Delaware Court of Chancery Confirms That The Implied Covenant of Good Faith and Fair Dealing is Not a Substitute For Fiduciary Duties

Steven D. Goldberg, Esq.
Wilmington, DE
sgoldberg@stevendgoldberg.com
http://www.stevendgoldberg.com
Contact me if you need assistance in forming/organizing a Delaware business entity or any matter of Delaware law.
Delaware Forms and Publications are available at http:www.delawarellclaw.com

On October 11, 2010, Vice Chancellor Laster of the Delaware Court of Chancery handed down an important case dealing with the Implied Covenant of Good Faith and Fair Dealing. Lonergan v. EPR Holdings LLC, et al. [ Opinion ].  The case involved a LP agreement which eliminated all fiduciary duties as permitted under 17-1101 of the Delaware Revised Uniform Limited Partnership Act (DRULPA).  Section 17-1101 is identical to 18-1101 of the Delaware Limited Liability Company Act so that this decision will have equal application for LLC’s. The Plaintiff recognizing that they had no claim for violating fiduciary duties attempted to characterize the claim as a breach if the implied covenant. The Court held that the implied covenant is not a substitute for fiduciary duties and declined to substitute the Court’s judgment for the parties to create a basis for a breach of implied duty claim.

The limited partnership is a publicly traded master limited partnership (mlp). Two sections of the agreement eliminate fiduciary duties (not just reduce or modify the duties).

Section 7.9(e) provides: 
Except as expressly set forth in this Agreement, neither [Holdings GP] nor any other Indemnitee shall have any duties or liabilities, including fiduciary duties, to the Partnership or any Limited Partner and the provisions of this Agreement, to the extent that they restrict or otherwise modify the duties and liabilities, including fiduciary duties, of [Holdings GP] or any other Indemnitee otherwise existing at law or in equity, are agreed by the Partners to replace such other duties and liabilities of [Holdings GP] or such other Indemnitee
Section 7.10(d) provides:
Any standard of care and duty imposed by this Agreement or under the Delaware Act or any applicable law, rule or regulation shall be modified, waived or limited, to the extent permitted by law, as required to permit [Holdings GP] to act under this Agreement and to make any decision pursuant to the authority prescribed in this Agreement, so long as such action is reasonably believed by [Holdings GP] to be in, or not inconsistent with, the best interests of [Holdings].

When Section 17-1101(d) [which is identical to 18-1101(d)] was drafted the drafting committee was careful to make sure that Delaware law was not subverted in a way that removed all protections from member but also in a way that does not create an alternative form of fiduciary duty. The drafting committee included in the section the phrase “provided that the partnership agreement may not eliminate the implied contractual covenant of good faith and fair dealing.” The use of the terms “contractual covenant” were carefully selected to differentiate the concept of good faith and fair dealing from any equitable concept of fiduciary duties. At the time that 1101(d) was being drafted the Court of Chancery was using corporate concepts to interpret LP and LLC law. The drafters wanted to clearly differentiate contractual terms from equitable concepts of fiduciary duties.

In defining the implied covenant the Court stated:

The implied covenant is not a substitute for fiduciary duty analysis. “The covenant is ‘best understood as a way of implying terms in the agreement’ . . . . Existing contract terms control, however, such that implied good faith cannot be used to circumvent the parties’ bargain, or to create a free-floating duty unattached to the underlying legal documents.”…The Court must focus on “what the parties likely would have done if they had considered the issues involved.” … It must be “clear from what was expressly agreed upon that the parties who negotiated the express
terms of the contract would have agreed to proscribe the act later complained of . . . had they thought to negotiate with respect to that matter.” “The doctrine thus operates only in that narrow
band of cases where the contract as a whole speaks sufficiently to suggest an obligation and point to a result, but does not speak directly enough to provide an explicit answer.” [Citations omitted].

The Court further stated:
Respecting the elimination of fiduciary duties requires that courts not bend an alternative and less powerful tool into a fiduciary substitute. The nature of the implied covenant of good faith and fair dealing is “quite different from the congeries of duties that are assumed by a fiduciary.” … “Delaware’s implied duty of good faith and fair dealing is not an equitable remedy for rebalancing economic
interests after events that could have been anticipated, but were not . . . .”…To use the implied covenant to replicate fiduciary review “would vitiate the limited reach of the concept of the implied duty of good faith and fair dealing.” … To the extent the complaint seeks to re-introduce fiduciary review through the backdoor
of the implied covenant, it fails to state a colorable claim.

