CHAPTER 3. FORMATION AND CERTIFICATE OF LIMITED PARTNERSHIP
IC 23-16-3
Chapter 3. Formation and Certificate of Limited Partnership
IC 23-16-3-1
Partnership agreement
Sec. 1. (a) A limited partnership must have a partnershipagreement. Except as provided in IC 23-16-8-2 and IC 23-16-8-4, aperson has the rights, and is subject to the liabilities, of a generalpartner only if the person has signed a partnership agreement inperson or by an attorney-in-fact.
(b) The partnership agreement of a limited partnership may beamended from time to time. Unless the partnership agreementprovides otherwise, an amendment of the partnership agreement maybe made only with the written consent of each limited partner whomay be adversely affected by an amendment that would accomplishany of the following:
(1) Increase the obligations of any limited partner to makecontributions.
(2) Alter the allocation for tax purposes of any items of income,gain, loss, deduction, or credit.
(3) Alter the manner of computing the distributions of anypartner.
(4) Alter, except as provided in IC 23-16-4-2(a), the voting orother rights of any limited partner.
(5) Allow the obligation of a partner to make a contribution tobe compromised by written consent of fewer than all partners.
(6) Alter the procedures for amendment of the partnershipagreement.
As added by P.L.147-1988, SEC.1.
IC 23-16-3-2
Certificate of limited partnership
Sec. 2. (a) To form a limited partnership, a certificate of limitedpartnership must be executed and filed in the office of the secretaryof state. The certificate must include the following:
(1) The name of the limited partnership.
(2) The address of the office and the name and address of theagent for service of process required to be maintained byIC 23-16-2-3.
(3) The name and the business address of each general partner.
(4) The latest date upon which the limited partnership is todissolve.
(5) Any other matters the general partners agree to include.
(b) A limited partnership is formed at the time of the filing of theinitial certificate of limited partnership in the office of the secretaryof state or at any later time specified in the certificate of limitedpartnership if, in either case, there has been substantial compliancewith the requirements of this section. Unless the certificate specifiesan effective date that is different from the filing date, the time anddate of the filing of the certificate is conclusive evidence as to when
a limited partnership is formed.
As added by P.L.147-1988, SEC.1.
IC 23-16-3-3
Amendment to certificate
Sec. 3. (a) A certificate of limited partnership is amended by filinga certificate of amendment in the office of the secretary of state. Thecertificate of amendment must include the following:
(1) The name of the limited partnership.
(2) The amendment to the certificate of limited partnership.
(b) Within sixty (60) days after any of the following eventsoccurs, an amendment to a certificate of limited partnershipreflecting the occurrence of the event or events must be filed:
(1) The admission of a new general partner.
(2) The withdrawal of a general partner.
(3) The continuation of the business under IC 23-16-9-1 after anevent of withdrawal of a general partner.
(4) The discovery by a general partner that any statement in thecertificate of limited partnership was false when made.
(5) The discovery by a general partner that any facts orarrangements described in the certificate of limited partnershiphave changed, making the certificate inaccurate in any respect.
(c) The filing of an amendment reflecting the occurrence of anevent referred to in subsection (b) within the time required undersubsection (b) absolves a person from any liability that might arisebecause the certificate did not reflect the occurrence of that eventbefore the filing of the amendment.
(d) A certificate of limited partnership may be amended at anytime for any other proper purpose the general partners maydetermine.
As added by P.L.147-1988, SEC.1.
IC 23-16-3-4
Cancellation of certificate
Sec. 4. A certificate of limited partnership shall be cancelled byfiling a certificate of cancellation upon the dissolution and thecommencement of winding up of the partnership or at any other timethere are no limited partners. A certificate of cancellation shall befiled in the office of the secretary of state and must include thefollowing:
(1) The name of the limited partnership.
(2) The date of filing of its certificate of limited partnership.
(3) The reason for filing the certificate of cancellation.
(4) The effective date or time (which must be a date or timecertain) of cancellation if it is not to be effective upon the filingof the certificate.
(5) Any other information the person filing the certificate ofcancellation determines.
As added by P.L.147-1988, SEC.1.
IC 23-16-3-5
Execution of certificates
Sec. 5. (a) Each certificate required or permitted to be filed in theoffice of the secretary of state under this article shall be executed inthe following manner:
(1) An initial certificate of limited partnership must be signedby all general partners.
(2) A certificate of amendment or restatement must be signedby at least one (1) general partner and by each other generalpartner designated in the certificate as a new general partner;however, if there are no general partners a certificate ofamendment or restatement must be signed by each new generalpartner as designated in the certificate.
