Bill Text: DE SB74 | 2011-2012 | 146th General Assembly | Draft


Bill Title: 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.

Spectrum: Bipartisan Bill

Status: (Passed) 2011-07-07 - Signed by Governor [SB74 Detail]

Download: Delaware-2011-SB74-Draft.html


SPONSOR:

Sen. Blevins & Rep. George

 

DELAWARE STATE SENATE

146th GENERAL ASSEMBLY

SENATE BILL NO. 74

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.


BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:


Section 1. Amend§15-105(h), Chapter 15, Title 6 of the Delaware Code by deleting the word "A" at the beginning of such subsection and by inserting in lieu thereof the words "Notwithstanding any other provision of this chapter, any", by inserting the words "filed under this chapter" immediately before the words "shall be effective", and by inserting the words "(not later than a time on the 180th day after the date of its filing if such date of filing is on or after January 1, 2012)" immediately after the words "at any later date or time".

Section 2. Amend§15-105, Chapter 15, Title 6 of the Delaware Code by adding a new subsection (l) at the end of such section reading as follows:"(l)Notwithstanding any other provision of this chapter, it shall not be necessary for any partnership (including a limited liability partnership) or foreign partnership to amend its statement of partnership existence, its statement of qualification (as applicable), its statement of foreign qualification, or any other document that has been filed with the Secretary of State prior to August 1, 2011, to comply with §15-111(k) of this chapter; notwithstanding the foregoing, any statement or other document filed under this chapter on or after August 1, 2011 and changing the address of a registered agent or registered office shall comply with §15-111(k) of this chapter.".

Section 3. Amend §15-105(d), Chapter 15, Title 6 of the Delaware Code by inserting the words "of a statement of partnership existence" immediately after each occurrence of the word "cancellation" in the fourth sentence thereof, by inserting the sentence "Neither the filing of a statement of cancellation to accomplish the cancellation of a statement of qualification nor the revocation of a statement of qualification pursuant to Section 15-1003 of this chapter cancels a statement of partnership existence for such partnership." between the fourth sentence and the fifth sentence thereof, and by inserting a new paragraph immediately before the last paragraph of such subsection reading as follows:"Upon the filing of a statement of cancellation of a statement of qualification (or judicial decree thereof), or a certificate of merger or consolidation or a certificate of ownership and merger which acts as a statement of cancellation of a statement of qualification, or a certificate of transfer, or a certificate of conversion to a non-Delaware entity, or upon the future effective date or time of a statement of cancellation of a statement of qualification (or a judicial decree thereof) or of a certificate of merger or consolidation or a certificate of ownership and merger which acts as a statement of cancellation of a statement of qualification, or a certificate of transfer, or a certificate of conversion to a non-Delaware entity, as provided for therein, or as specified in §15-111(d) or §15-111(i)(4)of this title, the statement of qualification is canceled.Neither the filing of a statement of cancellation to accomplish the cancellation of a statement of partnership existence nor the cancellation of a statement of partnership existence pursuant to Section 15-1209(a) of this chapter cancels a statement of qualification for such partnership.A statement of qualification shall be canceled upon the dissolution and the completion of winding up of the limited liability partnership, or as provided in §15-111(d) or §15-111(i)(4) of this title, or upon the filing of a certificate of merger or consolidation or a certificate of ownership and merger if thelimited liability partnership is not the surviving or resulting entity in a merger or consolidation, or upon the filing of a certificate of transfer, or upon the filing of a certificate of conversion to a non-Delaware entity. A statement of cancellation shall befiled with the Secretary of State to accomplish the cancellation of a statement of qualification upon the dissolution and the completion of winding up of a limited liabilitypartnership and shall set forth:

(1) The name of the limited liability partnership;

(2) The date of filing of its statement of qualification; and

(3) Any other information the person filing the statement of cancellation determines.".

