Section 1. Amend § 18-101(7), Chapter 18,
Title 6 of the Delaware Code by inserting the following sentence after the fifth
sentence of this subsection: "A
limited liability company agreement is not subject to any statute of frauds
(including Section 2714 of this Title).".
Section 2. Amend § 18-105(b), Chapter 18,
Title 6 of the Delaware Code by deleting the first two sentences thereof and
replacing them with the following five sentences: "In case the officer whose duty it is to
serve legal process cannot by due diligence serve the process in any manner
provided for by subsection (a) of this section, it shall be lawful to serve the
process against the limited liability company upon the Secretary of State, and
such service shall be as effectual for all intents and purposes as if made in
any of the ways provided for in subsection (a) hereof. 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 that
service is effected through the Secretary of State in accordance with this
subsection, the Secretary of State shall forthwith notify the limited liability
company by letter, directed to the limited liability company at its address as
it appears on the records relating to such limited liability company on file
with the Secretary of State or, if no such address appears, at its last
registered office. 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.".
Section 3. Amend § 18-106, Chapter 18, Title 6
of the Delaware Code by inserting a new subsection (d) at the end of such
section to read as follows:
"(d)
Unless otherwise provided in a limited liability company agreement, a
limited liability company has the power and authority to grant, hold or exercise
a power of attorney, including an irrevocable power of
attorney.".
Section 4. Amend § 18-203, Chapter 18, Title 6
of the Delaware Code by inserting the words "or a certificate of ownership and
merger" immediately after the first occurrence of the word "consolidation" in
the first sentence thereof, and by inserting the words "or a certificate of
ownership and merger" immediately after the third occurrence of the word
"consolidation" in the first sentence thereof.
Section 5. Amend § 18-204, Chapter 18, Title 6
of the Delaware Code by redesignating subsection "(c)" thereof as subsection
"(d)" and inserting a new subsection (c) thereto to read as follows: "(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.".
Section 6. Amend § 18-206(a), Chapter 18,
Title 6 of the Delaware Code by inserting the words "any certificate of
ownership and merger," immediately after the word "consolidation," in the first
sentence thereof, and by inserting the words "the certificate of ownership and
merger," immediately after the word "consolidation," in the first sentence of
subparagraph (1) of the fifth sentence thereof.
Section 7. Amend § 18-206(b), Chapter 18,
Title 6 of the Delaware Code by inserting the words "or certificate of ownership
and merger" immediately after each occurrence of the word "consolidation" in the
second sentence thereof.
Section 8. Amend § 18-206(d), Chapter 18,
Title 6 of the Delaware Code by inserting the words "a certificate of ownership
and merger," immediately after the word "consolidation,".
Section 9. Amend § 18-209(a), Chapter 18,
Title 6 of the Delaware Code by inserting the following sentence at the end
thereof: "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.".
Section 10. Amend § 18-209(b), Chapter 18,
Title 6 of the Delaware Code by deleting the word "a" immediately before the
word "merger" in the second sentence thereof and substituting in lieu thereof
the words "an agreement of", by inserting the words "or a plan of merger"
immediately after the word "consolidation" in the second sentence thereof, by
inserting the words "or a plan of merger" immediately after the first occurrence
of the word "consolidation" in the fourth sentence thereof, and by inserting the
words "or plan of merger" immediately after the second occurrence of the word
"consolidation" in the fourth sentence thereof.
Section 11. Amend § 18-209(c), Chapter 18,
Title 6 of the Delaware Code by deleting the word "If" at the beginning of the
first sentence thereof, and by substituting in lieu thereof the words "Except in
the case of a merger under subsection (i) of this section,
if".
Section 12. Amend § 18-209(c)(8), Chapter 18,
Title 6 of the Delaware Code by inserting two new sentences immediately after
the first sentence thereof worded as follows: "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.".
Section 13. Amend § 18-209(d), Chapter 18,
Title 6 of the Delaware Code by inserting the words "or in the case of a merger
under subsection (i) of this section in a certificate of ownership and merger,"
immediately after the first occurrence of the word "consolidation,", and by
inserting the words "or a certificate of ownership and merger" immediately
before the "." at the end thereof.
Section 14. Amend § 18-209(e), Chapter 18,
Title 6 of the Delaware Code by inserting the words "or a certificate of
ownership and merger" immediately after the first occurrence of the word
"consolidation" in the first sentence thereof.
Section 15. Amend § 18-209(f), Chapter 18,
Title 6 of the Delaware Code by inserting the words "or a plan of merger"
immediately after the first occurrence of the word "consolidation" in the first
sentence thereof.
Section 16. Amend § 18-209, Chapter 18, Title 6
of the Delaware Code by inserting a new subsection (i) at the end of such
section to read as follows: "
(i) In any case in which (x) 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, (y) 1 or more of such corporations is a corporation of the
State of Delaware, and (z) 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.".
