| HB 72 w/ SA 1 | Signed | Bush | Section 1 of the Act addresses statutes under Chapter 33 of Title 12 and (i) clarifies the definition of governing instrument in section 3301(e) to include cross-references to new section 3343; (ii) adds a definition of “published fee schedule” to section 3301(h) as a cross-reference to the schedule or formula required by section 3561 to be filed periodically with the Court of Chancery; (iii) clarifies that section 3303(a) permits a trustor within a governing instrument to vary laws concerning the terms of powers of appointment over trust property; (iv) revises section 3322 regarding the appointment of agents by fiduciaries and the delegation of trust powers to provide that the standard of care applicable to a fiduciary when performing duties delegated to an agent shall apply to the fiduciary when selecting and monitoring the agent (and not to the agent), and to permit trust beneficiaries to release the fiduciary from liability for future conduct in monitoring agents—all to correct inconsistencies and conform the law to prevailing practice; (v) clarifies that under subsection 28 of section 3325 (which already permits a division of a trust for any reason), division along family lines is permitted; (vi) clarifies that under section 3338, the requirement for “holders of powers” to join in nonjudicial settlement agreements includes both those who hold powers of appointment and those who hold powers to remove or appoint fiduciaries or nonfiduciaries; (vii) clarifies that section 3341’s provisions regarding the consequences of a merger also apply in the case of trust decantings under section 3328 where a new trust is not created; (viii) clarifies section 3342 (merely by setting off an existing phrase with dashes) that modification with the trustor’s consent is permitted so long as the provisions as modified could have been included in the trust’s governing instrument if the trust were created on the date of the modification; (ix) adds a new section 3343 providing that where a governing instrument authorizes appointment of a successor trustee, multiple trustees may be appointed and fiduciary duties may be allocated among them; and (x) adds a new section 3344 providing that with respect to grantor trusts under the Internal Revenue Code, certain trustees are deemed to have discretion to reimburse a trustor (i.e., the grantor) of such a trust for that trustor’s income tax liabilities attributable to that trust—but without making the trustor a beneficiary of the trust, and not if the provisions of this section would reduce a charitable deduction available to any person for federal or state income or transfer tax purposes.
Section 2 of the Act addresses statutes under Chapter 35 of Title 12 and (i) clarifies in section 3528 that after a decanting, the terms of the predecessor trust’s governing instrument are deemed to include the decanting power, in accordance with federal law requirements regarding certain charitable deductions; (ii) clarifies in section 3528 that the standard under section 3315, governing a trustee’s exercise of discretion, also applies to a trustee’s decanting authority in section 3528; (iii) clarifies subsections (c) and (c)(2) of section 3536 (subsection (c)(2) being moved within subsection (c) and expanded) that a trustor eligible for reimbursement from a trust of that trustor’s income tax liabilities attributable to the trust under section 3344 is not a beneficiary of the trust; (iv) clarifies the wording of subsections (c)(4) and (e) of section 3536 (subsection (c)(4) being created from existing wording in former subsection (c)(1) and expanded) regarding a trustor’s right to release a beneficial interest contingent on surviving the trustor’s spouse so as to accelerate the next succeeding beneficial interests; (v) clarifies section 3544 that a trustee has no duty to inquire into or confirm the validity of previous nonjudicial modifications, decantings, mergers, and the like; (vi) amends section 3545 to allow a trust instrument to be executed at a trustor’s direction (intended for situations where a trustor cannot physically sign the governing instrument, thus paralleling a similar provision that has existed for decades in Delaware’s wills statutes), and clarifies section 3545 that (as is the predominating practice) counterpart execution of trust instruments is permitted (subject to existing requirements regarding witnesses); (vii) modifies section 3547 to provide that takers in default under certain nongeneral powers of appointment cannot be virtually represented by the holders of such powers if there is a material conflict of interest—but also clarifies that those who must consent to the exercise of a power must also consent to any such virtual representation by the holder of the power; (viii) adds a cross-reference within section 3547(e) (regarding virtual representation) to section 3322 (regarding delegation); (ix) modifies section 3570 of Delaware’s Qualified Dispositions in Trust Act to allow a trustor to retain within a trust the ability to appoint and serve as a designated representative for a beneficiary under section 3339; (x) clarifies subsection (a)(2) of section 3585 to provide that the report procedure described in that subsection may be used while the trustee is in the process of resigning (and not just after completion of the act of resignation or the effective date of a resignation); and (xi) clarifies that section 3586 applies to governing instruments (which term is defined in section 3301(e)) and not just to trust instruments.