The Court declined to substitute its own analysis for the missing term thereby giving full effect to the elimination of fiduciary duties. This case has well defined the difference between fiduciary duties and the implied covenant. The result of this case is to provide additional certainty to the drafters of Delaware LLC and LP agreements. This certainty of outcome is a keystone of Delaware entity law.

In his decision Vice Chancellor Laster also reviewed the duties that a corporate officer has to the stockholders in a merger transaction. This case will also serve as a starting point for future analysis of corporate duties.

Steven Goldberg to Speak at NBI Teleconference on November 17

Steven Goldberg, the author of this blog,  will be the speaker at a NBI Teleconference on November 17, 3 PM to 4:30 PM Eastern time.

The subject is LLC Compliance and Dissolution:

• The Dissolution Process
  Tax Considerations in the Operation and Dissolution of an LLC
  Annual Reports and Tax Returns
  Transfers of Membership Interests
  Sample Forms and Documents are included in materials

For further incormation or to register visit http://www.nbi-sems.com/Enbi/Email/55150T.htm or call 800.930.6184

Delaware Court of Chancery Has Inherent Equity Authority to Appoint a Receiver for a Delaware Limited Liability Company

Steven D. Goldberg, Esq.
Wilmington, DE
sgoldberg@stevendgoldberg.com http://www.stevendgoldberg.com
Contact me if you need assistance in forming/organizing a Delaware business entity or any matter of Delaware law. Delaware Forms and Publications are available at http://www.delawarellclaw.com

The Delaware LLC Act in Section 18-805 provides that the Court of Chancery has the power and authority to appoint a receiver for a LLC which has had its certificate of formation cancelled. The Act is silent on the power of the Court to appoint a receiver for an LLC which has not had its certificate of formation cancelled.

Recently Vice Chancellor Noble decided the case of Ross Holdings and Management Company v. Advance Realty Group, LLC [Ross Holdings v. Advance Realty]. The plaintiffs in their moving papers asserted, among other claims, that Advance Realty Group (ARG) is insolvent as a result of the conduct of the individual defendants and that there is question as to whether ARG is able to continue as a going concern. Plaintiffs seek the appointment of a receiver to manage the company’s affairs in order to prevent the Board from further disposing of the company’s assets for personal gain.

Defendants counter that neither the LLC Act nor the Company Agreement permit the appointment of a receiver in the circumstances alleged.

The Plaintiffs took the position that as the Act is silent, the Court should borrow from the DGCL and look to the corporate case law as developed to determine when it has authority to appoint a receiver for a LLC which has not had its certificate of formation cancelled.

The Court stated at 14:
The LLC Act was written long after our corporate statutes and several of those provisions have been incorporated into the LLC Act. Notably, 6 Del. C. § 18-805 tracks closely 8 Del. C. § 279, the general provision establishing the process for appointing a receiver in the corporate context, with the notable difference being the circumstances in which a receiver may be appointed. This seems to suggest that the omission in the LLC Act of the provision for appointing a receiver in the case of insolvency was an intentional, not an inadvertent, act by the General Assembly.
The Plaintiffs point to case law where courts have borrowed from the
corporate law when the LLC Act was silent as to a particular provision. However, the example that they use, where the court looked to the corporate law to determine the default fiduciary duties that limited liability company members owe to one another duties. Moreover, the LLC Act refers to fiduciary duties, but is silent as to their contours. Our courts had developed standards for the appointment of a receiver long before the codification of 8 Del. C. § 279 and there was no obvious statutory gap in need of filling with respect to the appointment of a receiver on grounds of insolvency. Indeed, some courts have suggested that insolvency may be a
necessary condition for appointing a receiver under the court’s general equitable powers. That § 279 establishes a lesser basis for appointing a receiver does not mean that the rules of equity do not already account for insolvency in determining the appropriateness of appointing a receiver. There is no need to borrow from the corporate statute where a more general standard is well-established in our law, particularly with respect to questions of equity. As such, the Court accepts that a receiver may only be appointed in this case in accordance with its general equity powers.

