Delaware General Assembly

CHAPTER 75

FORMERLY

SENATE BILL NO. 109

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, Chapter 18, Title 6 of the Delaware Code by deleting subsection "(13)", and by renumbering existing subsection ''(14)" as subsection "(13)".

Section 2. Amend § 18-101(6), Chapter 18, Title 6 of the Delaware Code by substituting the number "1" for the number "2".

Section 3. Amend § 18-101(7), Chapter 18, Title 6 of the Delaware Code by deleting the words "a written" in the first sentence of the subsection and substituting in lieu thereof the word "any", by adding ", written or oral," after the word "agreement" in the first sentence of the subsection, and by adding the word "written" before the words "limited liability" in the second sentence of the subsection.

Section 4. Amend § 18-102(1), Chapter 18, Title 6 of the Delaware Code by adding the words or the designation 'LLC" following the words "or the abbreviation 'L.L.C.'".

Section 5. Amend § 18-201, Chapter 18, Title 6 of the Delaware Code by adding a new subsection to said section to be designated as subsection "(d)" to read as follows:

"(d) A limited liability company agreement may be entered into either before, after

or at the time of the filing of a certificate of formation and, whether entered into 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 the limited liability company agreement."

Section 6. Amend § 18-203, Chapter 18, Title 6 of the Delaware Code by adding "or § 181108" after "18-104(d)", and by deleting the words "less than 2" and by substituting in lieu thereof the word "no" in the first sentence of the section, and by deleting the words "not 2" and by substituting in lieu thereof the word "no" in the second sentence of the section.

Section 7. Amend § 18-206(a), Chapter 18, Title 6 of the Delaware Code by deleting the words "and of immediately after the words "certificate of merger or consolidation" and inserting in lieu thereof a "," and by adding immediately after the words "restated certificate the words ", and of any certificate of revival".

Section 8. Amend § 18-206(a), Chapter 18, Title 6 of the Delaware Code by adding the words ", a conformed signature or an electronically transmitted signature" after the word "facsimile".

Section 9. Amend § 18-206(a), Chapter 18, Title 6 of the Delaware Code by adding after the words "certificates of amendment, correction", the words ", amendment of a certificate of merger or consolidation".

Section 10. Amend § 18-206(a)(1), Chapter 18, Title 6 of the Delaware Code by deleting the word "or" immediately after the words "certificate of merger or consolidation" and inserting in lieu thereof a "," and by adding immediately after the words "restated certificate" the words "or the certificate of revival".

Section 11. Amend § 18-206(a)(1), Chapter 18, Title 6 of the Delaware Code by adding after the words "the certificate of correction," the words "the certificate of amendment of a certificate of merger or consolidation,".

Section 12. Amend § 18-206(b), Chapter 18, Title 6 of the Delaware Code by adding the following sentence at the end of said subsection:

"Upon the filing of a certificate of revival, the limited liability company is revived with the effect provided in § 18-1109 of this chapter,"

Section 13. Amend § 18-206(b), Chapter 18, Title 6 of the Delaware Code by adding the following sentence immediately before the last sentence of said subsection:

"Upon the filing of a certificate of amendment of a certificate of merger or consolidation, the certificate of merger or consolidation identified in the certificate of amendment of a certificate of merger or consolidation is amended."

Section 14. Amend § 18-206(c), Chapter 18, Title 6 of the Delaware Code by deleting the word ''or" immediately after the words "certificate of merger or consolidation" and inserting in lieu thereof a ''," and by adding immediately after the words ''restated certificate" the words "or a certificate of revival."

Section 15. Amend § 18-206(c), Chapter 18, Title 6 of the Delaware Code by adding immediately following the words "a certificate of correction," the words "a certificate of amendment of a certificate of merger or consolidation,".

Section 16. Amend § 18-209(a), Chapter 18, Title 6 of the Delaware Code by adding after the words "or limited" the words "(including a registered limited liability limited partnership)".

