HB 344 — 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.

Summary

This bill continues the practice of amending periodically the Delaware Limited Liability Company 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 18-101(9)b. of the Act to correct a cross-reference. Section 2. This section amends Section 18-102(3) of the Act to clarify requirements regarding the name of a limited liability company in its certificate of formation. Section 3. This section amends Sections 18-104(a)(2)d. and 18-104(f)(2) of the Act to identify the types of foreign entities that may be a registered agent of a limited liability company. Sections 3 and 12. These sections amend Sections 18-104(b) and 18-904(c) of the Act to eliminate the requirement that the Secretary of State issue a certified copy of any certificate filed by the registered agent changing the address of the registered office or the name of the registered agent. These sections also amend Sections 18-104(b) and 18-904(c) of the Act to provide that the conversion of the registered agent or a division of the registered agent in which a resulting person succeeds to all of the registered agent business of such registered agent shall be deemed to be a change of name for purposes of these Sections of the Act. These sections also amend Sections 18-104(c) and 18-904(d) of the Act to eliminate the requirement that the Secretary of State issue a certificate in connection with the resignation of the registered agent of a domestic or foreign limited liability company and the appointment of the successor registered agent. Section 4. This section amends Section 18-113(a)(2) of the Act to clarify that a person may “execute” a document by using any type of signature contemplated by such Section. Section 5. This section amends Section 18-210 of the Act to confirm that no appraisal rights are available with respect to a limited liability company interest or another interest in a limited liability company, including in connection with the enumerated transactions unless otherwise provided in the enumerated documents. Sections 6, 7, and 10. These sections amend Sections 18-213(c), 18-216(f) and 18-220(f) of the Act with regard to certifications provided by the Secretary of State in connection with the filing of a certificate of transfer, a certificate of transfer and domestic continuance, a certificate of conversion to non-Delaware entity, and a certificate of conversion of registered series to protected series. Section 8. This section amends Section 18-217(h) of the Act to provide specifically that flexibility exists to state other information in a certificate of division. Section 9. This section amends Section 18-218(d)(4) of the Act to confirm that a certificate of registered series shall be promptly amended if the certificate of registered series no longer complies with the requirements of Section 18-218(e)(1) of this title. This section also amends Section 18-218(e)(3) of the Act to clarify requirements regarding the name of a registered series in its certificate of registered series. Section 11. This section amends Section 18-301 of the Act (i) to confirm that a limited liability company agreement may provide for the admission of members in connection with formation, (ii) to eliminate any statutory requirement that a member’s admission after formation is subject to the admission being reflected in the records of the limited liability company, and (iii) to clarify that an assignee of a limited liability company interest is admitted as a member as provided in Section 18-704(a) of the Act. Section 12. This section amends Section 18-305(d) of the Act to confirm that a limited liability company may maintain its books, records and other information in other than paper form (including electronic form) if such form is capable of conversion into paper form within a reasonable time. Section 13. This section amends Section 18-904(a) of the Act to clarify requirements regarding the name under which a foreign limited liability company may register with the Secretary of State. This section also amends Section 18-904(b)(2)c. of the Act to identify the types of foreign entities that may be a registered agent of a foreign limited liability company. This section also amends Section 18-904(e) of the Act to provide that if a foreign limited liability company has ceased to be registered pursuant to Section 18-1107(h) 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 14. This section provides that the proposed amendments to the Act shall become effective upon their enactment into law.

Bill Text

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This bill amends various sections of the Delaware Code regarding limited liability companies, clarifying definitions, name requirements, registered agents, and document signing methods.

• § 18-101

  A limited liability company agreement of a limited liability company having only 1 member shall not be unenforceable by reason of there being only 1 person who is a party to the limited liability company agreement.

  It clarifies that a single-member limited liability company agreement cannot be deemed unenforceable due to having only one party.

• § 18-102

  Must be such as to distinguish it upon the records in the office of the Secretary of State from the name on such records of any corporation, partnership, limited partnership, statutory trust, limited liability company, registered series of a limited liability company or registered series of a limited partnership reserved, registered, formed or organized under the laws of the State of Delaware or qualified to do business or registered as a foreign corporation, foreign limited partnership, foreign statutory trust, foreign partnership, or foreign limited liability company in the State of Delaware; → Must be such as to distinguish it upon the records in the office of the Secretary of State from the name on such records of any domestic or foreign corporation, partnership, limited partnership, statutory trust, registered series of a limited liability company, registered series of a limited partnership, or foreign limited liability company reserved, registered, formed or organized under the laws of the State of Delaware with the written consent of the other corporation, partnership, limited partnership, statutory trust, registered series of a limited liability company, registered series of a limited partnership, or foreign limited liability company, which written consent shall be filed with the Secretary of State;

  It modifies the name distinction requirement to include domestic entities more explicitly and clarifies the conditions under which a name may not be distinct.

• § 18-104(a)(2)

  A foreign corporation, a foreign partnership (whether general (including a limited liability partnership) or, a foreign limited partnership (including a foreign limited liability limited partnership)), → A foreign corporation, a foreign partnership (whether general (including a limited liability partnership) or limited (including a foreign limited liability limited partnership)),

  The amendment clarifies the types of foreign entities that can serve as registered agents.

• § 18-113(a)(2)

  Whenever this chapter or the limited liability company agreement requires or permits a signature, the signature may be a manual, facsimile, conformed or electronic signature. → Whenever this chapter or the limited liability company agreement requires or permits a signature, the signature may be a manual, facsimile, conformed, or electronic signature. “Electronic signature” means an electronic symbol or process that is attached to, or logically associated with, a document and executed or adopted by a person with the intent to sign the document.

  This change clearly defines electronic signatures and expands the understanding of what constitutes an acceptable signature.

Action History

1. July 16, 2020

   Signed by Governor

2. June 23, 2020

   Passed By Senate. Votes: 21 YES

3. June 23, 2020

   Suspension of Rules in Senate

4. June 18, 2020

   Passed By House. Votes: 40 YES 1 NO

5. June 12, 2020

   Suspension of Rules in House

6. June 05, 2020

   Introduced and Assigned to Judiciary Committee in House

Sponsors

• Krista Griffith · Primary
• William Bush · Primary
• Bryan Townsend · Primary
• Stephanie L. Hansen · Primary
• Darius J. Brown · Primary
• Sean M. Lynn · Primary
• Jeffrey N. Spiegelman · Cosponsor
• Anthony Delcollo · Primary
• Bruce C. Ennis · Cosponsor
• Gerald L. Brady · Cosponsor
• Sherry Dorsey Walker · Cosponsor
• Michael Ramone · Cosponsor

Votes

Subjects