Subchapter II. Formation; Certificate of Formation
§ 18-201. Certificate of formation.
(a) In order to form a limited liability company, 1 or more authorized persons must execute a certificate of formation. The
certificate of formation shall be filed in the office of the Secretary of State and set forth:
(1) The name of the limited liability company;
(2) The address of the registered office and the name and address of the registered agent for service of process required
to be maintained by § 18-104 of this title; and
(3) Any other matters the members determine to include therein.
(b) A limited liability company is formed at the time of the filing of the initial certificate of formation in the office
of the Secretary of State or at any later date or time specified in the certificate of formation if, in either case, there
has been substantial compliance with the requirements of this section. A limited liability company formed under this chapter
shall be a separate legal entity, the existence of which as a separate legal entity shall continue until cancellation of the
limited liability company's certificate of formation.
(c) The filing of the certificate of formation in the office of the Secretary of State shall make it unnecessary to file any
other documents under Chapter 31 of this title.
(d) A limited liability company agreement shall be entered into or otherwise existing either before, after or at the time
of the filing of a certificate of formation and, whether entered into or otherwise existing before, after or at the time of
such filing, may be made effective as of the formation of the limited liability company or at such other time or date as provided
in or reflected by the limited liability company agreement.
68 Del. Laws, c. 434, § 1; 69 Del. Laws, c. 260, § 7; 70 Del. Laws, c. 75, § 5; 76 Del. Laws, c. 105, § 9.;
§ 18-202. Amendment to certificate of formation.
(a) A certificate of formation is amended by filing a certificate of amendment thereto in the office of the Secretary of State.
The certificate of amendment shall set forth:
(1) The name of the limited liability company; and
(2) The amendment to the certificate of formation.
(b) A manager or, if there is no manager, then any member who becomes aware that any statement in a certificate of formation
was false when made, or that any matter described has changed making the certificate of formation false in any material respect,
shall promptly amend the certificate of formation.
(c) A certificate of formation may be amended at any time for any other proper purpose.
(d) Unless otherwise provided in this chapter or unless a later effective date or time (which shall be a date or time certain)
is provided for in the certificate of amendment, a certificate of amendment shall be effective at the time of its filing with
the Secretary of State.
68 Del. Laws, c. 434, § 1.;
§ 18-203. Cancellation of certificate.
A certificate of formation shall be canceled upon the dissolution and the completion of winding up of a limited liability
company, or as provided in § 18-104(d) or § 18-104(i)(4) or § 18-1108 of this title, or upon the filing of a certificate of
merger or consolidation or a certificate of ownership and merger if the limited liability company is not the surviving or
resulting entity in a merger or consolidation or upon the future effective date or time of a certificate of merger or consolidation
or a certificate of ownership and merger if the limited liability company is not the surviving or resulting entity in a merger
or consolidation, or upon the filing of a certificate of transfer or upon the future effective date or time of a certificate
of transfer, or upon the filing of a certificate of conversion to non-Delaware entity or upon the future effective date or
time of a certificate of conversion to non-Delaware entity. A certificate of cancellation shall be filed in the office of
the Secretary of State to accomplish the cancellation of a certificate of formation upon the dissolution and the completion
of winding up of a limited liability company and shall set forth:
(1) The name of the limited liability company;
(2) The date of filing of its certificate of formation;
(3) The future effective date or time (which shall be a date or time certain) of cancellation if it is not to be effective
upon the filing of the certificate; and
(4) Any other information the person filing the certificate of cancellation determines.
The Secretary of State shall not issue a certificate of good standing with respect to a limited liability company if its certificate
of formation is canceled.
68 Del. Laws, c. 434, § 1; 70 Del. Laws, c. 75, § 6; 71 Del. Laws, c. 77, § 8; 71 Del. Laws, c. 341, § 2; 72 Del. Laws, c. 389, §§ 4-6; 73 Del. Laws, c. 295, § 4; 74 Del. Laws, c. 85, § 1; 75 Del. Laws, c. 317, § 4; 76 Del. Laws, c. 105, § 10; 77 Del. Laws, c. 287, § 4.;
§ 18-204. Execution.
(a) Each certificate required by this subchapter to be filed in the office of the Secretary of State shall be executed by
1 or more authorized persons or, in the case of a certificate of conversion to limited liability company or certificate of
limited liability company domestication, by any person authorized to execute such certificate on behalf of the other entity
or non-United States entity, respectively, except that a certificate of merger or consolidation filed by a surviving or resulting
other business entity shall be executed by any person authorized to execute such certificate on behalf of such other business
entity.
(b) Unless otherwise provided in a limited liability company agreement, any person may sign any certificate or amendment thereof
or enter into a limited liability company agreement or amendment thereof by an agent, including an attorney-in-fact. An authorization,
including a power of attorney, to sign any certificate or amendment thereof or to enter into a limited liability company agreement
or amendment thereof need not be in writing, need not be sworn to, verified or acknowledged, and need not be filed in the
office of the Secretary of State, but if in writing, must be retained by the limited liability company.
(c) For all purposes of the laws of the State of Delaware, a power of attorney with respect to matters relating to the organization,
internal affairs or termination of a limited liability company or granted by a person as a member or assignee of a limited
liability company interest or by a person seeking to become a member or an assignee of a limited liability company interest
shall be irrevocable if it states that it is irrevocable and it is coupled with an interest sufficient in law to support an
irrevocable power. Such irrevocable power of attorney, unless otherwise provided therein, shall not be affected by subsequent
death, disability, incapacity, dissolution, termination of existence or bankruptcy of, or any other event concerning, the
principal. A power of attorney with respect to matters relating to the organization, internal affairs or termination of a
limited liability company or granted by a person as a member or an assignee of a limited liability company interest or by
a person seeking to become a member or an assignee of a limited liability company interest and, in either case, granted to
the limited liability company, a manager or member thereof, or any of their respective officers, directors, managers, members,
partners, trustees, employees or agents shall be deemed coupled with an interest sufficient in law to support an irrevocable
power.
(d) The execution of a certificate by a person who is authorized by this chapter to execute such certificate constitutes an
oath or affirmation, under the penalties of perjury in the third degree, that, to the best of such person's knowledge and
belief, the facts stated therein are true.
68 Del. Laws, c. 434, § 1; 76 Del. Laws, c. 387, §§ 4, 5; 77 Del. Laws, c. 58, § 2; 77 Del. Laws, c. 287, § 5.;
§ 18-205. Execution, amendment or cancellation by judicial order.
(a) If a person required to execute a certificate required by this subchapter fails or refuses to do so, any other person
who is adversely affected by the failure or refusal may petition the Court of Chancery to direct the execution of the certificate.
If the Court finds that the execution of the certificate is proper and that any person so designated has failed or refused
to execute the certificate, it shall order the Secretary of State to record an appropriate certificate.
(b) If a person required to execute a limited liability company agreement or amendment thereof fails or refuses to do so,
any other person who is adversely affected by the failure or refusal may petition the Court of Chancery to direct the execution
of the limited liability company agreement or amendment thereof. If the Court finds that the limited liability company agreement
or amendment thereof should be executed and that any person required to execute the limited liability company agreement or
amendment thereof has failed or refused to do so, it shall enter an order granting appropriate relief.
68 Del. Laws, c. 434, § 1.;
§ 18-206. Filing.
(a) The signed copy of the certificate of formation and of any certificates of amendment, correction, amendment of a certificate
with a future effective date or time, termination of a certificate with a future effective date or time or cancellation (or
of any judicial decree of amendment or cancellation), and of any certificate of merger or consolidation, any certificate of
ownership and merger, any restated certificate, any corrected certificate, any certificate of conversion to limited liability
company, any certificate of conversion to a non-Delaware entity, any certificate of transfer, any certificate of transfer
and domestic continuance, any certificate of limited liability company domestication, and of any certificate of revival shall
be delivered to the Secretary of State. A person who executes a certificate as an agent or fiduciary need not exhibit evidence
of that person's authority as a prerequisite to filing. Any signature on any certificate authorized to be filed with the Secretary
of State under any provision of this chapter may be a facsimile, a conformed signature or an electronically transmitted signature.
Upon delivery of any certificate, the Secretary of State shall record the date and time of its delivery. Unless the Secretary
of State finds that any certificate does not conform to law, upon receipt of all filing fees required by law the Secretary
of State shall:
(1) Certify that the certificate of formation, the certificate of amendment, the certificate of correction, the certificate
of amendment of a certificate with a future effective date or time, the certificate of termination of a certificate with a
future effective date or time, the certificate of cancellation (or of any judicial decree of amendment or cancellation), the
certificate of merger or consolidation, the certificate of ownership and merger, the restated certificate, the corrected certificate,
the certificate of conversion to limited liability company, the certificate of conversion to a non-Delaware entity, the certificate
of transfer, the certificate of transfer and domestic continuance, the certificate of limited liability company domestication
or the certificate of revival has been filed in the Secretary of State's office by endorsing upon the signed certificate the
word "Filed," and the date and time of the filing. This endorsement is conclusive of the date and time of its filing in the
absence of actual fraud. Except as provided in subdivision (a)(5) or (a)(6) of this section, such date and time of filing
of a certificate shall be the date and time of delivery of the certificate;
(2) File and index the endorsed certificate;
(3) Prepare and return to the person who filed it or that person's representative a copy of the signed certificate, similarly
endorsed, and shall certify such copy as a true copy of the signed certificate; and
(4) Cause to be entered 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 and a copy of such certificate shall be permanently maintained as a public record on a suitable medium. The Secretary
of State is authorized to grant direct access to such system to registered agents subject to the execution of an operating
agreement between the Secretary of State and such registered agent. Any registered agent granted such access shall demonstrate
the existence of policies to ensure that information entered into the system accurately reflects the content of certificates
in the possession of the registered agent at the time of entry.
(5) Upon request made upon or prior to delivery, the Secretary of State may, to the extent deemed practicable, establish as
the date and time of filing of a certificate a date and time after its delivery. If the Secretary of State refuses to file
any certificate due to an error, omission or other imperfection, the Secretary of State may hold such certificate in suspension,
and in such event, upon delivery of a replacement certificate in proper form for filing and tender of the required fees within
5 business days after notice of such suspension is given to the filer, the Secretary of State shall establish as the date
and time of filing of such certificate the date and time that would have been the date and time of filing of the rejected
certificate had it been accepted for filing. The Secretary of State shall not issue a certificate of good standing with respect
to any limited liability company with a certificate held in suspension pursuant to this subsection. The Secretary of State
may establish as the date and time of filing of a certificate the date and time at which information from such certificate
is entered pursuant to subdivision (a)(4) of this section if such certificate is delivered on the same date and within 4 hours
after such information is entered.
(6) If:
a. Together with the actual delivery of a certificate and tender of the required fees, there is delivered to the Secretary
of State a separate affidavit (which in its heading shall be designated as an affidavit of extraordinary condition) attesting,
on the basis of personal knowledge of the affiant or a reliable source of knowledge identified in the affidavit, that an earlier
effort to deliver such certificate and tender such fees was made in good faith, specifying the nature, date and time of such
good faith effort and requesting that the Secretary of State establish such date and time as the date and time of filing of
such certificate; or
b. Upon the actual delivery of a certificate and tender of the required fees, the Secretary of State in the Secretary of State's
own discretion provides a written waiver of the requirement for such an affidavit stating that it appears to the Secretary
of State that an earlier effort to deliver such certificate and tender such fees was made in good faith and specifying the
date and time of such effort; and
c. The Secretary of State determines that an extraordinary condition existed at such date and time, that such earlier effort
was unsuccessful as a result of the existence of such extraordinary condition, and that such actual delivery and tender were
made within a reasonable period (not to exceed 2 business days) after the cessation of such extraordinary condition, then
the Secretary of State may establish such date and time as the date and time of filing of such certificate. No fee shall be
paid to the Secretary of State for receiving an affidavit of extraordinary condition. For purposes of this subsection, an
extraordinary condition means: any emergency resulting from an attack on, invasion or occupation by foreign military forces
of, or disaster, catastrophe, war or other armed conflict, revolution or insurrection or rioting or civil commotion in, the
United States or a locality in which the Secretary of State conducts its business or in which the good faith effort to deliver
the certificate and tender the required fees is made, or the immediate threat of any of the foregoing; or any malfunction
or outage of the electrical or telephone service to the Secretary of State's office, or weather or other condition in or about
a locality in which the Secretary of State conducts its business, as a result of which the Secretary of State's office is
not open for the purpose of the filing of certificates under this chapter or such filing cannot be effected without extraordinary
effort. The Secretary of State may require such proof as it deems necessary to make the determination required under this
subparagraph of subdivision (a)(6), and any such determination shall be conclusive in the absence of actual fraud. If the
Secretary of State establishes the date and time of filing of a certificate pursuant to this subsection, the date and time
of delivery of the affidavit of extraordinary condition or the date and time of the Secretary of State's written waiver of
such affidavit shall be endorsed on such affidavit or waiver and such affidavit or waiver, so endorsed, shall be attached
to the filed certificate to which it relates. Such filed certificate shall be effective as of the date and time established
as the date and time of filing by the Secretary of State pursuant to this subsection, except as to those persons who are substantially
and adversely affected by such establishment and, as to those persons, the certificate shall be effective from the date and
time endorsed on the affidavit of extraordinary condition or written waiver attached thereto.
(b) Upon the filing of a certificate of amendment (or judicial decree of amendment), certificate of correction, corrected
certificate or restated certificate in the office of the Secretary of State, or upon the future effective date or time of
a certificate of amendment (or judicial decree thereof) or restated certificate, as provided for therein, the certificate
of formation shall be amended, corrected or restated as set forth therein. Upon the filing of a certificate of cancellation
(or a judicial decree thereof), or a certificate of merger or consolidation or certificate of ownership and merger which acts
as a certificate of cancellation 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 certificate of cancellation (or a judicial decree thereof) or of a certificate
of merger or consolidation or certificate of ownership and merger which acts as a certificate of cancellation or a certificate
of transfer, or a certificate of conversion to a non-Delaware entity, as provided for therein, or as specified in § 18-104(d),
§ 18-104(i)(4) or § 18-1108(a) of this title, the certificate of formation is canceled. Upon the filing of a certificate of
limited liability company domestication or upon the future effective date or time of a certificate of limited liability company
domestication, the entity filing the certificate of limited liability company domestication is domesticated as a limited liability
company with the effect provided in § 18-212 of this title. Upon the filing of a certificate of conversion to limited liability
company or upon the future effective date or time of a certificate of conversion to limited liability company, the entity
filing the certificate of conversion to limited liability company is converted to a limited liability company with the effect
provided in § 18-214 of this title. Upon the filing of a certificate of revival, the limited liability company is revived
with the effect provided in § 18-1109 of this title. Upon the filing of a certificate of transfer and domestic continuance,
or upon the future effective date or time of a certificate of transfer and domestic continuance, as provided for therein,
the limited liability company filing the certificate of transfer and domestic continuance shall continue to exist as a limited
liability company of the State of Delaware with the effect provided in § 18-213 of this title.
(c) If any certificate filed in accordance with this chapter provides for a future effective date or time and if, prior to
such future effective date or time set forth in such certificate, the transaction is terminated or its terms are amended to
change the future effective date or time or any other matter described in such certificate so as to make such certificate
false or inaccurate in any respect, such certificate shall, prior to the future effective date or time set forth in such certificate,
be terminated or amended by the filing of a certificate of termination or certificate of amendment of such certificate, executed
in accordance with § 18-204 of this title, which shall identify the certificate which has been terminated or amended and shall
state that the certificate has been terminated or the manner in which it has been amended. Upon the filing of a certificate
of amendment of a certificate with a future effective date or time, the certificate identified in such certificate of amendment
is amended. Upon the filing of a certificate of termination of a certificate with a future effective date or time, the certificate
identified in such certificate of termination is terminated.
(d) A fee as set forth in § 18-1105(a)(3) of this title shall be paid at the time of the filing of a certificate of formation,
a certificate of amendment, a certificate of correction, a certificate of amendment of a certificate with a future effective
date or time, a certificate of termination of a certificate with a future effective date or time, a certificate of cancellation,
a certificate of merger or consolidation, a certificate of ownership and merger, a restated certificate, a corrected certificate,
a certificate of conversion to limited liability company, a certificate of conversion to a non-Delaware entity, a certificate
of transfer, a certificate of transfer and domestic continuance, a certificate of limited liability company domestication
or a certificate of revival.
(e) The Secretary of State, acting as agent, shall collect and deposit in a separate account established exclusively for that
purpose, a courthouse municipality fee with respect to each filed instrument and shall thereafter monthly remit funds from
such account to the treasuries of the municipalities designated in § 301 of Title 10. Said fees shall be for the purposes
of defraying certain costs incurred by such municipalities in hosting the primary locations for the Delaware Courts. The fee
to such municipalities shall be $20 for each instrument filed with the Secretary of State in accordance with this section.