(3) A certificate of cancellation must be signed by all generalpartners; however, if there is no general partner, a certificate ofcancellation must be signed by a majority in interest of thelimited partners.
(b) Any person may sign a certificate, a partnership agreement, oran amendment to a certificate or partnership agreement by anattorney in fact. Powers of attorney relating to the signing of acertificate, a partnership agreement, or an amendment to a certificateor partnership agreement by an attorney in fact need not be sworn to,verified, acknowledged, or signed in the presence of a notary public,and need not be filed with the secretary of state, but must be retainedamong the records of the partnership. A power of attorney may beincluded in the partnership agreement and need not be a separatedocument.
(c) The execution of a certificate by any person constitutes anoath or affirmation under the penalties of perjury that to the best ofthe person's knowledge and belief the statements made in thecertificate are true.
As added by P.L.147-1988, SEC.1. Amended by P.L.130-2006,SEC.22.
IC 23-16-3-6
Execution by judicial act
Sec. 6. If a person required to execute any certificate undersection 5 of this chapter fails or refuses to do so, any other personwho is adversely affected by the failure or refusal may petition thecircuit or superior court of the county in which the office describedin IC 23-16-2-3 is located to direct the execution of the certificate. Ifthe office referred to in IC 23-16-2-3 is not within Indiana, thepetition may be made to the circuit or superior court of the county inwhich the business address of the registered agent referred to inIC 23-16-2-3 is located. If the court finds that it is proper for thecertificate to be executed and that any person so designated hasfailed or refused to execute the certificate, it shall order the secretaryof state to file a certificate in form and substance as directed by thecourt.
As added by P.L.147-1988, SEC.1.
IC 23-16-3-7
Filing in office of secretary of state
Sec. 7. (a) The original signed copy (together with a duplicatecopy, which may be either a signed or conformed copy) of thecertificate of limited partnership, of any certificates of amendmentor cancellation (or of any judicial decree of amendment orcancellation), and of any restated certificate shall be delivered to thesecretary of state. A person who executes a certificate as an agent orfiduciary need not exhibit evidence of the person's authority as aprerequisite to filing. Unless the secretary of state finds that acertificate does not conform to law, upon receipt of all filing feesrequired by law, the secretary of state shall:
(1) endorse on the original and each copy the word "filed" andthe date and time of the filing;
(2) file the original certificate; and
(3) return the copy to the person who filed it or to that person'srepresentative.
(b) In the absence of fraud an endorsement by the secretary ofstate under subsection (a) is conclusive evidence of the date and timeof the filing of the certificate.
(c) Upon the filing of a certificate of amendment (or judicialdecree of amendment) or a restated certificate in the office of thesecretary of state, or upon the effective date or time provided for ina certificate of amendment (or judicial decree of amendment) or arestated certificate, the certificate of limited partnership is amendedor restated as set forth in the certificate of amendment or restatedcertificate. Upon the filing of a certificate of cancellation (or ajudicial decree of cancellation), or upon the effective date or time ofa certificate of cancellation (or a judicial decree thereof), thecertificate of limited partnership is cancelled.
As added by P.L.147-1988, SEC.1.
IC 23-16-3-8
Liability for false statement in certificate
Sec. 8. (a) Except as provided in subsection (b), if any certificateof limited partnership or certificate of amendment or cancellationcontains a materially false statement, a person who suffers loss byreasonable reliance on the statement may recover damages for theloss from:
(1) any person who executed the certificate, or caused anotherto execute the certificate on that person's behalf, and who knewthe statement to be false at the time the certificate wasexecuted;
(2) any general partner who knew or should have known thestatement to be false at the time the certificate was executed;and
(3) any general partner who:
(A) after the execution of the certificate, but at least sixty(60) days before the statement was reasonably relied upon,knew or should have known that any arrangement or other
fact described in a statement in the certificate had changed,making the statement inaccurate; and
(B) failed to cancel or amend the certificate or to file apetition for the cancellation or amendment of the certificateunder section 6 of this chapter before the statement wasreasonably relied upon.
(b) A general partner is not liable for failing to cancel or amenda certificate or for failing to file a petition for the amendment orcancellation of a certificate under subsection (a)(2) if a certificate ofamendment, certificate of cancellation, or petition for amendment orcancellation is filed within sixty (60) days after the general partnerknew or should have known to the extent provided in subsection (a)that the statement in the certificate was false in any material respect.
As added by P.L.147-1988, SEC.1.
IC 23-16-3-9
Scope of notice
Sec. 9. The fact that a certificate of limited partnership is on filein the office of the secretary of state is notice that the partnership isa limited partnership and is notice of all other facts that are requiredto be set forth in a certificate of limited partnership under section 2of this chapter and that are set forth in the certificate.
