Delaware Update: 2012 Amendments to Business Entity Laws

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1 WHITEPAPER Delaware Update: 2012 Amendments to Business Entity Laws The State of Delaware traditionally revises its business entity laws on an annual basis. If your company is one of the state s nearly one million corporations, LLCs, LPs, or LLPs, it s critical to be aware of these changes. This White Paper summarizes the 2012 amendments; most went into effect as of August 1, 2012, and many are related to filing and registered agent requirements.

2 Introduction Delaware is home to nearly one million operating businesses, including roughly 275,000 corporations, 585,000 LLCs, and 74,000 LPs and LLPs. Many chose Delaware because of its reputation as a business-friendly state, as evidenced in part by the following: Annually updated laws designed to meet the changing needs of the state s businesses. A national reputation for being efficient, modern, responsive to the needs of business, and technologically savvy. The state s filing office the Division of Corporations of the Secretary of State s office is well known for its commitment to continuous improvements in its functions and processes. In fact, it sometimes recommends changes to the business entity laws that it feels would allow the state to serve businesses even more effectively. Given how frequently Delaware s laws change, regularly scheduled reviews are critical. Be aware that 2012 changes are most likely to impact: Your business s internal documents. Documents that are filed with the Secretary of State to complete statutory transactions. Actions related to filings and the registered agent requirements. Changes to the General Corporation Law (GCL) Unless otherwise specified, House Bill No. 342 which went into effect August 1, 2012 enacted a number of amendments to the GCL (Title 8, Chapter 1 of the Delaware Code) including the following: Certificates of Merger, Consolidation and Conversion Secs. 254, 263, 265, and 267 of the GCL, spell out the procedures for carrying out mergers, consolidations, and conversions. As per the amendments, this certificate must be filed with the Secretary of State and must list the entity type for each principal if the transaction involves a business that isn t a Delaware corporation. PRACTICE POINTER: Review forms to make sure they follow new amendments Be aware that you risk having your certificates rejected if they don t include all required information as per Delaware state statute. Be careful to review and revise all merger, consolidation, and conversion forms in light of 2012 amendments both those you ve drafted and those from other sources. August, 2012 Page 2

3 Certificates of Revocation of Dissolution and Renewal of Charter If your company has been involved in the revocation of voluntary dissolution, or the renewal, revival, extension, or restoration of a certification of incorporation, pay careful attention to Secs. 311 and 312. You will now be required to file a certificate that lists the address of your corporation s registered office and includes the street, number, city, country, and postal code. This requirement is in keeping with Sec. 131 (c). Foreign Corporation Reinstatement According to the GCL, if your registered agent either resigns or is prevented from acting as a registered agent by the court, your company as a foreign corporation has 30 days to appoint a new registered agent. If you fail to do so, your corporation s qualification is at risk of forfeit. In the event of forfeiture, an amendment to Sec. 377 now allows your company to be reinstated simply by filing a certificate of reinstatement. PRACTICE POINTER: Companies can file a certificate for reinstatement The reinstatement amendment goes into effect August 1, The filing fee for the certificate of reinstatement will be $10. Foreign Corporation Withdrawal As per an amendment to Sec. 381, withdrawals will now require you to file a certificate of withdrawal rather than a certificate of dissolution. This certificate must be filed in your home jurisdiction. Certificate of Transfer Sec. 390 allows Delaware corporations to transfer to a jurisdiction outside the United States by filing a certificate of transfer that includes the address to which a copy of process served on the Secretary of State can be forwarded. The amendment specifies that the forwarding address can t be that of your registered agent unless you have written consent. If you plan to use your registered agent s address, you must file this written consent along with the certificate of transfer. Fees According to an amendment to Sec. 391, the amounts charged by the Secretary of State for filing documents and providing other services are now called fees instead of taxes. August, 2012 Page 3

