CHAPTER 295
FORMERLY
SENATE BILL NO. 363
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 inserting "(whether referred to as a limited liability company agreement, operating agreement or otherwise)" immediately following the words "means any agreement" in the first sentence thereof.
Section 2. Amend § 18-101(7), Chapter 18, Title 6 of the Delaware Code by inserting the following immediately after the first sentence thereof: "A limited liability company is not required to execute its limited liability company agreement. A limited liability company is bound by its limited liability company agreement whether or not the limited liability company executes the limited liability company agreement."
Section 3. Amend § 18-106, Chapter 18, Title 6 of the Delaware Code by adding a new subsection (c) thereto as follows:
"(c) Notwithstanding any provision of this chapter to the contrary, without limiting the general powers enumerated in subsection (b) above, a limited liability company shall, subject to such standards and restrictions, if any, as are set forth in its limited liability company agreement, have the power and authority to make contracts of guaranty and suretyship, and enter into interest rate, basis, currency, hedge or other swap agreements, or cap, floor, put, call, option, exchange or collar agreements, derivative agreements or other agreements similar to any of the foregoing."
Section 4. Amend § 18-203, Chapter 18, Title 6 of the Delaware Code by deleting subsection (3) thereof and by renumbering subsections (4) and (5) thereof as subsections (3) and (4), respectively.
Section 5. Amend § 18-206, Chapter 18, Title 6 of the Delaware Code by deleting the word "and" immediately after the ";" in subsection (a)(2) thereof, by deleting the "." at the end of subsection (a)(3) thereof and substituting in lieu thereof "; and" and by adding a new subsection (a)(4) thereto as follows:
"(4) Enter 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 shall be permanently maintained as a public record. A copy of each certificate shall be permanently maintained on optical disk or by other suitable medium."
Section 6. Amend § 18-210, Chapter 18, Title 6 of the Delaware Code by inserting "any conversion of the limited liability company to another business form, any transfer to or domestication in any jurisdiction by the limited liability company," immediately following "constituent party to the merger or consolidation," in the first sentence thereof.
Section 7. Amend § 18-301, Chapter 18, Title 6 of the Delaware Code by adding a new subsection (e) thereto as follows:
"(e) Unless otherwise provided in a limited liability company agreement or another agreement, a member shall have no preemptive right to subscribe to any additional issue of limited liability company interests or another interest in a limited liability company."
Section 8. Amend § 18-407, Chapter 18, Title 6 of the Delaware Code by adding the following words immediately prior to the "." at the end of the last sentence thereof:
"or cause the person to whom any such rights and powers have been delegated to be a member or manager, as the case may be, of the limited liability company".
Section 9. Amend § 18-904(a), Chapter 18, Title 6 of the Delaware Code by inserting the words "on such records" immediately following the words "Secretary of State from the name" therein, by inserting ", partnership" immediately following the words "foreign corporation" therein, by inserting ", formed" immediately following the words "limited partnership reserved, registered" therein, and by inserting ", partnership" immediately following the words "the written consent of the other corporation" therein.