Section 4.Amend§15-108(c), Chapter 15, Title 6 of the Delaware Code by inserting the words "in the office" immediately after the words "must be such as to distinguish it upon the records", by inserting the word "domestic" immediately before the words "partnership may be registered", by deleting the second and third appearances of the words "partnership (including a limited liability partnership),", by inserting the words "or foreign limited liability partnership" immediately after the third and fourth appearances of the words "limited liability company" in such subsection, by deleting the word "or" immediately after the fourth appearance of the words "statutory trust" in such subsection and by inserting in lieu thereof a ",", and by inserting the words "; provided further, that, if on July 31, 2011 a domestic partnership is registered (with the consent of another domestic partnership) under a name which is not such as to distinguish it upon the records in the office of the Secretary of State from the name on such records of such other domestic partnership, it shall not be necessary for any such domestic partnership to amend its statement of partnership existence or statement of qualification to comply with this subsection" immediately after the words "which written consent shall be filed with the Secretary of State" in such subsection.

Section 5. Amend§15-111, Chapter 15, Title 6 of the Delaware Code by adding a new subsection (k) at the end of such section reading as follows:"(k)As contained in any statement of partnership existence, statement of qualification, statement of foreign qualification, or other document filed with the Secretary of State under this chapter, the address of a registered agent or registered office shall include the street, number, city and postal code.".

Section 6. Amend §15-306(c), Chapter 15, Title 6 of the Delaware Code by inserting the words "arising out of or related to circumstances or events occurring while the partnership is a limited liability partnership or" immediately after the words "An obligation of a partnership" in the first sentence thereof.

Section 7. Amend §15-407(d), Chapter 15, Title 6 of the Delaware Code by deleting the words ", if a consent or consents in writing, setting forth the action so taken, shall be signed by the" in the second sentence thereof and by inserting in lieu thereof the words "if consented to, in writing or by electronic transmission, by".

Section 8. Amend §15-407(e), Chapter 15, Title 6 of the Delaware Code by inserting two new sentences at the end of such subsection reading as follows: "Unless otherwise provided in a partnership agreement, a supermajority amendment provision shall only apply to provisions of the partnership agreement that are expressly included in the partnership agreement.As used in this section, "supermajority amendment provision" means any amendment provision set forth in a partnership agreement requiring that an amendment to a provision of the partnership agreement be adopted by no less than the vote or consent required to take action under such latter provision.".

Section 9. Amend §15-901(b), Chapter 15, Title 6 of the Delaware Code by inserting a new sentence at the end of such subsection reading as follows: "Each of the certificate and statements required by this subsection (b) shall be filed simultaneously with the Secretary of State and, if such certificate and statements are not to become effective upon their filing as permitted by § 15-105(h) of this chapter, then such certificate and each such statement shall provide for the same effective date or time in accordance with §15-105(h) of this chapter.".

Section 10. Amend §15-902(f), Chapter 15, Title 6 of the Delaware Code by deleting the third occurrence of the word "certificate" in the first sentence thereof and by inserting in lieu thereof the word "statement", and by inserting the words "(and if applicable the statement of qualification)" between the word "existence" and the word "for" in the first sentence thereof.

Section 11. Amend §15-904(b), Chapter 15, Title 6 of the Delaware Code by inserting a new sentence at the end of such subsection reading as follows: "The certificate and the statement required by this subsection (b) shall be filed simultaneously with the Secretary of State and, if such certificate and such statement are not to become effective upon their filing as permitted by §15-105(h) of this chapter, then such certificate and such statement shall provide for the same effective date or time in accordance with §15-105(h) of this chapter.".

Section 12. Amend §15-1001(d), Chapter 15, Title 6 of the Delaware Code by inserting the words "and regardless of cancellation of a statement of partnership existence for such partnership pursuant to the filing of a statement of cancellation to accomplish the cancellation of such statement of partnership existence or pursuant to Section 15-1209(a) of this chapter" immediately after the second occurrence of the word "partnership" and before the "," in the second sentence thereof, by deleting the word "it" in the second sentence thereof and by inserting in lieu thereof the words "the statement of qualification", and by inserting the words ", Section 15-111(d), or Section 15-111(i)(4)" immediately after the words "Section 15-105(d)" in the second sentence thereof.

