Symonds & O'Toole on Delaware Limited Liability Companies

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This updated work helps provide the best possible representation and advice to your clients who are looking to make the most of Delaware LLCs.

•   Discussion of the statute and case law.
•   Legal analysis and practice recommendations.
•   Appendices that include the current Act, historical versions of the statute, legislative history, and up-to-date forms.

Coverage includes: LLC Formation and Organization; Drafting the LLC Agreement; Financing the LLC; Members and Managers; Ownership, Voting and LLC interests; Indemnification and Other Liability Protections; Fiduciary Duties; Series LLCs; Creditors' Rights, Protections and Remedies; Mergers, Conversions and Other Creditors' Rights, Protections and Remedies; Mergers, Conversions and Other Fundamental Transactions; Dissolution, Winding Up and Termination of the LLC.

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Table of Contents

 Chapter 1 INTRODUCTION: HISTORY AND STRUCTURE OF THE DLLC ACT; POPULARITY AND USES OF DELAWARE LLCs 

§ 1.01 - HISTORY OF THE DLLC ACT

§ 1.02 - POPULARITY OF DELAWARE LIMITED LIABILITY COMPANIES

§ 1.03 - NATURE AND STRUCTURE OF THE DLLC ACT

§ 1.04 - BRIEF OVERVIEW OF DELAWARE LIMITED LIABILITY COMPANIES

§ 1.05 - SOME OBSERVATIONS ON THE VARIOUS USES OF DELAWARE LIMITED LIABILITY COMPANIES

Chapter 2 FORMATION AND POWERS

§ 2.01 - FORMATION OF A DELAWARE LIMITED LIABILITY COMPANY, GENERALLY

§ 2.02 - CERTIFICATE OF FORMATION

§ 2.03 - SUBSTANTIAL COMPLIANCE STANDARD APPLICABLE TO FORMATION

§ 2.04 - TIME OF FORMATION

§ 2.05 - SEPARATE LEGAL ENTITY

§ 2.06 - POWERS OF A DELAWARE LIMITED LIABILITY COMPANY, GENERALLY

§ 2.07 - EXPLICIT POWERS OF A DELAWARE LIMITED LIABILITY COMPANY

§ 2.08 - IMPLIED POWERS OF A DELAWARE LIMITED LIABILITY COMPANY

§ 2.09 - RESTRICTIONS ON POWERS OF A DELAWARE LIMITED LIABILITY COMPANY

§ 2.10 - ULTRA VIRES DOCTRINE

§ 2.11 - ADDRESSING POWER AND AUTHORITY MATTERS IN THE LIMITED LIABILITY COMPANY AGREEMENT

§ 2.12 - JURISDICTION OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE



Chapter 3 FILING OF DOCUMENTS WITH THE DELAWARE SECRETARY OF STATE



§ 3.01 - DOCUMENTS FILED WITH THE DELAWARE SECRETARY OF STATE UNDER THE DLLC ACT

§ 3.02 - EXECUTION OF DOCUMENTS FILED WITH THE DELAWARE SECRETARY OF STATE UNDER THE DLLC ACT