Section 3 of the Act addresses statutes under Chapter 5 of Title 25 and (i) makes technical corrections to sections 501 and 504 regarding the method authorized in 2016 by which the donee of a power of appointment over trust property may avoid the application of the general default rule of section 501(a) of title 25 (which provides that interests in property created by the exercise of such a power of appointment are deemed to have been created at the time of the exercise of the power); and (ii) modifies section 505 to conform it with the Uniform Powers of Appointment Act, by allowing powerholders who have a nongeneral power of appointment the option of exercising the power in trust and creating a further nongeneral power of appointment (and not just a further general power of appointment as the existing language provides).
Section 4 of the Act provides effective dates. | AN ACT TO AMEND TITLES 12 AND 25 OF THE DELAWARE CODE RELATING TO DECEDENTS’ ESTATES AND FIDUCIARY RELATIONS AND PROPERTY. |
| SCR 20 | Passed | Lawson | This resolution honors USO Delaware for their important and inspiring work supporting military members and their families. | HONORING USO DELAWARE FOR ITS IMPORTANT AND INSPIRING WORK SUPPORTING MILITARY MEMBERS AND THEIR FAMILIES. |
| HB 95 w/ SA 1 | Signed | Bush | This Act expands the permitted uses of unclaimed electric cooperative capital credits to include investments in energy services for low income members and energy efficiency, renewable energy, battery storage, electrification and emerging energy technology programs. The bill also amends the annual reporting requirements to include an itemization of the amount allocated each year to low income assistance, energy efficiency and renewable technologies, and non-profit donations. | AN ACT TO AMEND TITLE 26 OF THE DELAWARE CODE RELATING TO ELECTRIC COOPERATIVE CAPITAL CREDITS. |
| SB 64 | Signed | Pettyjohn | This Act amends the Charter of Georgetown to give the Town Council the authority to impose and collect a lodging tax, as permitted by § 908 of Title 22. | AN ACT TO AMEND THE CHARTER OF GEORGETOWN RELATING TO THE POWER TO IMPOSE AND COLLECT A LODGING TAX. |
| HA 1 to HB 86 | Passed | Osienski | This Amendment expands the exemption from the aviation jet fuel tax to any aerial application. | |
| SB 88 | Signed | Brown | Section 1. Section 1 of this Act amends Section 108(b) to clarify that notice of an initial organization meeting may be given in writing or by electronic transmission. The amendments also eliminate the express requirement that a waiver of that notice be signed, to clarify that notice may be waived in any manner permitted by Section 229. Section 108(c) is being amended to clarify that a consent of incorporator may become effective in the future in the same manner that a consent of directors may become effective in the future under Section 141(f).
Section 2. Section 2 of this Act amends Title 8 to insert a new Section 116. New Section 116(a) establishes non-exclusive, safe harbor methods to reduce certain acts or transactions to a written or electronic document and to sign and deliver a document manually or electronically. The terminology in Section 116(a) is based on analogous provisions in Section 232, the Delaware Uniform Electronic Transactions Act (“UETA”) and the Model Business Corporation Act, with modifications. Section 116(a) permits corporate transactions (such as entering into agreements of merger not filed with the Secretary of State, voting agreements among stockholders and statutory voting trusts) to be documented, signed and delivered through “Docusign” and similar electronic means.
The Section 116(a) safe harbor provisions apply solely for purposes of determining whether an act or transaction has been documented, and whether a document has been signed and delivered, in accordance with the DGCL and a corporation’s certificate of incorporation and bylaws. Section 116(a) does not preempt any statute of frauds or other law that might require actions be documented, or that documents be signed and delivered, in a specified manner.
