2007 Oregon Code - Chapter 70 :: Chapter 70 - Limited Partnerships
Chapter 70 Limited
Partnerships
2007 EDITION
LIMITED PARTNERSHIPS
CORPORATIONS AND PARTNERSHIPS
GENERAL PROVISIONS
70.005 Definitions
70.010 Name
of limited partnership; registration of assumed business name; application of
other law
70.015 Reservation
of limited partnership name
70.020 Office
in state
70.025 Registered
agent; changing agent
70.030 Change
of address and resignation procedures for registered agent
70.035 Scope
of agency of registered agent
70.040 When
Secretary of State to serve as agent; service on Secretary of State; when
default may be entered
70.045 Effect
of ORS 70.020 to 70.040
70.050 Records
required in office in state; inspection
70.055 Authority
of limited partnership
70.060 Authority
of partner to do business with limited partnership
70.065 Filing,
service, copying and certification fees
70.067 Forms;
rules
70.070 Filing
duty of Secretary of State
FORMATION; CERTIFICATE OF LIMITED PARTNERSHIP
70.075 Formation
of limited partnership; certificate of limited partnership; rules
70.080 Amendment
of certificate
70.085 Cancellation
of certificate
70.090 Execution
of certificate
70.095 Remedy
for failure to execute certificate
70.100 Filing
with Office of Secretary of State
70.105 Remedy
for false statements in certificate
70.110 Filing
as notice of limited partnership
70.115 Duty
of general partners to deliver copy of certificate to each limited partner
LIMITED PARTNERS
70.125 Date
person becomes limited partner; admission of additional limited partner
70.130 Voting
rights
70.135 Liability
of limited partner
70.140 Liability
of person who erroneously believes person is limited partner
70.145 Powers
of limited partner
GENERAL PARTNERS
70.175 Admission
of additional general partners
70.180 When
person ceases to be general partner
70.185 Rights,
restrictions and liabilities of general partner
70.190 Rights
and powers of general partner as general and limited partner
70.195 Voting
rights
FINANCES
70.225 Form
of contribution
70.230 Obligation
of partner
70.235 Allocation
of profits and losses
70.240 Allocation
of distributions of assets
DISTRIBUTION AND WITHDRAWAL
70.250 Entitlement
to distributions
70.255 Withdrawal
of partner
70.260 Entitlements
of withdrawing partner
70.265 Rights
of partner regarding distribution; remedies
70.270 Limit
on distribution
70.275 Liability
of partner who receives return of contribution
ASSIGNMENT OF PARTNERSHIP INTERESTS
70.285 Partnership
as personal property
70.290 Assignability
of partnership interest
70.295 Rights
of judgment creditor of partner
70.300 Assignee
of partnership interest as limited partner
70.305 Death,
incompetency, dissolution or termination of partner
DISSOLUTION
70.325 When
dissolution occurs
70.330 Judgment
of dissolution
70.335 Who
may wind up partnership affairs
70.340 Distribution
of assets
FOREIGN LIMITED PARTNERSHIPS
70.350 Law
applicable to foreign limited partnership
70.355 Registration
of foreign limited partnership; rules
70.365 Name
requirements
70.370 Correction
of application
70.375 Cancellation
of registration
70.380 Registration
prerequisite to suing in state; effect on contracts, liability; agent
70.385 Attorney
Generals enforcement
DERIVATIVE ACTIONS
70.400 Action
by limited partner upon refusal of general partner
70.405 Status
of plaintiff
70.410 Content
of complaint
70.415 Remittance
of proceeds received by plaintiff; attorney fees
INACTIVATION OF CERTIFICATE OR REGISTRATION
70.430 Grounds
for administrative action to inactivate certificate or registration of limited
partnership
70.435 Notice
of administrative inactivation; effect of inactivation on authority of
registered agent
70.440 Reinstatement
following administrative inactivation
CONVERSIONS AND MERGERS
70.500 Definitions
for ORS 70.500 to 70.540
70.505 Conversion
70.510 Action
on plan of conversion
70.515 Articles
of conversion
70.520 Effect
of conversion; assumed business name
70.525 Merger
70.530 Action
on plan of merger
70.535 Articles
of merger
70.540 Effect
of merger
MISCELLANEOUS
70.600 Construction
to promote uniformity
70.605 Application
to partnerships existing prior to July 1, 1986
70.610 Annual
report; rules
70.615 Application
of ORS chapter 67
70.620 Correction
of documents; effective date of correction
70.625 Short
title
GENERAL PROVISIONS
70.005
Definitions. As used in this
chapter:
(1) Certificate of limited partnership
means the certificate referred to in ORS 70.075, and the certificate as
amended, articles of conversion and articles of merger.
(2) Contribution means any cash,
property, services rendered, or a promissory note or other binding obligation
to contribute cash or property or to perform services, that a partner
contributes to a limited partnership in the capacity as a partner.
(3) Corporation or domestic corporation
means a corporation for profit incorporated under ORS chapter 60.
(4) Domestic limited liability company
means an entity that is an unincorporated association having one or more
members and that is organized under ORS chapter 63.
(5) Domestic nonprofit corporation means
a corporation not for profit incorporated under ORS chapter 65.
