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TITLE 6
Commerce and Trade
SUBTITLE II
CHAPTER 17. LIMITED PARTNERSHIPS
Subchapter I. General Provisions
§ 17-101.
Definitions.
As used in this chapter unless the context
otherwise requires:
(1) "Certificate of limited partnership"
means the certificate referred to in § 17-201 of this title, and the
certificate as amended.
(2) "Contribution" means any cash,
property, services rendered or a promissory note or other obligation to
contribute cash or property or to perform services, which a partner contributes
to a limited partnership in the capacity as a partner.
(3) "Event of withdrawal of a general
partner" means an event that causes a person to cease to be a general
partner as provided in § 17-402 of this title.
(4) "Foreign limited partnership"
includes a partnership formed under the laws of any state or under the laws of
any foreign country or other foreign jurisdiction and having as partners 1 or
more general partners and 1 or more limited partners.
(5) "General partner" means a person who
is named as a general partner in the certificate of limited partnership or
similar instrument under which a limited partnership is formed if so required
and who is admitted to the limited partnership as a general partner in
accordance with the partnership agreement or this chapter.
(6) "Knowledge" means a person's actual
knowledge of a fact, rather than the person's constructive knowledge of the
fact.
(7) "Limited liability limited
partnership" means a limited partnership complying with § 17-214 of this
title.
(8) "Limited partner" means a person who
is admitted to a limited partnership as a limited partner as provided in §
17-301 of this title or, in the case of a foreign limited partnership, in
accordance with the laws of the state or foreign country or other foreign
jurisdiction under which the limited partnership is formed.
(9) "Limited partnership" and
"domestic limited partnership" mean a partnership formed by 2 or more
persons under the laws of the State of Delaware and having 1 or more general
partners and 1 or more limited partners, and includes, for all purposes of the
laws of the State of Delaware, a limited liability limited partnership.
(10) "Liquidating trustee" means a
person, other than a general partner, but including a limited partner, carrying
out the winding up of a limited partnership.
(11) "Partner" means a limited or general
partner.
(12) "Partnership agreement" means any
agreement, written, oral or implied, of the partners as to the affairs of a
limited partnership and the conduct of its business. A partner of a limited
partnership or an assignee of a partnership interest is bound by the partnership
agreement whether or not the partner or assignee executes the partnership
agreement. A limited partnership is not required to execute its partnership
agreement. A limited partnership is bound by its partnership agreement whether
or not the limited partnership executes the partnership agreement. A partnership
agreement may provide rights to any person, including a person who is not a
party to the partnership agreement, to the extent set forth therein. A written
partnership agreement or another written agreement or writing:
a. May provide that a person shall be admitted as a
limited partner of a limited partnership, or shall become an assignee of a
partnership interest or other rights or powers of a limited partner to the
extent assigned (i) if such person (or a representative authorized by such
person orally, in writing or by other action such as payment for a partnership
interest) executes the partnership agreement or any other writing evidencing the
intent of such person to become a limited partner or assignee, or (ii) without
such execution, if such person (or a representative authorized by such person
orally, in writing or by other action such as payment for a partnership
interest) complies with the conditions for becoming a limited partner or
assignee as set forth in the partnership agreement or any other writing; and
b. Shall not be unenforceable by reason of its not
having been signed by a person being admitted as a limited partner or becoming
an assignee as provided in paragraph a. of this subdivision, or by reason of its
having been signed by a representative as provided in this title.
(13) "Partnership interest" means a
partner's share of the profits and losses of a limited partnership and the right
to receive distributions of partnership assets.
(14) "Person" means a natural person,
partnership (whether general or limited), limited liability company, trust,
estate, association (including any group, organization, co-tenancy, plan, board,
council or committee), corporation, government (including a country, state,
county or any other governmental subdivision, agency or instrumentality),
custodian, nominee or any other individual or entity (or series thereof) in its
own or any representative capacity, in each case, whether domestic or foreign.
(15) "Personal representative" means, as
to a natural person, the executor, administrator, guardian, conservator or other
legal representative thereof and, as to a person other than a natural person,
the legal representative or successor thereof.
(16) "State" means the District of
Columbia or the Commonwealth of Puerto Rico or any state, territory, possession,
or other jurisdiction of the United States other than the State of Delaware. (6
Del. C. 1953, § 1701; 59 Del. Laws, c. 105, § 1; 63 Del. Laws, c. 420, § 1;
65 Del. Laws, c. 188, § 1; 66 Del. Laws, c. 316, §§ 1-3; 67 Del. Laws, c.
348, §§ 1, 2; 69 Del. Laws, c. 258, § 1; 70 Del. Laws, c. 186, § 1; 71 Del.
Laws, c. 78, § 1; 71 Del. Laws, c. 340, §§ 1, 2; 72 Del. Laws, c. 228, § 1;
73 Del. Laws, c. 73, §§ 1, 2; 73 Del. Laws, c. 297, § 1; 74 Del. Laws, c.
265, § 1; 75 Del. Laws, c. 31, § 1; 75 Del. Laws, c. 414, § 1; 76 Del. Laws,
c. 104, §§ 1-3.)
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§ 17-102. Name set forth in certificate.
The name of each limited partnership as set forth
in its certificate of limited partnership:
(1) Shall contain the words "Limited
Partnership" or the abbreviation "L.P." or the designation
"LP" or, in the case of a limited partnership that is formed as or
becomes a limited liability limited partnership, shall contain the words,
abbreviation or designation required by § 17-214(a) of this title;
(2) May contain the name of a partner;
(3) Must be such as to distinguish it upon the
records in the office of the Secretary of State from the name on such records of
any corporation, partnership, limited partnership, statutory trust or limited
liability company reserved, registered or organized under the laws of the State
of Delaware or qualified to do business or registered as a foreign corporation,
foreign limited partnership, foreign statutory trust, foreign partnership or
foreign limited liability company in the State of Delaware; provided, however,
that a limited partnership may register under any name which is not such as to
distinguish it upon the records in the office of the Secretary of State from the
name on such records of any domestic or foreign corporation, partnership,
limited partnership, statutory trust, or limited liability company reserved,
registered or organized under the laws of the State of Delaware with the written
consent of the other corporation, partnership, statutory trust, or limited
liability company, which written consent shall be filed with the Secretary of
State; and
(4) May contain the following words:
"Company," "Association," "Club,"
"Foundation," "Fund," "Institute,"
"Society," "Union," "Syndicate,"
"Limited" or "Trust" (or abbreviations of like import). (6
Del. C. 1953, § 1705; 59 Del. Laws, c. 105, § 1; 63 Del. Laws, c. 420, § 1;
65 Del. Laws, c. 188, § 1; 66 Del. Laws, c. 316, § 4; 69 Del. Laws, c. 258, §
2; 70 Del. Laws, c. 78, § 1; 72 Del. Laws, c. 386, § 1; 73 Del. Laws, c. 73,
§ 3; 73 Del. Laws, c. 329, § 17; 75 Del. Laws, c. 414, § 2.)