Section 116(a) clarifies how its provisions operate in connection with a transaction conducted pursuant to UETA. To the extent UETA does not apply to a transaction (under Section 12A-103 of UETA) because the transaction is governed by the DGCL, the parties to the transaction can satisfy the DGCL by complying with Section 116(a).
Section 116(b) addresses certain actions and documents that are not governed by Section 116(a). There is no presumption that these excluded items are prohibited from being effected by electronic or other means, but Section 116 may not be relied on as a basis for documenting an act or transaction, or signing or delivering a document, if the exclusions set forth in Section 116(b) apply. Many of these excluded items are governed by separate provisions that facilitate the use of electronic media, including documents filed with the Secretary of State (governed by Section 103(h)), documents comprising part of the stock ledger (governed by Section 119), notices (governed by Section 232, in the case of stockholder meetings), waivers of notice (governed by Section 229) and actions taken by directors, stockholders or incorporators (governed by Sections 141(f), 228(d) and 108(c), respectively).
Section 116(b) permits certificate of incorporation and bylaw provisions that restrict the use of Section 116(a), but those restrictions must be expressly stated. A provision merely specifying that an act or transaction will be documented in writing, or that a document will be signed or delivered manually, will not prohibit the application of Section 116(a).
Section 116(c) addresses the interaction between the provisions of the DGCL and the Electronic Signatures in Global and National Commerce Act (the “E-Sign Act”). Section 116(c) evidences an intent to allow the DGCL to govern the documentation of actions, and the signature and delivery of documents, to the fullest extent the DGCL is not preempted by the E-Sign Act.
Section 3. Section 3 of this Act amends Section 136(a) to permit a registered agent of a Delaware corporation, including a corporation which has become void pursuant to Section 510 of this title, to resign by filing a certificate of resignation. It further adds the requirement to include the last known information for a communications contact for the affected corporation, as last provided to the registered agent pursuant to Section 132(d) of Title 8. The communications contact information will not be deemed public, and falls within the exception set forth in Section 10002(l)(6) of Title 29 to the definition of “public record” for purposes of the Freedom of Information Act (29 Del. C. §§ 10001 et. seq.). This section clarifies that the Secretary of State shall provide the form to be used for certificates to be filed under Section 136(a).
Section 4. Section 4 of this Act amends Section 141(f) to clarify that action by unanimous consent of directors may be treated as taken before the consents relating to the action are filed in a minute book.
Section 5. Section 5 of this Act amends Section 160(d). As a result of the clarifying amendment to Section 160(d), a notice of redemption may be given in the form, and delivered in the manner, permitted by amended Section 232.
Section 6. Section 6 of this Act amends Section 163. As a result of the clarifying amendments to Section 163, a notice requiring payment on partly paid shares of capital stock may be given in the form, and delivered in the manner, permitted by amended Section 232.
Section 7. Section 7 of this Act amends Sections 212(c) and 212(d) to conform to Section 116, to use the term “document” consistently in each of those sections and to clarify that a proxy may be documented, executed and delivered in accordance with Section 116(a). The amendments to Sections 212(c) and 212(d) also eliminate references to proxies given by telegram and cablegram because those methods of granting proxies are included in the definition of electronic transmission.
Section 8. Section 8 of this Act amends Section 222(a) and Section 222(b) to delete the requirement that a corporation must give stockholders a notice of meeting in writing, in order to conform these provisions to amended Section 232, which allows a notice of meeting to be given in writing or by electronic mail. The amendments to Section 222(b) delete the provisions on how a notice of meeting is delivered to stockholders because delivery is addressed by amended Section 232.
Section 9. Section 9 of this Act amends Section 228(d) to expand the methods of delivery of consents given by electronic transmission. The amendments to Section 228(d) also eliminate redundant terms, including eliminating references to consents given by telegram or cablegram because those methods of giving consents are already included in the definition of an electronic transmission.
Section 10. Section 10 of this Act amends Section 230(c). Amended Section 230(c) provides that if a corporation has an electronic mail address for a stockholder or member, and notice by electronic mail is permitted by Section 232, then the corporation is not relieved of the obligation to send that stockholder or member notices pursuant to the returned mail exception to notice provided in Section 230(b).
