CHAPTER 77

FORMERLY

SENATE BILL NO. 104

AN ACT TO AMEND CHAPTER 18, TITLE 6 OF THE DELAWARE CODE RELATING TO THE CREATION, REGULATION, OPERATION AND DISSOLUTION OF DOMESTIC LIMITED LIABILITY COMPANIES AND THE REGISTRATION AND REGULATION OF FOREIGN LIMITED LIABILITY COMPANIES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (three-fifths of all members elected to each house thereof concurring therein):

Section 1. Amend § 18-101(7), Chapter 18, Title 6 of the Delaware Code by adding immediately following the words "written or oral, of the" the words "member or".

Section 2. Amend § 18-101, Chapter 18, Title 6 of the Delaware Code by redesignating paragraph "(13)" as paragraph "(14)", and by adding a new paragraph designated as paragraph "(13)" in its appropriate numerical order to read as follows: "(13) "Personal representative" means, as to a natural person, the executor, administrator, guardian, conservator or other legal representative thereof and, as to a person other than a natural person, the legal representative or successor thereof "

Section 3. Amend § 18-104(a)(2), Chapter 18, Title 6 of the Delaware Code by inserting after the words "a domestic corporation," the words "or a domestic limited partnership, or a domestic limited liability company, or a domestic business trust," and by inserting after the words "a foreign corporation" the following: ", or a foreign limited partnership, or a foreign limited liability company".

Section 4. Amend § 18-104(a)(2), Chapter 18, Title 6 of the Delaware Code by inserting immediately before the words "or the limited liability company itself' the words "which is generally open during normal business hours to accept service of process and otherwise perform the functions of a registered agent,".

Section 5. Amend § 18-106(a), Chapter 18, Title 6 of the Delaware Code by inserting the words ", whether or not for profit," after the word "activity".

Section 6. Amend § 18-109(d), Chapter 18, Title 6 of the Delaware Code by deleting the following words: ", or the exclusivity of arbitration in," and inserting after the words "the State of Delaware," the words ", or the exclusivity of arbitration in a specified jurisdiction or the State of Delaware,".

Section 7. Amend § 18-110, Chapter 18, Title 6 of the Delaware Code by adding in the first sentence of subsection (a) immediately following the word "appointment" the word ", removal", and by deleting the word "withdrawal" and substituting in lieu thereof the word "resignation", and by adding immediately following the words "right of any person" the words "to become or continue", and by adding in the second sentence of subsection (a), immediately following the words "any such application," the words "the limited liability company shall be named as a party, and", and by adding in the first sentence of subsection (b), immediately following the word "appointment" the word ", removal", and by deleting the word "withdrawal" and substituting in lieu thereof the word "resignation", and by deleting the word "Service" the first time it appears in subsection (b) and substituting in lieu thereof the words "In any such application, the limited liability company shall be named as a party, and service".

Section 8. Amend § 18-203, Chapter 18, Title 6 of the Delaware Code by (I) deleting the words "or at any other time there are no members," in the first sentence, (2) adding immediately prior to the "." at the end of the first sentence the words ", or upon the conversion of a domestic limited liability company approved in accordance with § 18-216 of this title", and (3) deleting the words "at any other time there are no members" in the second sentence and substituting in lieu thereof the words "upon the conversion of a domestic limited liability company approved in accordance with § 18-216 of this title.

Section 9. Amend § 18-206(a), Chapter 18, Title 6 of the Delaware Code by adding immediately following the words "any certificate of transfer" the words ", any certificate of transfer and continuance".

Section 10. Amend § 18-206(a)(1), Chapter 18, Title 6 of the Delaware Code by adding immediately following the words "certificate of transfer" the words ", the certificate of transfer and continuance".

Section 11. Amend § 18-206(b), Chapter 18, Title 6 of the Delaware Code by adding the following sentence at the end thereof: "Upon the filing of a certificate of transfer and continuance, or upon the future effective date or time of a certificate of transfer and continuance, as provided for therein, the limited liability company filing the certificate of transfer and continuance shall continue to exist as a limited liability company of the State of Delaware with the effect provided in Section 18-213 of this title."

Section 12. Amend § 18-206(c), Chapter 18, Title 6 of the Delaware Code by adding immediately following the words "certificate of transfer" the words ", certificate of transfer and continuance".

Section 13, Amend §18- 211, Chapter 18, Title 6 of the Delaware Code by (1)

designating the existing section as subsection "(a)" and deleting the words "corrected certificate" at two places in the last sentence thereof and substituting in lieu thereof the words "certificate of correction" and (2) adding the following sentences as a new subsection "(b)": "(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."