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§ 17-103.
Reservation of name.
(a) The exclusive right to the use of a name may be
reserved by:
(1) Any person intending to organize a limited
partnership under this chapter and to adopt that name;
(2) Any domestic limited partnership or any foreign
limited partnership registered in the State of Delaware which, in either case,
proposes to change its name;
(3) Any foreign limited partnership intending to
register in the State of Delaware and adopt that name; and
(4) Any person intending to organize a foreign
limited partnership and intending to have it register in the State of Delaware
and adopt that name.
(b) The reservation of a specified name shall be
made by filing with the Secretary of State an application, executed by the
applicant, specifying the name to be reserved and the name and address of the
applicant. If the Secretary of State finds that the name is available for use by
a domestic or foreign limited partnership, the Secretary shall reserve the name
for the exclusive use of the applicant for a period of 120 days. Once having so
reserved a name, the same applicant may again reserve the same name for
successive 120 day periods. The right to the exclusive use of a reserved name
may be transferred to any other person by filing in the Office of the Secretary
of State a notice of the transfer, executed by the applicant for whom the name
was reserved, specifying the name to be transferred and the name and address of
the transferee. The reservation of a specified name may be cancelled by filing
with the Secretary of State a notice of cancellation, executed by the applicant
or transferee, specifying the name reservation to be cancelled and the name and
address of the applicant or transferee. Unless the Secretary of State finds that
any application, notice of transfer, or notice of cancellation filed with the
Secretary of State as required by this subsection does not conform to law, upon
receipt of all filing fees required by law, the Secretary shall prepare and
return to the person who filed such instrument a copy of the filed instrument
with a notation thereon of the action taken by the Secretary of State.
(c) A fee as set forth in § 17-1107(a)(1) of this
title shall be paid at the time of the initial reservation of any name, at the
time of the renewal of any such reservation and at the time of the filing of a
notice of the transfer or cancellation of any such reservation. (6 Del. C. 1953,
§ 1705; 59 Del. Laws, c. 105, § 1; 63 Del. Laws, c. 420, § 1; 65 Del. Laws,
c. 188, § 1; 69 Del. Laws, c. 258, § 3; 70 Del. Laws, c. 186, § 1.)
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§ 17-104. Registered office; registered
agent.
(a) Each limited partnership shall have and
maintain in the State of Delaware:
(1) A registered office, which may but need not be
a place of its business in the State of Delaware; and
(2) A registered agent for service of process on
the limited partnership, having a business office identical with such registered
office, which agent may be any of
a. The limited partnership itself,
b. An individual resident in the State of Delaware,
c. A domestic limited liability company, a domestic
corporation, a domestic partnership (whether general (including a limited
liability partnership) or limited (other than the limited partnership itself,
including a limited liability limited partnership)), or a domestic statutory
trust, or
d. A foreign corporation, a foreign partnership
(whether general (including a limited liability partnership) or limited
(including a limited liability limited partnership)), a foreign limited
liability company, or a foreign statutory trust.
(b) A registered agent may change the address of
the registered office of the limited partnership(s) for which it is registered
agent to another address in the State by paying a fee as set forth in §
17-1107(a)(2) of this title and filing with the Secretary of State a
certificate, executed by such registered agent, setting forth the address at
which such registered agent has maintained the registered office for each of the
limited partnerships for which it is a registered agent, and further certifying
to the new address to which each such registered office will be changed on a
given day, and at which new address such registered agent will thereafter
maintain the registered office for each of the limited partnerships for which it
is a registered agent. Upon the filing of such certificate, the Secretary of
State shall furnish to the registered agent a certified copy of the same under
the Secretary's hand and seal of office, and thereafter, or until further change
of address, as authorized by law, the registered office in the State of Delaware
of each of the limited partnerships for which the agent is a registered agent
shall be located at the new address of the registered agent thereof as given in
the certificate. In the event of a change of name of any person acting as a
registered agent of a limited partnership, such registered agent shall file with
the Secretary of State a certificate, executed by such registered agent, setting
forth the new name of such registered agent, the name of such registered agent
before it was changed, and the address at which such registered agent has
maintained the registered office for each of the limited partnerships for which
it is a registered agent, and shall pay a fee as set forth in § 17-1107(a)(2)
of this title. Upon the filing of such certificate, the Secretary of State shall
furnish to the registered agent a certified copy of the certificate under his or
her hand and seal of office. A change of name of any person acting as a
registered agent of a limited partnership as a result of a merger or
consolidation of the registered agent, with or into another person which
succeeds to its assets and liabilities by operation of law, shall be deemed a
change of name for purposes of this section. Filing a certificate under this
section shall be deemed to be an amendment of the certificate of limited
partnership of each limited partnership affected thereby and each such limited
partnership shall not be required to take any further action with respect
thereto, to amend its certificate of limited partnership under § 17-202 of this
title. Any registered agent filing a certificate under this section shall
promptly, upon such filing, deliver a copy of any such certificate to each
limited partnership affected thereby.