The Court then considered whether a receiver should be appointed at the current stage of the proceedings. The Court concluded that because there were material facts in dispute that the Court would not at this stage appoint a receiver. (At 15)

Because a receiver is unavailable under either the LLC Act or any version of the Operating Agreement, the only basis for appointing a receiver is by way of the Court’s general equity powers. As a general matter, “the appointment of a receiver is an extraordinary, a drastic and . . . an ‘heroic’ remedy. It is not to be resorted to if milder measures will give the plaintiff, whether creditor or shareholder, adequate protection for his rights.” As such, courts of equity exercise this power “with great caution and only as exigencies of the case appear by proper proof. . . .” This is particularly the case where the entity continues to function actively. As this Court put it many years ago:
“[A] receiver pendente lite for a corporation actively functioning is
never to be justified except under circumstances that show an urgent
need for immediate protection against injury either in the course of
actual infliction or reasonably to be apprehended. As the remedy is a stringent one and fraught often times when asked for with the
possibilities of as much if not more harm than that which it seeks to
avoid, it should be applied with scrupulous care. Only emergent
situations can evoke its application.”
Consequently, a court may utilize its equitable powers to appoint a receiver only “when fraud and gross mismanagement by corporate officers, causing real imminent danger of great loss, clearly appears, and cannot be otherwise prevented.” Moreover, “a receiver will never be appointed except under special circumstances of great exigency and when some real beneficial purpose will be served thereby.” Nor will a court of equity appoint a receiver simply because of errors of judgment in business management.

The Court ordered a trial to determine the facts that are in dispute.

Olmstead v. FTC Charging Order Decision Will Not Affect Delaware LLC’s

Steven D. Goldberg, Esq.
Wilmington, DE
sgoldberg@stevendgoldberg.com
http://www.stevendgoldberg,com.com
Contact me if you need assistance in forming/organizing a Delaware business entity or any matter of Delaware law.

In June, 2010 the Florida Supreme Court decided the case of Olmstead, et al. v. FTC, a case certified to the Florida Supreme Court by the United States Court of Appeals for the the 11th Circuit. This is a case of bad facts making bad law. The decision of the Court of Appeals indicates a massive fraud had occurred and the assets of the defendants were to be found in several single-member Florida LLC’s. The FTC sought to require that the defendants hand over ownership of the LLC’s by way of execution process, the defendants countered that the sole remedy was a charging order and that the court could not require them to surrender ownership.
The question certified to the Florida Court was “Whether, pursuant to Fla. Stat. Sec. 608.433(4) a court may order a judgment-debtor to surrender all ‘right, title, and interest’ in the debtor’s single member limited liability company to satisfy an outstanding judgment.”

Florida Section 608.433 reads in part as follows:
608.433  Right of assignee to become member.
(1)  Unless otherwise provided in the articles of organization or operating agreement, an assignee of a limited liability company interest may become a member only if all members other than the member assigning the interest consent.
(4)  On application to a court of competent jurisdiction by any judgment creditor of a member, the court may charge the limited liability company membership interest of the member with payment of the unsatisfied amount of the judgment with interest. To the extent so charged, the judgment creditor has only the rights of an assignee of such interest. This chapter does not deprive any member of the benefit of any exemption laws applicable to the member’s interest.

The Court held in part that “…we conclude that the statutory charging order provision does not preclude application of the creditor’s remedy of execution on an interest in a single-member LLC. In line with our analysis, we rephrase the certified question as follows: ‘Whether Florida law permits a court to order a judgment debtor to surrender  all right, title and interest in the debtor’s single-member limited liability company to satisfy an outstanding  judgment.’ We answer the rephrased question in the affirmative.”

The Florida Court examined the “Generally Available Creditor’s Remedy of Levy and Sale under Execution” under Section 56.061 of the Florida Statutes. The Court recites that the remedy against a judgment debtor’s “interest in a corporation has been part of the law of Florida since 1889.” but then goes on to observe, incorrectly I would suggest, that [a]n LLC is a type of corporate entity, and an ownership interest in an LLC is personal property that is reasonably understood to fall within the scope of ‘corporate stock'”. The Florida Court bootstrapped this unusual conclusion by citing to a 1940 and to a 1911 Florida decisions. Most commentators would take strenuous exception to this conclusion. Much bad LLC law is based upon judges who went to law school when LLC’s did not exist and who fall back incorrectly upon their knowledge of corporate law to decide LLC cases.

The Florida Court next looked at the interplay between 608.433(1)&(4) and concluded first that in the case of a single-member LLC the interest in the LLC is freely assignable by the single member as there is no third party whose consent is required for the transfer an no third party whose interet needs to be protected. More significantly the Court looked at the specific language of (4) and compared it to the language found in Florida’s Limited Partnership Act and its Uniform Partnership Act. The LP Act states in Sec 620.1703(3) that it “provides the exclusive remedy which a judgment creditor of a partner or transferee may use to satisfy a judgment out of the judgment debtor’s interest in the limited partnership or transferable interest.”  The language in the GP Act was similar to the LP language. The court then concludes that as (4) does not specifically state that a charging order is the sole remedy available to the judgment creditor of the member of the LLC, then execution process is available.