(6) Domestic professional corporation
means a corporation organized under ORS chapter 58 for the purpose of rendering
professional services and for the purposes provided under ORS chapter 58.
(7) Event of withdrawal of a general
partner means an event that causes a person to cease to be a general partner
as provided in ORS 70.180.
(8) Foreign corporation means a
corporation for profit incorporated under the laws of a state other than this
state.
(9) Foreign limited liability company
means an entity that is an unincorporated association organized under the laws
of a state other than this state, under the laws of a federally recognized Indian
tribe or under the laws of a foreign country and that is organized under a
statute under which an association may be formed that affords to each of its
members limited liability with respect to liabilities of the entity.
(10) Foreign limited partnership means a
partnership formed under the laws of any jurisdiction other than this state and
having as partners one or more general partners and one or more limited
partners.
(11) Foreign nonprofit corporation means
a corporation not for profit organized under the laws of a state other than
this state.
(12) Foreign professional corporation
means a professional corporation organized under the laws of a state other than
this state.
(13) General partner means a person who
has been admitted to a limited partnership as a general partner in accordance
with the partnership agreement and named in the certificate of limited
partnership as a general partner.
(14) Limited partner means a person who
has been admitted to a limited partnership as a limited partner in accordance
with the partnership agreement.
(15) Limited partnership and domestic
limited partnership mean a partnership formed by two or more persons under the
laws of this state and having one or more general partners and one or more
limited partners.
(16) Partner means a limited or general
partner.
(17) Partnership agreement means any
valid agreement, written or oral, of the partners as to the affairs of a
limited partnership and the conduct of its business.
(18) Partnership interest means a
partners share of the profits and losses of a limited partnership and the
right to receive distributions of partnership assets.
(19) Person means an individual,
partnership, limited partnership (domestic or foreign), trust, estate,
association or corporation. [1985 c.677 §2; 1987 c.414 §65; 1987 c.543 §1; 1999
c.362 §53; 2001 c.315 §36; 2005 c.107 §5]
70.010
Name of limited partnership; registration of assumed business name; application
of other law. (1) The name
of each limited partnership as set forth in its certificate of limited
partnership:
(a) Shall contain without abbreviation the
words limited partnership.
(b) May not contain the name of a limited
partner unless:
(A) The name is also the name of a general
partner or the corporate name of a corporate general partner; or
(B) The business of the limited
partnership had been carried on under that name before the admission of that
limited partner.
(c) Must be distinguishable upon the
records of the Office of Secretary of State from any other limited partnership
or corporate name, including any reserved name or registered corporate name or
assumed business name of active record in the Office of Secretary of State.
However, the Secretary of State may accept for filing a certificate of limited
partnership containing a name that otherwise may not be accepted under this
subsection if the applicant submits for filing to the Office of Secretary of
State a certified copy of a final judgment or order entered by a court of
competent jurisdiction that finds that the applicant has a prior or concurrent
right to use the limited partnership name in this state.
(d) May not contain the words incorporated
or corporation or any abbreviation or derivative thereof.
(e) Shall be written using letters of the
English alphabet and may include numerals and incidental punctuation.
(2) If a limited partnership carries on,
conducts or transacts business in this state under an assumed business name,
the assumed business name must be registered under ORS chapter 648.
(3) Nothing in this section abrogates or
limits the law as to unfair competition or unfair trade practices or derogates
from the common law, the principles of equity or the statutes of this state or
of the
70.015
Reservation of limited partnership name. (1) A limited partnership name may be reserved by any of the following
persons:
(a) Any person intending to organize a
limited partnership under ORS 70.075 and to adopt that name.
(b) Any domestic limited partnership or
any foreign limited partnership registered in this state that in either case
intends to adopt that name.
(c) Any foreign limited partnership
intending to register in this state and adopt that name.
(d) Any person intending to organize a
foreign limited partnership and intending to have it register in this state and
adopt that name.
(2) A person who desires to reserve a
limited partnership name shall submit to the Office of Secretary of State a
signed application that specifies the limited partnership name and states the
name and address of the person for whom the name is reserved. If the Secretary
of State finds that the limited partnership name conforms to ORS 70.010, the
Secretary of State shall reserve the limited partnership name for the applicant
for a period of 120 days. The applicant for whom a name is reserved may
transfer the reservation to any other person by executing and submitting for
filing to the Office of Secretary of State a notice of the transfer, specifying
the name and address of the transferee. [1985 c.677 §4; 1991 c.132 §6]
70.020
Office in state. Each
limited partnership shall continuously maintain in this state an office at
which the records referred to in ORS 70.050 shall be kept. The office may be
but need not be a place of business of the limited partnership in this state. [1985
c.677 §5]
70.025
Registered agent; changing agent. (1) Each domestic limited partnership and each foreign limited partnership
doing business in this state and all general partners of each domestic limited
partnership or foreign limited partnership shall continuously maintain in this
state a single registered agent who shall be amenable to service of process at
the registered agents business office in this state. The registered agent
shall be:
(a) An individual resident of this state
who has a business office in this state;
(b) A domestic corporation, domestic
limited liability company, domestic professional corporation or domestic
nonprofit corporation that has a business office in this state; or
(c) A foreign corporation, foreign limited
liability company, foreign professional corporation or foreign nonprofit
corporation that is authorized to transact business in this state and has a
business office in this state.
