2023 Delaware Code
Title 8 - Corporations
Chapter 1. GENERAL CORPORATION LAW
Subchapter IX. Merger, Consolidation or Conversion
§ 265. Conversion of other entities to a domestic corporation [For application of this section, see 84 Del. Laws, c. 98, § 17].
(a) As used in this section, the term “other entity” means a limited liability company, statutory trust, business trust or association, real estate investment trust, common-law trust or any other unincorporated business including a partnership (whether general (including a limited liability partnership) or limited (including a limited liability limited partnership)), or a foreign corporation.
(b) Any other entity may convert to a corporation of this State by complying with subsection (h) of this section and filing in the office of the Secretary of State:
(1) A certificate of conversion to corporation that has been executed in accordance with subsection (i) of this section and filed in accordance with § 103 of this title; and
(2) A certificate of incorporation that has been executed, acknowledged and filed in accordance with § 103 of this title.
Each of the certificates required by this subsection (b) shall be filed simultaneously in the office of the Secretary of State and, if such certificates are not to become effective upon their filing as permitted by § 103(d) of this title, then each such certificate shall provide for the same effective date or time in accordance with § 103(d) of this title.
(c) The certificate of conversion to corporation shall state:
(1) The date on which and jurisdiction where the other entity was first created, incorporated, formed or otherwise came into being and, if it has changed, its jurisdiction immediately prior to its conversion to a domestic corporation;
(2) The name and type of entity of the other entity immediately prior to the filing of the certificate of conversion to corporation; and
(3) The name of the corporation as set forth in its certificate of incorporation filed in accordance with subsection (b) of this section.
(4) If a plan of conversion is adopted in accordance with subsection (k) of this section, that all provisions of the plan of conversion shall be approved prior to the effectiveness of such certificate in accordance with all law applicable to the other entity, including any approval required under such applicable law for the authorization of the type of corporate action specified in the plan of conversion.
(d) Upon the effective time of the certificate of conversion to corporation and the certificate of incorporation, the other entity shall be converted to a corporation of this State and the corporation shall thereafter be subject to all of the provisions of this title, except that notwithstanding § 106 of this title, the existence of the corporation shall be deemed to have commenced on the date the other entity commenced its existence in the jurisdiction in which the other entity was first created, formed, incorporated or otherwise came into being.
(e) The conversion of any other entity to a corporation of this State shall not be deemed to affect any obligations or liabilities of the other entity incurred prior to its conversion to a corporation of this State or the personal liability of any person incurred prior to such conversion.
(f) When an other entity has been converted to a corporation of this State pursuant to this section, the corporation of this State shall, for all purposes of the laws of the State of Delaware, be deemed to be the same entity as the converting other entity. When any conversion shall have become effective under this section, for all purposes of the laws of the State of Delaware, all of the rights, privileges and powers of the other entity that has converted, and all property, real, personal and mixed, and all debts due to such other entity, as well as all other things and causes of action belonging to such other entity, shall remain vested in the domestic corporation to which such other entity has converted and shall be the property of such domestic corporation and the title to any real property vested by deed or otherwise in such other entity shall not revert or be in any way impaired by reason of this chapter; but all rights of creditors and all liens upon any property of such other entity shall be preserved unimpaired, and all debts, liabilities and duties of the other entity that has converted shall remain attached to the corporation of this State to which such other entity has converted, and may be enforced against it to the same extent as if said debts, liabilities and duties had originally been incurred or contracted by it in its capacity as a corporation of this State. The rights, privileges, powers and interests in property of the other entity, as well as the debts, liabilities and duties of the other entity, shall not be deemed, as a consequence of the conversion, to have been transferred to the domestic corporation to which such other entity has converted for any purpose of the laws of the State of Delaware.
(g) Unless otherwise agreed for all purposes of the laws of the State of Delaware or as required under applicable non-Delaware law, the converting other entity shall not be required to wind up its affairs or pay its liabilities and distribute its assets, and the conversion shall not be deemed to constitute a dissolution of such other entity and shall constitute a continuation of the existence of the converting other entity in the form of a corporation of this State.
(h) Prior to the time a certificate of conversion to corporation becomes effective in accordance with § 103 of this title, the conversion shall be approved in the manner provided for by the document, instrument, agreement or other writing, as the case may be, governing the internal affairs of the other entity and the conduct of its business or by applicable law, as appropriate, and a certificate of incorporation shall be approved by the same authorization required to approve the conversion.
(i) The certificate of conversion to corporation shall be signed by any person who is authorized to sign the certificate of conversion to corporation on behalf of the other entity.
(j) In connection with a conversion hereunder, rights or securities of, or interests in, the other entity which is to be converted to a corporation of this State may be exchanged for or converted into cash, property, or shares of stock, rights or securities of such corporation of this State or, in addition to or in lieu thereof, may be exchanged for or converted into cash, property, or shares of stock, rights or securities of or interests in another domestic corporation or other entity or may be cancelled.
(k) In connection with a conversion under this section, the converting other entity may adopt a plan of conversion that may state:
(i) the terms and conditions of the conversion, (ii) that the certificate of incorporation of the converted corporation of this State shall be as set forth in attachment to the plan of conversion, (iii) the manner, if any, of exchanging or converting shares of stock, rights or securities of, or interests in, the other entity that is to be converted to a corporation of this State, in accordance with subsection (j) of this section, (iv) any corporate action to be taken by the converted corporation of this State in connection with the conversion of the other entity, each of which shall require approval in accordance with all law applicable to the other entity, including any approval required under such applicable law for the authorization of the type of corporate action specified in the plan of conversion, (v) any details or provisions as are deemed desirable, and (vi) such other provisions or facts as shall be required to be set forth in a plan of conversion by the laws applicable to the other entity. Any of the terms of the plan of conversion may be made dependent upon facts ascertainable outside of such plan, provided that the manner in which such facts shall operate upon the terms of the plan of conversion is clearly and expressly set forth in the plan of conversion. The term “facts,” as used in the preceding sentence, includes, but is not limited to, the occurrence of any event, including a determination or action by any person or body, including the other entity or the converted corporation.(l) Any corporate action to be taken by the converted corporation of this State in connection with the conversion of the other entity that is set forth in a plan of conversion approved in the manner provided for by subsection (k) of this section and that is within the power of a corporation under subchapter II of this chapter shall be deemed authorized, adopted and approved, as applicable, by the converted corporation of this State and the board of directors, stockholders or members of the corporation, as applicable, and shall not require any further action of the board of directors, stockholders or members of the corporation under this title. In the event that any such action requires the filing of a certificate under any other section of this title, the certificate shall state that in accordance with this section, no action by the board of directors, stockholders, members or as otherwise required by such other section of this title is required.
72 Del. Laws, c. 123, § 10; 73 Del. Laws, c. 82, §§ 27-29; 73 Del. Laws, c. 329, § 45; 75 Del. Laws, c. 30, §§ 4-18; 78 Del. Laws, c. 96, § 7; 78 Del. Laws, c. 273, § 3; 83 Del. Laws, c. 377, § 10; 84 Del. Laws, c. 98, § 10;