Turning now to the Delaware LLC Act, Section 18-703
§ 18-703. Member’s limited liability company interest subject to charging order.
(a) On application by a judgment creditor of a member or of a member’s assignee, a court having jurisdiction may charge the limited liability company interest of the judgment debtor to satisfy the judgment. To the extent so charged, the judgment creditor has only the right to receive any distribution or distributions to which the judgment debtor would otherwise have been entitled in respect of such limited liability company interest.
(b) A charging order constitutes a lien on the judgment debtor’s limited liability company interest.
(c) This chapter does not deprive a member or member’s assignee of a right under exemption laws with respect to the judgment debtor’s limited liability company interest.
(d) The entry of a charging order is the exclusive remedy by which a judgment creditor of a member or of a member’s assignee may satisfy a judgment out of the judgment debtor’s limited liability company interest.
(e) No creditor of a member or of a member’s assignee shall have any right to obtain possession of, or otherwise exercise legal or equitable remedies with respect to, the property of the limited liability company.
(f) The Court of Chancery shall have jurisdiction to hear and determine any matter relating to any such charging order.

The Delaware language in 18-703(d) is similar to the language found in both the Florida LP and GP Acts.  (The identical language is found in 17-703(d) of the Delaware LP Act.) The Florida Court held “The legislature has shown-in both the partnership statute and the limited partnership statute-that it knows how to make clear that a charging order remedy is an exclusive remedy.” Likewise the Delaware legislature has made clear in 18-703(d) that a charging order is the “exclusive” remedy available to the judgment creditor. An added protection afforded to Delaware LLC’s is 18-703(f) which grants jurisdiction to the Delaware Court of Chancery to hear and determine any matter relating to a charging order. While 18-703(f) does not provide exclusive jurisdiction in the Court of Chancery, the judgment debtor could commence a case in Delaware Chancery which would create a logical basis for a motion in the non-Delaware court to transfer jurisdiction.

We believe that the Delaware Act provides the best asset protection available to the member of a single-member LLC. Histroically Delaware courts have pierced the corpoate veil to allow judgment creditors to reach the assets of the stockholders of corporations in cases involving the use of the corporation to commit actual fraud by the cstockholder and other limited bad acts. The courts have applied the same reasoning to LLC’s. Bad facts will continue to result in courts looking to “do justice” and an attempt to fashion a remedy to prevent the bad actor from keeping his or her assets to the detriment of an innocent creditor. The dissent in the Florida case is illustrative and is well reasoned.

We continue to believe that the Delaware LLC Act provides the most flexible LLC law in the nation and a framework that best protects the interests of the members of the LLC.

Default Provisions of the Delaware LLC Act

Steven D. Goldberg, Esq.
Wilmington, DE
sgoldberg@stevendgoldbe6g.com
http://www.stevendgoldberg.com
Contact me if you need assistance in forming/organizing a Delaware business entity or any matter of Delaware law.

The Delaware LLC Act contains numerous default provisions which are intended to provide significant terms to a company agreement unless the drafter, by the terms of the agreement, modifies the default terms. Last year the Delaware Court of Chancery wrote in a decision that these default provisions are incorporated into every company agreement unless by the terms of the agreement they have been modified. It is useful to know what default provisions are being incorporated into an agreement as you draft. I have created the attached file to aid drafters.

Delaware LLC Act Default Provisions

DISCLAIMER: While I believe that the listed provisions are inclusive, it is your responsibility as the drafter to carefully review the Delaware LLC Act yourself to reach your own conclusion as the the provisions of the Act which you believe provide default provisions and which you believe should be modified for your agreement.

2010 Delaware General Corporation Law (DGCL) Amendments Adopted

Steven D. Goldberg, Esq.
Wilmington, DE
sgoldberg@stevendgoldberg.com
http://www.stevendgoldberg.com
Contact me if you need assistance in forming/organizing a Delaware business entity or any matter of Delaware law.

On June 10, 2010, Delaware’s Governor signed into law the 2010 Amendments to the DGCL . the Bill HB 375 2010 DGCL Amendments as introduced was amended once House Amendment. The new Amendments become effective on August 2, 2010 generally, however Sections 16-17 of the Bill, as amended, will be effective as to transactions consummated pursuant to agreements entered into after August 1, 2010.