The municipality to receive the fee shall be the municipality designated in § 301 of Title 10 in the county in which the limited
liability company's registered office in this State is, or is to be, located, except that a fee shall not be charged for a
document filed in accordance with subchapter IX of this chapter.
(f) A fee as set forth in § 18-1105(a)(4) of this title shall be paid for a certified copy of any paper on file as provided
for by this chapter, and a fee as set forth in § 18-1105(a)(5) of this title shall be paid for each page copied.
68 Del. Laws, c. 434, § 1; 69 Del. Laws, c. 260, §§ 8-11; 70 Del. Laws, c. 75, §§ 7-15; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 360, §§ 1-4; 71 Del. Laws, c. 77, §§ 9-12; 73 Del. Laws, c. 83, §§ 4-10; 73 Del. Laws, c. 295, § 5; 74 Del. Laws, c. 85, §§ 2-10; 74 Del. Laws, c. 119, § 1; 75 Del. Laws, c. 317, § 5; 76 Del. Laws, c. 105, §§ 11-14; 77 Del. Laws, c. 287, §§ 6-8.;
§ 18-207. Notice.
The fact that a certificate of formation is on file in the office of the Secretary of State is notice that the entity formed
in connection with the filing of the certificate of formation is a limited liability company formed under the laws of the
State of Delaware and is notice of all other facts set forth therein which are required to be set forth in a certificate of
formation by § 18-201(a)(1) and (2) of this title and which are permitted to be set forth in a certificate of formation by
§ 18-215(b) of this title.
68 Del. Laws, c. 434, § 1; 70 Del. Laws, c. 360, § 5.;
§ 18-208. Restated certificate.
(a) A limited liability company may, whenever desired, integrate into a single instrument all of the provisions of its certificate
of formation which are then in effect and operative as a result of there having theretofore been filed with the Secretary
of State 1 or more certificates or other instruments pursuant to any of the sections referred to in this subchapter, and it
may at the same time also further amend its certificate of formation by adopting a restated certificate of formation.
(b) If a restated certificate of formation merely restates and integrates but does not further amend the initial certificate
of formation, as theretofore amended or supplemented by any instrument that was executed and filed pursuant to any of the
sections in this subchapter, it shall be specifically designated in its heading as a "Restated Certificate of Formation" together
with such other words as the limited liability company may deem appropriate and shall be executed by an authorized person
and filed as provided in § 18-206 of this title in the office of the Secretary of State. If a restated certificate restates
and integrates and also further amends in any respect the certificate of formation, as theretofore amended or supplemented,
it shall be specifically designated in its heading as an "Amended and Restated Certificate of Formation" together with such
other words as the limited liability company may deem appropriate and shall be executed by at least 1 authorized person, and
filed as provided in § 18-206 of this title in the office of the Secretary of State.
(c) A restated certificate of formation shall state, either in its heading or in an introductory paragraph, the limited liability
company's present name, and, if it has been changed, the name under which it was originally filed, and the date of filing
of its original certificate of formation with the Secretary of State, and the future effective date or time (which shall be
a date or time certain) of the restated certificate if it is not to be effective upon the filing of the restated certificate.
A restated certificate shall also state that it was duly executed and is being filed in accordance with this section. If a
restated certificate only restates and integrates and does not further amend a limited liability company's certificate of
formation as theretofore amended or supplemented and there is no discrepancy between those provisions and the restated certificate,
it shall state that fact as well.
(d) Upon the filing of a restated certificate of formation with the Secretary of State, or upon the future effective date
or time of a restated certificate of formation as provided for therein, the initial certificate of formation, as theretofore
amended or supplemented, shall be superseded; thenceforth, the restated certificate of formation, including any further amendment
or changes made thereby, shall be the certificate of formation of the limited liability company, but the original effective
date of formation shall remain unchanged.
(e) Any amendment or change effected in connection with the restatement and integration of the certificate of formation shall
be subject to any other provision of this chapter, not inconsistent with this section, which would apply if a separate certificate
of amendment were filed to effect such amendment or change.
68 Del. Laws, c. 434, § 1.;
§ 18-209. Merger and consolidation.
(a) As used in this section and in § 18-204 of this title, "other business entity" means a corporation, a statutory trust,
a business trust, an association, a real estate investment trust, a common-law trust, or any other unincorporated business
or entity, including a partnership (whether general (including a limited liability partnership) or limited (including a limited
liability limited partnership)), and a foreign limited liability company, but excluding a domestic limited liability company.
As used in this section and in §§ 18-210 and 18-301 of this title, "plan of merger" means a writing approved by a domestic
limited liability company, in the form of resolutions or otherwise, that states the terms and conditions of a merger under
subsection (i) of this section.
(b) Pursuant to an agreement of merger or consolidation, 1 or more domestic limited liability companies may merge or consolidate
with or into 1 or more domestic limited liability companies or 1 or more other business entities formed or organized under
the laws of the State of Delaware or any other state or the United States or any foreign country or other foreign jurisdiction,
or any combination thereof, with such domestic limited liability company or other business entity as the agreement shall provide
being the surviving or resulting domestic limited liability company or other business entity. Unless otherwise provided in
the limited liability company agreement, an agreement of merger or consolidation or a plan of merger shall be approved by
each domestic limited liability company which is to merge or consolidate by the members or, if there is more than one class
or group of members, then by each class or group of members, in either case, by members who own more than 50 percent of the
then current percentage or other interest in the profits of the domestic limited liability company owned by all of the members
or by the members in each class or group, as appropriate. In connection with a merger or consolidation hereunder, rights
or securities of, or interests in, a domestic limited liability company or other business entity which is a constituent party
to the merger or consolidation may be exchanged for or converted into cash, property, rights or securities of, or interests
in, the surviving or resulting domestic limited liability company or other business entity or, in addition to or in lieu thereof,
may be exchanged for or converted into cash, property, rights or securities of, or interests in, a domestic limited liability
company or other business entity which is not the surviving or resulting limited liability company or other business entity
in the merger or consolidation or may be cancelled. Notwithstanding prior approval, an agreement of merger or consolidation
or a plan of merger may be terminated or amended pursuant to a provision for such termination or amendment contained in the
agreement of merger or consolidation or plan of merger.
(c) Except in the case of a merger under subsection (i) of this section, if a domestic limited liability company is merging
or consolidating under this section, the domestic limited liability company or other business entity surviving or resulting
in or from the merger or consolidation shall file a certificate of merger or consolidation executed by 1 or more authorized
persons on behalf of the domestic limited liability company when it is the surviving or resulting entity in the office of
the Secretary of State. The certificate of merger or consolidation shall state:
(1) The name and jurisdiction of formation or organization of each of the domestic limited liability companies and other business
entities which is to merge or consolidate;
(2) That an agreement of merger or consolidation has been approved and executed by each of the domestic limited liability
companies and other business entities which is to merge or consolidate;
(3) The name of the surviving or resulting domestic limited liability company or other business entity;
(4) In the case of a merger in which a domestic limited liability company is the surviving entity, such amendments, if any,
to the certificate of formation of the surviving domestic limited liability company to change its name, registered office
or registered agent as are desired to be effected by the merger;
(5) The future effective date or time (which shall be a date or time certain) of the merger or consolidation if it is not
to be effective upon the filing of the certificate of merger or consolidation;
(6) That the agreement of merger or consolidation is on file at a place of business of the surviving or resulting domestic
limited liability company or other business entity, and shall state the address thereof;
(7) That a copy of the agreement of merger or consolidation will be furnished by the surviving or resulting domestic limited
liability company or other business entity, on request and without cost, to any member of any domestic limited liability company
or any person holding an interest in any other business entity which is to merge or consolidate; and
(8) If the surviving or resulting entity is not a domestic limited liability company, or a corporation, partnership (whether
general (including a limited liability partnership) or limited (including a limited liability limited partnership)) or statutory
trust organized under the laws of the State of Delaware, a statement that such surviving or resulting other business entity
agrees that it may be served with process in the State of Delaware in any action, suit or proceeding for the enforcement of
any obligation of any domestic limited liability company which is to merge or consolidate, irrevocably appointing the Secretary
of State as its agent to accept service of process in any such action, suit or proceeding and specifying the address to which
a copy of such process shall be mailed to it by the Secretary of State. Process may be served upon the Secretary of State
under this subsection by means of electronic transmission but only as prescribed by the Secretary of State. The Secretary
of State is authorized to issue such rules and regulations with respect to such service as the Secretary of State deems necessary
or appropriate. In the event of service hereunder upon the Secretary of State, the procedures set forth in § 18-911(c) of
this title shall be applicable, except that the plaintiff in any such action, suit or proceeding shall furnish the Secretary
of State with the address specified in the certificate of merger or consolidation provided for in this section and any other
address which the plaintiff may elect to furnish, together with copies of such process as required by the Secretary of State,
and the Secretary of State shall notify such surviving or resulting other business entity at all such addresses furnished
by the plaintiff in accordance with the procedures set forth in § 18-911(c) of this title.
(d) Unless a future effective date or time is provided in a certificate of merger or consolidation, or in the case of a merger
under subsection (i) of this section in a certificate of ownership and merger, in which event a merger or consolidation shall
be effective at any such future effective date or time, a merger or consolidation shall be effective upon the filing in the
office of the Secretary of State of a certificate of merger or consolidation or a certificate of ownership and merger.
(e) A certificate of merger or consolidation or a certificate of ownership and merger shall act as a certificate of cancellation
for a domestic limited liability company which is not the surviving or resulting entity in the merger or consolidation. A
certificate of merger that sets forth any amendment in accordance with subsection (c)(4) of this section shall be deemed to
be an amendment to the certificate of formation of the limited liability company, and the limited liability company shall
not be required to take any further action to amend its certificate of formation under § 18-202 of this title with respect
to such amendments set forth in the certificate of merger. Whenever this section requires the filing of a certificate of merger
or consolidation, such requirement shall be deemed satisfied by the filing of an agreement of merger or consolidation containing
the information required by this section to be set forth in the certificate of merger or consolidation.
(f) An agreement of merger or consolidation or a plan of merger approved in accordance with subsection (b) of this section
may:
(1) Effect any amendment to the limited liability company agreement; or
(2) Effect the adoption of a new limited liability company agreement, for a limited liability company if it is the surviving
or resulting limited liability company in the merger or consolidation.
Any amendment to a limited liability company agreement or adoption of a new limited liability company agreement made pursuant
to the foregoing sentence shall be effective at the effective time or date of the merger or consolidation and shall be effective
notwithstanding any provision of the limited liability company agreement relating to amendment or adoption of a new limited
liability company agreement, other than a provision that by its terms applies to an amendment to the limited liability company
agreement or the adoption of a new limited liability company agreement, in either case, in connection with a merger or consolidation.
The provisions of this subsection shall not be construed to limit the accomplishment of a merger or of any of the matters
referred to herein by any other means provided for in a limited liability company agreement or other agreement or as otherwise
permitted by law, including that the limited liability company agreement of any constituent limited liability company to the
merger or consolidation (including a limited liability company formed for the purpose of consummating a merger or consolidation)
shall be the limited liability company agreement of the surviving or resulting limited liability company.
(g) When any merger or consolidation shall have become effective under this section, for all purposes of the laws of the State
of Delaware, all of the rights, privileges and powers of each of the domestic limited liability companies and other business
entities that have merged or consolidated, and all property, real, personal and mixed, and all debts due to any of said domestic
limited liability companies and other business entities, as well as all other things and causes of action belonging to each
of such domestic limited liability companies and other business entities, shall be vested in the surviving or resulting domestic
limited liability company or other business entity, and shall thereafter be the property of the surviving or resulting domestic
limited liability company or other business entity as they were of each of the domestic limited liability companies and other
business entities that have merged or consolidated, and the title to any real property vested by deed or otherwise, under
the laws of the State of Delaware, in any of such domestic limited liability companies and other business entities, shall
not revert or be in any way impaired by reason of this chapter; but all rights of creditors and all liens upon any property
of any of said domestic limited liability companies and other business entities shall be preserved unimpaired, and all debts,
liabilities and duties of each of the said domestic limited liability companies and other business entities that have merged
or consolidated shall thenceforth attach to the surviving or resulting domestic limited liability company or other business
entity, and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred or contracted
by it. Unless otherwise agreed, a merger or consolidation of a domestic limited liability company, including a domestic limited
liability company which is not the surviving or resulting entity in the merger or consolidation, shall not require such domestic
limited liability company to wind up its affairs under § 18-803 of this title or pay its liabilities and distribute its assets
under § 18-804 of this title, and the merger or consolidation shall not constitute a dissolution of such limited liability
company.
(h) A limited liability company agreement may provide that a domestic limited liability company shall not have the power to
merge or consolidate as set forth in this section.
(i) In any case in which (i) at least 90% of the outstanding shares of each class of the stock of a corporation or corporations
(other than a corporation which has in its certificate of incorporation the provision required by § 251(g)(7)(i) of Title
8), of which class there are outstanding shares that, absent § 267(a) of Title 8, would be entitled to vote on such merger,
is owned by a domestic limited liability company, (ii) 1 or more of such corporations is a corporation of the State of Delaware,
and (iii) any corporation that is not a corporation of the State of Delaware is a corporation of any other state or the District
of Columbia or another jurisdiction, the laws of which do not forbid such merger, the domestic limited liability company having
such stock ownership may either merge the corporation or corporations into itself and assume all of its or their obligations,
or merge itself, or itself and 1 or more of such corporations, into 1 of the other corporations, pursuant to a plan of merger.
If a domestic limited liability company is causing a merger under this subsection, the domestic limited liability company
shall file a certificate of ownership and merger executed by 1 or more authorized persons on behalf of the domestic limited
liability company in the office of the Secretary of State. The certificate of ownership and merger shall certify that such
merger was authorized in accordance with the domestic limited liability company's limited liability company agreement and
this chapter, and if the domestic limited liability company shall not own all the outstanding stock of all the corporations
that are parties to the merger, shall state the terms and conditions of the merger, including the securities, cash, property,
or rights to be issued, paid, delivered or granted by the surviving domestic limited liability company or corporation upon
surrender of each share of the corporation or corporations not owned by the domestic limited liability company, or the cancellation
of some or all of such shares. If a corporation surviving a merger under this subsection is not a corporation organized under
the laws of the State of Delaware, then the terms and conditions of the merger shall obligate such corporation to agree that
it may be served with process in the State of Delaware in any proceeding for enforcement of any obligation of the domestic
limited liability company or any obligation of any constituent corporation of the State of Delaware, as well as for enforcement
of any obligation of the surviving corporation, including any suit or other proceeding to enforce the right of any stockholders
as determined in appraisal proceedings pursuant to § 262 of Title 8, and to irrevocably appoint the Secretary of State as
its agent to accept service of process in any such suit or other proceedings, and to specify the address to which a copy of
such process shall be mailed by the Secretary of State. Process may be served upon the Secretary of State under this subsection
by means of electronic transmission but only as prescribed by the Secretary of State. The Secretary of State is authorized
to issue such rules and regulations with respect to such service as the Secretary of State deems necessary or appropriate.
In the event of such service upon the Secretary of State in accordance with this subsection, the Secretary of State shall
forthwith notify such surviving corporation thereof by letter, directed to such surviving corporation at its address so specified,
unless such surviving corporation shall have designated in writing to the Secretary of State a different address for such
purpose, in which case it shall be mailed to the last address so designated. Such letter shall be sent by a mail or courier
service that includes a record of mailing or deposit with the courier and a record of delivery evidenced by the signature
of the recipient. Such letter shall enclose a copy of the process and any other papers served on the Secretary of State pursuant
to this subsection. It shall be the duty of the plaintiff in the event of such service to serve process and any other papers
in duplicate, to notify the Secretary of State that service is being effected pursuant to this subsection and to pay the Secretary
of State the sum of $50 for the use of the State of Delaware, which sum shall be taxed as part of the costs in the proceeding,
if the plaintiff shall prevail therein. The Secretary of State shall maintain an alphabetical record of any such service setting
forth the name of the plaintiff and the defendant, the title, docket number and nature of the proceeding in which process
has been served, the fact that service has been effected pursuant to this subsection, the return date thereof, and the day
and hour service was made. The Secretary of State shall not be required to retain such information longer than 5 years from
receipt of the service of process.