(2) A domestic or foreign limited
partnership and the general partners thereof may change their registered agent
upon submitting for filing to the Office of Secretary of State a statement
described in this subsection. The statement shall be executed by any general
partner. The filing of the statement shall immediately terminate the existing
registered agent and establish the newly appointed registered agent as the
registered agent of the domestic or foreign limited partnership and the general
partners thereof. The statement shall include the following:
(a) The name of the domestic or foreign
limited partnership and the name and address of each general partner thereof;
and
(b) The name of the successor registered
agent and the street address of that registered agents business office in this
state. [1985 c.677 §5a; 1987 c.543 §3; 2001 c.315 §31]
70.030
Change of address and resignation procedures for registered agent. (1) A registered agent may change the address
of the registered agents business office in this state by executing and
submitting for filing to the Office of Secretary of State a statement that
includes the following:
(a) The name and address of the domestic
or foreign limited partnership and each general partner thereof;
(b) The new street address of the
registered agents business office in this state; and
(c) A declaration that a copy of the
statement has been mailed to the domestic or foreign limited partnership and
each general partner thereof.
(2) A person may resign as the registered
agent of the domestic or foreign limited partnership and the general partners
thereof by executing and submitting for filing to the Office of Secretary of
State a statement of resignation and giving notice in the form of a copy of the
statement to the domestic or foreign limited partnership. The resignation shall
be effective on the 31st day after the date on which the statement is filed,
unless the domestic or foreign limited partnership and the general partners
thereof sooner appoint a successor registered agent, thereby terminating the
capacity of the agent. Upon delivery of the signed statement, the Secretary of
State shall file the resignation statement. The copy of the statement given to
the domestic or foreign limited partnership shall be addressed to the domestic
or foreign limited partnership at its last-known address as shown by the
records of the Office of Secretary of State. For purposes of this subsection,
written notice is effective at the earliest of the following:
(a) When received;
(b) Five days after its deposit in the
United States mail, as evidenced by the postmark, if mailed postpaid and
correctly addressed; or
(c) On the date shown on the return
receipt, if sent by registered or certified mail, return receipt requested and
the receipt is signed by or on behalf of the addressee. [1985 c.677 §5b; 1987
c.543 §4; 1989 c.196 §1; 1993 c.190 §10]
70.035
Scope of agency of registered agent. The registered agent of a domestic or foreign limited partnership
shall be an agent of that domestic or foreign limited partnership and the
general partners thereof. Any process, notice or demand that arises out of a
conduct of the affairs of the domestic or foreign limited partnership and that
is required or permitted by law to be served upon the domestic or foreign
limited partnership or any general partner thereof may be served upon the
registered agent. [1985 c.677 §5c; 1987 c.543 §5]
70.040
When Secretary of State to serve as agent; service on Secretary of State; when
default may be entered. (1)
Under any circumstance described in this subsection, the Secretary of State
shall be an agent of a domestic or foreign limited partnership and each general
partner thereof, for the purpose of serving any process, notice or demand that
arises out of the conduct of the affairs of the domestic or foreign limited
partnership and that is required or permitted by law to be served upon the
domestic or foreign limited partnership or any general partner thereof. The Secretary
of State may be served as agent of the domestic or foreign limited partnership
and each general partner thereof:
(a) Whenever the domestic or foreign
limited partnership and its general partners fail to appoint or maintain a
registered agent in this state;
(b) Whenever the registered agent cannot
with reasonable diligence be found at the address of the registered agents
business office in this state as shown by the records of the Office of
Secretary of State; or
(c) Whenever a domestic or foreign limited
partnership has been dissolved or has become and remains inactive for failure
to file its annual report pursuant to ORS 70.610. Such dissolution or
inactivity shall not:
(A) Terminate the authority of the
registered agent of the foreign or domestic limited partnership or the general
partners thereof;
(B) Prevent the commencement of a
proceeding against the dissolved or inactive partnership; or
(C) Abate or suspend a proceeding by or
against the partnership pending on the effective date of the dissolution or
inactivity.
(2) A person who causes service to be made
on the Secretary of State under this section must satisfy the following
requirements:
(a) The person shall serve the Secretary
of State as follows:
(A) By serving the Secretary of State or a
clerk on duty in the Office of Secretary of State with a copy of the process,
notice or demand and any papers required by law to be delivered in connection
with the service and paying the required fee for each party being served; or
(B) By mailing to the Secretary of State a
copy of the process, notice or demand by certified or registered mail, and
paying the required fee for each party being served.
(b) The person shall transmit to the
registered agent, the domestic or foreign limited partnership and all general
partners thereof a notice of the service on the Secretary of State and a copy
of the process, notice or demand and accompanying papers. The person shall
transmit such documents by certified or registered mail, return receipt
requested, to the last-known address of the registered agents business office
in this state, of the domestic or foreign limited partnership and of each
general partner respectively, as shown on the records of the Office of
Secretary of State.
(c) The person shall file with the
appropriate court or other body, as part of the return of service, the return
receipt of mailing and an affidavit of the person initiating the proceedings
that the person has complied with the requirements of this subsection.
