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DELAWARE BUSINESS ENTITY
CHANGES
This Month due to all the changes in Delaware
that are effective August 1, we have focused this
newsletter on the recent legislation in that State
effecting business entities.
On June 19, 2003 Delaware's Governor
Minner signed House Bills 267 and 268 altering fees and
taxes applicable to business entities in the State. The
Tax change aspects of the bill are effective January 1,
2003. Thus, documents received on or after June 23, 2003
which voluntarily terminates the existence of a company
(ie: merger, dissolution, cancellation, conversion, etc)
will be assessed the 2003 tax using the new tax
rates.
Fee
changes are effective August 1,
2003.
Full Text
of these bills may be viewed at: http://www.legis.state.de.us/Legislature.nsf/fsLIS?openframeset&Frame=Main&Src=/LIS/LIS141.NSF/Home!Openform
Filing and
Retrieval Fee Changes effective August 1, 2003 are
listed below:
OLD
FEE
NEW FEE
Certificates
Short Good
Standing
$20
$30
Long Good
Standing
$100
$125
Certified
copies
$20+ 1 per
page $30
+ 2 per page
Plain
copies
$5/first
pg
$10/first pg
+ 1/each
addl
+ 2/each addl
Great
Seal
$0
$3
Apostille
$10
not to exceed $20
Filing
Change of Agent
Address
varied
$100
Incorporation
$50
(min)
$65
(min)
Amendment-Corporate
$100
(min)
$105
(min)
Designation
$75
$80
Retirement
$100
$105
Restated Cert of
Incorporation
$100
(min)
$105
(min)
Merger
$145 +
tax
$150 +
tax
Conversion
$50
$100
General
Partnerships
$100/partner
$200/partner
$120,000
max
$120,000 max
LLC
domestication
$50
$90
LLC transfer &
continuance
$50
$90
Conversion to an
LLC
$50
$90
LLC
Formation
$50
$90
LLC Amendment, Cancellation
Merger,
Restated,
Termination,
Correction
$50
$100
Foreign LLC
filings
$50
$100
Statutory Trust Name
Res.
$50
$75
Stat. Trust- Cert of Trust,
Amend,
Merger, Restated
Cancellation,
Correction
Termination
$100
$200
Foreign Stat. Trust
Registration,
Cancellation,
Amendment
$50
$200
UCC
Financing
Statement
$50
not more than $75
(Paper
filing)
+ $2/pg if over 4 +
$2/pg if over 4
Financing
Statement
$20
not more than $50
(Internet
filing)
Copies
$2/page (5
min.)
$10/first
page
+ $2 each addl pg
Next Day
Rush
$25
$50
Same Day
Rush
$50
$100
2-Hour
Rush
$75
$200
Tax changes authorized by the bill go
retroactively into effect January 1, 2003
Corp
Franchise Tax
Annual Report filing
fee
$20
$25
penalty
$50
$100
1-3,000
shares
$30
$35
3,001-5,000
shares
$50
$62.50
5,001-10,000
shares
$90
$112.50
Each additional 10,000
or portion
thereof
$50
$62.50
maximum
$150,000
$165,000
Other Tax
General
Partnership
$100
$200
Limited
Partnership
$100
$200
Limited Liability
Company
$100
$200
Foreign Corp A/R's
filing
fee
$50
$60
penalty
$50
$100
Regulated Investment Corp
maximum annual
tax
$65,000
$75,000
Misc.
Internet Access to Records
via
Authorized Third Party
Vendors
$13.25
not more than $20
Returned Check
Fee
$25
$60
The official Delaware fee chart effective
8/1 may be viewed at: http://www.nrai.com/html_research/Delaware_fee_chart.pdf
Additionally, AN ACT TO AMEND TITLE 8 OF THE
DELAWARE CODE RELATING TO THE DELAWARE GENERAL
CORPORATION LAW AND FEES CHARGED AND COLLECTED BY THE
SECRETARY OF STATE was signed into law on July 9, 2003
making the follow fee provisions:
"This Bill
establishes a $20 courthouse municipality fee to be
assessed on corporate filings. The fee is expected to
raise $1.5 million to be distributed to the
municipalities designated as the places of holding the
Court of Chancery. The fee will be distributed to the
municipality in the county in which a business entity's
registered office is located. To ensure that Delaware's
corporate filing fees remain competitive, the Bill
reduces the fee for entering information into the
Delaware Corporation Information System from $25 to
$5.00"
AN ACT TO AMEND TITLE 6 OF THE DELAWARE
CODE RELATING TO THE LIMITED LIABILITY COMPANY ACT AND
FEES CHARGED AND COLLECTED BY THE SECRETARY OF STATE.