(c) The registered agent of 1 or more limited
partnerships may resign and appoint a successor registered agent by paying a fee
as set forth in § 17-1107(a)(2) of this title and filing a certificate with the
Secretary of State stating that it resigns and the name and address of the
successor registered agent. There shall be attached to such certificate a
statement of each affected limited partnership ratifying and approving such
change of registered agent. Upon such filing, the successor registered agent
shall become the registered agent of such limited partnerships as have ratified
and approved such substitution and the successor registered agent's address, as
stated in such certificate, shall become the address of each such limited
partnership's registered office in the State of Delaware. The Secretary of State
shall then issue a certificate that the successor registered agent has become
the registered agent of the limited partnerships so ratifying and approving such
change and setting out the names of such limited partnerships. Filing of such
certificate of resignation shall be deemed to be an amendment of the certificate
of limited partnership of each limited partnership affected thereby and each
such limited partnership shall not be required to take any further action with
respect thereto to amend its certificate of limited partnership under § 17-202
of this title.
(d) The registered agent of 1 or more limited
partnerships may resign without appointing a successor registered agent by
paying a fee as set forth in § 17-1107(a)(2) of this title and filing a
certificate of resignation with the Secretary of State, but such resignation
shall not become effective until 30 days after the certificate is filed. The
certificate shall contain a statement that written notice of resignation was
given to each affected limited partnership at least 30 days prior to the filing
of the certificate by mailing or delivering such notice to the limited
partnership at its address last known to the registered agent and shall set
forth the date of such notice. After receipt of the notice of the resignation of
its registered agent, the limited partnership for which such registered agent
was acting shall obtain and designate a new registered agent to take the place
of the registered agent so resigning. If such limited partnership fails to
obtain and designate a new registered agent as aforesaid prior to the expiration
of the period of 30 days after the filing by the registered agent of the
certificate of resignation, the certificate of such limited partnership shall be
canceled. After the resignation of the registered agent shall have become
effective as provided in this section and if no new registered agent shall have
been obtained and designated in the time and manner aforesaid, service of legal
process against each limited partnership for which the resigned registered agent
had been acting shall thereafter be upon the Secretary of State in accordance
with § 17-105 of this title.
(e) Every registered agent shall:
(1) If an entity, maintain a business office in the
State of Delaware which is generally open, or if an individual, be generally
present at a designated location in the State of Delaware, at sufficiently
frequent times to accept service of process and otherwise perform the functions
of a registered agent;
(2) If a foreign entity, be authorized to transact
business in the State of Delaware;
(3) Accept service of process and other
communications directed to the limited partnerships and foreign limited
partnerships for which it serves as registered agent and forward same to the
limited partnership or foreign limited partnership to which the service or
communication is directed; and
(4) Forward to the limited partnerships and foreign
limited partnerships for which it serves as registered agent the statement for
the annual tax described in § 17-1109 of this title or an electronic
notification of same in a form satisfactory to the Secretary of State.
(f) Any registered agent, who at any time serves as
registered agent for more than 50 entities (a "commercial registered
agent"), whether domestic or foreign, shall satisfy and comply with the
following qualifications.
(1) A natural person serving as a commercial
registered agent shall:
a. Maintain a principal residence or a principal
place of business in the State of Delaware;
b. Maintain a Delaware business license;
c. Be generally present at a designated location
within the State of Delaware during normal business hours to accept service of
process and otherwise perform the functions of a registered agent as specified
in subsection (e) of this section; and
d. Provide the Secretary of State upon request with
such information identifying and enabling communication with such commercial
registered agent as the Secretary of State shall require.
(2) A domestic or foreign corporation, a domestic
or foreign partnership (whether general (including a limited liability
partnership) or limited (including a limited liability limited partnership)), a
domestic or foreign limited liability company, or a domestic or foreign
statutory trust serving as a commercial registered agent shall:
a. Have a business office within the State of
Delaware which is generally open during normal business hours to accept service
of process and otherwise perform the functions of a registered agent as
specified in subsection (e) of this section;
b. Maintain a Delaware business license;
c. Have generally present at such office during
normal business hours an officer, director or managing agent who is a natural
person; and
d. Provide the Secretary of State upon request with
such information identifying and enabling communication with such commercial
registered agent as the Secretary of State shall require.
(3) For purposes of this subsection and paragraph (i)(2)a.
of this section, a "commercial registered agent" shall also include
any registered agent which has an officer, director or managing agent in common
with any other registered agent or agents if such registered agents at any time
during such common service as officer, director or managing agent collectively
served as registered agents for more than 50 entities, whether domestic or
foreign.
(g) Every limited partnership formed under the laws
of the State of Delaware or qualified to do business in the State of Delaware
shall provide to its registered agent and update from time to time as necessary
the name, business address and business telephone number of a natural person who
is a partner, officer, employee or designated agent of the limited partnership,
who is then authorized to receive communications from the registered agent. Such
person shall be deemed the communications contact for the limited partnership.
Every registered agent shall retain (in paper or electronic form) the above
information concerning the current communications contact for each limited
partnership and each foreign limited partnership for which he, she, or it serves
as registered agent. If the limited partnership fails to provide the registered
agent with a current communications contact, the registered agent may resign as
the registered agent for such limited partnership pursuant to this section.
(h) The Secretary of State is authorized to issue
such rules and regulations as may be necessary or appropriate to carry out the
enforcement of subsections (e), (f) and (g) of this section, and to take actions
reasonable and necessary to assure registered agents' compliance with
subsections (e), (f) and (g) of this section. Such actions may include refusal
to file documents submitted by a registered agent.
(i) Upon application of the Secretary of State, the
Court of Chancery may enjoin any person or entity from serving as a registered
agent or as an officer, director or managing agent of a registered agent.
(1) Upon the filing of a complaint by the Secretary
of State pursuant to this section, the court may make such orders respecting
such proceeding as it deems appropriate, and may enter such orders granting
interim or final relief as it deems proper under the circumstances.
(2) Any 1 or more of the following grounds shall be
a sufficient basis to grant an injunction pursuant to this section:
a. With respect to any registered agent who at any
time within 1 year immediately prior to the filing of the Secretary of State's
complaint is a commercial registered agent, failure after notice and warning to
comply with the qualifications set forth in subsection (e) of this section
and/or the requirements of subsection (f) or (g) of this section above;
b. The person serving as a registered agent, or any
person who is an officer, director or managing agent of an entity registered
agent, has been convicted of a felony or any crime which includes an element of
dishonesty or fraud or involves moral turpitude; or
c. The registered agent has engaged in conduct in
connection with acting as a registered agent that is intended to or likely to
deceive or defraud the public.