Section 11. Section 11 of this Act amends Section 232. New Section 232(a) addresses the default means of giving notices to stockholders. As amended, notices may be given to stockholders by mail (in the same manner as permitted by the provisions formerly included in Section 222(b)), courier or electronic mail. Section 232(a) applies to any notice that is required to be given under chapter 1 of Title 8, or under the certificate of incorporation or bylaws. Accordingly, no provision of the certificate of incorporation or bylaws (including any provision requiring notice to be in writing or mailed) may prohibit the corporation from giving notice in the form, or delivering notice in the manner, permitted by Section 232(a). The amendments enabling notice by electronic mail to stockholders apply solely for purposes of chapter 1 of Title 8, the certificate of incorporation and the bylaws, and do not affect, limit or eliminate or override the application of any other law, rule or regulation applicable to a corporation or by which such corporation or its securities may be bound (including any obligations of a corporation prescribed by Regulation 14A or Regulation 14C promulgated under the Securities Exchange Act of 1934).
Section 232(b) (formerly designated as Section 232(a)) is being amended to provide that a stockholder need not specifically consent to receiving notices by electronic mail because new Section 232(a) governs notice given by electronic mail.
Section 232(d) (formerly designated as Section 232(c)) includes new definitions for electronic mail and electronic mail address, which are based on similar terms defined in the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003, (codified at 15 U.S.C. §§ 7701 et seq.). The CAN-SPAM Act established requirements for the distribution of commercial electronic mail messages.
Section 232(e) (which is similar to provisions that formerly appeared in Section 232(a)) prohibit notice from being given by electronic transmission after the corporation becomes aware that two consecutive notices were not successfully delivered by such transmission.
Section 232(f) includes provisions (similar to the provisions formerly in Section 222(b) and Section 232(b)) for transmittal affidavits that serve as prima facie evidence that notice has been given to stockholders.
Section 232(g) (formerly designated as Section 232(e)) identifies certain types of notices that must continue to be given in the manner specified by those provisions addressed in Section 232(g).
Section 12. Sections 12 through 14 and Sections 16, 17 and 19 of this Act amend Sections 251, 253, 255, 266, 275 and 390, respectively. Sections 251(b) and 255(b) are being amended to permit any authorized person to execute an agreement of merger or consolidation, except that any agreement filed with the Secretary of State must be executed by a person, and in the manner, authorized by Section 103.
As a result of clarifying amendments to Sections 251(c), 253(a), 255(c), 266(b), 275(a) and 390(b), the notices of stockholder meeting contemplated by those sections may be given in the form, and delivered in the manner, permitted by amended Section 232.
Section 13. Section 15 of this Act amends Section 262. Section 262(d) is being amended to clarify its notice provisions and conform those provisions to amended Section 232(a). As a result of these clarifying amendments, a corporation may deliver a notice of appraisal rights by courier or electronic mail, instead of delivering the notice by mail. Section 262(d) is also being amended to permit the delivery of demands for appraisal by electronic transmission, but only if the corporation expressly designates, in the notice of appraisal rights given by the corporation, an information processing system for receipt of electronic delivery of demands. Among other things, this amendment permits a corporation to designate an electronic mail address for purposes of receiving a stockholder demand for appraisal.
Section 262(e) is being amended to clarify that a request for a statement of the number of shares and holders entitled to appraisal may be given by electronic transmission. Amended Section 262(e) also clarifies that such statement need not be mailed and instead may be given by the corporation in any manner permitted by amended Section 232(a).
The amendments to Section 262 shall be effective with respect to agreements of merger or consolidation consummated pursuant to an agreement entered into on or after August 1, 2019.
Section 14. Section 18 of this Act amends Section 313(a) to provide that Section 313 applies to an exempt corporation whose certificate of incorporation or charter has become forfeited pursuant to Section 136(b) for failure to obtain a registered agent.