Section 17. Amend § 18-209(d), Chapter 18, Title 6 of the Delaware Code by deleting the words "to change the future effective date or time", by deleting at three places in the subsection the words "or amended", and by adding the following sentence immediately before the last sentence of said subsection:

"If a certificate of merger or consolidation provides for a future effective date or time and if an agreement of merger or consolidation is amended to change the future effective date or time, or to change any other matter described in the certificate of merger or consolidation so as to make the certificate of merger or consolidation false in any material respect, as permitted by § 18-209(0 of this chapter prior to the future effective date or time, the certificate of merger or consolidation shall be amended by the filing of a certificate of amendment of a certificate of merger or consolidation which shall identify the certificate of merger or consolidation and the agreement of merger or consolidation which has been amended and shall state that the agreement of merger or consolidation has been amended and shall set forth the amendment to the certificate of merger or consolidation."

Section 18. Amend § 18-301(b)(3), Chapter 18, Title 6 of the Delaware Code by deleting the words "or a limited liability company agreement" immediately after the words "an agreement of merger or consolidation".

Section 19. Amend § 18-402, Chapter 18, Title 6 of the Delaware Code by adding the following new sentence immediately before the existing last sentence of the section.

"A limited liability company may have more than I manager."

Section 20. Amend § 18-801(3), Chapter 18, Title 6 of the Delaware Code by deleting the word "The" appearing in the subsection and inserting in lieu thereof "Unless otherwise provided in a limited liability company agreement, upon the ".

Section 21. Amend § 18-802, Chapter 18, Title 6 of the Delaware Code by deleting "(a)" appearing before the first paragraph of said section and by deleting all of paragraph "(b)" of said section.

Section 22, Amend § 18-904(a), Chapter 18, Title 6 of the Delaware Code by adding the words "or the designation 'LLC"' following the words "or the abbreviation 'L.L.C.'".

Section 23. Amend § 18-1105(a)(1), Chapter 18, Title 6 of the Delaware Code by deleting "$10", and by substituting in lieu thereof "$75''.

Section 24. Amend § 18-I 105(a)(3), Chapter 18, Title 6 of the Delaware Code by deleting the word or appearing after the words "under § 18-211 of this chapter" and substituting in lieu thereof a "," and by adding after the words "under § 18-1107(i) of this chapter," the words or a certificate of revival under § 18-1109 of this chapter,''.

Section 25. Amend § 18-1105(a)(3), Chapter 18, Title 6 of the Delaware Code by adding after the words "under § 18-208 of this chapter," the words "a certificate of amendment of a certificate of merger or consolidation under § 18-209(d) of this chapter,".

Section 26. Amend § I8-1105(a)(5), Chapter 18, Title 6 of the Delaware Code by deleting said subsection in its entirety and substituting in lieu thereof the following:

"(5) The Secretary of State may issue photocopies or electronic image copies of instruments on file, as well as instruments, documents and other papers not on file, and for all such photocopies or electronic image copies, whether certified or not, a fee of $5 shall be paid for the first page and $1 for each additional page. The Secretary of State may also issue microfiche copies of instruments on file as well as instruments, documents and other papers not on file, and for each such microfiche a fee of $2 shall be paid therefor. Notwithstanding the State of Delaware's Freedom of Information Act or other provision of this Code granting access to public records, the Secretary of State shall issue only photocopies, microfiche or electronic image copies of records in exchange for the fees described above."

Section 27. Amend § 18-1105(6), Chapter 18, Title 6 of the Delaware Code by redesignating paragraphs "(I)" and "(2)" as paragraphs "(2)" and "(3)", respectively, and by adding before newly designated paragraph "(2)" the following new paragraph "(1)" reading as follows:

"(1) For all services described in subsection (a) of this section that are requested to be completed within 2 hours on the same day as the day of the request, an additional sum of up to $500;

Section 28. Amend § 18-1107(a), Chapter 18, Title 6 of the Delaware Code by deleting the words For purposes of taxation under Title 30," both times such words appear in said subsection and substituting in lieu thereof the words For purposes of any tax imposed by the State of Delaware or any instrumentality, agency or political subdivision of the State of Delaware,".

