transfer or
domestication or continuance by such limited liability company out of
the State of Delaware.

(d) The transfer or domestication or
continuance of a limited liability company out of the State of Delaware
in accordance with this section and the resulting cessation of its
existence as a limited liability company of the State of Delaware
pursuant to a certificate of transfer shall not be deemed to affect any
obligations or liabilities of the limited liability company incurred
prior to such transfer or domestication or continuance or the personal
liability of any person incurred prior to such transfer or
domestication or continuance, nor shall it be deemed to affect the
choice of law applicable to the limited liability company with respect
to matters arising prior to such transfer or domestication or
continuance. Unless otherwise agreed, the transfer or domestication or
continuance of a limited liability company out of the State of Delaware
in accordance with this section shall not require such limited
liability company to wind up its affairs under § 18-803 of this title
or pay its liabilities and distribute its assets under § 18-804 of this
title and shall not be deemed to constitute a dissolution of such
limited liability company.

(e) If a limited liability company files
a certificate of transfer and domestic continuance, after the time the
certificate of transfer and domestic continuance becomes effective, the
limited liability company shall continue to exist as a limited
liability company of the State of Delaware, and the laws of the State
of Delaware, including this chapter, shall apply to the limited
liability company to the same extent as prior to such time. So long as
a limited liability company continues to exist as a limited liability
company of the State of Delaware following the filing of a certificate
of transfer and domestic continuance, the continuing domestic limited
liability company and the entity or business form formed, incorporated,
created or that otherwise came into being as a consequence of the
transfer of the limited liability company to, or its domestication or
continuance in, a foreign country or other foreign jurisdiction shall,
for all purposes of the laws of the State of Delaware, constitute a
single entity formed, incorporated, created or otherwise having come
into being, as applicable, and existing under the laws of the State and
the laws of such foreign country or other foreign jurisdiction.

(f) In connection with a transfer or
domestication or continuance of a domestic limited liability company to
or in another jurisdiction pursuant to subsection (a) of this section,
rights or securities of, or interests in, such limited liability
company may be exchanged for or converted into cash, property, rights
or securities of, or interests in, the entity or business form in which
the limited liability company will exist in such other jurisdiction as
a consequence of the transfer or domestication or continuance or, in
addition to or in lieu thereof, may be exchanged for or converted into
cash, property, rights or securities of, or interests in, another
entity or business form or may be cancelled.

(g) When a limited liability company has
transferred or domesticated or continued out of the State of Delaware
pursuant to this section, the transferred or domesticated or continued
entity or business form shall, for all purposes of the laws of the
State of Delaware, be deemed to be the same entity as the limited
liability company and shall constitute a continuation of the existence
of such limited liability company in the form of the transferred or
domesticated or continued entity or business form. When any transfer or
domestication or continuance of a limited liability company out of the
State of Delaware shall have become effective under this section, for
all purposes of the laws of the State of Delaware, all of the rights,
privileges and powers of the limited liability company that has
transferred or domesticated or continued, and all property, real,
personal and mixed, and all debts due to such limited liability
company, as well as all other things and causes of action belonging to
such limited liability company, shall remain vested in the transferred
or domesticated or continued entity or business form (and also in the
limited liability company that has transferred, domesticated or
continued, if and for so long as such

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