Section 14. Amend § 18-212(g), Chapter 18, Title 6 of the Delaware Code by (I) deleting the words "a limited liability company agreement" and substituting in lieu thereof the words "the domestication", and (2) adding immediately prior to the "." the following: ", and a limited liability company agreement shall be approved by the same authorization required to approve the domestication..

Section 15. Amend § 18-213, Chapter 18, Title 6 of the Delaware Code by deleting said section in its entirety and substituting in lieu thereof the following:

"§ 18-213 TRANSFER OR CONTINUANCE OF DOMESTIC LIMITED LIABILITY COMPANIES.

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

(b) Notwithstanding anything to the contrary in this chapter or a limited liability company agreement, a transfer or domestication or continuance described in subsection (a) of this section shall be approved in writing by all of the managers and all of the members. If all of the managers and all of the members of the limited liability company shall approve the transfer or domestication described in subsection (a) of this section, 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 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 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;

(4) The future effective date or time (which shall be a date or time certain) of the transfer or domestication to 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 continuance;

(5) That the transfer or domestication or continuance of the limited liability company has been approved in accordance with the provisions of 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 out of the State of Delaware at all such addresses furnished by the plaintiff in accordance with the procedures set forth in § 18911(c) of this title; and

(8) In the case of a certificate of transfer and 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 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 by such limited liability company out of the State of Delaware.

(d) The transfer or domestication 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 the personal liability of any person incurred prior to such transfer or domestication, 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.

(e) If a limited liability company files a certificate of transfer and continuance, after the time the certificate of transfer and 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 the provisions of this chapter, shall apply to the limited liability company, to the same extent as prior to such time."

Section 16. Amend § 18-214(c)(1), Chapter 18, Title 6 of the Delaware Code by

deleting the following: ", incorporated".

Section 17. Amend § 18-214(g), Chapter 18, Title 6 of the Delaware Code by adding immediately prior to the"." the words " and shall constitute a continuation of the existence of the converting other entity in the form of a domestic limited liability company".

Section 18. Amend § 18-214(h), Chapter 18, Title 6 of the Delaware Code by (1 ) deleting the words "a limited liability company agreement" and substituting in lieu thereof the words the conversion", and (2) adding immediately prior to the "." the following: ", and a limited liability company agreement shall be approved by the same authorization required to approve the conversion".

Section 19. Amend § 18-215(b), Chapter 18, Title 6 of the Delaware Code by deleting the words "the limitation on liabilities of such series" immediately prior to the "." at the end of such subsection and substituting in lieu thereof the words such limitation on liabilities of a series".

Section 20. Amend § I8-215(i), Chapter 18, Title 6 of the Delaware Code by adding immediately prior to the "." at the end of such subsection the words "or cause the termination of the series, regardless of whether such member was the last remaining member associated with such series".

Section 21. Amend § 18-215(j), Chapter 18, Title 6 of the Delaware Code by (1) deleting the words appearing after the word "upon" in subsection (3), and substituting in lieu thereof the words "the written consent of the members of the limited liability company associated with such series or, if there is more than one class or group of members associated with such series, then by each class or group of members associated with such series, in either case, by members associated with such series who own more than two-thirds of the then-current percentage or other interest in the profits of the series of the limited liability company owned by all of the members associated with such series or by the members in each class or group of such series, as appropriate.", (2) redesignating subsection "(4)" as subsection "(5)", (3) deleting the word "or" as the last word of subsection "(3)", and (4) adding new subsection "(4)" in its appropriate numerical order to read as follows: "(4) At any time there are no members associated with the series, provided that, unless otherwise provided in the limited liability company agreement, the series is not terminated and is not required to be wound up if, within 90 days or such other period as is provided for in the limited liability company agreement after the occurrence of the event that terminated the continued membership of the last remaining member associated with the series, the personal representative of the last member associated with the series agrees in writing to continue the business of the series and to the admission of a personal representative of such member or its nominee or designee to the limited liability company as a member associated with the series, effective as of the occurrence of the event that terminated the continued membership of the last remaining member associated with the series; or".

Section 22. Amend § 18-215(k), Chapter 18, Title 6 of the Delaware Code by deleting the word "legal" and substituting in lieu thereof the word "personal".

Section 23. Amend § 18-215(1), Chapter 18, Title 6 of the Delaware Code by deleting the word "dissolution" and substituting in lieu thereof the word "termination".

Section 24. Amend § 18-301, Chapter 18, Title 6 of the Delaware Code by redesignating paragraph "(c)" as paragraph "(d)", and by adding a new paragraph designated as paragraph "(c)" in its appropriate alphabetical order to read as follows: "(c) In connection with the domestication of a non-United States entity (as defined in § 18-212 of this title) as a limited liability company in the State of Delaware in accordance with § 18-212 of this title or the conversion of an other entity (as defined in § 18-214 of this title) to a domestic limited liability company in accordance with § 18-214 of this title, a person is admitted as a member of the limited liability company at the time provided in and upon compliance with the limited liability company agreement."