The DGCL Amendments were largely technical amendments. Provisions were added at the request of the Secretary of State to deal with issues in its office dealing with service of process, a clarification that in a merger the certificate of incorporation of the surviving corporation may be amended or restated in its entirety and that the “good standing” certificate filed in connection with a foreign qualification must have been issued within 6 months of the filing.

A major feature of the Amendments is the corporate half of the LLC amendments permitting short form mergers between a LLC parent and a corporate subsidiary.

Sections 1-3 and 16-17 amend Sections 104, 111(a)(6), 114(b)(2), 262(b)(3) and 262(d)(2) to reflect the addition of the new short form LLC/corporate merger Section 267.

Section 4 clarifies that both domestic and qualified foreign corporations must have a Delaware registered agent.

Section 5 amends Section 145(d) to clarify that the determination to indemnify must be made by the specified decision making bodies.

Section 5 amends Section 145(e), The first sentence was amended to reflect that it applies to current officers and directors of the corporation and not to other persons seeking indemnification and further clarifies that advancements may be given to persons serving in an official capacity at another entity may be indemnified:

(e) Expenses (including attorneys‘’ fees) incurred by an officer or director of the corporation in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys’’ fees) incurred by former directors and officers or other employees and agents of the corporation or by persons serving at the request of the corporation as directors, officers, employees or agents of another corporation, partnership, joint venture, trust or other enterprise may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.

Section 7 amends Section 242(b) to clarify that the decision to include a copy or a summary of a proposed amendment to the Certificate in a notice of stockholders meeting need not be approved by the Board.

Sections 8, 10-11, 14, 18 and 20 amend Sections 251(b)(3), 251(c)(4), 252(c)(4), 254(d)(4), 263(c)(4) and 264(c)(4) to clarify that the Certificate of the surviving corporation in a merger may be amended or restated in its entirety.

Section 9 is similar to Section 7.

Sections 12, 15, 19, 21-22, 27, and 30-35 amend Sections 252(d), 256(d), 263(d), 264(d), 266(c)(6), 321(b), 376(b), 351(c), 382(a), 382(c) and 390(b)(5) so as to permit service upon the Secretary of State by electronic means pursuant to rules to be adopted by the Secretary and to provide that notice of such service by letter sent by mail or a courier service that includes a record of mailing, delivery and the signature of the recipient.

(d) If the corporation surviving or resulting from the merger or consolidation is to be governed by the laws of the District of Columbia or any state or jurisdiction other than this State, it shall agree that it may be served with process in this State in any proceeding for enforcement of any obligation of any constituent corporation of this State, as well as for enforcement of any obligation of the surviving or resulting corporation arising from the merger or consolidation, including any suit or other proceeding to enforce the right of any stockholders as determined in appraisal proceedings pursuant to § 262 of this title, and shall irrevocably appoint the Secretary of State as its agent to accept service of process in any such suit or other proceedings and shall 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 or resulting corporation thereof by letter, certified mail, return receipt requested, directed to such surviving or resulting corporation at its address so specified, unless such surviving or resulting 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 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, which sum shall be taxed as part of the costs in the proceeding, if the plaintiff shall prevail thereinbe 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 13 amends Section 253(a) to conform to new Section 267(a).

Section 23 creates new Section267.

Sections 24-25 amend Section 274 and 275(d) to require that a certificate of dissolution must set forth the date of the filing of the corporation’s original certificate of incorporation.

Section 26 amends Section 278 to confirm that Sections 279 through 282, including those applicable to winding up, also apply to corporations that have expired by their own terms.

Section 28 amends Section 371(b)(1) to require that in the qualification of a foreign corporation, the certificate from the corporation’s foreign jurisdiction must not be older than 6 months from the date of filing.

Section 29 amends Section371(b)(2) to expand the types of entities which may serve as the registered agent for a domestic or foreign corporations qualified to do business in Delaware.

These amendments together with the non-stock amendments I previously wrote about present opportunities and challenges when forming and operating Delaware corporations. Please contact me for further information. sgoldberg@delcorp.com

Congress Prepares to Interfere With New Business Formation

Steven D. Goldberg, Esq.
Wilmington, DE
sgoldberg@stevendgoldberg.com
http://www.stevendgoldberg.com
Contact me if you need assistance in forming/organizing a Delaware business entity or any matter of Delaware law.

Senator Levin has pressed S.569 which would in part require disclosure of the legal and beneficial owners of private business entities. The Levin bill would require a human person resident in the US have in his or her possession personal information about the legal and beneficial owners of US domiciled business entities, other than publicly traded entities. The definition of “beneficial owner” is much more broad than necessary and the mechanics of the system, including a requirement of notarized documents signed by all beneficial owners, will make quick business formations, such as we have become accustomed to, a thing of the past.