(3) With respect to any order the court enters
pursuant to this section with respect to an entity that has acted as a
registered agent, the court may also direct such order to any person who has
served as an officer, director or managing agent of such registered agent. Any
person who, on or after January 1, 2007, serves as an officer, director or
managing agent of an entity acting as a registered agent in the State of
Delaware shall be deemed thereby to have consented to the appointment of such
registered agent as agent upon whom service of process may be made in any action
brought pursuant to this section, and service as an officer, director or
managing agent of an entity acting as a registered agent in the State of
Delaware shall be a signification of the consent of such person that any process
when so served shall be of the same legal force and validity as if served upon
such person within the State of Delaware, and such appointment of the registered
agent shall be irrevocable.
(4) Upon the entry of an order by the court
enjoining any person or entity from acting as a registered agent, the Secretary
of State shall mail or deliver notice of such order to each general partner of
each affected limited partnership at the address of such general partner
specified in the affected limited partnership's certificate of limited
partnership. If such a limited partnership is a domestic limited partnership and
fails to obtain and designate a new registered agent within 30 days after such
notice is given, the certificate of limited partnership of such limited
partnership shall be canceled. If such a limited partnership is a foreign
limited partnership and fails to obtain and designate a new registered agent
within 30 days after such notice is given, such foreign limited partnership
shall not be permitted to do business in the State of Delaware and its
registration shall be canceled. If the court enjoins a person or entity from
acting as a registered agent as provided in this section and no new registered
agent shall have been obtained and designated in the time and manner aforesaid
by an affected limited partnership, service of legal process against the limited
partnership for which the registered agent had been acting shall thereafter be
upon the Secretary of State in accordance with § 17-105 or § 17-911 of this
title. The Court of Chancery may, upon application of the Secretary of State on
notice to the former registered agent, enter such orders as it deems appropriate
to give the Secretary of State access to information in the former registered
agent's possession in order to facilitate communication with the limited
partnerships the former registered agent served.
(j) The Secretary of State is authorized to make a
list of registered agents available to the public, and to establish such
qualifications and issue such rules and regulations with respect to such listing
as the Secretary of State deems necessary or appropriate. (63 Del. Laws, c. 420,
§ 1; 65 Del. Laws, c. 188, § 1; 67 Del. Laws, c. 348, §§ 3-5; 70 Del. Laws,
c. 186, § 1; 71 Del. Laws, c. 78, §§ 2, 3; 73 Del. Laws, c. 73, § 4; 73 Del.
Laws, c. 329, § 18; 75 Del. Laws, c. 414, §§ 3, 4; 76 Del. Laws, c. 104, §§
4-9.)
§ 17-105. Service of
process on domestic limited partnerships.
(a) Service of legal process upon any domestic
limited partnership shall be made by delivering a copy personally to any
managing or general agent or general partner of the limited partnership in the
State of Delaware or the registered agent of the limited partnership in the
State of Delaware, or by leaving it at the dwelling house or usual place of
abode in the State of Delaware of any such managing or general agent, general
partner or registered agent (if the registered agent be an individual), or at
the registered office or other place of business of the limited partnership in
the State of Delaware. If the registered agent be a corporation, service of
process upon it as such may be made by serving, in the State of Delaware, a copy
thereof on the president, vice-president, secretary, assistant secretary or any
director of the corporate registered agent. Service by copy left at the dwelling
house or usual place of abode of an officer, managing or general agent, general
partner or registered agent, or at the registered office or other place of
business of the limited partnership in the State of Delaware, to be effective,
must be delivered thereat at least 6 days before the return date of the process,
and in the presence of an adult person, and the officer serving the process
shall distinctly state the manner of service in his or her return thereto.
Process returnable forthwith must be delivered personally to the officer,
managing or general agent, general partner or registered agent.
(b) 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 partnership 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. 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 partnership by letter, certified
mail, return receipt requested, directed to the limited partnership at the
address of a general partner as it appears on the records relating to such
limited partnership on file with the Secretary of State or, if no such address
appears, at its last registered office. 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 defendant, the
title, docket number and nature of the proceeding in which process has been
served upon the Secretary, the fact that service has been effected pursuant to
this subsection, the return date thereof, and the day and hour when the service
was made. The Secretary of State shall not be required to retain such
information for a period longer than 5 years from the receipt of the service of
process. (63 Del. C. 1953, § 1727; 59 Del. Laws, c. 105, § 1; 63 Del. Laws, c.
420, § 1; 65 Del. Laws, c. 188, § 1; 70 Del. Laws, c. 186, § 1.)
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§ 17-106. Nature of business permitted;
powers.
(a) A limited partnership may carry on any lawful
business, purpose or activity, whether or not for profit, with the exception of
the business of banking as defined in § 126 of Title 8.
(b) A limited partnership shall possess and may
exercise all the powers and privileges granted by this chapter or by any other
law or by its partnership agreement, together with any powers incidental
thereto, including such powers and privileges as are necessary or convenient to
the conduct, promotion or attainment of the business, purposes or activities of
the limited partnership.
(c) Notwithstanding any provision of this chapter
to the contrary, without limiting the general powers enumerated in subsection
(b) above, a limited partnership shall, subject to such standards and
restrictions, if any, as are set forth in its partnership agreement, have the
power and authority to make contracts of guaranty and suretyship and enter into
interest rate, basis, currency, hedge or other swap agreements or cap, floor,
put, call, option, exchange or collar agreements, derivative agreements or other
agreements similar to any of the foregoing. (6 Del. C. 1953, § 1703; 59 Del.
Laws, c. 105, § 1; 63 Del. Laws, c. 420, § 1; 65 Del. Laws, c. 188, § 1; 70
Del. Laws, c. 78, § 2; 71 Del. Laws, c. 78, § 4; 72 Del. Laws, c. 128, § 1;
73 Del. Laws, c. 297, § 2; 75 Del. Laws, c. 31, § 2.)
§ 17-107. Business
transactions of partner with the partnership.