68 Del. Laws, c. 434, § 1; 69 Del. Laws, c. 260, §§ 12, 13; 70 Del. Laws, c. 75, §§ 16, 17; 71 Del. Laws, c. 341, §§ 3-7; 72 Del. Laws, c. 389, § 7; 73 Del. Laws, c. 83, § 11; 73 Del. Laws, c. 329, §§ 27, 28; 74 Del. Laws, c. 275, §§ 2-4; 75 Del. Laws, c. 317, § 6; 76 Del. Laws, c. 105, §§ 15-18; 77 Del. Laws, c. 58, §§ 3-5; 77 Del. Laws, c. 287, §§ 9-16.;
§ 18-210. Contractual appraisal rights.
A limited liability company agreement or an agreement of merger or consolidation or a plan of merger may provide that contractual
appraisal rights with respect to a limited liability company interest or another interest in a limited liability company shall
be available for any class or group or series of members or limited liability company interests in connection with any amendment
of a limited liability company agreement, any merger or consolidation in which the limited liability company is a constituent
party to the merger or consolidation, any conversion of the limited liability company to another business form, any transfer
to or domestication or continuance in any jurisdiction by the limited liability company, or the sale of all or substantially
all of the limited liability company's assets. The Court of Chancery shall have jurisdiction to hear and determine any matter
relating to any such appraisal rights.
69 Del. Laws, c. 260, § 14; 73 Del. Laws, c. 295, § 6; 76 Del. Laws, c. 105, § 19; 77 Del. Laws, c. 287, § 17.;
§ 18-211. Certificate of correction.
(a) Whenever any certificate authorized to be filed with the office of the Secretary of State under any provision of this
chapter has been so filed and is an inaccurate record of the action therein referred to, or was defectively or erroneously
executed, such certificate may be corrected by filing with the office of the Secretary of State a certificate of correction
of such certificate. The certificate of correction shall specify the inaccuracy or defect to be corrected, shall set forth
the portion of the certificate in corrected form, and shall be executed and filed as required by this chapter. The certificate
of correction shall be effective as of the date the original certificate was filed, except as to those persons who are substantially
and adversely affected by the correction, and as to those persons the certificate of correction shall be effective from the
filing date.
(b) In lieu of filing a certificate of correction, a certificate may be corrected by filing with the Secretary of State a
corrected certificate which shall be executed and filed as if the corrected certificate were the certificate being corrected,
and a fee equal to the fee payable to the Secretary of State if the certificate being corrected were then being filed shall
be paid and collected by the Secretary of State for the use of the State of Delaware in connection with the filing of the
corrected certificate. The corrected certificate shall be specifically designated as such in its heading, shall specify the
inaccuracy or defect to be corrected and shall set forth the entire certificate in corrected form. A certificate corrected
in accordance with this section shall be effective as of the date the original certificate was filed, except as to those persons
who are substantially and adversely affected by the correction and as to those persons the certificate as corrected shall
be effective from the filing date.
69 Del. Laws, c. 260, § 15; 71 Del. Laws, c. 77, § 13.;
§ 18-212. Domestication of non-United States entities.
(a) As used in this section and in § 18-204 of this title, "non-United States entity" means a foreign limited liability company
(other than one formed under the laws of a state) or a corporation, a statutory trust, a business trust, an association, a
real estate investment trust, a common-law trust or any other unincorporated business or entity, including a partnership (whether
general (including a limited liability partnership) or limited (including a limited liability limited partnership)) formed,
incorporated, created or that otherwise came into being under the laws of any foreign country or other foreign jurisdiction
(other than any state).
(b) Any non-United States entity may become domesticated as a limited liability company in the State of Delaware by complying
with subsection (g) of this section and filing in the office of the Secretary of State in accordance with § 18-206 of this
title:
(1) A certificate of limited liability company domestication that has been executed in accordance with § 18-204 of this title;
and
(2) A certificate of formation that complies with § 18-201 of this title and has been executed by 1 or more authorized persons
in accordance with § 18-204 of this title.
(c) The certificate of limited liability company domestication shall state:
(1) The date on which and jurisdiction where the non-United States entity was first formed, incorporated, created or otherwise
came into being;
(2) The name of the non-United States entity immediately prior to the filing of the certificate of limited liability company
domestication;
(3) The name of the limited liability company as set forth in the certificate of formation filed in accordance with subsection
(b) of this section;
(4) The future effective date or time (which shall be a date or time certain) of the domestication as a limited liability
company if it is not to be effective upon the filing of the certificate of limited liability company domestication and the
certificate of formation;
(5) The jurisdiction that constituted the seat, siege social, or principal place of business or central administration of
the non-United States entity, or any other equivalent thereto under applicable law, immediately prior to the filing of the
certificate of limited liability company domestication; and
(6) That the domestication has been approved in the manner provided for by the document, instrument, agreement or other writing,
as the case may be, governing the internal affairs of the non-United States entity and the conduct of its business or by applicable
non-Delaware law, as appropriate.
(d) Upon the filing in the office of the Secretary of State of the certificate of limited liability company domestication
and the certificate of formation or upon the future effective date or time of the certificate of limited liability company
domestication and the certificate of formation, the non-United States entity shall be domesticated as a limited liability
company in the State of Delaware and the limited liability company shall thereafter be subject to all of the provisions of
this chapter, except that notwithstanding § 18-201 of this title, the existence of the limited liability company shall be
deemed to have commenced on the date the non-United States entity commenced its existence in the jurisdiction in which the
non-United States entity was first formed, incorporated, created or otherwise came into being.
(e) The domestication of any non-United States entity as a limited liability company in the State of Delaware shall not be
deemed to affect any obligations or liabilities of the non-United States entity incurred prior to its domestication as a limited
liability company in the State of Delaware, or the personal liability of any person therefor.
(f) The filing of a certificate of limited liability company domestication shall not affect the choice of law applicable to
the non-United States entity, except that from the effective date or time of the domestication, the law of the State of Delaware,
including the provisions of this chapter, shall apply to the non-United States entity to the same extent as if the non-United
States entity had been formed as a limited liability company on that date.
(g) Prior to the filing of a certificate of limited liability company domestication with the Office of the Secretary of State,
the domestication shall be approved in the manner provided for by the document, instrument, agreement or other writing, as
the case may be, governing the internal affairs of the non-United States entity and the conduct of its business or by applicable
non-Delaware law, as appropriate, and a limited liability company agreement shall be approved by the same authorization required
to approve the domestication.
(h) When any domestication shall have become effective under this section, for all purposes of the laws of the State of Delaware,
all of the rights, privileges and powers of the non-United States entity that has been domesticated, and all property, real,
personal and mixed, and all debts due to such non-United States entity, as well as all other things and causes of action belonging
to such non-United States entity, shall remain vested in the domestic limited liability company to which such non-United States
entity has been domesticated (and also in the non-United States entity, if and for so long as the non-United States entity
continues its existence in the foreign jurisdiction in which it was existing immediately prior to the domestication) and shall
be the property of such domestic limited liability company (and also of the non-United States entity, if and for so long
as the non-United States entity continues its existence in the foreign jurisdiction in which it was existing immediately prior
to the domestication), and the title to any real property vested by deed or otherwise in such non-United States entity shall
not revert or be in any way impaired by reason of this chapter; but all rights of creditors and all liens upon any property
of such non-United States entity shall be preserved unimpaired, and all debts, liabilities and duties of the non-United States
entity that has been domesticated shall remain attached to the domestic limited liability company to which such non-United
States entity has been domesticated (and also to the non-United States entity, if and for so long as the non-United States
entity continues its existence in the foreign jurisdiction in which it was existing immediately prior to the domestication),
and may be enforced against it to the same extent as if said debts, liabilities and duties had originally been incurred or
contracted by it in its capacity as a domestic limited liability company. The rights, privileges, powers and interests in
property of the non-United States entity, as well as the debts, liabilities and duties of the non-United States entity, shall
not be deemed, as a consequence of the domestication, to have been transferred to the domestic limited liability company to
which such non-United States entity has domesticated for any purpose of the laws of the State of Delaware.
(i) When a non-United States entity has become domesticated as a limited liability company pursuant to this section, for all
purposes of the laws of the State of Delaware, the limited liability company shall be deemed to be the same entity as the
domesticating non-United States entity and the domestication shall constitute a continuation of the existence of the domesticating
non-United States entity in the form of a domestic limited liability company. Unless otherwise agreed, for all purposes of
the laws of the State of Delaware, the domesticating non-United States entity shall not be required to wind up its affairs
or pay its liabilities and distribute its assets, and the domestication shall not be deemed to constitute a dissolution of
such non-United States entity. If, following domestication, a non-United States entity that has become domesticated as a limited
liability company continues its existence in the foreign country or other foreign jurisdiction in which it was existing immediately
prior to domestication, the limited liability company and such non-United States entity shall, for all purposes of the laws
of the State of Delaware, constitute a single entity formed, incorporated, created or otherwise having come into being, as
applicable, and existing under the laws of the State of Delaware and the laws of such foreign country or other foreign jurisdiction.
(j) In connection with a domestication hereunder, rights or securities of, or interests in, the non-United States entity that
is to be domesticated as a domestic limited liability company may be exchanged for or converted into cash, property, rights
or securities of, or interests in, such domestic limited liability company or, in addition to or in lieu thereof, may be exchanged
for or converted into cash, property, rights or securities of, or interests in, another domestic limited liability company
or other entity or may be cancelled.
70 Del. Laws, c. 360, § 6; 71 Del. Laws, c. 77, § 14; 72 Del. Laws, c. 129, § 4; 72 Del. Laws, c. 389, §§ 8, 9; 73 Del. Laws, c. 83, § 12; 74 Del. Laws, c. 275, § 5; 75 Del. Laws, c. 51, § 3; 75 Del. Laws, c. 317, §§ 7-13; 76 Del. Laws, c. 387, §§ 6, 7.;
§ 18-213. Transfer or continuance of domestic limited liability companies.
(a) Upon compliance with this section, any limited liability company may transfer to or domesticate or continue in any jurisdiction,
other than any state, and, in connection therewith, may elect to continue its existence as a limited liability company in
the State of Delaware.
(b) If the limited liability company agreement specifies the manner of authorizing a transfer or domestication or continuance
described in subsection (a) of this section, the transfer or domestication or continuance shall be authorized as specified
in the limited liability company agreement. If the limited liability company agreement does not specify the manner of authorizing
a transfer or domestication or continuance described in subsection (a) of this section and does not prohibit such a transfer
or domestication or continuance, the transfer or domestication or continuance shall be authorized in the same manner as is
specified in the limited liability company agreement for authorizing a merger or consolidation that involves the limited liability
company as a constituent party to the merger or consolidation. If the limited liability company agreement does not specify
the manner of authorizing a transfer or domestication or continuance described in subsection (a) of this section or a merger
or consolidation that involves the limited liability company as a constituent party and does not prohibit such a transfer
or domestication or continuance, the transfer or domestication or continuance shall be authorized by the approval by the members
or, if there is more than 1 class or group of members, then by each class or group of members, in either case, by the members
who own more than 50% of the then current percentage or other interest in the profits of the domestic limited liability company
owned by all of the members or by the members in each class or group, as appropriate. If a transfer or domestication or continuance
described in subsection (a) of this section shall be authorized as provided in this subsection (b), a certificate of transfer
if the limited liability company's existence as a limited liability company of the State of Delaware is to cease, or a certificate
of transfer and domestic continuance if the limited liability company's existence as a limited liability company in the State
Subchapter II. Formation; Certificate of Formation
§ 18-201. Certificate of formation.
(a) In order to form a limited liability company, 1 or more authorized persons must execute a certificate of formation. The
certificate of formation shall be filed in the office of the Secretary of State and set forth:
(1) The name of the limited liability company;
(2) The address of the registered office and the name and address of the registered agent for service of process required
to be maintained by § 18-104 of this title; and
(3) Any other matters the members determine to include therein.
(b) A limited liability company is formed at the time of the filing of the initial certificate of formation in the office
of the Secretary of State or at any later date or time specified in the certificate of formation if, in either case, there
has been substantial compliance with the requirements of this section. A limited liability company formed under this chapter
shall be a separate legal entity, the existence of which as a separate legal entity shall continue until cancellation of the
limited liability company's certificate of formation.
(c) The filing of the certificate of formation in the office of the Secretary of State shall make it unnecessary to file any
other documents under Chapter 31 of this title.
(d) A limited liability company agreement shall be entered into or otherwise existing either before, after or at the time
of the filing of a certificate of formation and, whether entered into or otherwise existing before, after or at the time of
such filing, may be made effective as of the formation of the limited liability company or at such other time or date as provided
in or reflected by the limited liability company agreement.
68 Del. Laws, c. 434, § 1; 69 Del. Laws, c. 260, § 7; 70 Del. Laws, c. 75, § 5; 76 Del. Laws, c. 105, § 9.;
§ 18-202. Amendment to certificate of formation.
(a) A certificate of formation is amended by filing a certificate of amendment thereto in the office of the Secretary of State.
The certificate of amendment shall set forth:
(1) The name of the limited liability company; and
(2) The amendment to the certificate of formation.
(b) A manager or, if there is no manager, then any member who becomes aware that any statement in a certificate of formation
was false when made, or that any matter described has changed making the certificate of formation false in any material respect,
shall promptly amend the certificate of formation.
(c) A certificate of formation may be amended at any time for any other proper purpose.
(d) Unless otherwise provided in this chapter or unless a later effective date or time (which shall be a date or time certain)
is provided for in the certificate of amendment, a certificate of amendment shall be effective at the time of its filing with
the Secretary of State.
68 Del. Laws, c. 434, § 1.;
§ 18-203. Cancellation of certificate.
A certificate of formation shall be canceled upon the dissolution and the completion of winding up of a limited liability
company, or as provided in § 18-104(d) or § 18-104(i)(4) or § 18-1108 of this title, or upon the filing of a certificate of
merger or consolidation or a certificate of ownership and merger if the limited liability company is not the surviving or
resulting entity in a merger or consolidation or upon the future effective date or time of a certificate of merger or consolidation
or a certificate of ownership and merger if the limited liability company is not the surviving or resulting entity in a merger
or consolidation, or upon the filing of a certificate of transfer or upon the future effective date or time of a certificate
of transfer, or upon the filing of a certificate of conversion to non-Delaware entity or upon the future effective date or
time of a certificate of conversion to non-Delaware entity. A certificate of cancellation shall be filed in the office of
the Secretary of State to accomplish the cancellation of a certificate of formation upon the dissolution and the completion
of winding up of a limited liability company and shall set forth:
(1) The name of the limited liability company;
(2) The date of filing of its certificate of formation;
(3) The future effective date or time (which shall be a date or time certain) of cancellation if it is not to be effective
upon the filing of the certificate; and
(4) Any other information the person filing the certificate of cancellation determines.
The Secretary of State shall not issue a certificate of good standing with respect to a limited liability company if its certificate
of formation is canceled.
68 Del. Laws, c. 434, § 1; 70 Del. Laws, c. 75, § 6; 71 Del. Laws, c. 77, § 8; 71 Del. Laws, c. 341, § 2; 72 Del. Laws, c. 389, §§ 4-6; 73 Del. Laws, c. 295, § 4; 74 Del. Laws, c. 85, § 1; 75 Del. Laws, c. 317, § 4; 76 Del. Laws, c. 105, § 10; 77 Del. Laws, c. 287, § 4.;
§ 18-204. Execution.
(a) Each certificate required by this subchapter to be filed in the office of the Secretary of State shall be executed by
1 or more authorized persons or, in the case of a certificate of conversion to limited liability company or certificate of
limited liability company domestication, by any person authorized to execute such certificate on behalf of the other entity
or non-United States entity, respectively, except that a certificate of merger or consolidation filed by a surviving or resulting
other business entity shall be executed by any person authorized to execute such certificate on behalf of such other business
entity.
(b) Unless otherwise provided in a limited liability company agreement, any person may sign any certificate or amendment thereof
or enter into a limited liability company agreement or amendment thereof by an agent, including an attorney-in-fact. An authorization,
including a power of attorney, to sign any certificate or amendment thereof or to enter into a limited liability company agreement
or amendment thereof need not be in writing, need not be sworn to, verified or acknowledged, and need not be filed in the
office of the Secretary of State, but if in writing, must be retained by the limited liability company.
(c) For all purposes of the laws of the State of Delaware, a power of attorney with respect to matters relating to the organization,
internal affairs or termination of a limited liability company or granted by a person as a member or assignee of a limited
liability company interest or by a person seeking to become a member or an assignee of a limited liability company interest
shall be irrevocable if it states that it is irrevocable and it is coupled with an interest sufficient in law to support an
irrevocable power. Such irrevocable power of attorney, unless otherwise provided therein, shall not be affected by subsequent
death, disability, incapacity, dissolution, termination of existence or bankruptcy of, or any other event concerning, the
principal. A power of attorney with respect to matters relating to the organization, internal affairs or termination of a
limited liability company or granted by a person as a member or an assignee of a limited liability company interest or by
a person seeking to become a member or an assignee of a limited liability company interest and, in either case, granted to
the limited liability company, a manager or member thereof, or any of their respective officers, directors, managers, members,
partners, trustees, employees or agents shall be deemed coupled with an interest sufficient in law to support an irrevocable
power.