Section 25. Amend § 18-301, Chapter 18, Title 6 of the Delaware Code by adding a new sentence at the end of newly designated § 18-301(d) to read as follows: "Unless otherwise provided in a limited liability company agreement, a person may be admitted as the sole member of a limited liability company without making a contribution or being obligated to make a contribution to the limited liability company or without acquiring a limited liability company interest in the limited liability company."

Section 26. Amend § 18-302, Chapter 18, Title 6 of the Delaware Code by adding a new § 18-302(d) to read• as follows: "(d) Unless otherwise provided in a limited liability company agreement, on any matter that is to be voted on by members, the members may take such action without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the members having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting. Unless otherwise provided in a limited liability company agreement, on any matter that is to be voted on by members, the members may vote in person or by proxy."

Section 27. Amend § 18-404, Chapter 18, Title 6 of the Delaware Code by adding a new § 18-404(d) to read as follows: "(d) Unless otherwise provided in a limited liability company agreement, on any matter that is to be voted on by managers, the managers may take such action without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the managers having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting. Unless otherwise provided in a limited liability company agreement, on any matter that is to be voted on by managers, the managers may vote in person or by proxy."

Section 28. Amend § 18-407, Chapter 18, Title 6 of the Delaware Code by adding after the word "agents" appearing in the first sentence thereof the word ", officers".

Section 29. Amend § 18-705, Chapter 18, Title 6 of the Delaware Code by (I) deleting the words "executor, administrator, guardian, conservator or other legal representative" and substituting in lieu thereof the words "personal representative", and (2) deleting the words "legal representative or successor" and substituting in lieu thereof the words "personal representative".

Section 30. Amend § 18-801, Chapter 18, Title 6 of the Delaware Code by (1) designating the existing text as subsection "(a)", (2) deleting in its entirety subsection (1) and substituting in lieu thereof: Al) At the time specified in a limited liability company agreement, but if no such time is set forth in the limited liability company agreement, then the limited liability company shall have a perpetual existence.", (3) deleting the words appearing after the word "upon" in subsection (3), and substitute in lieu thereof the words "the written consent of the members of the limited liability company 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 two-thirds of the then-current percentage or other interest in the profits of the limited liability company owned by all of the members or by the members in each class or group, as appropriate.", (4) deleting subsection (4) in its entirety and substituting in lieu thereof the following: "(4) At any time there are no members, provided that, unless otherwise provided in a limited liability company agreement, the limited liability company is not dissolved and is not required to be wound up if, within 90 days or such other period as is provided for in the limited liability company agreement after the occurrence of the event that terminated the continued membership of the last remaining member, the personal representative of the last remaining member agrees in writing to continue the limited liability company and to the admission of the personal representative of such member or its nominee or designee to the limited liability company as a member, effective as of the occurrence of the event that terminated the continued membership of the last remaining member; or", and (5) adding to the section a new subsection "(b)" reading as follows: "(b) Unless otherwise provided in a limited liability company agreement, the death, retirement, resignation, expulsion, bankruptcy or dissolution of any member or the occurrence of any other event that terminates the continued membership of any member shall not cause the limited liability company to be dissolved or its affairs to be wound up, and upon the occurrence of any such event, the limited liability company shall be continued without dissolution, unless within 90 days following the occurrence of such event, members of the limited liability company or, if there is more than one class or group of members, then each class or group of members, in either case, by members who own more than fifty percent of the then-current percentage or other interest in the profits of the limited liability company owned by all of the members or by the members in each class or group, as appropriate, agree in writing to dissolve the limited liability company."

Section 31. Amend § 18-803(a), Chapter 18, Title 6 of the Delaware Code by deleting the word "legal" and substituting in lieu thereof the word "personal".

Section 32. Amend § 18-904(b)(2), Chapter 18, Title 6 of the Delaware Code by inserting after the words "a domestic corporation" the words "or a domestic limited partnership, or a domestic limited liability company, or a domestic business trust," and by inserting after the words "a foreign corporation" the following: ", or a foreign limited partnership, or a foreign limited liability company".

Section 33. Amend § 18-904(b)(2), Chapter 18, Title 6 of the Delaware Code by inserting at the end of the said subsection before the ".", the words ", which is generally open during normal business hours to accept service of process and otherwise perform the functions of a registered agent".

Section 34. Amend § 18-1105(a)(3), Chapter 18, Title 6 of the Delaware Code by adding after the words "certificate of transfer" the words "or a certificate of transfer and continuance".

Section 35, This Act shall become effective August 1, 1997.

Approved June 25, 1997