(3) A court may not enter a default
against any defendant served under this section who has not either received or
rejected a registered or certified letter containing the notice of such service
and a copy of the process, notice or demand and accompanying papers, unless the
plaintiff can show that the defendant, after due diligence, cannot be found
within or without this state and that fact appears by affidavit to the
satisfaction of the court or judge thereof. Due diligence is satisfied when it
appears from the affidavit that the defendant cannot be found at the last-known
address as shown by the records of the Office of Secretary of State, if it
appears from the affidavit that inquiry at such address was made within a
reasonable time preceding service on the Secretary of State. When due diligence
is proved to the court by such an affidavit, the service upon the Secretary of
State shall be sufficient valid personal service upon the defendant
notwithstanding that the defendant did not actually receive a notice of the
service because of the defendants failure to notify the Secretary of State of
a change in address as required by this chapter.
(4) The Secretary of State shall keep a
record of all processes, notices and demands served upon the Secretary of State
under this section.
(5) After the completion of initial
service upon the Secretary of State, no additional documents need be served
upon the Secretary of State to maintain jurisdiction in the same proceeding or
to give notice of any motion or provisional process. [1985 c.677 §5d; 1987
c.543 §6; 1991 c.132 §7]
70.045
Effect of ORS 70.020 to 70.040.
Nothing contained in ORS 70.020 to 70.040:
(1) Limits or affects the jurisdiction of
the courts of this state;
(2) Limits or affects the right to serve
any process, notice or demand required or permitted by law to be served upon a
limited partnership or the general partners thereof in any other manner now or
hereafter permitted by law; or
(3) Enlarges the purposes for which
service on the Secretary of State is permitted when the purposes are limited by
any other provision of law. [1985 c.677 §5e]
70.050
Records required in office in state; inspection. (1) Each limited partnership shall keep at
the office referred to in ORS 70.020 the following records:
(a) A current list of the full name and
last-known business address of each partner specifying separately the general
partners and the limited partners in alphabetical order.
(b) A copy of the certificate of limited
partnership and all certificates of amendment thereto, together with executed
copies of any powers of attorney pursuant to which any certificate has been
executed.
(c) Copies of the limited partnerships
federal, state and local income tax returns and reports, if any, for the three
most recent years.
(d) Copies of any then-effective written
partnership agreements and of any financial statements of the limited
partnership for the three most recent years.
(e) Unless contained in a written
partnership agreement, a description of:
(A) The amount of cash and a description
and statement of the agreed value of the other property or services contributed
by each partner and that each partner has agreed to contribute;
(B) The times at which or events upon the
happening of which any additional contributions agreed to be made by each
partner are to be made;
(C) Any right of a partner to receive, or
of a general partner to make, distributions to a partner which include a return
of all or any part of the partners contribution; and
(D) Any events upon the happening of which
the limited partnership is to be dissolved and its affairs wound up.
(2) The records specified in subsection
(1) of this section are subject to inspection and copying at the reasonable
request, and at the expense, of any partner during ordinary business hours. [1985
c.677 §6; 1987 c.543 §7]
70.055
Authority of limited partnership. A limited partnership may carry on any business that a partnership
without limited partners may carry on. [1985 c.677 §7]
70.060
Authority of partner to do business with limited partnership. Except as provided in the partnership
agreement, a partner may lend money to 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. [1985
c.677 §8]
70.065
Filing, service, copying and certification fees. The Secretary of State shall collect the
fees described in ORS 56.140 for each document delivered for filing under this
chapter and for process served on the secretary under this chapter. The
secretary may collect the fees described in ORS 56.140 for copying any public
record under this chapter, certifying the copy or certifying to other facts of
record under this chapter. [1991 c.132 §12; 1999 c.362 §§54,54a]
70.067
Forms; rules. Upon request,
the Secretary of State may furnish forms for documents required or permitted to
be filed by this chapter. The Secretary of State may by rule require the use of
the forms. [1995 c.215 §17]
70.070
Filing duty of Secretary of State. (1) If a document delivered to the Office of Secretary of State for
filing satisfies the requirements of this chapter, the Secretary of State shall
file it.
(2) The Secretary of State files a
document by indicating thereon that it has been filed by the Secretary of State
and the date of filing. After filing a document, except as provided in ORS
70.030 and 70.610, the Secretary of State shall return an acknowledgment of
filing to the domestic or foreign limited partnership or its representative.
(3) If the Secretary of State refuses to
file a document, the Secretary of State shall return the document to the
domestic or foreign limited partnership or its representative within 10
business days after the document was delivered together with a brief written
explanation of the reason for the refusal.
(4) The Secretary of States duty to file
documents under this section is ministerial. The Secretary of State is not
required to verify or inquire into the legality or truth of any matter included
in any document delivered to the office for filing. The Secretary of States
filing or refusing to file a document does not:
(a) Affect the validity or invalidity of
the document in whole or part; or
(b) Relate to the correctness or
incorrectness of information contained in the document.