Section 17. Amend § 18-210, Chapter 18, Title 6
of the Delaware Code by inserting the words "or a plan of merger" immediately
after the first occurrence of the word "consolidation" in the first sentence
thereof.
Section 18. Amend § 18-213(b)(7), Chapter 18,
Title 6 of the Delaware Code by inserting two new sentences immediately after
the first sentence thereof worded as follows: "Process may be served upon the
Secretary of State under subsection (b)(6) of this section 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.".
Section 19. Amend § 18-216(e)(7), Chapter 18,
Title 6 of the Delaware Code by inserting two new sentences immediately after
the first sentence thereof worded as follows: "Process may be served upon the
Secretary of State under paragraph (6) of 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.".
Section 20. Amend § 18-301(b), Chapter 18,
Title 6 of the Delaware Code by inserting the words "or plan of merger"
immediately after the second and third occurrences of the word "consolidation"
in the first sentence of subparagraph (3) thereof.
Section 21. Amend § 18-305(f), Chapter 18,
Title 6 of the Delaware Code by deleting the reference to "(3)" after the words
"subsection (a)" wherever it appears in this subsection and by inserting the
following language after the words "5 business days" in the second sentence of
this subsection: "(or such shorter
or longer period of time as is provided for in a limited liability company
agreement but not longer than 30 business days)".
Section 22. Amend § 18-305(g), Chapter 18,
Title 6 of the Delaware Code by deleting the word "and" and substituting in lieu
thereof the word "or" immediately after the words "adopted by all of the
members" in the first sentence thereof and by deleting the word "section" and
substituting in lieu thereof the word "chapter" immediately before the "." in
the second sentence thereof.
Section 23. Amend § 18-702(a), Chapter 18,
Title 6 of the Delaware Code by deleting the words "and upon: (1) The approval" from the second sentence
thereof and substituting in lieu thereof the words "or, unless otherwise
provided in the limited liability company agreement, upon the affirmative vote
or written consent" and by deleting the words "other than the member assigning
the limited liability company interest; or (2) Compliance with any procedure provided
for in the limited liability company agreement" from the second sentence
thereof.
Section 24. Amend § 18-704(a), Chapter 18,
Title 6 of the Delaware Code by deleting the words "as provided in a limited
liability company agreement and upon", by deleting the words "The approval of
all of the members of the limited liability company other than the member
assigning limited liability company interest" and substituting in lieu thereof
the words "As provided in the limited liability company agreement", and by
deleting the words "Compliance with any procedure provided for in the limited
liability company agreement" and substituting in lieu thereof "Unless otherwise
provided in the limited liability company agreement, upon the affirmative vote
or written consent of all of the members of the limited liability
company".
Section 25. Amend § 18-902, Chapter 18, Title 6
of the Delaware Code by renumbering subsection "(2)" thereof as subsection "(3)"
and inserting a new subsection (2) thereto to read as follows: "(2)
A certificate, as of a date not earlier than 6 months prior to the filing
date, issued by an authorized officer of the jurisdiction of its formation
evidencing its existence. If such
certificate is in a foreign language, a translation thereof, under oath of the
translator, shall be attached thereto.".
Section 26. Amend § 18-910(b), Chapter 18,
Title 6 of the Delaware Code by deleting the first two sentences thereof and
replacing them with the following five sentences: "In case the officer whose duty it is to
serve legal process cannot by due diligence serve the process in any manner
provided for by subsection (a) of this section, it shall be lawful to serve the
process against the foreign limited liability company upon the Secretary of
State, and such service shall be as effectual for all intents and purposes as if
made in any of the ways provided for in subsection (a) hereof. 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 that
service is effected through the Secretary of State in accordance with this
subsection, the Secretary of State shall forthwith notify the foreign limited
liability company by letter, directed to the foreign limited liability company
at its last registered office. 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.".
Section 27. Amend § 18-911(a), Chapter 18,
Title 6 of the Delaware Code by adding the following two sentences at the end
thereof as follows: "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.".
Section 28. Amend § 18-911(c), Chapter 18,
Title 6 of the Delaware Code by deleting the words "certified mail, return
receipt requested," in the first sentence thereof and by inserting a new
sentence immediately after the first sentence thereof worded as follows: "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.".
Section 29. Amend § 18-1101, Chapter 18, Title
6 of the Delaware Code by inserting a new subsection (i) at the end of such
section to read as follows:
"(i) A
limited liability company agreement that provides for the application of
Delaware law shall be governed by and construed under the laws of the State of
Delaware in accordance with its terms.".
Section 30. Amend § 18-1105(a), Chapter 18,
Title 6 of the Delaware Code by inserting the words "or a certificate of
ownership and merger" immediately after the word "consolidation" in subparagraph
(3) thereof.
Section 31. This Act shall become effective August
2, 2010.