Except as provided in the partnership agreement, a
partner may lend money to, borrow money from, act as a surety, guarantor or
endorser for, guarantee or assume 1 or more specific obligations of, provide
collateral for and transact other business with, the limited partnership and,
subject to other applicable law, has the same rights and obligations with
respect thereto as a person who is not a partner. (6 Del. C. 1953, § 1713; 59
Del. Laws, c. 105, § 1; 63 Del. Laws, c. 420, § 1; 65 Del. Laws, c. 188, § 1;
66 Del. Laws, c. 316, § 5; 69 Del. Laws, c. 258, § 4.)
§ 17-108.
Indemnification.
Subject to such standards and restrictions, if any, as
are set forth in its partnership agreement, a limited partnership may, and shall
have the power to, indemnify and hold harmless any partner or other person from
and against any and all claims and demands whatsoever. (65 Del. Laws, c. 188, §
1.)
§ 17-109. Service of
process on partners and liquidating trustees.
(a) A general partner or a liquidating trustee of a
limited partnership may be served with process in the manner prescribed in this
section in all civil actions or proceedings brought in the State of Delaware
involving or relating to the business of the limited partnership or a violation
by the general partner or the liquidating trustee of a duty to the limited
partnership, or any partner of the limited partnership, whether or not the
general partner or the liquidating trustee is a general partner or a liquidating
trustee at the time suit is commenced. The filing in the Office of the Secretary
of State of a certificate of limited partnership executed, and the execution
thereof, by a resident or nonresident of the State of Delaware which names such
person as a general partner or a liquidating trustee of a limited partnership,
or the acceptance by a general partner or a liquidating trustee after August 1,
1999, of election or appointment as a general partner or a liquidating trustee
of a limited partnership, or a general partner or a liquidating trustee of a
limited partnership serving in such capacity after August 1, 1999, constitute
such person's consent to the appointment of the registered agent of the limited
partnership (or, if there is none, the Secretary of State) as such person's
agent upon whom service of process may be made as provided in this section. Such
execution and filing, or such acceptance or service, shall signify the consent
of such general partner or liquidating trustee that any process when so served
shall be of the same legal force and validity as if served upon such general
partner or liquidating trustee within the State of Delaware and such appointment
of the registered agent (or, if there is none, the Secretary of State) shall be
irrevocable.
(b) Service of process shall be effected by serving
the registered agent (or, if there is none, the Secretary of State) with 1 copy
of such process in the manner provided by law for service of writs of summons.
In the event service is made under this subsection upon the Secretary of State,
the plaintiff shall pay to 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 of the
proceeding if the plaintiff shall prevail therein. In addition, the Prothonotary
or the Register in Chancery of the court in which the civil action or proceeding
is pending shall, within 7 days of such service, deposit in the United States
mails, by registered mail, postage prepaid, true and attested copies of the
process, together with a statement that service is being made pursuant to this
section, addressed to such general partner or liquidating trustee at the same
address that appears in the certificate of limited partnership of the limited
partnership, or, if no such address appears, at his or her address last known to
the party desiring to make such service.
(c) In any action in which any such general partner
or liquidating trustee has been served with process as hereinabove provided, the
time in which a defendant shall be required to appear and file a responsive
pleading shall be computed from the date of mailing by the Prothonotary or the
Register in Chancery as provided in subsection (b) of this section; however, the
court in which such action has been commenced may order such continuance or
continuances as may be necessary to afford such general partner or liquidating
trustee reasonable opportunity to defend the action.
(d) In a written partnership agreement or other
writing, a partner may consent to be subject to the nonexclusive jurisdiction of
the courts of, or arbitration in, a specified jurisdiction, or the exclusive
jurisdiction of the courts of the State of Delaware, or the exclusivity of
arbitration in a specified jurisdiction or the State of Delaware, and to be
served with legal process in the manner prescribed in such partnership agreement
or other writing. Except by agreeing to arbitrate any arbitrable matter in a
specified jurisdiction or in the State of Delaware, a limited partner may not
waive its right to maintain a legal action or proceeding in the courts of the
State of Delaware with respect to matters relating to the organization or
internal affairs of a limited partnership.
(e) Nothing herein contained limits or affects the
right to serve process in any other manner now or hereafter provided by law.
This section is an extension of and not a limitation upon the right otherwise
existing of service of legal process upon nonresidents.
(f) The Court of Chancery and the Superior Court
may make all necessary rules respecting the form of process, the manner of
issuance and return thereof and such other rules which may be necessary to
implement this section and are not inconsistent with this section. (66 Del.
Laws, c. 316, § 6; 67 Del. Laws, c. 348, § 6; 70 Del. Laws, c. 186, § 1; 71
Del. Laws, c. 78, § 5; 72 Del. Laws, c. 128, §§ 2, 3; 72 Del. Laws, c. 386,
§ 2.)
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§ 17-110.
Contested matters relating to general partners; contested votes.
(a) Upon application of any partner, the Court of
Chancery may hear and determine the validity of any admission, election,
appointment or removal or other withdrawal of a general partner of a limited
partnership, and the right of any person to become or continue to be a general
partner of a limited partnership, and, in case the right to serve as a general
partner is claimed by more than 1 person, may determine the person or persons
entitled to serve as general partners; and to that end make such order or decree
in any such case as may be just and proper, with power to enforce the production
of any books, papers and records of the limited partnership relating to the
issue. In any such application, the limited partnership shall be named as a
party and service of copies of the application upon the registered agent of the
limited partnership shall be deemed to be service upon the limited partnership
and upon the person or persons whose right to serve as a general partner is
contested and upon the person or persons, if any, claiming to be a general
partner or claiming the right to be a general partner; and the registered agent
shall forward immediately a copy of the application to the limited partnership
and to the person or persons whose right to serve as a general partner is
contested and to the person or persons, if any, claiming to be a general partner
or the right to be a general partner, in a postpaid, sealed, registered letter
addressed to such limited partnership and such person or persons at their
post-office addresses last known to the registered agent or furnished to the
registered agent by the applicant partner. The Court may make such order
respecting further or other notice of such application as it deems proper under
the circumstances.