Signed July 8, 2003.
This Bill establishes a $20
courthouse municipality fee to be assessed on limited
liability company (LLC) filings. The fee is expected to
raise $1.6 million to be distributed to the
municipalities designated as the places of holding the
Court of Chancery. The fee will be distributed to the
municipality in the county in which a business entity's
registered office is located. To ensure that Delaware's
LLC filing fees remain competitive, the Bill maintains
the State's aggregate formation fee of $90 and the
aggregate amending filing fee of $100.
AN ACT TO
AMEND CHAPTER 15, TITLE 6 OF THE DELAWARE CODE RELATING
TO THE CREATION, REGULATION, OPERATION AND DISSOLUTION
OF DOMESTIC PARTNERSHIPS AND THE REGISTRATION AND
REGULATION OF FOREIGN LIMITED LIABILITY PARTNERSHIPS
Signed June 30, 2003.
This bill continues the
practice of amending periodically the Delaware Revised
Uniform Partnership Act (the "Act") to keep it current
and to maintain national preeminence. The following is a
section-by-section review of the proposed amendments of
the Act.
Section 1, 8 and 11.
These amendments permit conversion of a Delaware
partnership to a non-Delaware
entity.
Sections 2-7. These
amendments clarify the general rule that the date and
time of filing of a statement or certificate filed with
the Secretary of State is the date and time of delivery
of the statement or certificate and the limited
exceptions to this rule.
Section
9. This section amends § 15-901(j) of the Act
to clarify the liability of a person admitted as a
partner to a domestic partnership upon the conversion of
any other entity to a domestic
partnership.
Section 10. This
section amends § 15-902(j) of the Act to correct certain
typographic errors.
Section 12.
This section amends § 15-904(k) of the Act to clarify
the liability of a person admitted as a partner to a
domestic partnership upon the domestication of any
non-United States entity as a domestic
partnership.
Sections 13-16.
This amendment clarifies the language of § 15-905(a) of
the Act to be consistent with to be consistent with
language used in other analogous sections of the
Act.
Section 17. This section
provides that the proposed amendments of the Act shall
become effective on August 1, 2003.
AN ACT TO
AMEND CHAPTER 17, TITLE 6 OF THE DELAWARE CODE RELATING
TO THE CREATION, REGULATION, OPERATION AND DISSOLUTION
OF DOMESTIC LIMITED PARTNERSHIPS AND THE REGISTRATION
AND REGULATION OF FOREIGN LIMITED
PARTNERSHIPS.
This bill continues the practice of
amending periodically the Delaware Revised Uniform
Limited Partnership Act (the "Act") to keep it current
and to maintain its national preeminence. The following
is a section-by-section review of the proposed
amendments of the Act.
Sections 1-3, 6,
10-12, 17 and 19. These amendments permit
conversion of a Delaware limited partnership to a
non-Delaware entity.
Sections 4, 5 and
7-9. These amendments clarify the general rule
that the date and time of filing of a certificate filed
with the Secretary of State is the date and time of
delivery of the certificate and the limited exceptions
to this rule.
Section 13. This
amendment clarifies the language of § 17-216(a) of the
Act to be consistent with language used in other
analogous sections of the Act.
Sections
14-16. These sections amend § 17-218 of the Act
to confirm the ability to provide for the establishment
of 1 or more series and the sufficiency of a general
notice of the limitation on liabilities of a series
without referring to any specific
series.
Section 18. This section
amends the Act to add a new § 17-805 to provide, under
certain circumstances, for the appointment of trustees
and receivers for limited partnerships after the
cancellation of the certificate of limited partnership
upon the application of a creditor, a person who was a
partner at the time of the cancellation of the
certificate of limited partnership or any other person
who shows good cause.
Section
20. This section provides that the proposed
amendments of the Act shall become effective on August
1, 2003.
AN ACT TO AMEND TITLE 8 OF THE DELAWARE
CODE RELATING TO THE GENERAL CORPORATION LAW. Signed
June 30, 2003
Section 1. This
amendment expands the jurisdiction of the Court of
Chancery with respect to a variety of matters pertaining
to Delaware corporations.
Section
2. This section clarifies that a committee of
the board of directors may create subcommittees unless
the authority to create a subcommittee has been
restricted by the certificate of incorporation, the
bylaws or the resolution of the board of directors
designating the committee.