(5) The Secretary of States refusal to
file a document does not create a presumption that the document is invalid or
that information contained in the document is incorrect. [1993 c.190 §15; 1999
c.486 §13; 2001 c.104 §21]
FORMATION;
CERTIFICATE OF LIMITED PARTNERSHIP
70.075
Formation of limited partnership; certificate of limited partnership; rules. (1) To form a limited partnership, a
certificate of limited partnership must be executed and submitted for filing to
the Office of Secretary of State. The certificate shall set forth the
following:
(a) The name of the limited partnership.
(b) The address of the office required to
be maintained under ORS 70.020 and the name and street address of the agent.
(c) A mailing address to which the
Secretary of State may mail notices as required by this chapter.
(d) The name and the business address of
each general partner.
(e) The latest date upon which the limited
partnership is to dissolve.
(f) Any other matters the general partners
decide to include in the certificate.
(g) Any additional identifying information
that the Secretary of State may require by rule.
(2) A limited partnership is formed when
the Secretary of State has filed the certificate or at any later time specified
in the certificate of limited partnership if, in either case, there has been
substantial compliance with the requirements of this section. [1985 c.677 §9;
1987 c.543 §8; 1991 c.132 §8; 1995 c.215 §18]
70.080
Amendment of certificate.
(1) A certificate of limited partnership is amended by submitting for filing a
certificate of amendment thereto to the Office of Secretary of State. The
certificate shall set forth the following:
(a) The name of the limited partnership
immediately prior to the filing of the certificate of amendment.
(b) The amendment to the certificate.
(2) Not later than the 30th day after the
happening of any of the following events, an amendment to a certificate of
limited partnership reflecting the occurrence of the event shall be filed:
(a) The admission of a new general
partner.
(b) The withdrawal of a general partner.
(c) The continuation of the business under
ORS 70.325 (4) after an event of withdrawal of a general partner.
(d) A change in the name of the limited
partnership.
(3) A general partner who becomes aware
that any statement in a certificate of limited partnership was false when made
or that any arrangements or other facts described have changed, making the
certificate inaccurate in any respect, shall promptly amend the certificate.
(4) A certificate of limited partnership
may be amended at any time for any other proper purpose the general partners
determine.
(5) No person has any liability because an
amendment to a certificate of limited partnership has not been filed to reflect
the occurrence of any event referred to in subsection (2) of this section if
the amendment is filed within the period specified in subsection (2) of this
section.
(6) A restated certificate of limited
partnership may be executed and filed in the same manner as a certificate of
amendment. [1985 c.677 §10; 1987 c.543 §9]
70.085
Cancellation of certificate.
A certificate of limited partnership shall be canceled upon the dissolution and
the commencement of winding up of the partnership or at any other time there
are no limited partners. A certificate of cancellation shall be submitted for
filing to the Office of Secretary of State and shall set forth the following:
(1) The name of the limited partnership.
(2) The reason for filing the certificate
of cancellation.
(3) The effective date of cancellation,
which shall be a date certain, if the cancellation is not to be effective upon
the submission of the certificate.
(4) Any other information the general
partners submitting the certificate for filing decide to include in the
certificate. [1985 c.677 §11]
70.090
Execution of certificate.
(1) Each certificate required by ORS 70.075 to 70.115 to be filed by the
Secretary of State shall be executed in the following manner:
(a) An original certificate of limited
partnership must be signed by all general partners named therein.
(b) A certificate of amendment must be
signed by at least one general partner and by each other general partner
designated in the certificate as a new general partner.
(c) A certificate of cancellation must be
signed by all general partners.
(2) Any person may sign a certificate by
an attorney-in-fact, but a power of attorney to sign a certificate relating to
the admission of a general partner must specifically describe the admission.
(3) The execution of a certificate by a
general partner constitutes an affirmation under the applicable penalties of
false swearing or perjury that the facts stated therein are true. [1985 c.677 §12;
1987 c.543 §10]
70.095
Remedy for failure to execute certificate. If a person required by ORS 70.090 to execute any certificate fails to
do so, any other person who is adversely affected by the failure may petition
the circuit court to direct the execution of the certificate. If the court
finds that it is proper for the certificate to be executed, and that any person
so designated has failed to execute the certificate, it shall order the
Secretary of State to record an appropriate certificate. [1985 c.677 §13; 1987
c.543 §11]
70.100
Filing with Office of Secretary of State. (1) One original of the certificate of limited partnership, of any
certificates of amendment or cancellation or of any judgment or judicial order
of amendment or cancellation, shall be submitted for filing to the Office of
Secretary of State. A person who executes a certificate as an agent or
fiduciary need not exhibit evidence of such authority as a prerequisite to
filing. Unless the Secretary of State finds that any certificate does not
conform to the filing requirements of this chapter, upon receipt of all filing
fees required by law, the Secretary of State shall file the certificate,
judgment or judicial order and return an acknowledgment of filing to the
sender.
(2) Upon the filing of a certificate of
amendment or judgment or judicial order of amendment by the Secretary of State,
the certificate of limited partnership shall be amended as set forth therein.