Levin put forward S. 569 as a “homeland security” measure. The Senator has expressed concern that US business entities are being used by criminals and terrorists to shield their activities. The Senator’s claim may be correct. The difficulty posed by his proposal  is that it should not surprise anyone that crooks and terrorists will not tell the truth and will not disclose their true identity and will not identify all beneficial owners. It is unlikely that the bill if enacted would enhance homeland security, but as with many “homeland security” measures will only serve to inconvenience and annoy law abiding individuals.

Treasury is now putting forward its substitute for S. 569 Treasury Beneficial Owner Legislation . The Treasury bill will apply to all newly formed entities (other than publicly held entities) and all existing entities formed prior to the enactment of the legislation must comply within two years after enactment. It is my judgment that the Treasury is looking for a vehicle to discover “tax cheats” and is using the Levin bill as that vehicle. In the past the Treasury has sent subpoenas to states looking for the same information.

For the purposes of the Treasury legislation, the entities, referred to as “Covered Legal Entity”, which will be subject to the legislation are corporations, LLC’s, LP’s, LLP’s and any “non-U.S. entity qualified to do business in any State.” (Sec 3(a0(7)). Trusts will not initially be subject to the legislation.

Section 3(a)(2) [all references to Sections will be to the Treasury substitute] contains the definition of “Beneficial Owner” which is in my opinion,  extremely broad and includes persons exercising  indirect control through third parties. Each Beneficial Owner, under Section 3(b)(4) is required to provide specified information as well as a copy of a government issued identification to either a “Documentation Agent” or a “Licensed Documentation Agent”. The Licensed Documentation Agent will be a person who is licensed by the state to provide that function. In most cases that person will be a commercial service provider who also serves as the entity’s registered or statutory agent in that state. The “Documentation Agent” lacks the state license.

The states will be required to amend their business laws to comply with the legislation or risk loosing some un-specified type of federal funding.

“To protect the security of the United States, each State that receives funding from the [XX] shall, not later than the Effective Date, amend its laws to adopt a legal entity formation system that meets the following requirements: …”

The legislations requires that “(B) Each Beneficial Owner of a Covered Legal Entity shall provide to such Covered Legal Entity a legible and credible copy of a government-issued photo identification document of such Beneficial Owner, to be provided to and maintained by the Documentation Agent or Licensed Documentation Agent at all times. In the case of any Beneficial Owner that is neither a citizen nor lawful permanent resident of the United States, such document shall be a legible and credible copy of the page(s) of the government-issued passport bearing a photograph and unique identifying information of such Beneficial Owner.”

If the legislation is enacted you will likely be doing business with a “Licensed Documentation Agent”. That term is defined as: “The term ‘Licensed Documentation Agent’ means, in any State, an individual or an entity that acts on behalf of a Legal Entity to fulfill the obligations set forth in Section 3(b)(2) of this Act, and that is licensed by such State pursuant to a State law or regulation that subjects the Licensed Documentation Agent to (i) registration, (ii) “fit and proper” licensing requirements of the managers and beneficial owners (including at a minimum identification, verification and physical presence requirements, absence of convictions for crimes of dishonesty or fraud, or regulatory proceedings that raise honesty or integrity concerns), (iii) effective and regular monitoring for compliance, and (iv) sanctions for noncompliance.” (Sec. 3(a)(8))

Once the legislation is enacted the process of business formation will change radically, as provided in the following section, detailed information must be provided to the the Licensed Documentation Agent who must preserve the information and make it available to law enforcement and must certify to the state on an “information statement” filed with the formation documents that the Agent has the information and documentation to meet the requirements of the law. At the time the entity is formed the enity must provide the state with:

“(1) OBLIGATIONS OF LEGAL ENTITIES
‘‘(B) Each applicant that designates a Licensed Documentation Agent in forming a Legal Entity under the laws of a State shall provide to the State at the time of formation of the entity, either— ‘‘(i) in the case of Covered Legal Entities, a licensed documentation agent information statement that:
(1) identifies the Licensed Documentation Agent by name and business or residential street address and contains his or her notarized signature; and (2) contains a statement, signed by the Licensed Documentation Agent, certifying that the obligations of Section 3(b)(1)(C) of this Act have been met; or ‘‘(ii) in the case of Exempt Legal Entities, an exempt entity statement that:
(1) identifies the Licensed Documentation Agent by name and business or residential street address; and (2) contains the signature of the Licensed Documentation Agent, stating that the certification and documentation required in section 3(b)(1)(D) have been obtained.

