§ 15-105 — Execution, filing and recording of statements and certificates

Delaware § 15-105

• Jurisdiction: Delaware
• Title: 6
• Ch. 15: DELAWARE REVISED UNIFORM PARTNERSHIP ACT
• Subch.: General Provisions

Text

(a) A statement or certificate may be filed with the Secretary of State by delivery to the Secretary of State of the signed copy of the statement or of the certificate. A certified copy of a statement that is filed in an office in another state may be filed with the Secretary of State. Either filing in the State of Delaware has the effect provided in this chapter with respect to partnership property located in or transactions that occur in the State of Delaware.

(b) Only a certified copy of a filed statement recorded in the office for recording transfers of real property has the effect provided for recorded statements in this chapter.

(c) A statement or certificate filed by a partnership must be executed by at least 1 partner or by 1 or more authorized persons. Other statements or certificates must be executed by a partner or 1 or more authorized persons or, in the case of a certificate of conversion to partnership or a certificate of partnership domestication, by any person authorized to execute such certificate on behalf of the other entity or non-United States entity, respectively, except that a certificate of merger or consolidation filed by a surviving or resulting other business entity shall be executed by any person authorized to execute such certificate on behalf of such other business entity. The execution of a statement or certificate by a person who is authorized by this chapter to execute such statement or certificate constitutes an oath or affirmation, under the penalties of perjury in the third degree, that, to the best of such person’s knowledge and belief, the facts stated therein shall be true at the time such statement or certificate becomes effective as provided in this chapter. A person who executes a statement or a certificate as an agent or fiduciary need not exhibit evidence of the person’s authority as a prerequisite to filing. Any signature on any statement or 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 statement or certificate, the Secretary of State shall record the date and time of its delivery. Unless the Secretary of State finds that any statement or certificate does not conform to law, upon receipt of all filing fees required by law the Secretary of State shall:

(1) Certify that the statement or certificate has been filed with the Secretary of State by endorsing upon the original statement or 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 paragraph (c)(5) or (c)(6) of this section, such date and time of filing of a statement or certificate shall be the date and time of delivery of the statement or certificate;

(2) File and index the endorsed statement or certificate;

(3) Prepare and return to the person who filed it or the person’s representative a copy of the signed statement or certificate similarly endorsed, and shall certify such copy as a true copy of the signed statement or certificate; and

(4) Cause to be entered such information from the statement or 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 statement or 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 statements or 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 statement or certificate a date and time after its delivery. If the Secretary of State refuses to file any statement or certificate due to an error, omission or other imperfection, the Secretary of State may hold such statement or certificate in suspension, and in such event, upon delivery of a replacement statement or 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 statement or certificate the date and time that would have been the date and time of filing of the rejected statement or certificate had it been accepted for filing. The Secretary of State shall not issue a certificate of good standing with respect to any partnership with a statement or certificate held in suspension pursuant to this subsection. The Secretary of State may establish as the date and time of filing of a statement or certificate the date and time at which information from such statement or certificate is entered pursuant to paragraph (c)(4) of this section if such statement or 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 statement or 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 statement or 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 statement or certificate; or

b. Upon the actual delivery of a statement or certificate and tender of the required fees, the Secretary of State in the Secretary’s 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 statement or 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 statement or 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 statement or 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 statements and 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 paragraph (c)(6)c. of this section, 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 statement or 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 statement or certificate to which it relates. Such filed statement or 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 statement or certificate shall be effective from the date and time endorsed on the affidavit of extraordinary condition or written waiver attached thereto.

(d) (1) A person authorized by this chapter to file a statement or certificate may amend or cancel the statement or certificate by filing an amendment or cancellation that names the partnership, identifies the statement or certificate, and states the substance of the amendment or cancellation. A person authorized by this chapter to file a statement or certificate who becomes aware that such statement or certificate was false when made, or that any matter described in the statement or certificate has changed, making the statement or certificate false in any material respect, shall promptly amend the statement or certificate. Upon the filing of a statement or a certificate amending or correcting a statement or a certificate (or judicial decree of amendment) with the Secretary of State, or upon the future effective date or time of a statement or a certificate amending or correcting a statement or a certificate (or judicial decree thereof), as provided for therein, the statement or the certificate being corrected or amended shall be corrected or amended as set forth therein. Upon the filing of a statement of cancellation of a statement of partnership existence (or judicial decree thereof), or a certificate of merger or consolidation or a certificate of ownership and merger which acts as a statement of cancellation of a statement of partnership existence, 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 statement of cancellation of a statement of partnership existence (or a judicial decree thereof) or of a certificate of merger or consolidation or a certificate of ownership and merger which acts as a statement of cancellation of a statement of partnership existence, or a certificate of transfer, or a certificate of conversion to a non-Delaware entity, as provided for therein, or as specified in § 15-111(d), § 15-111(i)(4) or § 15-1209(a) of this title, the statement of partnership existence is canceled. Neither the filing of a statement of cancellation to accomplish the cancellation of a statement of qualification nor the revocation of a statement of qualification pursuant to § 15-1003 of this title cancels a statement of partnership existence for such partnership. A statement of partnership existence shall be canceled upon the dissolution and the completion of winding up of the partnership, or as provided in § 15-111(d), § 15-111(i)(4) or § 15-1209(a) of this title, or upon the filing of a certificate of merger or consolidation or a certificate of ownership and merger if the domestic 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 filing of a certificate of conversion to a non-Delaware entity. A statement of cancellation shall be filed with the Secretary of State to accomplish the cancellation of a statement of partnership existence upon the dissolution and the completion of winding up of a domestic partnership and shall set forth:

a. The name of the partnership;

b. The date of filing of its statement of partnership existence; and

c. Any other information the person filing the statement of cancellation determines.