Section 10. Amend § 18-904, Chapter 18, Title 6 of the Delaware Code by deleting subsections (c), (d) and (e) thereof in their entirety and by substituting in lieu thereof the following subsections (c), (d) and (e):
"(c) A registered agent may change the address of the registered office of the foreign limited liability company(ies) for which the agent is registered agent to another address in the State of Delaware by paying a fee as set forth in § 18-1105(a)(7) of this title and filing with the Secretary of State a certificate, executed by such registered agent, setting forth the address at which such registered agent has maintained the registered office for each of the foreign limited liability companies for which it is a registered agent, and further certifying to the new address to which each such registered office will be changed on a given day, and at which new address such registered agent will thereafter maintain the registered office for each of the foreign limited liability companies for which it is registered agent. Upon the filing of such certificate, the Secretary of State shall furnish to the registered agent a certified copy of the same under the Secretary's hand and seal of office, and thereafter, or until further change of address, as authorized by law, the registered office in the State of Delaware of each of the foreign limited liability companies for which the agent is a registered agent shall be located at the new address of the registered agent thereof as given in the certificate. In the event of a change of name of any person acting as a registered agent of a foreign limited liability company, such registered agent shall file with the Secretary of State a certificate, executed by such registered agent, setting forth the new name of such registered agent, the name of such registered agent before it was changed and the address at which such registered agent has maintained the registered office for each of the foreign limited liability companies for which it is registered agent, and shall pay a fee as set forth in § 18-1105(a)(7) of this title. Upon the filing of such certificate, the Secretary of State shall furnish to the registered agent a certified copy of the same under his or her hand and seal of office. A change of name of any person acting as a registered agent of a foreign limited liability company as a result of the merger or consolidation of the registered agent, with or into another person which succeeds to its assets and liabilities by operation of law, shall be deemed a change of name for purposes of this section. Filing a certificate under this section shall be deemed to be an amendment of the application of each foreign limited liability company affected thereby and each such foreign limited liability company shall not be required to take any further action with respect thereto, to amend its application under §18-905 of this title. Any registered agent filing a certificate under this section shall promptly, upon such filing, deliver a copy of any such certificate to each foreign limited liability company affected thereby.
(d) The registered agent of 1 or more foreign limited liability companies may resign and appoint a successor registered agent by paying a fee as set forth in § 18-1105(a)(7) of this title and filing a certificate with the Secretary of State, stating that it resigns and the name and address of the successor registered agent. There shall be attached to such certificate a statement of each affected foreign limited liability company ratifying and approving such change of registered agent. Upon such filing, the successor registered agent shall become the registered agent of such foreign limited liability companies as have ratified and approved such substitution and the successor registered agent's address, as stated in such certificate, shall become the address of each such foreign limited liability company's registered office in the State of Delaware. The Secretary of State shall then issue a certificate that the successor registered agent has become the registered agent of the foreign limited liability companies so ratifying and approving such change and setting out the names of such foreign limited liability companies. Filing of such certificate of resignation shall be deemed to be an amendment of the application of each foreign limited liability company affected thereby and each such foreign limited liability company shall not be required to take any further action with respect thereto to amend its application under § 18-905 of this title.
(e) The registered agent of one or more foreign limited liability companies may resign without appointing a successor registered agent by paying a fee as set forth in § 18-1105(a)(7) of this title and filing a certificate of resignation with the Secretary of State, but such resignation shall not become effective until 30 days after the certificate is filed. The certificate shall contain a statement that written notice of resignation was given to each affected foreign limited liability company at least 30 days prior to the filing of the certificate by mailing or delivering such notice to the foreign limited liability company at its address last known to the registered agent and shall set forth the date of such notice. After receipt of the notice of the resignation of its registered agent, the foreign limited liability company for which such registered agent was acting shall obtain and designate a new registered agent to take the place of the registered agent so resigning. If such foreign limited liability company fails to obtain and designate a new registered agent as aforesaid prior to the expiration of the period of 30 days after the filing by the registered agent of the certificate of resignation, such foreign limited liability company shall not be permitted to do business in the State of Delaware and its registration shall be deemed to be cancelled. After the resignation of the registered agent shall have become effective as provided in this section and if no new registered agent shall have been obtained and designated in the time and manner aforesaid, service of legal process against each foreign limited liability company for which the resigned registered agent had been acting shall thereafter be upon the Secretary of State in accordance with § 18-911 of this title."
Section 11. Amend § 18-1108, Chapter 18, Title 6 of the Delaware Code by deleting existing subsection (b) thereof in its entirety and substituting in lieu thereof the following:
"(b) A list of those domestic limited liability companies whose certificates of formation were canceled on June 1 of such calendar year pursuant to Section 18-1108(a) of this title shall be filed in the office of the Secretary of State. On or before October 31 of each calendar year, the Secretary of State shall publish such list on the Internet or on a similar medium for a period of 1 week and shall advertise the website or other address where such list can be accessed in at least 1 newspaper of general circulation in the State of Delaware."
(e) Section 12. This Act shall become effective August 1, 2002.