CHAPTER 129

FORMERLY

SENATE BILL NO. 178

AN ACT TO AMEND 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 after the first sentence thereof the following new sentence:

"A limited liability company agreement of a limited liability company having only one member shall not be unenforceable by reason of there being only one person who is a party to the limited liability company agreement."

Section 2. Amend § 18-106(b), Chapter 18, Title 6 of the Delaware Code by deleting the words "so far as" and by substituting in lieu thereof the word "including", and by adding the word "as" following the words "such powers and privileges".

Section 3. Amend § 18-109(a), Chapter 18, Title 6 of the Delaware Code by adding at the end of § 18-109(a) the following:

"As used in this subsection (a) and in subsections (b) and (c) of this § 18-109, the term 'manager' refers (i) to a person who is a manager as defined in § 18-101(10) of this chapter and (ii) to a person who is a member of a limited liability company and who, although not a manager as defined in § 18-101(10) of this chapter, participates materially in the management of the limited liability company, provided, however, that the power to elect or otherwise select or to participate in the election or selection of a person to be a manager as defined in § 18-101(10) of this chapter shall not, by itself, constitute participation in the management of the limited liability company."

Section 4. Amend § 18-212, Chapter 18, Title 6 of the Delaware Code by adding at the end thereof a new subsection (i) reading as follows:

"(i) When a non-United States entity has become domesticated as a limited liability company pursuant to this section, the limited liability company shall, for all purposes of the laws of the State of Delaware, be deemed to be the same entity as the domesticating non-United States entity. Unless otherwise agreed, or as required under applicable non-Delaware law, 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 and shall constitute a continuation of the existence of the domesticating non-United States entity in the form of a domestic limited liability company. 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."

Section 5. Amend § 18-213, Chapter 18, Title 6 of the Delaware Code by adding at the end of subsection (e) a new sentence reading as follows:

"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 continuance, the continuing domestic limited liability company and the entity formed, incorporated, created or that otherwise came into being as a consequence of the transfer of the limited liability company to, or its domestication 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 of Delaware and the laws of such foreign country or other foreign jurisdiction."

Section 6. Amend § 18-214(a), Chapter 18, Title 6 of the Delaware Code by adding the word "corporation," after the words "means a".

Section 7. Amend § 18-214(c)(1), Chapter 18, Title 6 of the Delaware Code by adding the word "incorporated," after the words "first created,".

Section 8. Amend § 18-214, Chapter 18, Title 6 of the Delaware Code by adding at the end of subsection (g) thereof a new sentence reading as follows:

"When an other entity has been converted to a limited liability company pursuant to this section, the limited liability company shall, for all purposes of the laws of the State of Delaware, be deemed to be the same entity as the converting other entity."

Section 9. Amend § 18-216, Chapter 18, Title 6 of the Delaware Code by adding the word "corporation," after the words "may convert to a".

Section 10. Amend § 18-302(d), Chapter 18, Title 6 of the Delaware Code by adding the following words immediately preceding the period at the end of the first sentence thereof: "at which all interests in the limited liability company entitled to vote thereon were present and voted".

Section 11. Amend § 18-402, Chapter 18, Title 6 of the Delaware Code by deleting the second sentence of the said section and by substituting in lieu thereof the following new sentence:

"The manager shall also hold the offices and have the responsibilities accorded to the manager by or in the manner provided in a limited liability company agreement."

Section 12. Amend § 18-604, Chapter 18, Title 6 of the Delaware Code by deleting said section in its entirety and by substituting in lieu thereof the following:

"Except as provided in this subchapter, upon resignation any resigning member is entitled to receive any distribution to which such member is entitled under a limited liability company agreement and, if not otherwise provided in a limited liability company agreement, such member is entitled to receive, within a reasonable time after resignation, the fair value of such member's limited liability company interest as of the date of resignation based upon such member's right to share in distributions from the limited liability company."

Section 13. Amend § 18-801(a)(3), Chapter 18, Title 6 of the Delaware Code by adding the words "affirmative vote or" after the words "upon the".

Section 14. Amend § 18-801(a), Chapter 18, Title 6 of the Delaware Code by deleting subsection (4) thereof in its entirety and inserting in lieu thereof the following new subsection (4):

"(4) At any time there are no members; provided that the limited liability company is not dissolved and is not required to be wound up if, (i) unless otherwise provided in a limited liability company agreement, 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; provided that a limited liability company agreement may provide that the personal representative of the last remaining member shall be obligated to agree 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, (ii) a member is admitted to the limited liability company in the manner provided for in the limited liability company agreement, effective as of the occurrence of the event that terminated the continued membership of the last remaining member, 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, pursuant to a provision of the limited liability company agreement that specifically provides for the admission of a member to the limited liability company after there is no longer a remaining member of the limited liability company."

Section 15. Amend § 18-801(b), Chapter 18, Title 6 of the Delaware Code by adding a "." after the words "shall be continued without dissolution", and by deleting the remainder of the sentence beginning with the words "unless within 90 days".

Section 16. Amend § 18-1105(a)(3), Chapter 18, Title 6 of the Delaware Code by deleting the words "a certificate of restoration under § 18-1107(i) of this chapter,", and by adding immediately preceding the words "a fee in the amount of $50", the words "and upon the restoration of a domestic limited liability company or a foreign limited liability company under § 18-1107(i),".

Section 17. Amend § 18-1106, Chapter 18, Title 6 of the Delaware Code by adding the following new sentence at the end of said section:

"Unless expressly stated to the contrary in this chapter, all amendments of this chapter shall apply to limited liability companies and members and managers whether or not existing as such at the time of the enactment of any such amendment."

Section 18. Amend § 18-1107(i), Chapter 18, Title 6 of the Delaware Code by deleting the words ", accompanied by a certificate of the limited liability company executed by an authorized person stating that it is paying all sums due hereunder", and by deleting from the last sentence of said section the words "the filing of any such certificate", and by substituting in lieu thereof the word "restoration".

Section 19. This Act shall become effective August 1, 1999, except for Section 3 of this Act which shall become effective January 1, 2000.

Approved July 02,1999