Covered Legal Entities formed after the enactment of the legislation will be required to continue to comply with the following:
‘‘(C) Each Covered Legal Entity formed under the laws of a State after the Effective Date shall:
‘‘(i) have a Documentation Agent or Licensed Documentation Agent located within the United States at all times; and
‘‘(ii) provide to the Documentation Agent or Licensed Documentation Agent at the time of formation, a statement of beneficial ownership signed by each Beneficial Owner (in the case of an Licensed Documentation Agent), and a legible and credible copy of a government-issued photo identification document of each Beneficial Owner, to be maintained by the Documentation Agent or Licensed Documentation Agent at all times. In the case of any Beneficial Owner that is neither a citizen nor lawful permanent resident of the United States, the Documentation Agent or Licensed Documentation Agent shall obtain and maintain a legible and credible copy of the page(s) of the government-issued passport bearing a photograph and unique identifying information of such Beneficial Owner

The legislation provides for a two year window after adoption for existing entities to come into compliance.
“(E) Each Legal Entity formed under the laws of a State before the Effective Date shall comply with the requirements of subsections (A) through (D) above, as appropriate, by the date that is two years after the Effective Date.

Upon the occurrence of any change in the beneficial ownership, the company must update the beneficial ownership information within 60 days:
‘‘(F) Except as provided in subsection (G) below, each Covered Legal Entity formed under the laws of a State is required to update its beneficial ownership information statement within 60 days of the date of any change in either beneficial ownership or beneficial ownership information by providing an amended beneficial ownership information statement either to the State (signed by the Documentation Agent), or to the Licensed Documentation Agent, as applicable, and by providing corresponding updated identification documentation to the Documentation Agent or to the Licensed Documentation Agent.

Goldberg’s LLC/Corporate Seminar

Steven D. Goldberg, Esq.
Wilmington, DE
sgoldberg@delcorp.com
http://www.delcorp.com
Contact me if you need assistance in forming/organizing a Delaware business entity or any matter of Delaware law. 

On June 16, 2010, Steven Goldberg spoke at a seminar titled LLC or Inc.? Entity Selection for a Small to Medium Sized Business.The two hour presentation focused on the principle non tax differences between LLCs and corporations as well as the process to form or incorporate the entity. The program materials include a form of LLC company agreement as well as a stockholders agreement. Attached here are the program materials Should Your Small Business Be A LLC or Corporation? The video of this presentation is available on the Video page of this Blog.

2010 Amendments to the Delaware General Corporation Law (DGCL)

Steven D. Goldberg, Esq.
Wilmington, DE
sgoldberg@stevendgoldberg.com
http://www.stevendgoldberg.com
Contact me if you need assistance in forming/organizing a Delaware business entity or any matter of Delaware law.

[These Amendments were signed into law on June 10,2010, by the Governor and will be effective August 2, 2010]

The Delaware Bar each year proposes to the Delaware General Assembly updates to its major business statutes, the DGCL, LLC Act and DRULPA. This year the Bar has proposed two bills to amend the DGCL. The first bill has been introduced as HB 341 which is a major rewrite of the DGCL dealing with non-stock corporations organized either for profit or as a not-for-profit corporation, either with a charitable purpose or a non-charitable purpose. HB 341 was a herculean undertaking by the drafting committee and they should be congratulated for their efforts. In a report which accompanied the draft the Committee reported that nonstock corporations, “their second-class status in the DGCL may leave practitioners unable to provide complete, confident legal guidance regarding their governance”. The Blackline of Revisions to DGCL contains the entire DGCL and shows the black lined changes being made as a result of HB 341. [HB 341 was signed into law on May 3, 2010, with an effective date of August 1, 2010.]

The second group of amendments are contained in HB 375 which are the general 2010 DGCL amendments. Section 23 of the Bill adds a new Section 267 to the DGCL which permits a short form merger between a subsidiary Delaware corporation and a LLC or other entity parent. The LLC amendments contained in a recent post reflect the LLC Act side of the DGCL amendment.

Sections 1-3 and 16-17 of the Bill reflect the addition of new Section 267.

Section 4 amends Section 132(b) to confirm that the provision setting requirements to serve as a registered agent apply to registered agents for both domestic and foreign corporations.

Section 5 amends Section 145(d) dealing with the decision to indemnify a person who is a present or former director, officer, employee or agent and clarifies that the decision is made by specified decision making bodies of the corporation providing the indemnification.