(d) The execution of a certificate by a person who is authorized by this chapter to execute such certificate constitutes an
oath or affirmation, under the penalties of perjury in the third degree, that, to the best of such person's knowledge and
belief, the facts stated therein are true.
68 Del. Laws, c. 434, § 1; 76 Del. Laws, c. 387, §§ 4, 5; 77 Del. Laws, c. 58, § 2; 77 Del. Laws, c. 287, § 5.;
§ 18-205. Execution, amendment or cancellation by judicial order.
(a) If a person required to execute a certificate required by this subchapter fails or refuses to do so, any other person
who is adversely affected by the failure or refusal may petition the Court of Chancery to direct the execution of the certificate.
If the Court finds that the execution of the certificate is proper and that any person so designated has failed or refused
to execute the certificate, it shall order the Secretary of State to record an appropriate certificate.
(b) If a person required to execute a limited liability company agreement or amendment thereof fails or refuses to do so,
any other person who is adversely affected by the failure or refusal may petition the Court of Chancery to direct the execution
of the limited liability company agreement or amendment thereof. If the Court finds that the limited liability company agreement
or amendment thereof should be executed and that any person required to execute the limited liability company agreement or
amendment thereof has failed or refused to do so, it shall enter an order granting appropriate relief.
68 Del. Laws, c. 434, § 1.;
§ 18-206. Filing.
(a) The signed copy of the certificate of formation and of any certificates of amendment, correction, amendment of a certificate
with a future effective date or time, termination of a certificate with a future effective date or time or cancellation (or
of any judicial decree of amendment or cancellation), and of any certificate of merger or consolidation, any certificate of
ownership and merger, any restated certificate, any corrected certificate, any certificate of conversion to limited liability
company, any certificate of conversion to a non-Delaware entity, any certificate of transfer, any certificate of transfer
and domestic continuance, any certificate of limited liability company domestication, and of any certificate of revival shall
be delivered to the Secretary of State. A person who executes a certificate as an agent or fiduciary need not exhibit evidence
of that person's authority as a prerequisite to filing. Any signature on any certificate authorized to be filed with the Secretary
of State under any provision of this chapter may be a facsimile, a conformed signature or an electronically transmitted signature.
Upon delivery of any certificate, the Secretary of State shall record the date and time of its delivery. Unless the Secretary
of State finds that any certificate does not conform to law, upon receipt of all filing fees required by law the Secretary
of State shall:
(1) Certify that the certificate of formation, the certificate of amendment, the certificate of correction, the certificate
of amendment of a certificate with a future effective date or time, the certificate of termination of a certificate with a
future effective date or time, the certificate of cancellation (or of any judicial decree of amendment or cancellation), the
certificate of merger or consolidation, the certificate of ownership and merger, the restated certificate, the corrected certificate,
the certificate of conversion to limited liability company, the certificate of conversion to a non-Delaware entity, the certificate
of transfer, the certificate of transfer and domestic continuance, the certificate of limited liability company domestication
or the certificate of revival has been filed in the Secretary of State's office by endorsing upon the signed certificate the
word "Filed," and the date and time of the filing. This endorsement is conclusive of the date and time of its filing in the
absence of actual fraud. Except as provided in subdivision (a)(5) or (a)(6) of this section, such date and time of filing
of a certificate shall be the date and time of delivery of the certificate;
(2) File and index the endorsed certificate;
(3) Prepare and return to the person who filed it or that person's representative a copy of the signed certificate, similarly
endorsed, and shall certify such copy as a true copy of the signed certificate; and
(4) Cause to be entered 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 and a copy of such certificate shall be permanently maintained as a public record on a suitable medium. The Secretary
of State is authorized to grant direct access to such system to registered agents subject to the execution of an operating
agreement between the Secretary of State and such registered agent. Any registered agent granted such access shall demonstrate
the existence of policies to ensure that information entered into the system accurately reflects the content of certificates
in the possession of the registered agent at the time of entry.
(5) Upon request made upon or prior to delivery, the Secretary of State may, to the extent deemed practicable, establish as
the date and time of filing of a certificate a date and time after its delivery. If the Secretary of State refuses to file
any certificate due to an error, omission or other imperfection, the Secretary of State may hold such certificate in suspension,
and in such event, upon delivery of a replacement certificate in proper form for filing and tender of the required fees within
5 business days after notice of such suspension is given to the filer, the Secretary of State shall establish as the date
and time of filing of such certificate the date and time that would have been the date and time of filing of the rejected
certificate had it been accepted for filing. The Secretary of State shall not issue a certificate of good standing with respect
to any limited liability company with a certificate held in suspension pursuant to this subsection. The Secretary of State
may establish as the date and time of filing of a certificate the date and time at which information from such certificate
is entered pursuant to subdivision (a)(4) of this section if such certificate is delivered on the same date and within 4 hours
after such information is entered.
(6) If:
a. Together with the actual delivery of a certificate and tender of the required fees, there is delivered to the Secretary
of State a separate affidavit (which in its heading shall be designated as an affidavit of extraordinary condition) attesting,
on the basis of personal knowledge of the affiant or a reliable source of knowledge identified in the affidavit, that an earlier
effort to deliver such certificate and tender such fees was made in good faith, specifying the nature, date and time of such
good faith effort and requesting that the Secretary of State establish such date and time as the date and time of filing of
such certificate; or
b. Upon the actual delivery of a certificate and tender of the required fees, the Secretary of State in the Secretary of State's
own discretion provides a written waiver of the requirement for such an affidavit stating that it appears to the Secretary
of State that an earlier effort to deliver such certificate and tender such fees was made in good faith and specifying the
date and time of such effort; and
c. The Secretary of State determines that an extraordinary condition existed at such date and time, that such earlier effort
was unsuccessful as a result of the existence of such extraordinary condition, and that such actual delivery and tender were
made within a reasonable period (not to exceed 2 business days) after the cessation of such extraordinary condition, then
the Secretary of State may establish such date and time as the date and time of filing of such certificate. No fee shall be
paid to the Secretary of State for receiving an affidavit of extraordinary condition. For purposes of this subsection, an
extraordinary condition means: any emergency resulting from an attack on, invasion or occupation by foreign military forces
of, or disaster, catastrophe, war or other armed conflict, revolution or insurrection or rioting or civil commotion in, the
United States or a locality in which the Secretary of State conducts its business or in which the good faith effort to deliver
the certificate and tender the required fees is made, or the immediate threat of any of the foregoing; or any malfunction
or outage of the electrical or telephone service to the Secretary of State's office, or weather or other condition in or about
a locality in which the Secretary of State conducts its business, as a result of which the Secretary of State's office is
not open for the purpose of the filing of certificates under this chapter or such filing cannot be effected without extraordinary
effort. The Secretary of State may require such proof as it deems necessary to make the determination required under this
subparagraph of subdivision (a)(6), and any such determination shall be conclusive in the absence of actual fraud. If the
Secretary of State establishes the date and time of filing of a certificate pursuant to this subsection, the date and time
of delivery of the affidavit of extraordinary condition or the date and time of the Secretary of State's written waiver of
such affidavit shall be endorsed on such affidavit or waiver and such affidavit or waiver, so endorsed, shall be attached
to the filed certificate to which it relates. Such filed certificate shall be effective as of the date and time established
as the date and time of filing by the Secretary of State pursuant to this subsection, except as to those persons who are substantially
and adversely affected by such establishment and, as to those persons, the certificate shall be effective from the date and
time endorsed on the affidavit of extraordinary condition or written waiver attached thereto.
(b) Upon the filing of a certificate of amendment (or judicial decree of amendment), certificate of correction, corrected
certificate or restated certificate in the office of the Secretary of State, or upon the future effective date or time of
a certificate of amendment (or judicial decree thereof) or restated certificate, as provided for therein, the certificate
of formation shall be amended, corrected or restated as set forth therein. Upon the filing of a certificate of cancellation
(or a judicial decree thereof), or a certificate of merger or consolidation or certificate of ownership and merger which acts
as a certificate of cancellation 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 certificate of cancellation (or a judicial decree thereof) or of a certificate
of merger or consolidation or certificate of ownership and merger which acts as a certificate of cancellation or a certificate
of transfer, or a certificate of conversion to a non-Delaware entity, as provided for therein, or as specified in § 18-104(d),
§ 18-104(i)(4) or § 18-1108(a) of this title, the certificate of formation is canceled. Upon the filing of a certificate of
limited liability company domestication or upon the future effective date or time of a certificate of limited liability company
domestication, the entity filing the certificate of limited liability company domestication is domesticated as a limited liability
company with the effect provided in § 18-212 of this title. Upon the filing of a certificate of conversion to limited liability
company or upon the future effective date or time of a certificate of conversion to limited liability company, the entity
filing the certificate of conversion to limited liability company is converted to a limited liability company with the effect
provided in § 18-214 of this title. Upon the filing of a certificate of revival, the limited liability company is revived
with the effect provided in § 18-1109 of this title. Upon the filing of a certificate of transfer and domestic continuance,
or upon the future effective date or time of a certificate of transfer and domestic continuance, as provided for therein,
the limited liability company filing the certificate of transfer and domestic continuance shall continue to exist as a limited
liability company of the State of Delaware with the effect provided in § 18-213 of this title.
(c) If any certificate filed in accordance with this chapter provides for a future effective date or time and if, prior to
such future effective date or time set forth in such certificate, the transaction is terminated or its terms are amended to
change the future effective date or time or any other matter described in such certificate so as to make such certificate
false or inaccurate in any respect, such certificate shall, prior to the future effective date or time set forth in such certificate,
be terminated or amended by the filing of a certificate of termination or certificate of amendment of such certificate, executed
in accordance with § 18-204 of this title, which shall identify the certificate which has been terminated or amended and shall
state that the certificate has been terminated or the manner in which it has been amended. Upon the filing of a certificate
of amendment of a certificate with a future effective date or time, the certificate identified in such certificate of amendment
is amended. Upon the filing of a certificate of termination of a certificate with a future effective date or time, the certificate
identified in such certificate of termination is terminated.
(d) A fee as set forth in § 18-1105(a)(3) of this title shall be paid at the time of the filing of a certificate of formation,
a certificate of amendment, a certificate of correction, a certificate of amendment of a certificate with a future effective
date or time, a certificate of termination of a certificate with a future effective date or time, a certificate of cancellation,
a certificate of merger or consolidation, a certificate of ownership and merger, a restated certificate, a corrected certificate,
a certificate of conversion to limited liability company, a certificate of conversion to a non-Delaware entity, a certificate
of transfer, a certificate of transfer and domestic continuance, a certificate of limited liability company domestication
or a certificate of revival.
(e) The Secretary of State, acting as agent, shall collect and deposit in a separate account established exclusively for that
purpose, a courthouse municipality fee with respect to each filed instrument and shall thereafter monthly remit funds from
such account to the treasuries of the municipalities designated in § 301 of Title 10. Said fees shall be for the purposes
of defraying certain costs incurred by such municipalities in hosting the primary locations for the Delaware Courts. The fee
to such municipalities shall be $20 for each instrument filed with the Secretary of State in accordance with this section.
The municipality to receive the fee shall be the municipality designated in § 301 of Title 10 in the county in which the limited
liability company's registered office in this State is, or is to be, located, except that a fee shall not be charged for a
document filed in accordance with subchapter IX of this chapter.
(f) A fee as set forth in § 18-1105(a)(4) of this title shall be paid for a certified copy of any paper on file as provided
for by this chapter, and a fee as set forth in § 18-1105(a)(5) of this title shall be paid for each page copied.
68 Del. Laws, c. 434, § 1; 69 Del. Laws, c. 260, §§ 8-11; 70 Del. Laws, c. 75, §§ 7-15; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 360, §§ 1-4; 71 Del. Laws, c. 77, §§ 9-12; 73 Del. Laws, c. 83, §§ 4-10; 73 Del. Laws, c. 295, § 5; 74 Del. Laws, c. 85, §§ 2-10; 74 Del. Laws, c. 119, § 1; 75 Del. Laws, c. 317, § 5; 76 Del. Laws, c. 105, §§ 11-14; 77 Del. Laws, c. 287, §§ 6-8.;
§ 18-207. Notice.
The fact that a certificate of formation is on file in the office of the Secretary of State is notice that the entity formed
in connection with the filing of the certificate of formation is a limited liability company formed under the laws of the
State of Delaware and is notice of all other facts set forth therein which are required to be set forth in a certificate of
formation by § 18-201(a)(1) and (2) of this title and which are permitted to be set forth in a certificate of formation by
§ 18-215(b) of this title.
68 Del. Laws, c. 434, § 1; 70 Del. Laws, c. 360, § 5.;
§ 18-208. Restated certificate.
(a) A limited liability company may, whenever desired, integrate into a single instrument all of the provisions of its certificate
of formation which are then in effect and operative as a result of there having theretofore been filed with the Secretary
of State 1 or more certificates or other instruments pursuant to any of the sections referred to in this subchapter, and it
may at the same time also further amend its certificate of formation by adopting a restated certificate of formation.
(b) If a restated certificate of formation merely restates and integrates but does not further amend the initial certificate
of formation, as theretofore amended or supplemented by any instrument that was executed and filed pursuant to any of the
sections in this subchapter, it shall be specifically designated in its heading as a "Restated Certificate of Formation" together
with such other words as the limited liability company may deem appropriate and shall be executed by an authorized person
and filed as provided in § 18-206 of this title in the office of the Secretary of State. If a restated certificate restates
and integrates and also further amends in any respect the certificate of formation, as theretofore amended or supplemented,
it shall be specifically designated in its heading as an "Amended and Restated Certificate of Formation" together with such
other words as the limited liability company may deem appropriate and shall be executed by at least 1 authorized person, and
filed as provided in § 18-206 of this title in the office of the Secretary of State.
(c) A restated certificate of formation shall state, either in its heading or in an introductory paragraph, the limited liability
company's present name, and, if it has been changed, the name under which it was originally filed, and the date of filing
of its original certificate of formation with the Secretary of State, and the future effective date or time (which shall be
a date or time certain) of the restated certificate if it is not to be effective upon the filing of the restated certificate.
A restated certificate shall also state that it was duly executed and is being filed in accordance with this section. If a
restated certificate only restates and integrates and does not further amend a limited liability company's certificate of
formation as theretofore amended or supplemented and there is no discrepancy between those provisions and the restated certificate,
it shall state that fact as well.
(d) Upon the filing of a restated certificate of formation with the Secretary of State, or upon the future effective date
or time of a restated certificate of formation as provided for therein, the initial certificate of formation, as theretofore
amended or supplemented, shall be superseded; thenceforth, the restated certificate of formation, including any further amendment
or changes made thereby, shall be the certificate of formation of the limited liability company, but the original effective
date of formation shall remain unchanged.
(e) Any amendment or change effected in connection with the restatement and integration of the certificate of formation shall
be subject to any other provision of this chapter, not inconsistent with this section, which would apply if a separate certificate
of amendment were filed to effect such amendment or change.
68 Del. Laws, c. 434, § 1.;
§ 18-209. Merger and consolidation.
(a) As used in this section and in § 18-204 of this title, "other business entity" means a corporation, a statutory trust,
a business trust, an association, a real estate investment trust, a common-law trust, or any other unincorporated business
or entity, including a partnership (whether general (including a limited liability partnership) or limited (including a limited
liability limited partnership)), and a foreign limited liability company, but excluding a domestic limited liability company.
As used in this section and in §§ 18-210 and 18-301 of this title, "plan of merger" means a writing approved by a domestic
limited liability company, in the form of resolutions or otherwise, that states the terms and conditions of a merger under
subsection (i) of this section.
(b) Pursuant to an agreement of merger or consolidation, 1 or more domestic limited liability companies may merge or consolidate
with or into 1 or more domestic limited liability companies or 1 or more other business entities formed or organized under
the laws of the State of Delaware or any other state or the United States or any foreign country or other foreign jurisdiction,
or any combination thereof, with such domestic limited liability company or other business entity as the agreement shall provide
being the surviving or resulting domestic limited liability company or other business entity. Unless otherwise provided in
the limited liability company agreement, an agreement of merger or consolidation or a plan of merger shall be approved by
each domestic limited liability company which is to merge or consolidate by the members or, if there is more than one class
or group of members, then by each class or group of members, in either case, by members who own more than 50 percent of the
then current percentage or other interest in the profits of the domestic limited liability company owned by all of the members
or by the members in each class or group, as appropriate. In connection with a merger or consolidation hereunder, rights
or securities of, or interests in, a domestic limited liability company or other business entity which is a constituent party
to the merger or consolidation may be exchanged for or converted into cash, property, rights or securities of, or interests
in, the surviving or resulting domestic limited liability company or other business entity or, in addition to or in lieu thereof,
may be exchanged for or converted into cash, property, rights or securities of, or interests in, a domestic limited liability
company or other business entity which is not the surviving or resulting limited liability company or other business entity
in the merger or consolidation or may be cancelled. Notwithstanding prior approval, an agreement of merger or consolidation
or a plan of merger may be terminated or amended pursuant to a provision for such termination or amendment contained in the
agreement of merger or consolidation or plan of merger.