(b) Upon application of any partner, the Court of
Chancery may hear and determine the result of any vote of partners upon matters
as to which the partners of the limited partnership, or any class or group of
partners, have the right to vote pursuant to the partnership agreement or other
agreement or this chapter (other than the admission, election, appointment or
removal or other withdrawal of general partners). In any such application, the
limited partnership shall be named as a party and service of the application
upon the registered agent of the limited partnership shall be deemed to be
service upon the limited partnership, and no other party need be joined in order
for the Court to adjudicate the result of the vote. The Court may make such
order respecting further or other notice of such application as it deems proper
under the circumstances.
(c) Nothing herein contained limits or affects the
right to serve process in any other manner now or hereafter provided by law.
This section is an extension of and not a limitation upon the right otherwise
existing of service of legal process upon nonresidents. (69 Del. Laws, c. 258,
§ 5; 71 Del. Laws, c. 78, § 6.)
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§ 17-111.
Interpretation and enforcement of partnership agreement.
Any action to interpret, apply or enforce
the provisions of a partnership agreement, or the duties,
obligations or liabilities of a limited partnership to the partners
of the limited partnership, or the duties, obligations or
liabilities among partners or of partners to the limited
partnership, or the rights or powers of, or restrictions on, the
limited partnership or partners, may be brought in the Court of
Chancery. (69 Del. Laws, c. 258, § 6.)
Subchapter II. Formation; Certificate of Limited Partnership
§ 17-201. Certificate of limited
partnership.
(a) In order to form a limited partnership, 1 or
more persons (but not less than all of the general partners) must execute a
certificate of limited partnership. The certificate of limited partnership shall
be filed in the Office of the Secretary of State and set forth:
(1) The name of the limited partnership;
(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 § 17-104 of this title;
(3) The name and the business, residence or mailing
address of each general partner; and
(4) Any other matters the partners determine to
include therein.
(b) A limited partnership is formed at the time of
the filing of the initial certificate of limited partnership in the Office of
the Secretary of State or at any later date or time specified in the certificate
of limited partnership if, in either case, there has been substantial compliance
with the requirements of this section. A limited partnership 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 partnership's
certificate of limited partnership.
(c) The filing of the certificate of limited
partnership 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 partnership agreement shall be entered into
or otherwise existing either before, after or at the time of the filing of a
certificate of limited partnership 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 partnership or at such other time or date as
provided in or reflected by the partnership agreement. (6 Del. C. 1953, § 1702;
59 Del. Laws, c. 105, § 1; 59 Del. Laws, c. 422, § 4; 63 Del. Laws, c. 420, §
1; 65 Del. Laws, c. 188, § 1; 67 Del. Laws, c. 348, § 7; 76 Del. Laws, c. 104,
§ 10.)
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§ 17-202.
Amendment to certificate.
(a) A certificate of limited partnership 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 partnership; and
(2) The amendment to the certificate.
(b) A general partner who becomes aware that any
statement in a certificate of limited partnership was false when made, or that
any matter described has changed making the certificate false in any material
respect, shall promptly amend the certificate.
(c) Notwithstanding the requirements of subsection
(b) of this section, no later than 90 days after the happening of any of the
following events an amendment to a certificate of limited partnership reflecting
the occurrence of the event or events shall be filed by a general partner:
(1) The admission of a new general partner;
(2) The withdrawal of a general partner; or
(3) A change in the name of the limited
partnership, or, except as provided in § 17-104(b) and (c) of this title, a
change in the address of the registered office or a change in the name or
address of the registered agent of the limited partnership.
(d) A certificate of limited partnership may be
amended at any time for any other proper purpose the general partners may
determine.
(e) Unless otherwise provided in this chapter or in
the certificate of amendment, a certificate of amendment shall be effective at
the time of its filing with the Secretary of State.
(f) If after the dissolution of a limited
partnership but prior to the filing of a certificate of cancellation as provided
in § 17-203 of this title:
(1) A certificate of limited partnership has been
amended to reflect the withdrawal of all general partners of a limited
partnership, the certificate of limited partnership shall be amended to set
forth the name and the business, residence or mailing address of each person
winding up the limited partnership's affairs, each of whom shall execute and
file such certificate of amendment, and each of whom shall not be subject to
liability as a general partner by reason of such amendment; or
(2) A person shown on a certificate of limited
partnership as a general partner is not winding up the limited partnership's
affairs, the certificate of limited partnership shall be amended to add the name
and the business, residence or mailing address of each person winding up the
limited partnership's affairs, each of whom shall execute and file such
certificate of amendment, and each of whom shall not be subject to liability as
a general partner by reason of such amendment. A person shown on a certificate
of limited partnership as a general partner who is not winding up a limited
partnership's affairs need not execute a certificate of amendment which is being
executed and filed as required under this subsection. (6 Del. C. 1953, §§
1724, 1725; 59 Del. Laws, c. 105, § 1; 59 Del. Laws, c. 442, § 1; 63 Del.
Laws, c. 420, § 1; 65 Del. Laws, c. 188, § 1; 66 Del. Laws, c. 316, § 7; 67
Del. Laws, c. 348, § 8.)
§ 17-203. Cancellation of certificate.
A certificate of limited partnership shall be
canceled upon the dissolution and the completion of winding up of the limited
partnership, or as provided in § 17-104(d) or § 17-104(i)(4) or § 17-1110 of
this title, or upon the filing of a certificate of merger or consolidation if
the limited partnership 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 if the limited partnership 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 limited partnership upon the dissolution and the completion of
winding up of a limited partnership and shall set forth:
(1) The name of the limited partnership;
(2) The date of filing of its certificate of
limited partnership;
(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 partnership if its
certificate of limited partnership is canceled. (6 Del. C. 1953, §§ 1724,
1725; 59 Del. Laws, c. 105, § 1; 59 Del. Laws, c. 442, § 1; 63 Del. Laws, c.
420, § 1; 65 Del. Laws, c. 188, § 1; 66 Del. Laws, c. 316, § 8; 70 Del. Laws,
c. 78, § 3; 70 Del. Laws, c. 362, § 1; 71 Del. Laws, c. 78, § 7; 71 Del.