Section 13. Amend §15-1207(a)(6), Chapter 15, Title 6 of the Delaware Code by inserting the words "for each partnership whose registered agent has resigned by such certificate" immediately after "$2.00" in such subsection.

Section 14. Amend§15-1207(a)(10), Chapter 15, Title 6 of the Delaware Code by inserting a new sentence at the end of such subsection reading as follows:"For filing any instrument submitted by a partnership that only changes the registered office or registered agent and is specifically captioned as a certificate or statement of amendment changing only the registered office or registered agent, a fee in the amount of $50.".

Section 15.This Act shall become effective August 1, 2011.


SYNOPSIS

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 §15-105(h) of the Act to provide, for filings made on or after January 1, 2012, that the future effective date or time specified in a statement or certificate shall not be later than a time on the 180th day after the filing date.

Section 2. This section amends §15-105 of the Act by adding a new subsection (l) to provide that there is no need for an amendment to a statement of partnership existence, statement of qualification, statement of foreign qualification, or any other document on file with the Secretary of State before August 1, 2011, to comply with new §15-111(k) of the Act, but that any statement or other document filed on or after August 1, 2011 and changing the address of a registered agent or registered office must comply with §15-111(k) of the Act.

Sections 3, 10 and 12. These sections amend §§15-105, 15-902 and 15-1001 of the Act to clarify certain matters relating to cancellation of a statement of partnership existence and cancellation of a statement of qualification, including that separate certificates of cancellation must be filed with the Secretary of State to cancel a statement of partnership existence and a statement of qualification, respectively.

Section 4. This section amends §15-108(c) of the Act to provide that a domestic partnership may not register under a name that is not such as to distinguish it upon the records in the office of the Secretary of State from the name on such records of another domestic partnership, provided that a domestic partnership registered as of July 31, 2011 under such a name need not amend its statement of partnership existence or statement of qualification to comply with this subsection.

Section 5. This section adds a new subsection (k) to § 15-111 of the Act providing that, in any statement or other document filed with the Secretary of State, the address of the registered agent or registered office of the partnership must include the street, number, city and postal code.

Section 6. This section amends §15-306(c) of the Act to confirm that a partner of a limited liability partnership is not personally liable for liabilities arising out of circumstances or events occurring while the partnership is a limited liability partnership.

Section 7. This section amends §15-407(d) of the Act to clarify the manner in which partners of a partnership may take action without a meeting.

Section 8. This section amends§15-407(e) of the Act to adopt a rule different from the approach articulated in In re LJM2 Co-Investment, L.P. Limited Partners Litigation, 866 A.2d 762 (Del. Ch. 2004) with respect to the application of the type of amendment provision contained in the partnership agreement at issue in that case.This amendment provides that such amendment provisions only apply to provisions expressly included in the partnership agreement and do not apply to default voting provisions of the statute unless otherwise provided in the partnership agreement.This amendment is not intended to affect the interpretation of such amendment provisions as applied to provisions expressly included in the partnership agreement.

Section 9. This section amends §15-901 of the Act to clarify that the certificate of conversion to partnership, the statement of partnership and, as applicable, the statement of qualification of an other entity converting to a Delaware partnership or limited liability partnership must be filed simultaneously with the Secretary of State and, to the extent such certificate and statements are to have a post-filing effective date or time, such certificate and statements must provide for the same effective date or time.

Section 11. This section amends §15-904 of the Act to clarify that the certificate of partnership domestication and the statement of partnership existence of a non-United States entity domesticating to Delaware as a Delaware partnership must be filed simultaneously with the Secretary of State and, to the extent such certificate and statement are to have a post-filing effective date or time, such certificate and statement must provide for the same effective date or time.

Section 13. This section amends §15-1207 of the Act to clarify that a registered agent filing a single certificate of resignation to resign from more than one partnership must pay a $2.00 fee to the Secretary of State for each partnership from which the registered agent is resigning.

Section 14. This section amends §15-1207(a)(10) of the Act to provide a $50 filing fee for an instrument submitted by a partnership that changes only the registered office or registered agent of the partnership.

Section 15.This section provides that the proposed amendments of the Act shall become effective August 1, 2011.

Author: Senator Blevins

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