(c) Except in the case of a merger under subsection (i) of this section, if a domestic limited liability company is merging
or consolidating under this section, the domestic limited liability company or other business entity surviving or resulting
in or from the merger or consolidation shall file a certificate of merger or consolidation executed by 1 or more authorized
persons on behalf of the domestic limited liability company when it is the surviving or resulting entity in the office of
the Secretary of State. The certificate of merger or consolidation shall state:
(1) The name and jurisdiction of formation or organization of each of the domestic limited liability companies and other business
entities which is to merge or consolidate;
(2) That an agreement of merger or consolidation has been approved and executed by each of the domestic limited liability
companies and other business entities which is to merge or consolidate;
(3) The name of the surviving or resulting domestic limited liability company or other business entity;
(4) In the case of a merger in which a domestic limited liability company is the surviving entity, such amendments, if any,
to the certificate of formation of the surviving domestic limited liability company to change its name, registered office
or registered agent as are desired to be effected by the merger;
(5) The future effective date or time (which shall be a date or time certain) of the merger or consolidation if it is not
to be effective upon the filing of the certificate of merger or consolidation;
(6) That the agreement of merger or consolidation is on file at a place of business of the surviving or resulting domestic
limited liability company or other business entity, and shall state the address thereof;
(7) That a copy of the agreement of merger or consolidation will be furnished by the surviving or resulting domestic limited
liability company or other business entity, on request and without cost, to any member of any domestic limited liability company
or any person holding an interest in any other business entity which is to merge or consolidate; and
(8) If the surviving or resulting entity is not a domestic limited liability company, or a corporation, partnership (whether
general (including a limited liability partnership) or limited (including a limited liability limited partnership)) or statutory
trust organized under the laws of the State of Delaware, a statement that such surviving or resulting other business entity
agrees that it may be served with process in the State of Delaware in any action, suit or proceeding for the enforcement of
any obligation of any domestic limited liability company which is to merge or consolidate, irrevocably appointing the Secretary
of State as its agent to accept service of process in any such action, suit or proceeding and specifying the address to which
a copy of such process shall be mailed to it by the Secretary of State. Process may be served upon the Secretary of State
under this subsection by means of electronic transmission but only as prescribed by the Secretary of State. The Secretary
of State is authorized to issue such rules and regulations with respect to such service as the Secretary of State deems necessary
or appropriate. In the event of service hereunder upon the Secretary of State, the procedures set forth in § 18-911(c) of
this title shall be applicable, except that the plaintiff in any such action, suit or proceeding shall furnish the Secretary
of State with the address specified in the certificate of merger or consolidation provided for in this section and any other
address which the plaintiff may elect to furnish, together with copies of such process as required by the Secretary of State,
and the Secretary of State shall notify such surviving or resulting other business entity at all such addresses furnished
by the plaintiff in accordance with the procedures set forth in § 18-911(c) of this title.
(d) Unless a future effective date or time is provided in a certificate of merger or consolidation, or in the case of a merger
under subsection (i) of this section in a certificate of ownership and merger, in which event a merger or consolidation shall
be effective at any such future effective date or time, a merger or consolidation shall be effective upon the filing in the
office of the Secretary of State of a certificate of merger or consolidation or a certificate of ownership and merger.
(e) A certificate of merger or consolidation or a certificate of ownership and merger shall act as a certificate of cancellation
for a domestic limited liability company which is not the surviving or resulting entity in the merger or consolidation. A
certificate of merger that sets forth any amendment in accordance with subsection (c)(4) of this section shall be deemed to
be an amendment to the certificate of formation of the limited liability company, and the limited liability company shall
not be required to take any further action to amend its certificate of formation under § 18-202 of this title with respect
to such amendments set forth in the certificate of merger. Whenever this section requires the filing of a certificate of merger
or consolidation, such requirement shall be deemed satisfied by the filing of an agreement of merger or consolidation containing
the information required by this section to be set forth in the certificate of merger or consolidation.
(f) An agreement of merger or consolidation or a plan of merger approved in accordance with subsection (b) of this section
may:
(1) Effect any amendment to the limited liability company agreement; or
(2) Effect the adoption of a new limited liability company agreement, for a limited liability company if it is the surviving
or resulting limited liability company in the merger or consolidation.
Any amendment to a limited liability company agreement or adoption of a new limited liability company agreement made pursuant
to the foregoing sentence shall be effective at the effective time or date of the merger or consolidation and shall be effective
notwithstanding any provision of the limited liability company agreement relating to amendment or adoption of a new limited
liability company agreement, other than a provision that by its terms applies to an amendment to the limited liability company
agreement or the adoption of a new limited liability company agreement, in either case, in connection with a merger or consolidation.
The provisions of this subsection shall not be construed to limit the accomplishment of a merger or of any of the matters
referred to herein by any other means provided for in a limited liability company agreement or other agreement or as otherwise
permitted by law, including that the limited liability company agreement of any constituent limited liability company to the
merger or consolidation (including a limited liability company formed for the purpose of consummating a merger or consolidation)
shall be the limited liability company agreement of the surviving or resulting limited liability company.
(g) When any merger or consolidation shall have become effective under this section, for all purposes of the laws of the State
of Delaware, all of the rights, privileges and powers of each of the domestic limited liability companies and other business
entities that have merged or consolidated, and all property, real, personal and mixed, and all debts due to any of said domestic
limited liability companies and other business entities, as well as all other things and causes of action belonging to each
of such domestic limited liability companies and other business entities, shall be vested in the surviving or resulting domestic
limited liability company or other business entity, and shall thereafter be the property of the surviving or resulting domestic
limited liability company or other business entity as they were of each of the domestic limited liability companies and other
business entities that have merged or consolidated, and the title to any real property vested by deed or otherwise, under
the laws of the State of Delaware, in any of such domestic limited liability companies and other business entities, shall
not revert or be in any way impaired by reason of this chapter; but all rights of creditors and all liens upon any property
of any of said domestic limited liability companies and other business entities shall be preserved unimpaired, and all debts,
liabilities and duties of each of the said domestic limited liability companies and other business entities that have merged
or consolidated shall thenceforth attach to the surviving or resulting domestic limited liability company or other business
entity, and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred or contracted
by it. Unless otherwise agreed, a merger or consolidation of a domestic limited liability company, including a domestic limited
liability company which is not the surviving or resulting entity in the merger or consolidation, shall not require such domestic
limited liability company to wind up its affairs under § 18-803 of this title or pay its liabilities and distribute its assets
under § 18-804 of this title, and the merger or consolidation shall not constitute a dissolution of such limited liability
company.
(h) A limited liability company agreement may provide that a domestic limited liability company shall not have the power to
merge or consolidate as set forth in this section.
(i) In any case in which (i) at least 90% of the outstanding shares of each class of the stock of a corporation or corporations
(other than a corporation which has in its certificate of incorporation the provision required by § 251(g)(7)(i) of Title
8), of which class there are outstanding shares that, absent § 267(a) of Title 8, would be entitled to vote on such merger,
is owned by a domestic limited liability company, (ii) 1 or more of such corporations is a corporation of the State of Delaware,
and (iii) any corporation that is not a corporation of the State of Delaware is a corporation of any other state or the District
of Columbia or another jurisdiction, the laws of which do not forbid such merger, the domestic limited liability company having
such stock ownership may either merge the corporation or corporations into itself and assume all of its or their obligations,
or merge itself, or itself and 1 or more of such corporations, into 1 of the other corporations, pursuant to a plan of merger.
If a domestic limited liability company is causing a merger under this subsection, the domestic limited liability company
shall file a certificate of ownership and merger executed by 1 or more authorized persons on behalf of the domestic limited
liability company in the office of the Secretary of State. The certificate of ownership and merger shall certify that such
merger was authorized in accordance with the domestic limited liability company's limited liability company agreement and
this chapter, and if the domestic limited liability company shall not own all the outstanding stock of all the corporations
that are parties to the merger, shall state the terms and conditions of the merger, including the securities, cash, property,
or rights to be issued, paid, delivered or granted by the surviving domestic limited liability company or corporation upon
surrender of each share of the corporation or corporations not owned by the domestic limited liability company, or the cancellation
of some or all of such shares. If a corporation surviving a merger under this subsection is not a corporation organized under
the laws of the State of Delaware, then the terms and conditions of the merger shall obligate such corporation to agree that
it may be served with process in the State of Delaware in any proceeding for enforcement of any obligation of the domestic
limited liability company or any obligation of any constituent corporation of the State of Delaware, as well as for enforcement
of any obligation of the surviving corporation, including any suit or other proceeding to enforce the right of any stockholders
as determined in appraisal proceedings pursuant to § 262 of Title 8, and to irrevocably appoint the Secretary of State as
its agent to accept service of process in any such suit or other proceedings, and to specify the address to which a copy of
such process shall be mailed by the Secretary of State. Process may be served upon the Secretary of State under this subsection
by means of electronic transmission but only as prescribed by the Secretary of State. The Secretary of State is authorized
to issue such rules and regulations with respect to such service as the Secretary of State deems necessary or appropriate.
In the event of such service upon the Secretary of State in accordance with this subsection, the Secretary of State shall
forthwith notify such surviving corporation thereof by letter, directed to such surviving corporation at its address so specified,
unless such surviving corporation shall have designated in writing to the Secretary of State a different address for such
purpose, in which case it shall be mailed to the last address so designated. Such letter shall be sent by a mail or courier
service that includes a record of mailing or deposit with the courier and a record of delivery evidenced by the signature
of the recipient. Such letter shall enclose a copy of the process and any other papers served on the Secretary of State pursuant
to this subsection. It shall be the duty of the plaintiff in the event of such service to serve process and any other papers
in duplicate, to notify the Secretary of State that service is being effected pursuant to this subsection and to pay the Secretary
of State the sum of $50 for the use of the State of Delaware, which sum shall be taxed as part of the costs in the proceeding,
if the plaintiff shall prevail therein. The Secretary of State shall maintain an alphabetical record of any such service setting
forth the name of the plaintiff and the defendant, the title, docket number and nature of the proceeding in which process
has been served, the fact that service has been effected pursuant to this subsection, the return date thereof, and the day
and hour service was made. The Secretary of State shall not be required to retain such information longer than 5 years from
receipt of the service of process.
68 Del. Laws, c. 434, § 1; 69 Del. Laws, c. 260, §§ 12, 13; 70 Del. Laws, c. 75, §§ 16, 17; 71 Del. Laws, c. 341, §§ 3-7; 72 Del. Laws, c. 389, § 7; 73 Del. Laws, c. 83, § 11; 73 Del. Laws, c. 329, §§ 27, 28; 74 Del. Laws, c. 275, §§ 2-4; 75 Del. Laws, c. 317, § 6; 76 Del. Laws, c. 105, §§ 15-18; 77 Del. Laws, c. 58, §§ 3-5; 77 Del. Laws, c. 287, §§ 9-16.;
§ 18-210. Contractual appraisal rights.
A limited liability company agreement or an agreement of merger or consolidation or a plan of merger may provide that contractual
appraisal rights with respect to a limited liability company interest or another interest in a limited liability company shall
be available for any class or group or series of members or limited liability company interests in connection with any amendment
of a limited liability company agreement, any merger or consolidation in which the limited liability company is a constituent
party to the merger or consolidation, any conversion of the limited liability company to another business form, any transfer
to or domestication or continuance in any jurisdiction by the limited liability company, or the sale of all or substantially
all of the limited liability company's assets. The Court of Chancery shall have jurisdiction to hear and determine any matter
relating to any such appraisal rights.
69 Del. Laws, c. 260, § 14; 73 Del. Laws, c. 295, § 6; 76 Del. Laws, c. 105, § 19; 77 Del. Laws, c. 287, § 17.;
§ 18-211. Certificate of correction.
(a) Whenever any certificate authorized to be filed with the office of the Secretary of State under any provision of this
chapter has been so filed and is an inaccurate record of the action therein referred to, or was defectively or erroneously
executed, such certificate may be corrected by filing with the office of the Secretary of State a certificate of correction
of such certificate. The certificate of correction shall specify the inaccuracy or defect to be corrected, shall set forth
the portion of the certificate in corrected form, and shall be executed and filed as required by this chapter. The certificate
of correction shall be effective as of the date the original certificate was filed, except as to those persons who are substantially
and adversely affected by the correction, and as to those persons the certificate of correction shall be effective from the
filing date.
(b) In lieu of filing a certificate of correction, a certificate may be corrected by filing with the Secretary of State a
corrected certificate which shall be executed and filed as if the corrected certificate were the certificate being corrected,
and a fee equal to the fee payable to the Secretary of State if the certificate being corrected were then being filed shall
be paid and collected by the Secretary of State for the use of the State of Delaware in connection with the filing of the
corrected certificate. The corrected certificate shall be specifically designated as such in its heading, shall specify the
inaccuracy or defect to be corrected and shall set forth the entire certificate in corrected form. A certificate corrected
in accordance with this section shall be effective as of the date the original certificate was filed, except as to those persons
who are substantially and adversely affected by the correction and as to those persons the certificate as corrected shall
be effective from the filing date.
69 Del. Laws, c. 260, § 15; 71 Del. Laws, c. 77, § 13.;
§ 18-212. Domestication of non-United States entities.
(a) As used in this section and in § 18-204 of this title, "non-United States entity" means a foreign limited liability company
(other than one formed under the laws of a state) or a corporation, a statutory trust, a business trust, an association, a
real estate investment trust, a common-law trust or any other unincorporated business or entity, including a partnership (whether
general (including a limited liability partnership) or limited (including a limited liability limited partnership)) formed,
incorporated, created or that otherwise came into being under the laws of any foreign country or other foreign jurisdiction
(other than any state).
(b) Any non-United States entity may become domesticated as a limited liability company in the State of Delaware by complying
with subsection (g) of this section and filing in the office of the Secretary of State in accordance with § 18-206 of this
title:
(1) A certificate of limited liability company domestication that has been executed in accordance with § 18-204 of this title;
and
(2) A certificate of formation that complies with § 18-201 of this title and has been executed by 1 or more authorized persons
in accordance with § 18-204 of this title.
(c) The certificate of limited liability company domestication shall state:
(1) The date on which and jurisdiction where the non-United States entity was first formed, incorporated, created or otherwise
came into being;
(2) The name of the non-United States entity immediately prior to the filing of the certificate of limited liability company
domestication;
(3) The name of the limited liability company as set forth in the certificate of formation filed in accordance with subsection
(b) of this section;
(4) The future effective date or time (which shall be a date or time certain) of the domestication as a limited liability
company if it is not to be effective upon the filing of the certificate of limited liability company domestication and the
certificate of formation;
(5) The jurisdiction that constituted the seat, siege social, or principal place of business or central administration of
the non-United States entity, or any other equivalent thereto under applicable law, immediately prior to the filing of the
certificate of limited liability company domestication; and
(6) That the domestication has been approved in the manner provided for by the document, instrument, agreement or other writing,
as the case may be, governing the internal affairs of the non-United States entity and the conduct of its business or by applicable
non-Delaware law, as appropriate.
(d) Upon the filing in the office of the Secretary of State of the certificate of limited liability company domestication
and the certificate of formation or upon the future effective date or time of the certificate of limited liability company
domestication and the certificate of formation, the non-United States entity shall be domesticated as a limited liability
company in the State of Delaware and the limited liability company shall thereafter be subject to all of the provisions of
this chapter, except that notwithstanding § 18-201 of this title, the existence of the limited liability company shall be
deemed to have commenced on the date the non-United States entity commenced its existence in the jurisdiction in which the
non-United States entity was first formed, incorporated, created or otherwise came into being.
(e) The domestication of any non-United States entity as a limited liability company in the State of Delaware shall not be
deemed to affect any obligations or liabilities of the non-United States entity incurred prior to its domestication as a limited
liability company in the State of Delaware, or the personal liability of any person therefor.
(f) The filing of a certificate of limited liability company domestication shall not affect the choice of law applicable to
the non-United States entity, except that from the effective date or time of the domestication, the law of the State of Delaware,
including the provisions of this chapter, shall apply to the non-United States entity to the same extent as if the non-United
States entity had been formed as a limited liability company on that date.