Section 15. Section 20 of this Act amends Section 391(a)(11) to provide for the fee payable to the Delaware Secretary of State for any certificate issued via the Secretary of State’s online services, and Section 391(a)(16) to increase the fee payable to the Delaware Secretary of State for a written report of a record search.
Section 16. Section 21 of this Act amends Section 503(h) to reflect fee increases to the alternative minimum amount of annual franchise tax payable by a regulated investment company for each $1,000,000, or fraction thereof in excess of $1,000,000, of the company’s average gross assets during the taxable year, and increases the maximum annual franchise tax payable by a regulated investment company.
Section 17. Sections 22 through 24 of this Act relate to the effectiveness of the amendments to Title 8. Section 22 of this Act provides that Sections 1 through 14 and Sections 16 through 20 of this Act are effective on August 1, 2019. Section 23 of this Act provides that Section 15 of this Act (relating to the amendments to Section 262) are effective only with respect to a merger or consolidation consummated pursuant to an agreement entered into on or after August 1, 2019. Section 24 of this Act provides that Section 21 of this Act (relating to the amendments to Section 503(h)) are effective for the tax year beginning on January 1, 2019.
| AN ACT TO AMEND TITLE 8 OF THE DELAWARE CODE RELATING TO THE GENERAL CORPORATION LAW. |
| SB 89 | Signed | Brown | This bill continues the practice of amending periodically the Delaware Revised Uniform Limited Partnership Act (the “Act”) to keep it current and to maintain its national preeminence. The following is a section-by-section review of the proposed amendments of the Act.
Section 1. This section amends Section 17-101 of the Act in several respects. New definitions are added for “document” and “electronic transmission,” which terms appear in new Section 17-113 among other places in the Act. This section also amends the definitions of “general partner” and “limited partner.” The changes to the definition of “general partner” confirm that the term includes a general partner of the limited partnership generally and a general partner associated with a series of the limited partnership, and the changes to the definition of “limited partner” confirm that the term includes a limited partner of the limited partnership generally and a limited partner associated with a series of the limited partnership. This section also amends Section 17-101 to include definitions for “series,” “protected series” established in accordance with Section 17-218(b) of the Act, and “registered series” formed in accordance with Section 17-221 of the Act.
Section 2. This section amends Section 17-102(3) of the Act to provide that the name of a limited partnership must be such as to distinguish it from the name of any registered series of a limited partnership, and also amends Section 17-102(4) to confirm that the name of a limited partnership may contain the words “public benefit.”
Section 3. This section amends Section 17-103 of the Act to provide that the exclusive right to the use of a name for a registered series of a limited partnership may be reserved by a person intending to form such a registered series in accordance with Section 17-221 and to adopt that name pursuant to Section 17-221(e) of the Act.
Section 4. This section amends Section 17-104(d) of the Act to provide that if a limited partnership’s certificate of limited partnership has been cancelled pursuant to Section 17-1110 of the Act, its registered agent may resign without appointing a successor registered agent. The amendment also adds requirements regarding the content and form of the certificate of resignation filed with the Delaware Secretary of State when the registered agent resigns without appointing a successor, and provides that such information regarding the communications contact that must be included in such a certificate shall not be deemed public. This section also amends Sections 17-104(d) and 17-104(e) of the Act to include references to protected series and registered series, as appropriate, and amends Section 17-104(g) to conform with the addition of the defined term “electronic transmission” in Section 17-101.
Sections 5. This sections amends Section 17-105 of the Act to include references to protected series and registered series, as appropriate.
Section 6. This section adds new Section 17-112 of the Act to provide that, upon motion by the Attorney General, the Court of Chancery may cancel the certificate of limited partnership of any domestic limited partnership for abuse or misuse of its limited partnership powers, privileges or existence.
Section 7. This section adds new Section 17-113 of the Act, which establishes non-exclusive, safe harbor methods to reduce certain acts or transactions to a written or electronic document and to sign and deliver a document manually or electronically. The terminology in Section 17-113(a) is based on analogous provisions in existing Sections 17-302(e) and 17-405(d) of the Act, the Delaware Uniform Electronic Transactions Act (“UETA”), and the Model Business Corporation Act, with modifications. Section 17-113(a) permits limited partnership transactions (such as entering into agreements of merger not filed with the Secretary of State) to be documented, signed and delivered through “Docusign” and similar electronic means.