Laws, c. 340, § 3; 72 Del. Laws, c. 386, §§ 3-5; 73 Del. Laws, c. 297, § 3;
74 Del. Laws, c. 104, § 1; 75 Del. Laws, c. 414, § 5; 76 Del. Laws, c. 104, §
11.)
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§ 17-204.
Execution.
(a) Each certificate required by this subchapter to
be filed in the Office of the Secretary of State shall be executed in the
following manner:
(1) An initial certificate of limited partnership,
a certificate of limited partnership domestication, a certificate of conversion
to limited partnership, a certificate of conversion to a non-Delaware entity, a
certificate of transfer and a certificate of transfer and domestic continuance
must be signed by all general partners;
(2) A certificate of amendment or a certificate of
correction must be signed by at least 1 general partner and by each other
general partner designated in the certificate of amendment or a certificate of
correction as a new general partner, but if the certificate of amendment or a
certificate of correction reflects the withdrawal of a general partner as a
general partner, it need not be signed by that former general partner;
(3) A certificate of cancellation must be signed by
all general partners or, if the general partners are not winding up the limited
partnership's affairs, then by all liquidating trustees; provided, however, that
if the limited partners are winding up the limited partnership's affairs, a
certificate of cancellation shall be signed by the limited partners or, if there
is more than 1 class or group of limited partners, then by each class or group
of limited partners, in either case, by limited partners who own more than 50
percent of the then current percentage or other interest in the profits of the
limited partnership owned by all of the limited partners or by the limited
partners in each class or group, as appropriate;
(4) If a domestic limited partnership is filing a
certificate of merger or consolidation, the certificate of merger or
consolidation must be signed by at least 1 general partner of the domestic
limited partnership, or if the certificate of merger or consolidation is being
filed by another business entity (as defined in § 17-211(a) of this title), the
certificate of merger or consolidation, must be signed by a person authorized by
such other business entity;
(5) A certificate of revival must be signed by at
least 1 general partner; and
(6) A certificate of termination of a certificate
with a future effective date or time or a certificate of amendment of a
certificate with a future effective date or time being filed in accordance with
§ 17-206(c) of this title shall be signed in the same manner as the certificate
with a future effective date or time being amended or terminated is required to
be signed under this chapter.
(b) Unless otherwise provided in the partnership
agreement, any person may sign any certificate or amendment thereof or enter
into a partnership 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 partnership 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 a general partner.
(c) The execution of a certificate by a general
partner constitutes an oath or affirmation, under the penalties of perjury in
the third degree, that, to the best of the general partner's knowledge and
belief, the facts stated therein are true. (6 Del. C. 1953, § 1702; 59 Del.
Laws, c. 105, § 1; 59 Del. Laws, c. 442, § 4; 63 Del. Laws, c. 420, § 1; 65
Del. Laws, c. 188, § 1; 66 Del. Laws, c. 316, §§ 9-12; 67 Del. Laws, c. 348,
§ 9; 69 Del. Laws, c. 258, §§ 7, 8; 70 Del. Laws, c. 78, §§ 4, 5; 70 Del.
Laws, c. 362, § 2; 71 Del. Laws, c. 78, § 8; 73 Del. Laws, c. 73, § 5; 74
Del. Laws, c. 104, § 2; 76 Del. Laws, c. 104, § 12.)
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§ 17-205. Execution,
amendment or cancellation by judicial order.
(a) If a person required by § 17-204 of this title
to execute any certificate 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 partnership
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 partnership agreement or amendment
thereof. If the Court finds that the partnership agreement or amendment thereof
should be executed and that any person so designated has failed or refused to do
so, it shall enter an order granting appropriate relief. (63 Del. Laws, c. 420,
§ 1; 65 Del. Laws, c. 188, § 1.)
§ 17-206. Filing.
(a) The signed copy of the certificate of limited
partnership 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 restated certificate, any corrected certificate, any
certificate of conversion to limited partnership, any certificate of conversion
to a non-Delaware entity, any certificate of transfer, any certificate of
transfer and domestic continuance, any certificate of limited partnership
domestication, and 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 limited
partnership, 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, restated certificate,
the corrected certificate, the certificate of conversion to limited partnership,
the certificate of conversion to a non-Delaware entity, the certificate of
transfer, the certificate of transfer and domestic continuance, the certificate
of limited partnership domestication or 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 partnership
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 his or her 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 c. of this subdivision, 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 limited partnership 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 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 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 § 17-104(d),
§ 17-104(i)(4) or § 17-1110(a) of this title, the certificate of limited
partnership is canceled. Upon the filing of a certificate of limited partnership
domestication, or upon the future effective date or time of a certificate of
limited partnership domestication, the entity filing the certificate of limited
partnership domestication is domesticated as a limited partnership with the
effect provided in § 17-215 of this title. Upon the filing of a certificate of
conversion to limited partnership, or upon the future effective date or time of
a certificate of conversion to limited partnership, the entity filing the
certificate of conversion to limited partnership is converted to a limited
partnership with the effect provided in § 17-217 of this title. Upon the filing
of a certificate of revival, the limited partnership shall be revived with the
effect provided in § 17-1111 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 partnership filing the certificate of transfer and domestic continuance
shall continue to exist as a limited partnership of the State of Delaware with
the effect provided in § 17-216 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 § 17-204 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 § 17-1107(a)(3) of this
title shall be paid at the time of the filing of a certificate of limited
partnership, 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 termination of a merger or consolidation, a certificate
of cancellation, a certificate of merger or consolidation, a restated
certificate, a corrected certificate, a certificate of conversion to limited
partnership, a certificate of conversion to a non-Delaware entity, a certificate
of transfer, certificate of transfer and domestic continuance, a certificate of
limited partnership domestication or a certificate of revival.
(e) A fee as set forth in § 17-1107(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 § 17-1107(a)(5) of this title shall be
paid for each page copied. (6 Del. C. 1953, § 1702; 59 Del. Laws, c. 105, § 1;
59 Del. Laws, c. 442, § 4; 63 Del. Laws, c. 420, § 1; 65 Del. Laws, c. 188, §
1; 66 Del. Laws, c. 316, §§ 13-16; 69 Del. Laws, c. 258, §§ 9-12; 70 Del.