4 Amendments to LLC, LP and Partnership Acts As of August 1, 2012, House Bill Nos. 338, 339, and 340, made a number of amendments to the: Delaware Limited Liability Company Act (Title 6, Chapter 18). Delaware Revised Uniform Limited Partnership Act (Title 6, Chapter 17). Delaware Revised Uniform Partnership Act (Title 6, Chapter 15). These amendments include the following: Use of the Word Bank in Name Amendments to Secs , , and state that the word bank, or any variation thereof, can t be used in the name of an LLC, LP, or partnership. Use of these words is limited to certain state- or federally chartered banks or bank holding companies. PRACTICE POINTER: Exceptions for the word bank The law makes an exception if the word bank is used in a context that is clearly not linked to the banking industry or is unlikely to mislead the public. Effective Time of LLC and Partnership Agreements Amendments to Secs and specify that an LLC or partnership agreement may be made effective at the time that the certificate of formation or certificate of limited partnership is filed, regardless of when the agreement was entered into (i.e., before, after, or at the time of filing). Certificates of Merger, Consolidation and Conversion Secs , , , , , and require LLCs, LPs, and partnerships to file a certificate when involved in a merger, consolidation, or conversion. This year s amendments state that the certificate must list the entity type of each principal. Series LLC Sec permits the formation of a series LLC. The 2012 amendment says that the series manager can now ask the Chancery Court to disband the series and select a liquidating trustee. Defense of Usury Amendments to Secs , , and state that when a member or manager is obligated to another member or manager, or a partner to a partnership or LP, that they will not be subject to the defense of usury. August, 2012 Page 4

5 PRACTICE POINTER: Protection for members and partners According to Delaware Law, usury is defined as the charge to a borrower by a lender, directly or indirectly, of a higher rate of interest than that permitted by law. (Title 6, Sec. 2304). This amendment is intended to protect members/partners from usury defenses when their fellow members/partners are indebted to them (such as when a member/partner defaults in a capital call and one or more of the other members/partners contributes the defaulted amount, which, under the LLC or partnership agreement, is treated as an interest-bearing loan to the defaulting member/partner. Winding Up Sec speaks to the wrapping up of an LLC s business affairs. In the past, a manager s personal representative or assignee was allowed to ask the Chancery Court for permission to wind up the LLC s affairs and appoint a liquidating trustee; this year s amendment revokes this provision. Certificate of Transfer Secs , , and now specify that in the event of a certificate of transfer, your forwarding address for service of process can t be that of your LLC s, LP s, or partnership s registered agent unless you have the agent s written consent. You must file this consent at the same time as the certificate of transfer. LLP and LLLP Cancellation Secs and state that if you are an LLP or LLLP and you file a statement of cancellation and become either a regular general partnership or a limited partnership you must file an amendment at the same time as the statement of cancellation that removes the entity indicator from your name. Examples of entity indicators include the following: Limited Liability Partnership, L.L.P., LLP, Limited Liability Limited Partnership, L.L.L.P, and LLLP. Domestication as LLP Sec authorizes a non-united States entity to domesticate as a partnership in the State of Delaware. The amendment seeks to clarify some elements related to LLPs: that the term partnership can include an LLP; that the LLP must file a statement of qualification; and that the partnership agreement must specifically state that the partnership is an LLP. LLP Annual Report Sec states that an LLP must file an Annual Report that specifies the number of partners. This year s amendment clarifies that the number of partners should be as of the date of filing, or, if the report is late, as of June 1 of the year the report was due. August, 2012 Page 5

6 Conclusion As it has in most recent years, the State of Delaware updated its corporation, LLC, LP, and partnership laws in These updates are seen as a way to position the state as being supportive of and responsive to business, helping Delaware to become one of the United States most popular locations for incorporation. While many of these changes may seem minor, failure to follow them could result in your company s paperwork being rejected or lead to delays, higher costs or worse. Familiarize yourself with these changes and update your processes now to avoid future problems College Blvd Suite 210 Overland Park, KS Editor s Note: This document is provided for informational purposes only and does not constitute the provision of legal advice. Review of this material is not a substitute for substantive legal advices from a qualified attorney. Please consult with an attorney to assure compliance with all applicable laws and regulations. 2012, NATIONAL REGISTERED AGENTS, INC. A WOLTERS KLUWER CORPORATE LEGAL SERVICES COMPANY. ALL RIGHTS RESERVED. Page 6

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