§ 3.03 - FILING OF DOCUMENTS WITH THE DELAWARE SECRETARY OF STATE UNDER THE DLLC ACT



Chapter 4 THE LIMITED LIABILITY COMPANY AGREEMENT



§ 4.01 - DEFINITION, NATURE, AND FUNCTION OF LIMITED LIABILITY COMPANY AGREEMENT

§ 4.02 - FORM OF LIMITED LIABILITY COMPANY AGREEMENT

§ 4.03 - PARTIES TO LIMITED LIABILITY COMPANY AGREEMENT

§ 4.04 - EXECUTION OF LIMITED LIABILITY COMPANY AGREEMENT

§ 4.05 - TIME OF ENTERING INTO, AND EFFECTIVE TIME OF, LIMITED LIABILITY COMPANY AGREEMENT

§ 4.06 - AMENDMENT OF LIMITED LIABILITY COMPANY AGREEMENT

§ 4.07 - EFFECT OF DEFAULT RULES AND OTHER PROVISIONS UNDER THE DLLC ACT

§ 4.08 - DRAFTING THE LIMITED LIABILITY COMPANY AGREEMENT

§ 4.09 - FREEDOM OF CONTRACT AND ENFORCEABILITY OF LIMITED LIABILITY COMPANY AGREEMENT

§ 4.10 - JURISDICTION OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE



Chapter 5 MEMBERS, ASSIGNEES, AND LIMITED LIABILITY COMPANY INTERESTS



PART A: MEMBERS




§ 5.01 - MEMBERS GENERALLY

§ 5.02 - ADMISSION OF MEMBERS

§ 5.03 - LIABILITY OF EMBERS

§ 5.04 - CESSATION OF MEMBERSHIP

§ 5.05 - CLASSES AND GROUPS OF MEMBERS

§ 5.06 - DEALINGS BETWEEN MEMBER AND LIMITED LIABILITY COMPANY

§ 5.07 - MEMBERS SUBJECT TO CHANGES IN THE DLLC ACT



PART B: LIMITED LIABILITY COMPANY INTERESTS



§ 5.08 - LIMITED LIABILITY COMPANY INTERESTS, GENERALLY

§ 5.09 - CLASSES OR GROUPS OF LIMITED LIABILITY COMPANY INTERESTS

§ 5.10 - TERMS RELATING TO LIMITED LIABILITY COMPANY INTERESTS

§ 5.11 - DENOMINATION OF LIMITED LIABILITY COMPANY INTERESTS

§ 5.12 - NATURE OF A LIMITED LIABILITY COMPANY INTEREST

§ 5.13 - ASSIGNABILITY OF LIMITED LIABILITY COMPANY INTERESTS

§ 5.14 - CERTIFICATE OF LIMITED LIABILITY COMPANY INTEREST

§ 5.15 - CREATION AND ISSUANCE OF LIMITED LIABILITY COMPANY INTERESTS AND RELATED RIGHTS

§ 5.16 - LIMITED LIABILITY COMPANY’S ACQUISITION OF ITS OWN LIMITED LIABILITY COMPANY INTERESTS

§ 5.17 - ESTABLISHMENT OF RECORD DATE



PART C: ASSIGNEES



§ 5.18 - ASSIGNEES, GENERALLY

§ 5.19 - RIGHTS AND LIABILITIES OF ASSIGNEES

§ 5.20 - LIMITED LIABILITY COMPANY ITSELF AS HOLDER OF A LIMITED LIABILITY COMPANY INTEREST



PART D: CREDITORS' RIGHTS; SERIES




§ 5.21 - RIGHTS OF CREDITORS OF MEMBERS AND ASSIGNEES

§ 5.22 - SERIES OF MEMBERS, LIMITED LIABILITY COMPANY INTERESTS AND ASSETS



Chapter 6 FINANCE



§ 6.01 - DEBT FINANCING

§ 6.02 - DEFENSE OF USURY UNAVAILABLE TO A DELAWARE LIMITED LIABILITY COMPANY

§ 6.03 - “EQUITY” FINANCING