(g) Prior to the filing of a certificate of limited liability company domestication with the Office of the Secretary of State,
the domestication shall be approved in the manner provided for by the document, instrument, agreement or other writing, as
the case may be, governing the internal affairs of the non-United States entity and the conduct of its business or by applicable
non-Delaware law, as appropriate, and a limited liability company agreement shall be approved by the same authorization required
to approve the domestication.
(h) When any domestication shall have become effective under this section, for all purposes of the laws of the State of Delaware,
all of the rights, privileges and powers of the non-United States entity that has been domesticated, and all property, real,
personal and mixed, and all debts due to such non-United States entity, as well as all other things and causes of action belonging
to such non-United States entity, shall remain vested in the domestic limited liability company to which such non-United States
entity has been domesticated (and also in the non-United States entity, if and for so long as the non-United States entity
continues its existence in the foreign jurisdiction in which it was existing immediately prior to the domestication) and shall
be the property of such domestic limited liability company (and also of the non-United States entity, if and for so long
as the non-United States entity continues its existence in the foreign jurisdiction in which it was existing immediately prior
to the domestication), and the title to any real property vested by deed or otherwise in such non-United States entity shall
not revert or be in any way impaired by reason of this chapter; but all rights of creditors and all liens upon any property
of such non-United States entity shall be preserved unimpaired, and all debts, liabilities and duties of the non-United States
entity that has been domesticated shall remain attached to the domestic limited liability company to which such non-United
States entity has been domesticated (and also to the non-United States entity, if and for so long as the non-United States
entity continues its existence in the foreign jurisdiction in which it was existing immediately prior to the domestication),
and may be enforced against it to the same extent as if said debts, liabilities and duties had originally been incurred or
contracted by it in its capacity as a domestic limited liability company. The rights, privileges, powers and interests in
property of the non-United States entity, as well as the debts, liabilities and duties of the non-United States entity, shall
not be deemed, as a consequence of the domestication, to have been transferred to the domestic limited liability company to
which such non-United States entity has domesticated for any purpose of the laws of the State of Delaware.
(i) When a non-United States entity has become domesticated as a limited liability company pursuant to this section, for all
purposes of the laws of the State of Delaware, the limited liability company shall be deemed to be the same entity as the
domesticating non-United States entity and the domestication shall constitute a continuation of the existence of the domesticating
non-United States entity in the form of a domestic limited liability company. Unless otherwise agreed, for all purposes of
the laws of the State of Delaware, the domesticating non-United States entity shall not be required to wind up its affairs
or pay its liabilities and distribute its assets, and the domestication shall not be deemed to constitute a dissolution of
such non-United States entity. If, following domestication, a non-United States entity that has become domesticated as a limited
liability company continues its existence in the foreign country or other foreign jurisdiction in which it was existing immediately
prior to domestication, the limited liability company and such non-United States entity shall, for all purposes of the laws
of the State of Delaware, constitute a single entity formed, incorporated, created or otherwise having come into being, as
applicable, and existing under the laws of the State of Delaware and the laws of such foreign country or other foreign jurisdiction.
(j) In connection with a domestication hereunder, rights or securities of, or interests in, the non-United States entity that
is to be domesticated as a domestic limited liability company may be exchanged for or converted into cash, property, rights
or securities of, or interests in, such domestic limited liability company or, in addition to or in lieu thereof, may be exchanged
for or converted into cash, property, rights or securities of, or interests in, another domestic limited liability company
or other entity or may be cancelled.
70 Del. Laws, c. 360, § 6; 71 Del. Laws, c. 77, § 14; 72 Del. Laws, c. 129, § 4; 72 Del. Laws, c. 389, §§ 8, 9; 73 Del. Laws, c. 83, § 12; 74 Del. Laws, c. 275, § 5; 75 Del. Laws, c. 51, § 3; 75 Del. Laws, c. 317, §§ 7-13; 76 Del. Laws, c. 387, §§ 6, 7.;
§ 18-213. Transfer or continuance of domestic limited liability companies.
(a) Upon compliance with this section, any limited liability company may transfer to or domesticate or continue in any jurisdiction,
other than any state, and, in connection therewith, may elect to continue its existence as a limited liability company in
the State of Delaware.
(b) If the limited liability company agreement specifies the manner of authorizing a transfer or domestication or continuance
described in subsection (a) of this section, the transfer or domestication or continuance shall be authorized as specified
in the limited liability company agreement. If the limited liability company agreement does not specify the manner of authorizing
a transfer or domestication or continuance described in subsection (a) of this section and does not prohibit such a transfer
or domestication or continuance, the transfer or domestication or continuance shall be authorized in the same manner as is
specified in the limited liability company agreement for authorizing a merger or consolidation that involves the limited liability
company as a constituent party to the merger or consolidation. If the limited liability company agreement does not specify
the manner of authorizing a transfer or domestication or continuance described in subsection (a) of this section or a merger
or consolidation that involves the limited liability company as a constituent party and does not prohibit such a transfer
or domestication or continuance, the transfer or domestication or continuance shall be authorized by the approval by the members
or, if there is more than 1 class or group of members, then by each class or group of members, in either case, by the members
who own more than 50% of the then current percentage or other interest in the profits of the domestic limited liability company
owned by all of the members or by the members in each class or group, as appropriate. If a transfer or domestication or continuance
described in subsection (a) of this section shall be authorized as provided in this subsection (b), a certificate of transfer
if the limited liability company's existence as a limited liability company of the State of Delaware is to cease, or a certificate
of transfer and domestic continuance if the limited liability company's existence as a limited liability company in the State
Subchapter II. Formation; Certificate of Formation
§ 18-201. Certificate of formation.
(a) In order to form a limited liability company, 1 or more authorized persons must execute a certificate of formation. The
certificate of formation shall be filed in the office of the Secretary of State and set forth:
(1) The name of the limited liability company;
(2) The address of the registered office and the name and address of the registered agent for service of process required
to be maintained by § 18-104 of this title; and
(3) Any other matters the members determine to include therein.
(b) A limited liability company is formed at the time of the filing of the initial certificate of formation in the office
of the Secretary of State or at any later date or time specified in the certificate of formation if, in either case, there
has been substantial compliance with the requirements of this section. A limited liability company formed under this chapter
shall be a separate legal entity, the existence of which as a separate legal entity shall continue until cancellation of the
limited liability company's certificate of formation.
(c) The filing of the certificate of formation in the office of the Secretary of State shall make it unnecessary to file any
other documents under Chapter 31 of this title.
(d) A limited liability company agreement shall be entered into or otherwise existing either before, after or at the time
of the filing of a certificate of formation and, whether entered into or otherwise existing before, after or at the time of
such filing, may be made effective as of the formation of the limited liability company or at such other time or date as provided
in or reflected by the limited liability company agreement.
68 Del. Laws, c. 434, § 1; 69 Del. Laws, c. 260, § 7; 70 Del. Laws, c. 75, § 5; 76 Del. Laws, c. 105, § 9.;
§ 18-202. Amendment to certificate of formation.
(a) A certificate of formation is amended by filing a certificate of amendment thereto in the office of the Secretary of State.
The certificate of amendment shall set forth:
(1) The name of the limited liability company; and
(2) The amendment to the certificate of formation.
(b) A manager or, if there is no manager, then any member who becomes aware that any statement in a certificate of formation
was false when made, or that any matter described has changed making the certificate of formation false in any material respect,
shall promptly amend the certificate of formation.
(c) A certificate of formation may be amended at any time for any other proper purpose.
(d) Unless otherwise provided in this chapter or unless a later effective date or time (which shall be a date or time certain)
is provided for in the certificate of amendment, a certificate of amendment shall be effective at the time of its filing with
the Secretary of State.
68 Del. Laws, c. 434, § 1.;
§ 18-203. Cancellation of certificate.
A certificate of formation shall be canceled upon the dissolution and the completion of winding up of a limited liability
company, or as provided in § 18-104(d) or § 18-104(i)(4) or § 18-1108 of this title, or upon the filing of a certificate of
merger or consolidation or a certificate of ownership and merger if the limited liability company is not the surviving or
resulting entity in a merger or consolidation or upon the future effective date or time of a certificate of merger or consolidation
or a certificate of ownership and merger if the limited liability company is not the surviving or resulting entity in a merger
or consolidation, or upon the filing of a certificate of transfer or upon the future effective date or time of a certificate
of transfer, or upon the filing of a certificate of conversion to non-Delaware entity or upon the future effective date or
time of a certificate of conversion to non-Delaware entity. A certificate of cancellation shall be filed in the office of
the Secretary of State to accomplish the cancellation of a certificate of formation upon the dissolution and the completion
of winding up of a limited liability company and shall set forth:
(1) The name of the limited liability company;
(2) The date of filing of its certificate of formation;
(3) The future effective date or time (which shall be a date or time certain) of cancellation if it is not to be effective
upon the filing of the certificate; and
(4) Any other information the person filing the certificate of cancellation determines.
The Secretary of State shall not issue a certificate of good standing with respect to a limited liability company if its certificate
of formation is canceled.
68 Del. Laws, c. 434, § 1; 70 Del. Laws, c. 75, § 6; 71 Del. Laws, c. 77, § 8; 71 Del. Laws, c. 341, § 2; 72 Del. Laws, c. 389, §§ 4-6; 73 Del. Laws, c. 295, § 4; 74 Del. Laws, c. 85, § 1; 75 Del. Laws, c. 317, § 4; 76 Del. Laws, c. 105, § 10; 77 Del. Laws, c. 287, § 4.;
§ 18-204. Execution.
(a) Each certificate required by this subchapter to be filed in the office of the Secretary of State shall be executed by
1 or more authorized persons or, in the case of a certificate of conversion to limited liability company or certificate of
limited liability company domestication, by any person authorized to execute such certificate on behalf of the other entity
or non-United States entity, respectively, except that a certificate of merger or consolidation filed by a surviving or resulting
other business entity shall be executed by any person authorized to execute such certificate on behalf of such other business
entity.
(b) Unless otherwise provided in a limited liability company agreement, any person may sign any certificate or amendment thereof
or enter into a limited liability company agreement or amendment thereof by an agent, including an attorney-in-fact. An authorization,
including a power of attorney, to sign any certificate or amendment thereof or to enter into a limited liability company agreement
or amendment thereof need not be in writing, need not be sworn to, verified or acknowledged, and need not be filed in the
office of the Secretary of State, but if in writing, must be retained by the limited liability company.
(c) For all purposes of the laws of the State of Delaware, a power of attorney with respect to matters relating to the organization,
internal affairs or termination of a limited liability company or granted by a person as a member or assignee of a limited
liability company interest or by a person seeking to become a member or an assignee of a limited liability company interest
shall be irrevocable if it states that it is irrevocable and it is coupled with an interest sufficient in law to support an
irrevocable power. Such irrevocable power of attorney, unless otherwise provided therein, shall not be affected by subsequent
death, disability, incapacity, dissolution, termination of existence or bankruptcy of, or any other event concerning, the
principal. A power of attorney with respect to matters relating to the organization, internal affairs or termination of a
limited liability company or granted by a person as a member or an assignee of a limited liability company interest or by
a person seeking to become a member or an assignee of a limited liability company interest and, in either case, granted to
the limited liability company, a manager or member thereof, or any of their respective officers, directors, managers, members,
partners, trustees, employees or agents shall be deemed coupled with an interest sufficient in law to support an irrevocable
power.
(d) The execution of a certificate by a person who is authorized by this chapter to execute such certificate constitutes an
oath or affirmation, under the penalties of perjury in the third degree, that, to the best of such person's knowledge and
belief, the facts stated therein are true.
68 Del. Laws, c. 434, § 1; 76 Del. Laws, c. 387, §§ 4, 5; 77 Del. Laws, c. 58, § 2; 77 Del. Laws, c. 287, § 5.;
§ 18-205. Execution, amendment or cancellation by judicial order.
(a) If a person required to execute a certificate required by this subchapter fails or refuses to do so, any other person
who is adversely affected by the failure or refusal may petition the Court of Chancery to direct the execution of the certificate.
If the Court finds that the execution of the certificate is proper and that any person so designated has failed or refused
to execute the certificate, it shall order the Secretary of State to record an appropriate certificate.
(b) If a person required to execute a limited liability company agreement or amendment thereof fails or refuses to do so,
any other person who is adversely affected by the failure or refusal may petition the Court of Chancery to direct the execution
of the limited liability company agreement or amendment thereof. If the Court finds that the limited liability company agreement
or amendment thereof should be executed and that any person required to execute the limited liability company agreement or
amendment thereof has failed or refused to do so, it shall enter an order granting appropriate relief.
68 Del. Laws, c. 434, § 1.;
§ 18-206. Filing.
(a) The signed copy of the certificate of formation and of any certificates of amendment, correction, amendment of a certificate
with a future effective date or time, termination of a certificate with a future effective date or time or cancellation (or
of any judicial decree of amendment or cancellation), and of any certificate of merger or consolidation, any certificate of
ownership and merger, any restated certificate, any corrected certificate, any certificate of conversion to limited liability
company, any certificate of conversion to a non-Delaware entity, any certificate of transfer, any certificate of transfer
and domestic continuance, any certificate of limited liability company domestication, and of any certificate of revival shall
be delivered to the Secretary of State. A person who executes a certificate as an agent or fiduciary need not exhibit evidence
of that person's authority as a prerequisite to filing. Any signature on any certificate authorized to be filed with the Secretary
of State under any provision of this chapter may be a facsimile, a conformed signature or an electronically transmitted signature.
Upon delivery of any certificate, the Secretary of State shall record the date and time of its delivery. Unless the Secretary
of State finds that any certificate does not conform to law, upon receipt of all filing fees required by law the Secretary
of State shall:
(1) Certify that the certificate of formation, the certificate of amendment, the certificate of correction, the certificate
of amendment of a certificate with a future effective date or time, the certificate of termination of a certificate with a
future effective date or time, the certificate of cancellation (or of any judicial decree of amendment or cancellation), the
certificate of merger or consolidation, the certificate of ownership and merger, the restated certificate, the corrected certificate,
the certificate of conversion to limited liability company, the certificate of conversion to a non-Delaware entity, the certificate
of transfer, the certificate of transfer and domestic continuance, the certificate of limited liability company domestication
or the certificate of revival has been filed in the Secretary of State's office by endorsing upon the signed certificate the
word "Filed," and the date and time of the filing. This endorsement is conclusive of the date and time of its filing in the
absence of actual fraud. Except as provided in subdivision (a)(5) or (a)(6) of this section, such date and time of filing
of a certificate shall be the date and time of delivery of the certificate;
(2) File and index the endorsed certificate;
(3) Prepare and return to the person who filed it or that person's representative a copy of the signed certificate, similarly
endorsed, and shall certify such copy as a true copy of the signed certificate; and
(4) Cause to be entered 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 and a copy of such certificate shall be permanently maintained as a public record on a suitable medium. The Secretary
of State is authorized to grant direct access to such system to registered agents subject to the execution of an operating
agreement between the Secretary of State and such registered agent. Any registered agent granted such access shall demonstrate
the existence of policies to ensure that information entered into the system accurately reflects the content of certificates
in the possession of the registered agent at the time of entry.
(5) Upon request made upon or prior to delivery, the Secretary of State may, to the extent deemed practicable, establish as
the date and time of filing of a certificate a date and time after its delivery. If the Secretary of State refuses to file
any certificate due to an error, omission or other imperfection, the Secretary of State may hold such certificate in suspension,
and in such event, upon delivery of a replacement certificate in proper form for filing and tender of the required fees within
5 business days after notice of such suspension is given to the filer, the Secretary of State shall establish as the date
and time of filing of such certificate the date and time that would have been the date and time of filing of the rejected
certificate had it been accepted for filing. The Secretary of State shall not issue a certificate of good standing with respect
to any limited liability company with a certificate held in suspension pursuant to this subsection. The Secretary of State
may establish as the date and time of filing of a certificate the date and time at which information from such certificate
is entered pursuant to subdivision (a)(4) of this section if such certificate is delivered on the same date and within 4 hours
after such information is entered.