As added by P.L.147-1988, SEC.1.
IC 23-16-3-10
Delivery of certificates to limited partners
Sec. 10. Upon the return by the secretary of state of a certificatemarked "Filed" under section 7 of this chapter, the general partnersshall promptly deliver or mail a copy of the certificate to each limitedpartner, unless the partnership agreement provides otherwise.
As added by P.L.147-1988, SEC.1.
IC 23-16-3-11
Integration and restatement of certificate
Sec. 11. (a) Whenever it so desires, a limited partnership mayintegrate into a single instrument all of the provisions of itscertificate of limited partnership that are in effect and operative as aresult of the previous filing with the secretary of state of one (1) ormore certificates or other instruments under this article by filing arestated certificate of limited partnership specifically designated asa "Restated Certificate of Partnership", and stating in its heading orin a separate paragraph that there is no discrepancy between theprovisions of the original certificate of limited partnership with itsamendments and the restated certificate. If the restated certificaterestates and integrates and also further amends in any respect thecertificate of limited partnership, as previously amended orsupplemented, it must bear a heading with the words "Amended andRestated Certificate of Limited Partnership" together with such otherwords as the partnership considers appropriate, it must be executedby at least one (1) general partner and by each other general partner
designated in the amended and restated certificate of limitedpartnership as a new general partner, and it must be filed undersection 7 of this chapter in the office of the secretary of state.
(b) A restated or amended and restated certificate of limitedpartnership must state, either in its heading or in an introductoryparagraph, the limited partnership's present name (and, if it has beenchanged, the name under which the limited partnership wasoriginally filed), the date of filing of the original certificate of limitedpartnership with the secretary of state, and the effective date or time(which must be a date or time certain) of the restated or amended andrestated certificate, if it is not to be effective upon the filing of therestated or amended and restated certificate. A restated or amendedand restated certificate must also state that it was duly executed andis being filed in accordance with this section.
(c) Upon the filing of the restated certificate of limited partnershipwith the secretary of state, or upon the effective date or timeprovided for in the restated certificate of limited partnership, theinitial certificate of limited partnership, as previously amended orsupplemented, is superseded. After that filing, the restated certificateof limited partnership, including any further amendment or changesmade by the restated certificate, is the certificate of limitedpartnership, but the original effective date of formation of the limitedpartnership remains unchanged.
(d) Any amendment or change effected in connection with therestatement and integration of the certificate of limited partnershipunder this section is subject to any other provision of this article thatis not inconsistent with this section and that would apply if a separatecertificate of amendment were filed to effect the amendment orchange.
As added by P.L.147-1988, SEC.1.
IC 23-16-3-12
Mergers
Sec. 12. (a) A domestic limited partnership may merge with orinto one (1) or more domestic limited partnerships or foreign limitedpartnerships formed under the laws of another state, with one (1)partnership, as provided in the merger agreement, being the survivingpartnership.
(b) A domestic limited partnership that is not the survivingpartnership in the merger shall file a certificate of cancellation,which must have an effective date not later than the effective date ofthe merger.
(c) If, following a merger of one (1) or more domestic limitedpartnerships and one (1) or more foreign limited partnerships formedunder the laws of another state, the surviving partnership is not adomestic limited partnership, the surviving partnership shall executea certificate, which must be attached to the certificate of cancellationfiled for each domestic limited partnership under section 4 of thischapter, that states that it agrees that it may be served with processin Indiana in any action for the enforcement of any obligation of the
domestic limited partnership, that irrevocably appoints the secretaryof state as its agent to accept service of process in any such action,and that specifies the address to which the secretary of state maymail a copy of process served in any such action. If there is serviceof process on the secretary of state under this subsection, the plaintiffin any such action shall furnish the secretary of state with the addressspecified in the certificate provided for in this section and any otheraddress that the plaintiff may elect to furnish, and the secretary ofstate shall notify the surviving partnership at all such addressesfurnished by the plaintiff in accordance with this section.
(d) When the certificate of cancellation required by section 4 ofthis chapter becomes effective, for all purposes of the laws ofIndiana, all of the rights, privileges, and powers of each of thepartnerships that have merged, and all real property, personalproperty, and mixed property and all debts due to any of thepartnerships, as well as all other things and causes of actionbelonging to each of the partnerships, shall be vested in the survivingpartnership and become the property of the surviving partnership asthey were of each of the partnerships that have merged. The title toany real property vested by deed or otherwise under the laws ofIndiana in any of the partnerships does not revert and is not impairedby reason of this chapter. However, all rights of creditors and allliens upon any property of any of the partnerships are preservedunimpaired, and all debts, liabilities, and duties of each of thepartnerships that have merged attach to the surviving partnership andmay be enforced against it to the same extent as if those debts,liabilities, and duties had been incurred or contracted by it.