Sections 3 and
11. The deletion of the language from
subsection (c) of Section 251 and the addition of new
Section 146 clarify that the rule previously codified at
Section 251(c) applies to any matter submitted to
stockholders. Under this rule, directors may authorize
the corporation to agree with another person to submit a
matter to stockholders, but reserve the ability to
change their recommendation.
Section
4. This amendment will make Section 219(c)
consistent with Section 220 as
revised.
Sections 5 - 8. These
sections amend Section 220 in four principal respects.
First, inspection rights are extended to a person who
beneficially owns stock through either a voting trustee
or a nominee who holds the stock of record on behalf of
such person. Second, the oath requirement is deemed
satisfied by a declaration under penalty of perjury
under the law of the United States or any state. Third,
books and records subject to inspection include those of
subsidiaries under certain conditions. Finally, a
director's purpose for inspection is presumed to be
proper. The amendment relating to inspection of books
and records of subsidiaries is not intended to affect
existing legal doctrine that, as a general matter,
respects the separate legal existence of subsidiaries in
relation to liability of stockholders to third parties,
personal jurisdiction over subsidiaries of Delaware
corporations, and discovery in litigation other than
under Section 220.
Section 9.
This amendment clarifies that the Court of Chancery has
jurisdiction to hear and determine controversies
regarding the right of any person to hold or continue to
hold office as a director, officer or member of the
governing body of a Delaware corporation, irrespective
of whether the controversy arose from the conduct of an
election.
Sections 10, 12-19.
The amendments to Sections 251, 252, 253, 254, 255, 256,
257, 263 and 264 clarify that shares or other interests
of a constituent corporation or other entity to a merger
or consolidation may be converted, canceled or
unaffected by the merger.
Section
20. This amendment to Section 266 confirms that
Delaware corporations which desire to convert to
Delaware limited liability companies, general
partnerships, limited partnerships or statutory trusts
must also comply with the applicable requirements of the
statutes governing the formation of those entities to
complete the conversion.
Section
21. This section provides for an effective date
of August 1, 2003.
AN ACT TO AMEND CHAPTER 18,
TITLE 6 OF THE DELAWARE CODE RELATING TO THE CREATION,
REGULATION, OPERATION AND DISSOLUTION OF DOMESTIC
LIMITED LIABILITY COMPANIES AND THE REGISTRATION AND
REGULATION OF FOREIGN LIMITED LIABILITY COMPANIES.
Signed June 30, 2003.
This bill continues the
practice of amending periodically the Delaware Limited
Liability Company Act (the "Act") to keep it current and
to maintain its national preeminence. The following is a
section-by-section review of the proposed amendments of
the Act.
Sections 1, 2, 5, 9, 10, 14 and
16. These amendments permit conversion of a
Delaware limited liability company to a non-Delaware
entity.
Sections 3, 4, and 6-8.
These amendments clarify the general rule that the date
and time of filing of a certificate filed with the
Secretary of State is the date and time of delivery of
the certificate and the limited exceptions to this
rule.
Section 11. This amendment
clarifies the language of § 18-213(a) of the Act to be
consistent with language used in other analogous
sections of the Act.
Sections 12 and
13. These sections amend § 18-215 of the Act to
confirm the ability to provide for the establishment of
1 or more series and the sufficiency of a general notice
of the limitation on liabilities of a series without
referring to any specific series.
Section
15. This section amends the Act to add a new §
18-805 to provide, under certain circumstances, for the
appointment of trustees and receivers for limited
liability companies after the cancellation of the
certificate of formation upon the application of a
creditor, a person who was a member or manager at the
time of the cancellation of the certificate of formation
or any person who shows good
cause.
Section 17. This section
provides that the proposed amendments of the Act shall
become effective on August 1, 2003.
Previous issues of the NRAI
Newsletter may be found at: http://www.nrai.com/dynamic_frame.asp?page=research
About NRAI
National Registered Agents, Inc.
(NRAI) is a professional Registered Agent for new and
established business entities. NRAI is fully licensed to
maintain Registered Office and receive legal process for
companies throughout the United States and around the
globe.
The NRAI Network encompasses 23
operating affiliates, with more than 400 associates, and
36 offices nationwide. The Network is focused on
providing comprehensive corporate and public record
information, research, retrieval, filing, and corporate
services for both law firms and corporate legal
departments.
Visit www.nrai.com for free Delaware
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