The Section 17-113(a) safe harbor provisions apply solely for purposes of determining whether an act or transaction has been documented, and whether a document has been signed and delivered, in accordance with the Act and the partnership agreement. Section 17-113(a) does not preempt any statute of frauds or other law that might require actions be documented, or that documents be signed and delivered, in a specified manner.
Section 17-113(a) clarifies how its provisions operate in connection with a transaction conducted pursuant to UETA. To the extent UETA does not apply to a transaction (under Section 12A-103 of UETA) because the transaction is governed by the Act, the parties to the transaction can satisfy the Act by complying with Section 17-113(a).
Section 17-113(b) addresses certain actions and documents that are not governed by Section 17-113(a). There is no presumption that these excluded items are prohibited from being effected by electronic or other means, but Section 17-113 may not be relied on as a basis for documenting an act or transaction, or signing or delivering a document, if the exclusions set forth in Section 17-113(b) apply. Certain of these excluded items are governed by separate provisions that facilitate the use of electronic media, including documents filed with the Secretary of State (governed by Section 17-206(a)).
Section 17-113(b) permits partnership agreement provisions that restrict the use of Section 17-113(a), but those restrictions must be expressly stated. A provision merely specifying that an act or transaction will be documented in writing, or that a document will be signed or delivered manually, will not prohibit the application of Section 17-113(a).
Section 17-113(c) addresses the interaction between the provisions of the Act and the Electronic Signatures in Global and National Commerce Act (the “E-Sign Act”). Section 17-113(c) evidences an intent to allow the Act to govern the documentation of actions, and the signature and delivery of documents, to the fullest extent the Act is not preempted by the E-Sign Act.
Section 8. This section amends Section 17-203 of the Act to include a reference to new Section 17-112 of the Act, a reference to a certificate of division, and references to registered series.
Section 9. This section amends Section 17-204 of the Act to provide for the manner in which a certificate of division, a certificate of registered series, a certificate of conversion of registered series to protected series, a certificate of amendment of certificate of registered series, a certificate of correction of certificate of registered series, a certificate of conversion of protected series to registered series, a certificate of merger or consolidation of registered series, a certificate of cancellation of certificate of registered series, and a certificate of revival of registered series must be executed.
Section 10. This section amends Section 17-206 of the Act to simplify its language and to include references to registered series and protected series and related certificates, to a certificate of division, and to new Sections 17-112 and 17-1112 of the Act.
Section 11. This section amends Section 17-207 of the Act to simplify its language and to provide for recovery in the specified circumstances from any general partner that filed the certificate containing a materially false statement.
Section 12. This section amends Section 17-208 of the Act to include references to new Sections 17-1202 and 17-221 of the Act and to registered series.
Section 13. This section amends Section 17-210 of the Act to include references to registered series.
Section 14. This section amends Section 17-211(a) of the Act relating to merger and consolidation to include a cross-reference to new Sections 17-220, 17-222, 17-223, and 17-224 of the Act, which refer to “other business entity” as defined in Section 17-211(a).
Section 15. This section amends Section 17-212 of the Act to provide that a plan of division may provide for contractual appraisal rights and that contractual appraisal rights may be made available in connection with any merger or consolidation in which a registered series is a constituent party, any division of the limited partnership, any conversion of a protected series to a registered series of the limited partnership, and any conversion of a registered series to a protected series of the limited partnership.
Section 16. This section amends Section 17-218 of the Act relating to series of limited partnerships to clarify certain provisions, including those relating to a protected series of a limited partnership.
Section 17. This section adds new Section 17-220 of the Act to enable a limited partnership to divide into one or more newly formed limited partnerships with the dividing partnership continuing its existence or terminating its existence, as the case may be.