Section 29. Amend Chapter 18, Title 6 of the Delaware Code by adding a new section designated § 18-1108 reading as follows:

"§ 18-1108. CANCELLATION OF CERTIFICATE OF FORMATION FOR FAILURE TO PAY TAXES.

(a) The certificate of formation of a domestic limited liability company shall be deemed to be canceled if the domestic limited liability company shall fail to pay the annual tax due under § 18-1107 of this chapter for a period of three years from the date it is due, such cancellation to be effective on the third anniversary of such due date.

(b) On or before October 31 of each calendar year, the Secretary of State shall publish once in at least 1 newspaper of general circulation in the State of Delaware a list of those domestic limited liability companies whose certificates of formation were canceled on June 1 of such calendar year pursuant to § 18-1108(a) of this chapter,"

Section 30. Amend Chapter 18, Title 6 of the Delaware Code by adding a new section designated § 18-1109 reading as follows:

"§ 18-1109. REVIVAL OF DOMESTIC LIMITED LIABILITY COMPANY.

(a) A domestic limited liability company whose certificate of formation has been canceled pursuant to § 18-104(d) or § 18-1108(a) of this chapter may be revived by filing in the office of the Secretary of State a certificate of revival accompanied by the payment of the fee required by § 18-I 105(a)(3) of this chapter and payment of the annual tax due under § 181107 of this chapter and all penalties and interest thereon for each year for which such domestic limited liability company neglected, refused or failed to pay such annual tax, including each year between the cancellation of its certificate of formation and its revival. The certificate of revival shall set forth:

(1) The name of the limited liability company at the time its certificate of formation
was canceled and, if such name is not available at the time of revival, the name under which the limited liability company is to be revived;

(2) The date of filing of the original certificate of formation of the limited liability company;

(3) The address of the limited liability company's registered office in the State of Delaware and the name and address of the limited liability company's registered agent in the State of Delaware;

(4) A statement that the certificate of revival is filed by 1 or more persons
authorized to execute and file the certificate of revival to revive the limited liability company; and

(1) Any other matters the persons executing the certificate of revival determine to include therein.

(b) The certificate of revival 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 chapter with respect to the matters set forth in the certificate of revival.

(c) Upon the filing of a certificate of revival, a limited liability company shall be revived with the same force and effect as if its certificate of formation had not been canceled pursuant to § 18-104(d) or § 18-1108(a) of this chapter. Such revival shall validate all contracts, acts, matters and things made, done and performed by the limited liability company, its members, managers, employees and agents during the time when its certificate of formation was canceled pursuant to § 18-104(d) or § 18-1108(a) of this chapter, with the same force and effect and to all intents and purposes as if the certificate of formation had remained in bill force and effect. All real and personal property, and all rights and interests, which belonged to the limited liability company at the time its

certificate of formation was canceled pursuant to § 18104(d) or § 18-1108(a) of this chapter or which were acquired by the limited liability company following the cancellation of its certificate of formation pursuant to § 18-104(d) or § 181108(a) of this chapter, and which were not disposed of prior to the time of its revival, shall be vested in the limited liability company after its revival as fully as they were held by the limited liability company at, and after, as the case may be, the time its certificate of formation was canceled pursuant to § 18-104(d) or § 18-1108(a) of this chapter. After its revival, the limited liability company shall be as exclusively liable for all contracts, acts, matters and things made, done or performed in its name and on its behalf by its members, managers, employees and agents prior to its revival as if its certificate of formation had at all times remained in full force and effect."

Section 31. This Act shall become effective August 1, 1995, except that Section 18-1108, Chapter 18, Title 6 of the Delaware Code shall become effective December 31, 1995.

Approved June 23, 1995