Section 6 amends Section 145(e) by striking the subsection in its entirety and adds a new subsection (e). The amendment is intended to clarify that the first sentence is intended to apply to advancements of expenses provided to a current officer or director of the corporation. The second sentence provides that the corporation may provide an advancement of expenses to other specified persons “upon such terms and conditions, if any, as the corporation deems appropriate”.

Section 7 amends Section 242(b)(1). The current Section provides in part that the notice of the proposed amendment to the stockholders shall set forth such amendment in full or in a brief summary “as the directors deem advisable”. The amendment deletes the quoted language so that the decision to provide the amendment or a summary may be made by others.

Sections 8, 10-11, 14, 18 & 20 clarify that in the case of a merger, the certificate of incorporation of the surviving corporation may be “amended and restated in its entirety” rather than just “such amendment or changes … as are desired to be affected.”

Section 9 amends Section 251(c) dealing with sending either the agreement of merger or a summary of the agreement to stockholders in a manner similar to the amendment to Section 242(b)(1) in Section 7 of the Bill.

Sections 12, 15, 19, 21-22, 27, & 30-35 amend various section of the DGCL to permit service of process upon the Secretary of State by “means of electronic transmission” pursuant to rules to be adopted by the Secretary.

Section 13 amends Section 253(a) dealing with short form mergers between a corporate parent and its subsidiary or subsidiaries in view of new Section 267(a).

Sections 24 & 25 require that a certificate of dissolution filed under either Section 274 or 275(d) must contain the date of filing of the corporation’s original certificate of incorporation with the Secretary of State.

Section 26 amends Section 278 to confirm that sections 279-282 dealing with the dissolution of a corporation also apply to corporations which have expired by their own terms.

Section 28 amends Section 371(b)(1) to require that the application of a foreign corporation to register must be accompanied by a good standing certificate issues within 6 months of the application.

Section 29 amends Section 371(b)(2) to expand the types of entities which may serve as a registered agent for a foreign corporation.

Delaware Provides Predictability of Outcome

Steven D. Goldberg, Esq.
Wilmington, DE
sgoldberg@stevendgoldberg.com
http://www.stevendgoldberg.com
Contact me if you need assistance in forming/organizing a Delaware business entity or any matter of Delaware law.
On April 6, 2010, the Delaware Supreme Court entered its decision in the consolidated cases of Nemec v. Shrader and Wittkemper v. Sharder. Nemech and Wittkemper were former stockholders of the consulting firm Booz Allen. The defendants were the directors of the company. When the pettioners retired they had a 3 year window to put un-executed options to the company at “book value”, after that 3 year period the company had the right to redeem the options at “book value” at any time.

The petitioners having failed to exercise their put right, the Company exercised its right to redeem the options. The issue sub judice arose over the timing of the redemption. It appears that at the time of the redemption the Board was aware that the company was about to enter into a transaction to sell a portion of the company for $2.54 billion. The result of the timing was to shift $60 million from the proceed that the petitioners would have received from the transaction to the active stockholders including the Directors.

The petitioners alleged that the company violated the implied contratual covenant of good faith and fair dealing.  According to the petitioners the company’s decision to redeem the shares when it did was made in bad faith.

The Court of Chancery had dismissed the petitioners claims and they appealed. The Supreme Court stated that “[w]e cannot reform a contract because enforcement of the contract as written would raise ‘moral questions’.” In its decision it stated that it would only imply contract terms if a party had acted “arbitrarily or unreasonably” and had denied the other party the benefit of their bargain. “Parties have a right to enter into good and bad contracts, the law enforces both.”

At a visceral level one could argue that the shift of $60 million must logically violate the implied contractual covenant of good faith and fair dealing. After getting past the visceral level you can see that the court was absolutely correct. This is not the case of widows or orphans being taken advantage. The two petitioners were stockholders of one of the nation’s most sophisticated consulting firms. In hind sight they made a bad bargain by allowing the company unfettered timing of the redemption, but that was their deal, like it or not. The Court stated that it will enforce “bad contracts”.

As lawyers we look to the courts for predictability of outcome. We want the courts to enforce the contracts that people negotiate and sign. We do not want courts re-writing parties agreements because the court concluded that they had entered into a bad deal or another parens patrea reason. This predictability of outcome is one of several reasons that practitioners choose Delaware business entities as that choice makes Delaware courts available to their clients. See my recent post http://www.delawarellcblog.com/wp-admin/post.php?action=edit&post=482 Institute for Legal Reform Ranks Delaware’s Legal Climate Number 1 In the Nation.