Section 18. This section adds new Section 17-221 of the Act to authorize the formation of a registered series of a limited partnership by complying with such Section. Registered series are associations and are formed by the filing of a certificate of registered series and, therefore, have the attributes required to be “registered organizations” under the Uniform Commercial Code. Registered series formed under Section 17-221 of the Act also have the same rights and powers and the same inter-series limitation on liability as protected series established under Section 17-218(b) of the Act.
Section 19. This section adds new Section 17-222 of the Act to enable a protected series of a limited partnership to convert to a registered series of such limited partnership.
Section 20. This section adds new Section 17-223 of the Act to enable a registered series of a limited partnership to convert to a protected series of such limited partnership.
Section 21. This section adds new Section 17-224 of the Act to provide that one or more registered series of a limited partnership may merge or consolidate with or into one or more other registered series of such limited partnership.
Section 22. This section amends Section 17-301 of the Act to add a new subsection (b)(4) that clarifies in connection with a division the mechanics for the admission of a limited partner to a division partnership or to a limited partnership that is not a division partnership in the division.
Sections 23 and 24. These sections amend Section 17-302(e) and 17-405(d) of the Act to conform with the addition of the defined term “electronic transmission” in Section 17-101.
Section 25. This section amends Section 17-1107(a)(3) of the Act to provide for the fee payable to the Delaware Secretary of State for the filing of certain certificates pursuant to the Act, Section 17-1107(a)(4) to provide for the fee payable where the Secretary of State provides the copies of the document to be certified, Section 17-1107(a)(5) to clarify that the fee payable thereunder is for copies that are not certified by the Secretary of State, Section 17-1107(a)(9) to provide for the fee payable for a written report of a record search, and Section 17-1107(a)(10) to provide for the fee payable for the issuance of a good standing certificate for a registered series, a certificate that recites all of the filings of any registered series, a certificate that lists all of the registered series formed by a limited partnership, and any certificate issued via the Secretary of State’s online services.
Sections 26, 27 and 28. These sections amend Section 17-1109, 17-1110, and 17-1111 of the Act to include references to protected series and registered series, as appropriate.
Section 29. This section adds new Section 17-1112 of the Act to provide for the revival of a registered series whose certificate of registered series has been canceled pursuant to Section 17-1110(b) of the Act.
Section 30. This section adds a new subchapter XII providing for the formation of statutory public benefit limited partnerships which, like public benefit corporations, are intended to produce a public benefit or public benefits and to operate in a responsible and sustainable manner.
Section 31. This section provides that the proposed amendments to the Act shall become effective August 1, 2019.
| AN ACT TO AMEND CHAPTER 17, TITLE 6 OF THE DELAWARE CODE RELATING TO THE CREATION, REGULATION, OPERATION AND DISSOLUTION OF DOMESTIC LIMITED PARTNERSHIPS AND THE REGISTRATION AND REGULATION OF FOREIGN LIMITED PARTNERSHIPS. |
| SB 90 | Signed | Brown | This bill continues the practice of amending periodically the Delaware Revised Uniform Partnership Act (the “Act”) to keep it current and to maintain its national preeminence. The following is a section-by-section review of the proposed amendments of the Act.
Section 1. This section amends Section 15-101 of the Act to include definitions for “document” and “electronic transmission.” These terms appear in new Section 15-124 among other places in the Act. “Electronic transmission” previously was defined in Section 15-407(d) of the Act, and the new definition provides specific statutory authority for Delaware partnerships to use networks of electronic databases (examples of which are described currently as “distributed ledgers” or a “blockchain”) for “electronic transmissions.”
Section 2. This section amends Section 15-108(c) of the Act to provide that the name of a partnership must be such as to distinguish it from the name of any registered series of a limited partnership formed under the laws of the State of Delaware.
Section 3. This section amends Section 15-111(d) of the Act to provide that if a partnership’s statement of partnership existence has been cancelled pursuant to Section 15-1209 of the Act or statement of qualification has been revoked pursuant to Section 15-1003 of the Act, its registered agent may resign without appointing a successor registered agent. The amendment also adds requirements regarding the content and form of the certificate of resignation filed with the Delaware Secretary of State when the registered agent resigns without appointing a successor, and provides that such information regarding the communications contact that must be included in such a certificate shall not be deemed public.