(3) A certificate of limited partnership
is canceled on the date that a certificate of cancellation or the judgment or
judicial order of cancellation is filed by the Secretary of State unless the
certificate, judgment or judicial order specifies another effective date. [1985
c.677 §14; 1987 c.543 §12; 1999 c.486 §14]
70.105
Remedy for false statements in certificate. If any certificate of limited partnership or certificate of amendment
or cancellation contains a false material statement, one who suffers loss by
reliance on the statement may recover damages for the loss from any of the
following persons:
(1) Any party to the certificate who knew,
and any general partner who knew or should have known, the statement to be
false at the time the certificate was executed; or
(2) Any general partner who:
(a) After the certificate was executed,
knew or should have known that any arrangement or other fact described in the
certificate had changed, thus making any material statement in the certificate
false; and
(b) Had a reasonably sufficient time
before the statement was relied upon to cancel or amend the certificate, or to
file a petition for its cancellation or amendment under ORS 70.095. [1985 c.677
§15]
70.110
Filing as notice of limited partnership. The fact that a certificate of limited partnership is on file in the
Office of Secretary of State is notice that the partnership is a limited
partnership and the persons designated therein as general partners are general
partners, but it is not notice of any other fact. [1985 c.677 §16; 1987 c.543 §13]
70.115
Duty of general partners to deliver copy of certificate to each limited partner. Upon the return by the Secretary of State
pursuant to ORS 70.100 of an acknowledgment of filing, the general partners
shall promptly deliver or mail a copy of the certificate of limited partnership
and each certificate of amendment or cancellation to each limited partner
unless the partnership agreement provides otherwise. [1985 c.677 §17; 1999
c.486 §15]
LIMITED
PARTNERS
70.125
Date person becomes limited partner; admission of additional limited partner. (1) A person becomes a limited partner on
the later of:
(a) The date the original certificate of
limited partnership is filed; or
(b) The date stated in the records of the
limited partnership as the date that person becomes a limited partner.
(2) After the filing of a limited
partnerships original certificate of limited partnership, a person may be
admitted as an additional limited partner as follows:
(a) In the case of a person acquiring a
partnership interest directly from the limited partnership, upon compliance
with the partnership agreement or, if the partnership agreement does not so
provide, upon the written consent of all partners.
(b) In the case of an assignee of a
partnership interest, upon the occurrence of either of the following:
(A) Upon the exercise by the assignor of a
power provided in ORS 70.300, to grant to the assignee the right to become a
limited partner, and upon compliance with any conditions limiting the grant or
exercise of the power; or
(B) Upon the consent of all partners other
than the assignor. [1985 c.677 §18; 1987 c.543 §14]
70.130
Voting rights. Subject to
ORS 70.135, the partnership agreement may grant to all or a specified group of
the limited partners the right to vote, on a per capita or other basis, upon
any matter. [1985 c.677 §19]
70.135
Liability of limited partner.
(1) Except as provided in subsection (4) of this section, a limited partner is
not liable for the obligations of a limited partnership unless the limited
partner is also a general partner or, in addition to the exercise of rights and
powers as a limited partner, the limited partner participates in the control of
the business. However, if the limited partner participates in the control of
the business, the limited partner is liable only to persons who transact
business with the limited partnership and who reasonably believe, based upon
the limited partners conduct, that the limited partner is a general partner.
(2) A limited partner does not participate
in the control of the business within the meaning of subsection (1) of this
section solely by doing one or more of the following:
(a) Being a contractor for or an agent or
employee of the limited partnership or of a general partner, or being an
officer, director or shareholder of a general partner that is a corporation.
(b) Consulting with and advising a general
partner with respect to the business of the limited partnership.
(c) Acting as surety for the limited
partnership or guaranteeing or assuming one or more specific obligations of the
limited partnership.
(d) Taking any action required or
permitted by law to bring or pursue a derivative action in the right of the
limited partnership.
(e) Bringing a derivative action in the
right of the limited partnership to recover a judgment in its favor pursuant to
ORS 70.400 to 70.415.
(f) Requesting or attending a meeting of
partners.
(g) Proposing, approving or disapproving,
by voting or otherwise, one or more of the following matters:
(A) The dissolution and winding up or the
continuation of the limited partnership.
(B) The sale, exchange, lease, mortgage,
pledge or other transfer of all or substantially all of the assets of the
limited partnership.
(C) The incurrence of indebtedness by the
limited partnership other than in the ordinary course of its business.
(D) A change in the nature of the
business.
(E) The admission or removal of a general
partner.
(F) The admission or removal of a limited
partner.
(G) A transaction involving an actual or
potential conflict of interest between a general partner and the limited
partnership or the limited partners.
(H) An amendment to the partnership
agreement or certificate of limited partnership.
(I) Matters related to the business of the
limited partnership not otherwise listed in this paragraph that the partnership
agreement states in writing may be subject to the approval or disapproval of
limited partners.
(h) Winding up the limited partnership
pursuant to ORS 70.325.
(i) Exercising any right or power
permitted to limited partners under ORS 70.005, 70.010, 70.025 to 70.040,
70.050, 70.075, 70.080, 70.090 to 70.100, 70.110, 70.125, 70.135, 70.140,
70.175, 70.180, 70.230 to 70.255, 70.265, 70.275, 70.300, 70.325, 70.355 to
70.375, 70.610 and 70.620 and not specifically listed in this subsection.
(3) The enumeration in subsection (2) of
this section does not mean that the possession or exercise of any other powers
by a limited partner constitutes participation by the limited partner in the
control of the business of the limited partnership.