As added by P.L.147-1988, SEC.1.
IC 23-16-3-13
Requirements for merger of domestic limited partnership withother business entity; plan of merger
Sec. 13. (a) As used in this section, "other business entity" meansa corporation, limited liability company, limited liability partnership,limited partnership, business trust, real estate investment trust, or anyother entity that is formed under the requirements of applicable law.
(b) As used in this section, "surviving entity" means thecorporation, limited liability company, limited liability partnership,limited partnership, business trust, real estate investment trust, or anyother entity that is in existence immediately after consummation ofa merger under this section.
(c) One (1) or more domestic limited partnerships may merge withor into one (1) or more other business entities formed, organized, orincorporated under the laws of Indiana or any other state, the UnitedStates, a foreign country, or a foreign jurisdiction if the followingrequirements are met:
(1) Each domestic limited partnership corporation that is a partyto the merger complies with the applicable provisions of thischapter.
(2) Each domestic other business entity that is a party to the
merger complies with the requirements of applicable law.
(3) The merger is permitted by the laws of the state, country, orjurisdiction under which each other business entity that is aparty to the merger is formed, organized, or incorporated, andeach other business entity complies with the laws in effectingthe merger.
(4) The merging entities approve a plan of merger that sets forththe following:
(A) The name of each domestic limited partnership and thename and jurisdiction of formation, organization, orincorporation of each other business entity planning tomerge, and the name of the surviving or resulting domesticcorporation or other business entity into which each otherdomestic corporation or other business entity plans to merge.
(B) The terms and conditions of the merger.
(C) The manner and basis of converting the limitedpartnership shares of each domestic limited partnership thatis a party to the merger and the partnership interests, shares,obligations, or other securities of each other business entitythat is a party to the merger into partnership interests,interests, shares, obligations, or other securities of thesurviving entity or any other domestic corporation or otherbusiness entity or, in whole or in part, into cash or otherproperty, and the manner and basis of converting rights toacquire the shares of each domestic corporation that is aparty to the merger and rights to acquire partnershipinterests, interests, shares, obligations, or other securities ofeach other business entity that is a party to the merger intorights to acquire partnership interests, interests, shares,obligations, or other securities of the surviving entity or anyother domestic corporation or other business entity or, inwhole or in part, into cash or other property.
(D) If a partnership is to be the surviving entity, the namesand business addresses of the general partners of thesurviving entity.
(E) If a limited liability company is to be the surviving entityand management of the limited liability company is vestedin one (1) or more managers, the names and businessaddresses of the managers.
(F) All statements required to be set forth in the plan ofmerger by the laws under which each other business entitythat is a party to the merger is formed, organized, orincorporated.
(5) The plan of merger may set forth the following:
(A) If a domestic corporation is to be the surviving entity,any amendments to, or a restatement of, the articles ofincorporation of the surviving entity, and the amendments orrestatement will be effective at the effective date of themerger.
(B) Any other provisions relating to the merger. (d) The plan of merger required by subsection (c)(4) will beadopted and approved by each domestic corporation that is a party tothe merger in the same manner as is provided in this chapter.
(e) Notwithstanding subsection (c)(4), if the surviving entity is apartnership, a shareholder of a domestic corporation that is a party tothe merger does not, as a result of the merger, become a generalpartner of the surviving entity and the merger does not becomeeffective under this chapter, unless:
(1) the shareholder specifically consents in writing to becomea general partner of the surviving entity; and
(2) written consent is obtained from each shareholder who, asa result of the merger, would become a general partner of thesurviving entity;
A shareholder providing written consent under this subsection isconsidered to have voted in favor of the plan of merger for purposesof this chapter.
(e) This section, to the extent applicable, applies to the merger ofone (1) or more domestic limited partnerships with or into one (1) ormore other business entities.
(f) Notwithstanding any other law, a merger consisting solely ofthe merger of one (1) or more domestic limited partnerships with orinto one (1) or more foreign corporations must be made solelyaccording to the requirements of this section.
As added by P.L.178-2002, SEC.104.
IC 23-16-3-14
Entity conversion
Sec. 14. (a) As used in this section, "other entity" has the meaningset forth in IC 23-1-38.5-1.
(b) A domestic corporation, domestic other entity, foreigncorporation, or foreign other entity may convert to a domestic limitedpartnership under IC 23-1-38.5.
(c) A domestic limited partnership may convert to a domesticcorporation, domestic other entity, foreign corporation, or foreignother entity under IC 23-1-38.5.
As added by P.L.130-2006, SEC.23.