§ 6.04 - OTHER FINANCING TRANSACTIONS

§ 6.05 - CONTRIBUTIONS TO A DELAWARE LIMITED LIABILITY COMPANY




Chapter 7 DISTRIBUTIONS



§ 7.01 - LIMITATIONS ON DISTRIBUTIONS BY DELAWARE LIMITED LIABILITY COMPANIES

§ 7.02 - RIGHTS TO RECEIVE DISTRIBUTIONS

§ 7.03 - FORM OF DISTRIBUTION

§ 7.04 - MECHANICS OF DISTRIBUTIONS

§ 7.05 - LIABILITY FOR RECEIPT OF UNLAWFUL DISTRIBUTION

§ 7.06 - LIABILITY FOR AUTHORIZING UNLAWFUL DISTRIBUTION



Chapter 8 ASSIGNMENTS OF INTERESTS




§ 8.01 - ASSIGNMENT OF LIMITED LIABILITY COMPANY INTERESTS

§ 8.02 - ASSIGNMENT OF MEMBERSHIP

§ 8.03 - ASSIGNMENT OF OTHER RIGHTS, INTERESTS, AND DUTIES UNDER THE LIMITED LIABILITY COMPANY AGREEMENT

§ 8.03 - POWERS OF PERSONAL REPRESENTATIVE




Chapter 9 MANAGEMENT




§ 9.01 - MANAGEMENT OVERVIEW

§ 9.02 - MANAGERS

§ 9.03 - DELEGATEES AND OTHERS POSSESSING MANAGEMENT AUTHORITY

§ 9.04 - MANAGEMENT AND VOTING RIGHTS AND POWERS; MANAGEMENT DUTIES

§ 9.05 - APPOINTMENT, RESIGNATION, AND REMOVAL OF MANAGERS

§ 9.06 - BINDING EFFECT OF LIMITED LIABILITY COMPANY AGREEMENT ON MANAGERS

§ 9.07 - INFORMATION ACCESS RIGHTS

§ 9.08 - SPECIFIC REMEDIES AGAINST MANAGERS; LIABILITY PROTECTIONS FOR MANAGERS

§ 9.09 - DERIVATIVE ACTIONS

§ 9.10 - MANAGEMENT OF A SERIES LIMITED LIABILITY COMPANY

§ 9.11 - MANAGEMENT OF A DISSOLVED LIMITED LIABILITY COMPANY

§ 9.12 - APPOINTMENT OF TRUSTEE OR RECEIVER FOR LIMITED LIABILITY COMPANY

§ 9.13 - SERVICE OF PROCESS ON MANAGERS AND OTHERS

§ 9.14 - SUBJECT MATTER JURISDICTION OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE



Chapter 10 [RESERVED]



Chapter 11 INDEMNIFICATION, ADVANCEMENT OF EXPENSES, AND RELATED MATTERS




§ 11.01 - LIMITED LIABILITY COMPANY POWERS

§ 11.02 - RIGHTS TO INDEMNIFICATION AND ADVANCEMENT OF EXPENSES

§ 11.03 - OTHER PROTECTION FROM LIABILITY

§ 11.04 - JURISDICTION OF THE COURT OF CHANCERY OF THE STATE OF DELAWARE




Chapter 12 BOOKS AND RECORDS




§ 12.01 - RECORDS REQUIRED UNDER THE DLLC ACT

§ 12.02 - SUGGESTED RECORDS REGARDING LIMITED LIABILITY COMPANY’S INTERNAL AFFAIRS

§ 12.03 - FORM OF LIMITED LIABILITY COMPANY RECORDS

§ 12.04 - LOCATION OF LIMITED LIABILITY COMPANY RECORDS

§ 12.05 - RECORDKEEPING RESPONSIBILITY

§ 12.06 - LIMITED LIABILITY COMPANY SEAL

§ 12.07 - INFORMATION ACCESS RIGHTS OF MEMBERS AND MANAGERS

§ 12.08 - INFORMATION ACCESS RIGHTS OF NON-MEMBERS AND NON-MANAGERS

§ 12.09 - CONFIDENTIALITY





Chapter 13 [RESERVED]