Laws, c. 78, §§ 6-14; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 362, §§
3-6; 71 Del. Laws, c. 78, §§ 9-12; 73 Del. Laws, c. 73, §§ 6-12; 73 Del.
Laws, c. 297, § 4; 74 Del. Laws, c. 104, §§ 3-11; 75 Del. Laws, c. 414, § 6;
76 Del. Laws, c. 104, §§ 13-16.)
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§ 17-207. Liability for false statement.
(a) If any certificate of limited partnership or
certificate of amendment, correction, revival or cancellation or certificate of
conversion to limited partnership, or certificate of conversion to a
non-Delaware entity, certificate of transfer, certificate of transfer and
domestic continuance, or certificate of limited partnership domestication
contains a materially false statement, one who suffers loss by reasonable
reliance on the statement may recover damages for the loss from:
(1) Any general partner who executes the
certificate and knew or should have known the statement to be false in any
material respect at the time the certificate was executed; and
(2) Any general partner who thereafter knows that
any arrangement or other fact described in the certificate is false in any
material respect or has changed, making the statement false in any material
respect, if that general partner had sufficient time to amend, correct or cancel
the certificate, or to file a petition for its amendment, correction or
cancellation, before the statement was reasonably relied upon.
(b) No general partner shall have any liability for
failing to cause the amendment, correction or cancellation of a certificate to
be filed or failing to file a petition for its amendment, correction or
cancellation pursuant to subsection (a) of this section if the certificate of
amendment, certificate of correction, certificate of cancellation or petition is
filed within 90 days of when that general partner knew or should have known to
the extent provided in subsection (a) of this section that the statement in the
certificate was false in any material respect. (6 Del. C. 1953, § 1706; 59 Del.
Laws, c. 105, § 1; 63 Del. Laws, c. 420, § 1; 65 Del. Laws, c. 188, § 1; 69
Del. Laws, c. 258, §§ 13-15; 70 Del. Laws, c. 78, § 15; 70 Del. Laws, c. 362,
§ 7; 71 Del. Laws, c. 78, § 13; 74 Del. Laws, c. 104, § 12; 76 Del. Laws, c.
104, § 17.)
§ 17-208. Notice.
The fact that a certificate of limited partnership is
on file in the Office of the Secretary of State is notice that the partnership
is a limited partnership and is notice of all other facts set forth therein
which are required to be set forth in a certificate of limited partnership by §
17-201(a)(1)-(3) and by § 17-202(f) of this title and which are permitted to be
set forth in a certificate of limited partnership by § 17-218(b) of this title.
(63 Del. Laws, c. 420, § 1; 65 Del. Laws, c. 188, § 1; 66 Del. Laws, c. 316,
§ 17; 70 Del. Laws, c. 362, § 8.)
§ 17-209. Delivery of
certificates to limited partners.
Upon the return by the Secretary of State pursuant to
§ 17-206 of this title of a certificate marked "Filed," the general
partners shall promptly deliver or mail a copy of the certificate to each
limited partner if the partnership agreement so requires. (63 Del. Laws, c. 420,
§ 1; 65 Del. Laws, c. 188, § 1.)
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§ 17-210.
Restated certificate.
(a) A limited partnership may, whenever desired,
integrate into a single instrument all of the provisions of its certificate of
limited partnership 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
limited partnership by adopting a restated certificate of limited partnership.
(b) If the restated certificate of limited
partnership merely restates and integrates but does not further amend the
initial certificate of limited partnership, 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 Limited Partnership" together
with such other words as the partnership may deem appropriate and shall be
executed by a general partner and filed as provided in § 17-206 of this title
in the Office of the Secretary of State. If the restated certificate restates
and integrates and also further amends in any respect the certificate of limited
partnership, as theretofore amended or supplemented, it shall be specifically
designated in its heading as an "Amended and Restated Certificate of
Limited Partnership" together with such other words as the partnership may
deem appropriate and shall be executed by at least 1 general partner and by each
other general partner designated in the restated certificate of limited
partnership as a new general partner, but if the restated certificate reflects
the withdrawal of a general partner as a general partner, such restated
certificate of limited partnership need not be signed by that former general
partner, and filed as provided in § 17-206 of this title in the Office of the
Secretary of State.
(c) A restated certificate of limited partnership
shall state, either in its heading or in an introductory paragraph, the limited
partnership'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
limited partnership 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 the restated certificate only restates
and integrates and does not further amend the limited partnership's certificate
of limited partnership 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 the restated certificate of
limited partnership with the Secretary of State, or upon the future effective
date or time of a restated certificate of limited partnership as provided for
therein, the initial certificate of limited partnership, as theretofore amended
or supplemented, shall be superseded; thenceforth, the restated certificate of
limited partnership, including any further amendment or changes made thereby,
shall be the certificate of limited partnership of the limited partnership, 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 limited partnership
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. (63 Del. Laws, c. 420, § 1; 65 Del.
Laws, c. 188, § 1; 66 Del. Laws, c. 316, § 18.)
§ 17-211.
Merger and consolidation.
(a) As used in this section, "other business
entity" means a corporation, a statutory trust, a business trust, an
association, a real estate investment trust, a common-law trust, a limited
liability company, or an unincorporated business or entity, including a
partnership (whether general (including a limited liability partnership) or
limited (including a foreign limited liability limited partnership), but
excluding a domestic limited partnership).
(b) Pursuant to an agreement of merger or
consolidation, 1 or more domestic limited partnerships may merge or consolidate
with or into 1 or more domestic limited partnerships 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 partnership
or other business entity as the agreement shall provide being the surviving or
resulting domestic limited partnership or other business entity. Unless
otherwise provided in the partnership agreement, a merger or consolidation shall
be approved by each domestic limited partnership which is to merge or
consolidate (1) by all general partners, and (2) by the limited partners or, if
there is more than 1 class or group of limited partners, then by each class or
group of limited partners, in either case, by limited partners who own more than
50 percent of the then current percentage or other interest in the profits of
the domestic limited partnership owned by all of the limited partners or by the
limited partners in each class or group, as appropriate. In connection with a
merger or consolidation hereunder, rights or securities of, or interests in, a
limited partne |