Section 4. This section adds new Section 15-124 of the Act, which establishes non-exclusive, safe harbor methods to reduce certain acts or transactions to a written or electronic document and to sign and deliver a document manually or electronically. The terminology in Section 15-124(a) is based on analogous provisions in existing Section 15-407(d) of the Act, the Delaware Uniform Electronic Transactions Act (“UETA”), and the Model Business Corporation Act, with modifications. Section 15-124(a) permits partnership transactions (such as entering into agreements of merger not filed with the Secretary of State) to be documented, signed and delivered through “Docusign” and similar electronic means.
The Section 15-124(a) safe harbor provisions apply solely for purposes of determining whether an act or transaction has been documented, and whether a document has been signed and delivered, in accordance with the Act and the partnership agreement. Section 15-124(a) does not preempt any statute of frauds or other law that might require actions be documented, or that documents be signed and delivered, in a specified manner.
Section 15-124(a) clarifies how its provisions operate in connection with a transaction conducted pursuant to UETA. To the extent UETA does not apply to a transaction (under Section 12A-103 of UETA) because the transaction is governed by the Act, the parties to the transaction can satisfy the Act by complying with Section 15-124(a).
Section 15-124(b) addresses certain actions and documents that are not governed by Section 15-124(a). There is no presumption that these excluded items are prohibited from being effected by electronic or other means, but Section 15-124 may not be relied on as a basis for documenting an act or transaction, or signing or delivering a document, if the exclusions set forth in Section 15-124(b) apply. Certain of these excluded items are governed by separate provisions that facilitate the use of electronic media, including documents filed with the Secretary of State (governed by Section 15-105(c)).
Section 15-124(b) permits partnership agreement provisions that restrict the use of Section 15-124(a), but those restrictions must be expressly stated. A provision merely specifying that an act or transaction will be documented in writing, or that a document will be signed or delivered manually, will not prohibit the application of Section 15-124(a).
Section 15-124(c) addresses the interaction between the provisions of the Act and the Electronic Signatures in Global and National Commerce Act (the “E-Sign Act”). Section 15-124(c) evidences an intent to allow the Act to govern the documentation of actions, and the signature and delivery of documents, to the fullest extent the Act is not preempted by the E-Sign Act.
Section 5. This section amends Sections 15-403(c) of the Act to provide specific statutory authority for Delaware partnerships to use networks of electronic databases (examples of which are described currently as “distributed ledgers” or a “blockchain”) for the creation and maintenance of partnership records.
Section 6. This section amends Section 15-407(d) of the Act to conform with the addition of the defined term “electronic transmission” in Section 15-101.
Section 7. This section amends Section 15-1207(a)(4) of the Act to provide for the fee payable where the Secretary of State provides the copies of the document to be certified, Section 15-1207(a)(5) to clarify that the fee payable thereunder is for copies that are not certified by the Secretary of State, Section 15-1207(a)(8) to provide for the fee payable for a written report of a record search, and Section 15-1207(a)(9) to provide for the fee payable for any certificate issued via the Secretary of State’s online services.
Section 8. This section provides that the proposed amendments to the Act shall become effective August 1, 2019. | AN ACT TO AMEND CHAPTER 15, TITLE 6 OF THE DELAWARE CODE RELATING TO THE CREATION, REGULATION, OPERATION AND DISSOLUTION OF DOMESTIC PARTNERSHIPS AND THE REGISTRATION AND REGULATION OF FOREIGN LIMITED LIABILITY PARTNERSHIPS. |
| SB 102 | Signed | McBride | This Bill establishes the pilotage rates for the Pilots’ Association for the Bay and River Delaware for 2020, 2021 and 2022. | AN ACT TO AMEND TITLE 23 OF THE DELAWARE CODE RELATING TO PILOTAGE RATES. |
| HA 1 to HB 74 | Passed | Lynn | This amendment makes minor changes for consistency by replacing “minor child” with “student” in the specified lines. | |
| HA 1 to HB 205 | Passed | Dorsey Walker | This amendment makes a technical correction for clarity. | |