(2) The Secretary of State shall not issue a certificate of good standing with respect to a domestic partnership if its statement of partnership existence is canceled.

(3) Upon the filing of a statement of cancellation of a statement of qualification (or judicial decree thereof), or a certificate of merger or consolidation or a certificate of ownership and merger which acts as a statement of cancellation of a statement of qualification, 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 statement of cancellation of a statement of qualification (or a judicial decree thereof) or of a certificate of merger or consolidation or a certificate of ownership and merger which acts as a statement of cancellation of a statement of qualification, or a certificate of transfer, or a certificate of conversion to a non-Delaware entity, as provided for therein, or as specified in § 15-111(d) or § 15-111(i)(4) of this title, the statement of qualification is canceled. Neither the filing of a statement of cancellation to accomplish the cancellation of a statement of partnership existence nor the cancellation of a statement of partnership existence pursuant to § 15-1209(a) of this title cancels a statement of qualification for such partnership. A statement of qualification shall be canceled upon the dissolution and the completion of winding up of the limited liability partnership, or as provided in § 15-111(d) or § 15-111(i)(4) of this title, or upon the filing of a certificate of merger or consolidation or a certificate of ownership and merger if the limited liability 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 filing of a certificate of conversion to a non-Delaware entity. A statement of cancellation shall be filed with the Secretary of State to accomplish the cancellation of a statement of qualification upon the dissolution and the completion of winding up of a limited liability partnership and shall set forth:

a. The name of the limited liability partnership;

b. The date of filing of its statement of qualification; and

c. Any other information the person filing the statement of cancellation determines.

(4) If a statement of cancellation of a statement of qualification is filed, either a statement of cancellation of the partnership’s statement of partnership existence (if any) or an amendment to the partnership’s statement of partnership existence (if any) removing the “Limited Liability Partnership”, “L.L.P.” or “LLP” designation from the name of the partnership shall be filed simultaneously with the filing of such statement of cancellation of the statement of qualification.

(5) Upon the filing of a certificate of partnership domestication, or upon the future effective date or time of a certificate of partnership domestication, the entity filing the certificate of partnership domestication is domesticated as a partnership with the effect provided in § 15-904 of this title. Upon the filing of a certificate of conversion to partnership, or upon the future effective date or time of a certificate of conversion to partnership, the entity filing the certificate of conversion to partnership is converted to a partnership with the effect provided in § 15-901 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 partnership filing the certificate of transfer and domestic continuance shall continue to exist as a partnership of the State of Delaware with the effect provided in § 15-905 of this title.

(e) A person who files a statement or certificate pursuant to this section shall promptly send a copy of the statement or certificate to every nonfiling partner and to any other person named as a partner in the statement or certificate. Failure to send a copy of a statement or certificate to a partner or other person does not limit the effectiveness of the statement or certificate as to a person not a partner.

(f) The filing of a statement of partnership existence under § 15-303 of this title, a statement of qualification under § 15-1001 of this title or a statement of foreign qualification under § 15-1102 of this title with the Secretary of State shall make it unnecessary to file any other document under Chapter 31 of this title.

(g) A statement or certificate filed with the Secretary of State shall be effective if there has been substantial compliance with the requirements of this chapter.

(h) Notwithstanding any other provision of this chapter, any statement or certificate filed under this chapter shall be effective at the time of its filing with the Secretary of State or at any later date or time (not later than a time on the one hundred and eightieth day after the date of its filing if such date of filing is on or after January 1, 2012) specified in the statement or certificate.

(i) 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 the same manner as the certificate being terminated or amended is required to be executed in accordance with this section, 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.

(j) A fee as set forth in § 15-1207 of this title shall be paid at the time of the filing of a statement or a certificate.

(k) A fee as set forth in § 15-1207 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 § 15-1207 of this title shall be paid for each page copied.

(l) Notwithstanding any other provision of this chapter, it shall not be necessary for any partnership (including a limited liability partnership) or foreign partnership to amend its statement of partnership existence, its statement of qualification (as applicable), its statement of foreign qualification, or any other document that has been filed with the Secretary of State prior to August 1, 2011, to comply with § 15-111(k) of this title; notwithstanding the foregoing, any statement or other document filed under this chapter on or after August 1, 2011, and changing the address of a registered agent or registered office shall comply with § 15-111(k) of this title.