(6) If:
a. Together with the actual delivery of a certificate and tender of the required fees, there is delivered to the Secretary
of State a separate affidavit (which in its heading shall be designated as an affidavit of extraordinary condition) attesting,
on the basis of personal knowledge of the affiant or a reliable source of knowledge identified in the affidavit, that an earlier
effort to deliver such certificate and tender such fees was made in good faith, specifying the nature, date and time of such
good faith effort and requesting that the Secretary of State establish such date and time as the date and time of filing of
such certificate; or
b. Upon the actual delivery of a certificate and tender of the required fees, the Secretary of State in the Secretary of State's
own discretion provides a written waiver of the requirement for such an affidavit stating that it appears to the Secretary
of State that an earlier effort to deliver such certificate and tender such fees was made in good faith and specifying the
date and time of such effort; and
c. The Secretary of State determines that an extraordinary condition existed at such date and time, that such earlier effort
was unsuccessful as a result of the existence of such extraordinary condition, and that such actual delivery and tender were
made within a reasonable period (not to exceed 2 business days) after the cessation of such extraordinary condition, then
the Secretary of State may establish such date and time as the date and time of filing of such certificate. No fee shall be
paid to the Secretary of State for receiving an affidavit of extraordinary condition. For purposes of this subsection, an
extraordinary condition means: any emergency resulting from an attack on, invasion or occupation by foreign military forces
of, or disaster, catastrophe, war or other armed conflict, revolution or insurrection or rioting or civil commotion in, the
United States or a locality in which the Secretary of State conducts its business or in which the good faith effort to deliver
the certificate and tender the required fees is made, or the immediate threat of any of the foregoing; or any malfunction
or outage of the electrical or telephone service to the Secretary of State's office, or weather or other condition in or about
a locality in which the Secretary of State conducts its business, as a result of which the Secretary of State's office is
not open for the purpose of the filing of certificates under this chapter or such filing cannot be effected without extraordinary
effort. The Secretary of State may require such proof as it deems necessary to make the determination required under this
subparagraph of subdivision (a)(6), and any such determination shall be conclusive in the absence of actual fraud. If the
Secretary of State establishes the date and time of filing of a certificate pursuant to this subsection, the date and time
of delivery of the affidavit of extraordinary condition or the date and time of the Secretary of State's written waiver of
such affidavit shall be endorsed on such affidavit or waiver and such affidavit or waiver, so endorsed, shall be attached
to the filed certificate to which it relates. Such filed certificate shall be effective as of the date and time established
as the date and time of filing by the Secretary of State pursuant to this subsection, except as to those persons who are substantially
and adversely affected by such establishment and, as to those persons, the certificate shall be effective from the date and
time endorsed on the affidavit of extraordinary condition or written waiver attached thereto.
(b) Upon the filing of a certificate of amendment (or judicial decree of amendment), certificate of correction, corrected
certificate or restated certificate in the office of the Secretary of State, or upon the future effective date or time of
a certificate of amendment (or judicial decree thereof) or restated certificate, as provided for therein, the certificate
of formation shall be amended, corrected or restated as set forth therein. Upon the filing of a certificate of cancellation
(or a judicial decree thereof), or a certificate of merger or consolidation or certificate of ownership and merger which acts
as a certificate of cancellation 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 certificate of cancellation (or a judicial decree thereof) or of a certificate
of merger or consolidation or certificate of ownership and merger which acts as a certificate of cancellation or a certificate
of transfer, or a certificate of conversion to a non-Delaware entity, as provided for therein, or as specified in § 18-104(d),
§ 18-104(i)(4) or § 18-1108(a) of this title, the certificate of formation is canceled. Upon the filing of a certificate of
limited liability company domestication or upon the future effective date or time of a certificate of limited liability company
domestication, the entity filing the certificate of limited liability company domestication is domesticated as a limited liability
company with the effect provided in § 18-212 of this title. Upon the filing of a certificate of conversion to limited liability
company or upon the future effective date or time of a certificate of conversion to limited liability company, the entity
filing the certificate of conversion to limited liability company is converted to a limited liability company with the effect
provided in § 18-214 of this title. Upon the filing of a certificate of revival, the limited liability company is revived
with the effect provided in § 18-1109 of this title. Upon the filing of a certificate of transfer and domestic continuance,
or upon the future effective date or time of a certificate of transfer and domestic continuance, as provided for therein,
the limited liability company filing the certificate of transfer and domestic continuance shall continue to exist as a limited
liability company of the State of Delaware with the effect provided in § 18-213 of this title.
(c) If any certificate filed in accordance with this chapter provides for a future effective date or time and if, prior to
such future effective date or time set forth in such certificate, the transaction is terminated or its terms are amended to
change the future effective date or time or any other matter described in such certificate so as to make such certificate
false or inaccurate in any respect, such certificate shall, prior to the future effective date or time set forth in such certificate,
be terminated or amended by the filing of a certificate of termination or certificate of amendment of such certificate, executed
in accordance with § 18-204 of this title, which shall identify the certificate which has been terminated or amended and shall
state that the certificate has been terminated or the manner in which it has been amended. Upon the filing of a certificate
of amendment of a certificate with a future effective date or time, the certificate identified in such certificate of amendment
is amended. Upon the filing of a certificate of termination of a certificate with a future effective date or time, the certificate
identified in such certificate of termination is terminated.
(d) A fee as set forth in § 18-1105(a)(3) of this title shall be paid at the time of the filing of a certificate of formation,
a certificate of amendment, a certificate of correction, a certificate of amendment of a certificate with a future effective
date or time, a certificate of termination of a certificate with a future effective date or time, a certificate of cancellation,
a certificate of merger or consolidation, a certificate of ownership and merger, a restated certificate, a corrected certificate,
a certificate of conversion to limited liability company, a certificate of conversion to a non-Delaware entity, a certificate
of transfer, a certificate of transfer and domestic continuance, a certificate of limited liability company domestication
or a certificate of revival.
(e) The Secretary of State, acting as agent, shall collect and deposit in a separate account established exclusively for that
purpose, a courthouse municipality fee with respect to each filed instrument and shall thereafter monthly remit funds from
such account to the treasuries of the municipalities designated in § 301 of Title 10. Said fees shall be for the purposes
of defraying certain costs incurred by such municipalities in hosting the primary locations for the Delaware Courts. The fee
to such municipalities shall be $20 for each instrument filed with the Secretary of State in accordance with this section.
The municipality to receive the fee shall be the municipality designated in § 301 of Title 10 in the county in which the limited
liability company's registered office in this State is, or is to be, located, except that a fee shall not be charged for a
document filed in accordance with subchapter IX of this chapter.
(f) A fee as set forth in § 18-1105(a)(4) of this title shall be paid for a certified copy of any paper on file as provided
for by this chapter, and a fee as set forth in § 18-1105(a)(5) of this title shall be paid for each page copied.
68 Del. Laws, c. 434, § 1; 69 Del. Laws, c. 260, §§ 8-11; 70 Del. Laws, c. 75, §§ 7-15; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 360, §§ 1-4; 71 Del. Laws, c. 77, §§ 9-12; 73 Del. Laws, c. 83, §§ 4-10; 73 Del. Laws, c. 295, § 5; 74 Del. Laws, c. 85, §§ 2-10; 74 Del. Laws, c. 119, § 1; 75 Del. Laws, c. 317, § 5; 76 Del. Laws, c. 105, §§ 11-14; 77 Del. Laws, c. 287, §§ 6-8.;
§ 18-207. Notice.
The fact that a certificate of formation is on file in the office of the Secretary of State is notice that the entity formed
in connection with the filing of the certificate of formation is a limited liability company formed under the laws of the
State of Delaware and is notice of all other facts set forth therein which are required to be set forth in a certificate of
formation by § 18-201(a)(1) and (2) of this title and which are permitted to be set forth in a certificate of formation by
§ 18-215(b) of this title.
68 Del. Laws, c. 434, § 1; 70 Del. Laws, c. 360, § 5.;
§ 18-208. Restated certificate.
(a) A limited liability company may, whenever desired, integrate into a single instrument all of the provisions of its certificate
of formation which are then in effect and operative as a result of there having theretofore been filed with the Secretary
of State 1 or more certificates or other instruments pursuant to any of the sections referred to in this subchapter, and it
may at the same time also further amend its certificate of formation by adopting a restated certificate of formation.
(b) If a restated certificate of formation merely restates and integrates but does not further amend the initial certificate
of formation, as theretofore amended or supplemented by any instrument that was executed and filed pursuant to any of the
sections in this subchapter, it shall be specifically designated in its heading as a "Restated Certificate of Formation" together
with such other words as the limited liability company may deem appropriate and shall be executed by an authorized person
and filed as provided in § 18-206 of this title in the office of the Secretary of State. If a restated certificate restates
and integrates and also further amends in any respect the certificate of formation, as theretofore amended or supplemented,
it shall be specifically designated in its heading as an "Amended and Restated Certificate of Formation" together with such
other words as the limited liability company may deem appropriate and shall be executed by at least 1 authorized person, and
filed as provided in § 18-206 of this title in the office of the Secretary of State.
(c) A restated certificate of formation shall state, either in its heading or in an introductory paragraph, the limited liability
company's present name, and, if it has been changed, the name under which it was originally filed, and the date of filing
of its original certificate of formation with the Secretary of State, and the future effective date or time (which shall be
a date or time certain) of the restated certificate if it is not to be effective upon the filing of the restated certificate.
A restated certificate shall also state that it was duly executed and is being filed in accordance with this section. If a
restated certificate only restates and integrates and does not further amend a limited liability company's certificate of
formation as theretofore amended or supplemented and there is no discrepancy between those provisions and the restated certificate,
it shall state that fact as well.
(d) Upon the filing of a restated certificate of formation with the Secretary of State, or upon the future effective date
or time of a restated certificate of formation as provided for therein, the initial certificate of formation, as theretofore
amended or supplemented, shall be superseded; thenceforth, the restated certificate of formation, including any further amendment
or changes made thereby, shall be the certificate of formation of the limited liability company, but the original effective
date of formation shall remain unchanged.
(e) Any amendment or change effected in connection with the restatement and integration of the certificate of formation shall
be subject to any other provision of this chapter, not inconsistent with this section, which would apply if a separate certificate
of amendment were filed to effect such amendment or change.
68 Del. Laws, c. 434, § 1.;
§ 18-209. Merger and consolidation.
(a) As used in this section and in § 18-204 of this title, "other business entity" means a corporation, a statutory trust,
a business trust, an association, a real estate investment trust, a common-law trust, or any other unincorporated business
or entity, including a partnership (whether general (including a limited liability partnership) or limited (including a limited
liability limited partnership)), and a foreign limited liability company, but excluding a domestic limited liability company.
As used in this section and in §§ 18-210 and 18-301 of this title, "plan of merger" means a writing approved by a domestic
limited liability company, in the form of resolutions or otherwise, that states the terms and conditions of a merger under
subsection (i) of this section.
(b) Pursuant to an agreement of merger or consolidation, 1 or more domestic limited liability companies may merge or consolidate
with or into 1 or more domestic limited liability companies or 1 or more other business entities formed or organized under
the laws of the State of Delaware or any other state or the United States or any foreign country or other foreign jurisdiction,
or any combination thereof, with such domestic limited liability company or other business entity as the agreement shall provide
being the surviving or resulting domestic limited liability company or other business entity. Unless otherwise provided in
the limited liability company agreement, an agreement of merger or consolidation or a plan of merger shall be approved by
each domestic limited liability company which is to merge or consolidate by the members or, if there is more than one class
or group of members, then by each class or group of members, in either case, by members who own more than 50 percent of the
then current percentage or other interest in the profits of the domestic limited liability company owned by all of the members
or by the members in each class or group, as appropriate. In connection with a merger or consolidation hereunder, rights
or securities of, or interests in, a domestic limited liability company or other business entity which is a constituent party
to the merger or consolidation may be exchanged for or converted into cash, property, rights or securities of, or interests
in, the surviving or resulting domestic limited liability company or other business entity or, in addition to or in lieu thereof,
may be exchanged for or converted into cash, property, rights or securities of, or interests in, a domestic limited liability
company or other business entity which is not the surviving or resulting limited liability company or other business entity
in the merger or consolidation or may be cancelled. Notwithstanding prior approval, an agreement of merger or consolidation
or a plan of merger may be terminated or amended pursuant to a provision for such termination or amendment contained in the
agreement of merger or consolidation or plan of merger.
(c) Except in the case of a merger under subsection (i) of this section, if a domestic limited liability company is merging
or consolidating under this section, the domestic limited liability company or other business entity surviving or resulting
in or from the merger or consolidation shall file a certificate of merger or consolidation executed by 1 or more authorized
persons on behalf of the domestic limited liability company when it is the surviving or resulting entity in the office of
the Secretary of State. The certificate of merger or consolidation shall state:
(1) The name and jurisdiction of formation or organization of each of the domestic limited liability companies and other business
entities which is to merge or consolidate;
(2) That an agreement of merger or consolidation has been approved and executed by each of the domestic limited liability
companies and other business entities which is to merge or consolidate;
(3) The name of the surviving or resulting domestic limited liability company or other business entity;
(4) In the case of a merger in which a domestic limited liability company is the surviving entity, such amendments, if any,
to the certificate of formation of the surviving domestic limited liability company to change its name, registered office
or registered agent as are desired to be effected by the merger;
(5) The future effective date or time (which shall be a date or time certain) of the merger or consolidation if it is not
to be effective upon the filing of the certificate of merger or consolidation;
(6) That the agreement of merger or consolidation is on file at a place of business of the surviving or resulting domestic
limited liability company or other business entity, and shall state the address thereof;
(7) That a copy of the agreement of merger or consolidation will be furnished by the surviving or resulting domestic limited
liability company or other business entity, on request and without cost, to any member of any domestic limited liability company
or any person holding an interest in any other business entity which is to merge or consolidate; and
(8) If the surviving or resulting entity is not a domestic limited liability company, or a corporation, partnership (whether
general (including a limited liability partnership) or limited (including a limited liability limited partnership)) or statutory
trust organized under the laws of the State of Delaware, a statement that such surviving or resulting other business entity
agrees that it may be served with process in the State of Delaware in any action, suit or proceeding for the enforcement of
any obligation of any domestic limited liability company which is to merge or consolidate, irrevocably appointing the Secretary
of State as its agent to accept service of process in any such action, suit or proceeding and specifying the address to which
a copy of such process shall be mailed to it by the Secretary of State. Process may be served upon the Secretary of State
under this subsection by means of electronic transmission but only as prescribed by the Secretary of State. The Secretary
of State is authorized to issue such rules and regulations with respect to such service as the Secretary of State deems necessary
or appropriate. In the event of service hereunder upon the Secretary of State, the procedures set forth in § 18-911(c) of
this title shall be applicable, except that the plaintiff in any such action, suit or proceeding shall furnish the Secretary
of State with the address specified in the certificate of merger or consolidation provided for in this section and any other
address which the plaintiff may elect to furnish, together with copies of such process as required by the Secretary of State,
and the Secretary of State shall notify such surviving or resulting other business entity at all such addresses furnished
by the plaintiff in accordance with the procedures set forth in § 18-911(c) of this title.
(d) Unless a future effective date or time is provided in a certificate of merger or consolidation, or in the case of a merger
under subsection (i) of this section in a certificate of ownership and merger, in which event a merger or consolidation shall
be effective at any such future effective date or time, a merger or consolidation shall be effective upon the filing in the
office of the Secretary of State of a certificate of merger or consolidation or a certificate of ownership and merger.
(e) A certificate of merger or consolidation or a certificate of ownership and merger shall act as a certificate of cancellation
for a domestic limited liability company which is not the surviving or resulting entity in the merger or consolidation. A
certificate of merger that sets forth any amendment in accordance with subsection (c)(4) of this section shall be deemed to
be an amendment to the certificate of formation of the limited liability company, and the limited liability company shall
not be required to take any further action to amend its certificate of formation under § 18-202 of this title with respect
to such amendments set forth in the certificate of merger. Whenever this section requires the filing of a certificate of merger
or consolidation, such requirement shall be deemed satisfied by the filing of an agreement of merger or consolidation containing
the information required by this section to be set forth in the certificate of merger or consolidation.
(f) An agreement of merger or consolidation or a plan of merger approved in accordance with subsection (b) of this section
may:
(1) Effect any amendment to the limited liability company agreement; or
(2) Effect the adoption of a new limited liability company agreement, for a limited liability company if it is the surviving
or resulting limited liability company in the merger or consolidation.
Any amendment to a limited liability company agreement or adoption of a new limited liability company agreement made pursuant
to the foregoing sentence shall be effective at the effective time or date of the merger or consolidation and shall be effective
notwithstanding any provision of the limited liability company agreement relating to amendment or adoption of a new limited
liability company agreement, other than a provision that by its terms applies to an amendment to the limited liability company
agreement or the adoption of a new limited liability company agreement, in either case, in connection with a merger or consolidation.
The provisions of this subsection shall not be construed to limit the accomplishment of a merger or of any of the matters
referred to herein by any other means provided for in a limited liability company agreement or other agreement or as otherwise
permitted by law, including that the limited liability company agreement of any constituent limited liability company to the
merger or consolidation (including a limited liability company formed for the purpose of consummating a merger or consolidation)
shall be the limited liability company agreement of the surviving or resulting limited liability company.