(4) A limited partner who knowingly
permits the limited partners name to be used in the name of the limited
partnership, except under circumstances permitted by ORS 70.010 (2), is liable
to creditors who extend credit to the limited partnership without actual
knowledge that the limited partner is not a general partner. [1985 c.677 §20;
1987 c.543 §15]
70.140
Liability of person who erroneously believes person is limited partner. A person who makes a contribution to a
business enterprise and erroneously but in good faith believes that the person
has become a limited partner in the enterprise is not a general partner in the
enterprise and is not bound by its obligations by reason of making the
contribution, receiving distributions from the enterprise or exercising any
rights of a limited partner if, on ascertaining the mistake, the person
promptly takes either of the following actions:
(1) Causes an appropriate certificate of
limited partnership or a certificate of amendment to be executed and filed.
(2) Withdraws from future equity
participation in the enterprise by executing and submitting for filing with the
Office of Secretary of State a certificate declaring withdrawal under this
section. [1985 c.677 §21; 1987 c.543 §16]
70.145
Powers of limited partner.
Each limited partner may:
(1) Inspect and copy any of the
partnership records required to be maintained by ORS 70.050.
(2) Obtain from the general partners from
time to time upon reasonable demand:
(a) True and full information regarding
the state of the business and financial condition of the limited partnership;
(b) A copy of the limited partnerships
federal, state and local income tax returns for each year promptly after they
become available; and
(c) Other information regarding the
affairs of the limited partnership as is just and reasonable. [1985 c.677 §22]
GENERAL
PARTNERS
70.175
Admission of additional general partners. After the filing of a limited partnerships original certificate of
limited partnership, additional general partners may be admitted as provided in
writing in the partnership agreement or, if the partnership agreement does not
provide in writing for the admission of additional general partners, with the
written consent of all partners. [1985 c.677 §23; 1987 c.543 §17]
70.180
When person ceases to be general partner. Except as approved by the specific written consent of all partners at
the time, a person ceases to be a general partner of a limited partnership upon
the happening of any of the following events:
(1) The general partner withdraws from the
limited partnership as provided in ORS 70.255 (1).
(2) The general partner ceases to be a
member of the limited partnership as provided in ORS 70.290.
(3) The general partner is removed as a
general partner in accordance with the partnership agreement.
(4) Unless otherwise provided in writing
in the partnership agreement, the general partner:
(a) Makes an assignment for the benefit of
creditors;
(b) Files a voluntary petition in
bankruptcy;
(c) Is adjudicated a bankrupt or
insolvent;
(d) Files a petition or answer seeking for
the general partner any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any statute, law or rule;
(e) Files an answer or other pleading
admitting or failing to contest the material allegations of a petition filed
against the general partner in any proceeding of this nature; or
(f) Seeks, consents to or acquiesces in
the appointment of a trustee, receiver or liquidator of the general partner or
of all or any substantial part of the general partners properties.
(5) Unless otherwise provided in writing
in the partnership agreement:
(a) If a proceeding against the general
partner seeking reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any statute, law or rule has
not been dismissed on or before the 120th day after commencement of the
proceeding;
(b) If an appointment, without the general
partners consent, of a trustee, receiver or liquidator either of the general
partner or of all or any substantial part of the general partners properties
is not vacated or stayed on or before the 90th day after the appointment; or
(c) If an appointment described in
paragraph (b) of this subsection is not vacated on or before the 90th day after
expiration of the stay under paragraph (b) of this subsection.
(6) In the case of a general partner who
is an individual:
(a) The death of the general partner.
(b) The entry of a judgment by a court of
competent jurisdiction adjudicating the general partner incompetent to manage
the general partners person or estate.
(7) In the case of a general partner who
is acting as a general partner by virtue of being a trustee of a trust, the
termination of the trust, but not merely the substitution of a new trustee.
(8) In the case of a general partner that
is a separate partnership, the dissolution and commencement of winding up of
the separate partnership.
(9) In the case of a general partner that
is a corporation, the voluntary dissolution of the corporation, the involuntary
dissolution of the corporation or the entry of a judgment or judicial order of
involuntary dissolution of the corporation.
(10) In the case of an estate, the
distribution by the fiduciary of the estates entire interest in the
partnership. [1985 c.677 §24; 1987 c.543 §18]
70.185
Rights, restrictions and liabilities of general partner. (1) Except as provided in this chapter or in
the partnership agreement, a general partner of a limited partnership has the
rights and powers and is subject to the restrictions of a partner in a
partnership without limited partners.
(2) Except as provided in this chapter, a
general partner of a limited partnership has the liabilities of a partner in a
partnership without limited partners to persons other than the partnership and
the other partners.