Chapter 14 FUNDAMENTAL TRANSACTIONS



§ 14.01 - CERTIFICATE OF FORMATION

§ 14.02 - AMENDMENTS AND OTHER CHANGES EFFECTED BY REGISTERED AGENT

§ 14.03 - LIMITED LIABILITY COMPANY AGREEMENT

§ 14.04 - MERGER AND CONSOLIDATION

§ 14.05 - CONVERSION

§ 14.06 - TRANSFER, DOMESTICATION, AND CONTINUANCE

§ 14.07 - DISPOSITIONS OF LIMITED LIABILITY COMPANY ASSETS

§ 14.08 - APPRAISAL RIGHTS

§ 14.09 - BANKRUPTCY AND INSOLVENCY PROCEEDINGS

§ 14.10 - REVIVAL OF A DELAWARE LIMITED LIABILITY COMPANY

§ 14.11 - CERTIFICATE OF CORRECTION AND CORRECTED CERTIFICATE

§ 14.12 - CANCELLATION OR AMENDMENT OF A CERTIFICATE WITH A FUTURE EFFECTIVE TIME

§ 14.13 - OTHER FUNDAMENTAL TRANSACTIONS

§ 14.14 - DOCTRINE OF INDEPENDENT LEGAL SIGNIFICANCE






Chapter 15 CREDITOR RIGHTS, PROTECTIONS, AND REMEDIES




§ 15.01 - RIGHTS UNDER THE LIMITED LIABILITY COMPANY AGREEMENT

§ 15.02 - STATUTORY RIGHT TO ENFORCE MEMBER OBLIGATION TO CONTRIBUTE OR RETURN ASSETS

§ 15.03 - STATUTORY LIMITATIONS ON LIMITED LIABILITY COMPANY DISTRIBUTIONS

§ 15.04 - STATUTORY PRESERVATION OF CREDITOR RIGHTS AND LIENS

§ 15.05 - LIABILITY OF MEMBERS AND OTHERS FOR LIMITED LIABILITY COMPANY DEBTS AND OBLIGATIONS

§ 15.06 - UNAVAILABILITY OF THE DEFENSE OF USURY

§ 15.07 - APPOINTMENT OF TRUSTEE OR RECEIVER FOR LIMITED LIABILITY COMPANY

§ 15.08 - CREDITORS OF MEMBERS, ASSIGNEES, AND MANAGERS

§ 15.09 - CREDITORS’ LACK OF STANDING TO ASSERT CERTAIN CLAIMS




Chapter 16 DISSOLUTION, WINDING UP, AND TERMINATION




§ 16.01 - LIMITED LIABILITY COMPANY EXISTENCE, DISSOLUTION, WINDING UP, AND TERMINATION, GENERALLY

§ 16.02 - CAUSES OF DISSOLUTION

§ 16.03 - SPECIFIC EVENTS THAT DO NOT CAUSE DISSOLUTION ABSENT CONTRARY AGREEMENT

§ 16.04 - DISSOLUTION SAFEGUARDS AND FLEXIBILITY TO AVOID DISSOLUTION

§ 16.05 - CONSEQUENCES OF DISSOLUTION

§ 16.06 - WINDING UP

§ 16.07 - TERMINATION OF LIMITED LIABILITY COMPANY

§ 16.08 - CERTIFICATE OF CANCELLATION

§ 16.09 - POST-TERMINATION MATTERS





Chapter 17 TAXATION AND FEES UNDER THE DLLC ACT




§ 17.01 - ANNUAL TAX UNDER THE DLLC ACT

§ 17.02 - CONSEQUENCES OF FAILURE TO PAY ANNUAL TAX

§ 17.03 - MATTERS NOT AFFECTED BY FAILURE TO PAY ANNUAL TAX

§ 17.04 - FEES PAYABLE UNDER THE DLLC ACT

§ 17.05 - CLASSIFICATION OF LIMITED LIABILITY COMPANIES, MEMBERS, AND ASSIGNEES FOR PURPOSES OF DELAWARE TAXATION





Chapter 18 FOREIGN LIMITED LIABILITY COMPANIES




§ 18.01 - DEFINITION OF FOREIGN LIMITED LIABILITY COMPANY

§ 18.02 - LAW GOVERNING FOREIGN LIMITED LIABILITY COMPANIES

§ 18.03 - REGISTRATION OF FOREIGN LIMITED LIABILITY COMPANIES

§ 18.04 - DOING BUSINESS IN DELAWARE

§ 18.05 - SERVICE OF PROCESS ON A FOREIGN LIMITED LIABILITY COMPANY IN DELAWARE

§ 18.06 - TAXATION OF FOREIGN LIMITED LIABILITY COMPANIES




Chapter 19 MISCELLANEOUS PROVISIONS: DEFINITIONS, RULES OF CONSTRUCTION, RESERVED POWER, AND SERVICE OF PROCESS





§ 19.01 - DEFINITIONS IN THE DLLC ACT

§ 19.02 - CONSTRUCTION OF THE DLLC ACT AND THE LIMITED LIABILITY COMPANY AGREEMENT

§ 19.03 - RESERVED POWER OF THE STATE OF DELAWARE

§ 19.04 - SHORT TITLE

§ 19.05 - SERVICE OF PROCESS ON A DELAWARE LIMITED LIABILITY COMPANY





APPENDIX A CURRENT DLLC ACT WITH 2010 AMENDMENTS (BLACKLINED)



APPENDIX B HISTORY OF THE DLLC ACT: LEGISLATIVE BILLS



APPENDIX C HISTORY OF THE DLLC ACT: ANNUAL VERSIONS OF THE STATUTE


APPENDIX D FORM DOCUMENTS



Table 1 TABLE OF STATUTES



Table 2 “DEFAULT RULES” UNDER THE DELAWARE LIMITED LIABILITY COMPANY ACT



Table 3 PROVISIONS OF THE DELAWARE LIMITED LIABILITY COMPANY ACT THAT EXPRESSLY PERMIT PARTICULAR CONTRACTUAL TERMS
IN THE LIMITED LIABILITY COMPANY AGREEMENT




Table 4 TABLE OF CASES



Index