(g) When any merger or consolidation shall have become effective under this section, for all purposes of the laws of the State
of Delaware, all of the rights, privileges and powers of each of the domestic limited liability companies and other business
entities that have merged or consolidated, and all property, real, personal and mixed, and all debts due to any of said domestic
limited liability companies and other business entities, as well as all other things and causes of action belonging to each
of such domestic limited liability companies and other business entities, shall be vested in the surviving or resulting domestic
limited liability company or other business entity, and shall thereafter be the property of the surviving or resulting domestic
limited liability company or other business entity as they were of each of the domestic limited liability companies and other
business entities that have merged or consolidated, and the title to any real property vested by deed or otherwise, under
the laws of the State of Delaware, in any of such domestic limited liability companies and other business entities, shall
not revert or be in any way impaired by reason of this chapter; but all rights of creditors and all liens upon any property
of any of said domestic limited liability companies and other business entities shall be preserved unimpaired, and all debts,
liabilities and duties of each of the said domestic limited liability companies and other business entities that have merged
or consolidated shall thenceforth attach to the surviving or resulting domestic limited liability company or other business
entity, and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred or contracted
by it. Unless otherwise agreed, a merger or consolidation of a domestic limited liability company, including a domestic limited
liability company which is not the surviving or resulting entity in the merger or consolidation, shall not require such domestic
limited liability company to wind up its affairs under § 18-803 of this title or pay its liabilities and distribute its assets
under § 18-804 of this title, and the merger or consolidation shall not constitute a dissolution of such limited liability
company.
(h) A limited liability company agreement may provide that a domestic limited liability company shall not have the power to
merge or consolidate as set forth in this section.
(i) In any case in which (i) at least 90% of the outstanding shares of each class of the stock of a corporation or corporations
(other than a corporation which has in its certificate of incorporation the provision required by § 251(g)(7)(i) of Title
8), of which class there are outstanding shares that, absent § 267(a) of Title 8, would be entitled to vote on such merger,
is owned by a domestic limited liability company, (ii) 1 or more of such corporations is a corporation of the State of Delaware,
and (iii) any corporation that is not a corporation of the State of Delaware is a corporation of any other state or the District
of Columbia or another jurisdiction, the laws of which do not forbid such merger, the domestic limited liability company having
such stock ownership may either merge the corporation or corporations into itself and assume all of its or their obligations,
or merge itself, or itself and 1 or more of such corporations, into 1 of the other corporations, pursuant to a plan of merger.
If a domestic limited liability company is causing a merger under this subsection, the domestic limited liability company
shall file a certificate of ownership and merger executed by 1 or more authorized persons on behalf of the domestic limited
liability company in the office of the Secretary of State. The certificate of ownership and merger shall certify that such
merger was authorized in accordance with the domestic limited liability company's limited liability company agreement and
this chapter, and if the domestic limited liability company shall not own all the outstanding stock of all the corporations
that are parties to the merger, shall state the terms and conditions of the merger, including the securities, cash, property,
or rights to be issued, paid, delivered or granted by the surviving domestic limited liability company or corporation upon
surrender of each share of the corporation or corporations not owned by the domestic limited liability company, or the cancellation
of some or all of such shares. If a corporation surviving a merger under this subsection is not a corporation organized under
the laws of the State of Delaware, then the terms and conditions of the merger shall obligate such corporation to agree that
it may be served with process in the State of Delaware in any proceeding for enforcement of any obligation of the domestic
limited liability company or any obligation of any constituent corporation of the State of Delaware, as well as for enforcement
of any obligation of the surviving corporation, including any suit or other proceeding to enforce the right of any stockholders
as determined in appraisal proceedings pursuant to § 262 of Title 8, and to irrevocably appoint the Secretary of State as
its agent to accept service of process in any such suit or other proceedings, and to specify the address to which a copy of
such process shall be mailed by the Secretary of State. Process may be served upon the Secretary of State under this subsection
by means of electronic transmission but only as prescribed by the Secretary of State. The Secretary of State is authorized
to issue such rules and regulations with respect to such service as the Secretary of State deems necessary or appropriate.
In the event of such service upon the Secretary of State in accordance with this subsection, the Secretary of State shall
forthwith notify such surviving corporation thereof by letter, directed to such surviving corporation at its address so specified,
unless such surviving corporation shall have designated in writing to the Secretary of State a different address for such
purpose, in which case it shall be mailed to the last address so designated. Such letter shall be sent by a mail or courier
service that includes a record of mailing or deposit with the courier and a record of delivery evidenced by the signature
of the recipient. Such letter shall enclose a copy of the process and any other papers served on the Secretary of State pursuant
to this subsection. It shall be the duty of the plaintiff in the event of such service to serve process and any other papers
in duplicate, to notify the Secretary of State that service is being effected pursuant to this subsection and to pay the Secretary
of State the sum of $50 for the use of the State of Delaware, which sum shall be taxed as part of the costs in the proceeding,
if the plaintiff shall prevail therein. The Secretary of State shall maintain an alphabetical record of any such service setting
forth the name of the plaintiff and the defendant, the title, docket number and nature of the proceeding in which process
has been served, the fact that service has been effected pursuant to this subsection, the return date thereof, and the day
and hour service was made. The Secretary of State shall not be required to retain such information longer than 5 years from
receipt of the service of process.
68 Del. Laws, c. 434, § 1; 69 Del. Laws, c. 260, §§ 12, 13; 70 Del. Laws, c. 75, §§ 16, 17; 71 Del. Laws, c. 341, §§ 3-7; 72 Del. Laws, c. 389, § 7; 73 Del. Laws, c. 83, § 11; 73 Del. Laws, c. 329, §§ 27, 28; 74 Del. Laws, c. 275, §§ 2-4; 75 Del. Laws, c. 317, § 6; 76 Del. Laws, c. 105, §§ 15-18; 77 Del. Laws, c. 58, §§ 3-5; 77 Del. Laws, c. 287, §§ 9-16.;
§ 18-210. Contractual appraisal rights.
A limited liability company agreement or an agreement of merger or consolidation or a plan of merger may provide that contractual
appraisal rights with respect to a limited liability company interest or another interest in a limited liability company shall
be available for any class or group or series of members or limited liability company interests in connection with any amendment
of a limited liability company agreement, any merger or consolidation in which the limited liability company is a constituent
party to the merger or consolidation, any conversion of the limited liability company to another business form, any transfer
to or domestication or continuance in any jurisdiction by the limited liability company, or the sale of all or substantially
all of the limited liability company's assets. The Court of Chancery shall have jurisdiction to hear and determine any matter
relating to any such appraisal rights.
69 Del. Laws, c. 260, § 14; 73 Del. Laws, c. 295, § 6; 76 Del. Laws, c. 105, § 19; 77 Del. Laws, c. 287, § 17.;
§ 18-211. Certificate of correction.
(a) Whenever any certificate authorized to be filed with the office of the Secretary of State under any provision of this
chapter has been so filed and is an inaccurate record of the action therein referred to, or was defectively or erroneously
executed, such certificate may be corrected by filing with the office of the Secretary of State a certificate of correction
of such certificate. The certificate of correction shall specify the inaccuracy or defect to be corrected, shall set forth
the portion of the certificate in corrected form, and shall be executed and filed as required by this chapter. The certificate
of correction shall be effective as of the date the original certificate was filed, except as to those persons who are substantially
and adversely affected by the correction, and as to those persons the certificate of correction shall be effective from the
filing date.
(b) In lieu of filing a certificate of correction, a certificate may be corrected by filing with the Secretary of State a
corrected certificate which shall be executed and filed as if the corrected certificate were the certificate being corrected,
and a fee equal to the fee payable to the Secretary of State if the certificate being corrected were then being filed shall
be paid and collected by the Secretary of State for the use of the State of Delaware in connection with the filing of the
corrected certificate. The corrected certificate shall be specifically designated as such in its heading, shall specify the
inaccuracy or defect to be corrected and shall set forth the entire certificate in corrected form. A certificate corrected
in accordance with this section shall be effective as of the date the original certificate was filed, except as to those persons
who are substantially and adversely affected by the correction and as to those persons the certificate as corrected shall
be effective from the filing date.
69 Del. Laws, c. 260, § 15; 71 Del. Laws, c. 77, § 13.;
§ 18-212. Domestication of non-United States entities.
(a) As used in this section and in § 18-204 of this title, "non-United States entity" means a foreign limited liability company
(other than one formed under the laws of a state) or a corporation, a statutory trust, a business trust, an association, a
real estate investment trust, a common-law trust or any other unincorporated business or entity, including a partnership (whether
general (including a limited liability partnership) or limited (including a limited liability limited partnership)) formed,
incorporated, created or that otherwise came into being under the laws of any foreign country or other foreign jurisdiction
(other than any state).
(b) Any non-United States entity may become domesticated as a limited liability company in the State of Delaware by complying
with subsection (g) of this section and filing in the office of the Secretary of State in accordance with § 18-206 of this
title:
(1) A certificate of limited liability company domestication that has been executed in accordance with § 18-204 of this title;
and
(2) A certificate of formation that complies with § 18-201 of this title and has been executed by 1 or more authorized persons
in accordance with § 18-204 of this title.
(c) The certificate of limited liability company domestication shall state:
(1) The date on which and jurisdiction where the non-United States entity was first formed, incorporated, created or otherwise
came into being;
(2) The name of the non-United States entity immediately prior to the filing of the certificate of limited liability company
domestication;
(3) The name of the limited liability company as set forth in the certificate of formation filed in accordance with subsection
(b) of this section;
(4) The future effective date or time (which shall be a date or time certain) of the domestication as a limited liability
company if it is not to be effective upon the filing of the certificate of limited liability company domestication and the
certificate of formation;
(5) The jurisdiction that constituted the seat, siege social, or principal place of business or central administration of
the non-United States entity, or any other equivalent thereto under applicable law, immediately prior to the filing of the
certificate of limited liability company domestication; and
(6) That the domestication has been approved in the manner provided for by the document, instrument, agreement or other writing,
as the case may be, governing the internal affairs of the non-United States entity and the conduct of its business or by applicable
non-Delaware law, as appropriate.
(d) Upon the filing in the office of the Secretary of State of the certificate of limited liability company domestication
and the certificate of formation or upon the future effective date or time of the certificate of limited liability company
domestication and the certificate of formation, the non-United States entity shall be domesticated as a limited liability
company in the State of Delaware and the limited liability company shall thereafter be subject to all of the provisions of
this chapter, except that notwithstanding § 18-201 of this title, the existence of the limited liability company shall be
deemed to have commenced on the date the non-United States entity commenced its existence in the jurisdiction in which the
non-United States entity was first formed, incorporated, created or otherwise came into being.
(e) The domestication of any non-United States entity as a limited liability company in the State of Delaware shall not be
deemed to affect any obligations or liabilities of the non-United States entity incurred prior to its domestication as a limited
liability company in the State of Delaware, or the personal liability of any person therefor.
(f) The filing of a certificate of limited liability company domestication shall not affect the choice of law applicable to
the non-United States entity, except that from the effective date or time of the domestication, the law of the State of Delaware,
including the provisions of this chapter, shall apply to the non-United States entity to the same extent as if the non-United
States entity had been formed as a limited liability company on that date.
(g) Prior to the filing of a certificate of limited liability company domestication with the Office of the Secretary of State,
the domestication shall be approved in the manner provided for by the document, instrument, agreement or other writing, as
the case may be, governing the internal affairs of the non-United States entity and the conduct of its business or by applicable
non-Delaware law, as appropriate, and a limited liability company agreement shall be approved by the same authorization required
to approve the domestication.
(h) When any domestication shall have become effective under this section, for all purposes of the laws of the State of Delaware,
all of the rights, privileges and powers of the non-United States entity that has been domesticated, and all property, real,
personal and mixed, and all debts due to such non-United States entity, as well as all other things and causes of action belonging
to such non-United States entity, shall remain vested in the domestic limited liability company to which such non-United States
entity has been domesticated (and also in the non-United States entity, if and for so long as the non-United States entity
continues its existence in the foreign jurisdiction in which it was existing immediately prior to the domestication) and shall
be the property of such domestic limited liability company (and also of the non-United States entity, if and for so long
as the non-United States entity continues its existence in the foreign jurisdiction in which it was existing immediately prior
to the domestication), and the title to any real property vested by deed or otherwise in such non-United States entity shall
not revert or be in any way impaired by reason of this chapter; but all rights of creditors and all liens upon any property
of such non-United States entity shall be preserved unimpaired, and all debts, liabilities and duties of the non-United States
entity that has been domesticated shall remain attached to the domestic limited liability company to which such non-United
States entity has been domesticated (and also to the non-United States entity, if and for so long as the non-United States
entity continues its existence in the foreign jurisdiction in which it was existing immediately prior to the domestication),
and may be enforced against it to the same extent as if said debts, liabilities and duties had originally been incurred or
contracted by it in its capacity as a domestic limited liability company. The rights, privileges, powers and interests in
property of the non-United States entity, as well as the debts, liabilities and duties of the non-United States entity, shall
not be deemed, as a consequence of the domestication, to have been transferred to the domestic limited liability company to
which such non-United States entity has domesticated for any purpose of the laws of the State of Delaware.
(i) When a non-United States entity has become domesticated as a limited liability company pursuant to this section, for all
purposes of the laws of the State of Delaware, the limited liability company shall be deemed to be the same entity as the
domesticating non-United States entity and the domestication shall constitute a continuation of the existence of the domesticating
non-United States entity in the form of a domestic limited liability company. Unless otherwise agreed, for all purposes of
the laws of the State of Delaware, the domesticating non-United States entity shall not be required to wind up its affairs
or pay its liabilities and distribute its assets, and the domestication shall not be deemed to constitute a dissolution of
such non-United States entity. If, following domestication, a non-United States entity that has become domesticated as a limited
liability company continues its existence in the foreign country or other foreign jurisdiction in which it was existing immediately
prior to domestication, the limited liability company and such non-United States entity shall, for all purposes of the laws
of the State of Delaware, constitute a single entity formed, incorporated, created or otherwise having come into being, as
applicable, and existing under the laws of the State of Delaware and the laws of such foreign country or other foreign jurisdiction.
(j) In connection with a domestication hereunder, rights or securities of, or interests in, the non-United States entity that
is to be domesticated as a domestic limited liability company may be exchanged for or converted into cash, property, rights
or securities of, or interests in, such domestic limited liability company or, in addition to or in lieu thereof, may be exchanged
for or converted into cash, property, rights or securities of, or interests in, another domestic limited liability company
or other entity or may be cancelled.
70 Del. Laws, c. 360, § 6; 71 Del. Laws, c. 77, § 14; 72 Del. Laws, c. 129, § 4; 72 Del. Laws, c. 389, §§ 8, 9; 73 Del. Laws, c. 83, § 12; 74 Del. Laws, c. 275, § 5; 75 Del. Laws, c. 51, § 3; 75 Del. Laws, c. 317, §§ 7-13; 76 Del. Laws, c. 387, §§ 6, 7.;
§ 18-213. Transfer or continuance of domestic limited liability companies.
(a) Upon compliance with this section, any limited liability company may transfer to or domesticate or continue in any jurisdiction,
other than any state, and, in connection therewith, may elect to continue its existence as a limited liability company in
the State of Delaware.
(b) If the limited liability company agreement specifies the manner of authorizing a transfer or domestication or continuance
described in subsection (a) of this section, the transfer or domestication or continuance shall be authorized as specified
in the limited liability company agreement. If the limited liability company agreement does not specify the manner of authorizing
a transfer or domestication or continuance described in subsection (a) of this section and does not prohibit such a transfer
or domestication or continuance, the transfer or domestication or continuance shall be authorized in the same manner as is
specified in the limited liability company agreement for authorizing a merger or consolidation that involves the limited liability
company as a constituent party to the merger or consolidation. If the limited liability company agreement does not specify
the manner of authorizing a transfer or domestication or continuance described in subsection (a) of this section or a merger
or consolidation that involves the limited liability company as a constituent party and does not prohibit such a transfer
or domestication or continuance, the transfer or domestication or continuance shall be authorized by the approval by the members
or, if there is more than 1 class or group of members, then by each class or group of members, in either case, by the members
who own more than 50% of the then current percentage or other interest in the profits of the domestic limited liability company
owned by all of the members or by the members in each class or group, as appropriate. If a transfer or domestication or continuance
described in subsection (a) of this section shall be authorized as provided in this subsection (b), a certificate of transfer
if the limited liability company's existence as a limited liability company of the State of Delaware is to cease, or a certificate
of transfer and domestic continuance if the limited liability company's existence as a limited liability company in the State