(3) Except as provided in this chapter or
in the partnership agreement, a general partner of a limited partnership has
the liabilities of a partner in a partnership without limited partners to the
partnership and to the other partners. [1985 c.677 §25]
70.190
Rights and powers of general partner as general and limited partner. A general partner of a limited partnership
may make contributions to the partnership and share in the profits and losses
of and in distributions from the limited partnership as a general partner. A
general partner also may make contributions to and share in the profits, losses
and distributions as a limited partner. A person who is both a general partner
and a limited partner has the rights and powers and is subject to the
restrictions and liabilities of a general partner and, except as provided in
the partnership agreement, also has the powers and is subject to the
restrictions of a limited partner to the extent of the persons participation
in the partnership as a limited partner. [1985 c.677 §26]
70.195
Voting rights. The
partnership agreement may grant to all or certain identified general partners
the right to vote, separately or with all or any class of the limited partners,
on any matter. The right to vote may be granted on a per capita or any other
basis. [1985 c.677 §27]
FINANCES
70.225
Form of contribution. The
contribution of a partner may be in cash, property or services rendered, or a
promissory note or other obligation to contribute cash or property or to
perform services. [1985 c.677 §28]
70.230
Obligation of partner. (1) A
promise by a limited partner to contribute to the limited partnership is not
enforceable unless set out in writing signed by the limited partner.
(2) Except as provided in the partnership
agreement, a partner is obligated to the limited partnership to perform any
enforceable promise to contribute cash or other property or to perform
services, even if the partner is unable to perform because of death, disability
or any other reason. If a partner does not make the required contribution of
property or services, the partner shall be obligated at the option of the
limited partnership to contribute cash equal to that portion of the value, as
stated in the records required to be kept pursuant to ORS 70.050, of the stated
contribution that has not been made.
(3) Unless otherwise provided in the
partnership agreement, the obligation of a partner to make a contribution or
return money or other property paid or distributed in violation of this chapter
may be compromised only by consent of all the partners. Notwithstanding the
compromise, a creditor may enforce the original obligation if the creditor
extended credit or otherwise acted in reliance on that obligation, during the period
occurring:
(a) After the partner signs a writing that
reflects the obligation; and
(b) Before the amendment or cancellation
thereof to reflect the compromise. [1985 c.677 §29; 1987 c.543 §19]
70.235
Allocation of profits and losses. The profits and losses of a limited partnership shall be allocated
among the partners, and among classes of partners, in the manner provided in
writing in the partnership agreement. If the partnership agreement does not so
provide in writing, profits and losses shall be allocated on the basis of the
value of the contributions made by each partner, as stated in the partnership
records required to be kept pursuant to ORS 70.050, to the extent they have
been received by the partnership and have not been returned. [1985 c.677 §30;
1987 c.543 §20]
70.240
Allocation of distributions of assets. Distributions of cash or other assets of a limited partnership shall
be allocated among the partners and among classes of partners in the manner
provided in writing in the partnership agreement. If the partnership agreement
does not so provide in writing, distributions shall be made on the basis of the
value of the contributions made by each partner, as stated in the partnership
records required to be kept pursuant to ORS 70.050, to the extent they have
been received by the partnership and have not been returned. [1985 c.677 §31;
1987 c.543 §21]
DISTRIBUTION
AND WITHDRAWAL
70.250
Entitlement to distributions.
Except as provided in ORS 70.250 to 70.275, a partner is entitled to receive
distributions from a limited partnership before the partners withdrawal from
the limited partnership and before the dissolution and winding up thereof to
the extent and at the times or upon the happening of the events specified in
the partnership agreement. [1985 c.677 §32; 1987 c.543 §22]
70.255
Withdrawal of partner. (1) A
general partner may withdraw from a limited partnership at any time by giving
written notice to the other partners, but if the withdrawal violates the
partnership agreement, the limited partnership may recover from the withdrawing
general partner damages for breach of the partnership agreement and offset the
damages against the amount otherwise distributable to the withdrawing general
partner.
(2) A limited partner may withdraw from a
limited partnership at the time or upon the happening of events specified in
writing in the partnership agreement. If the partnership agreement does not
specify in writing the time or the events upon the happening of which a limited
partner may withdraw or a definite time for the dissolution and winding up of
the limited partnership, a limited partner may withdraw upon not less than six
months prior written notice to each general partner at the general partners
address on the books of the limited partnership at its office in this state. [1985
c.677 §§33,34; 1987 c.543 §23]
70.260
Entitlements of withdrawing partner. Except as provided in ORS 70.250 to 70.275, upon withdrawal, any
withdrawing partner is entitled to receive any distribution to which the
withdrawing partner is entitled under the partnership agreement. If not
otherwise provided in the partnership agreement, the withdrawing partner also
is entitled to receive, within a reasonable time after withdrawal, the fair
value of the withdrawing partners interest in the limited partnership as of
the date of withdrawal based upon the withdrawing partners right to share in
distributions from the limited partnership. For purposes of this section, the
fair value of the withdrawing partners interest in the limited partnership
shall be determined by assuming that any distribution to which the withdrawing
partner is otherwise entitled by reason of this section has been made. [1985
c.677 §35]
70.265
Rights of partner regarding distribution; remedies. (1) Except as provided in writing in the
partnership agreement, a partner has no right to demand and receive any
distribution from a limited partnership in any form other than cash, regardless
of the nature of the partners contribution. Except as provided in writing in
the partnership agreement, a partner may not be compelled to accept a
distribution of any asset in kind from a limited partnership to the extent that
the percentage of the asset distributed to the partner exceeds a percentage of
that asset that is equal to the percentage in which the partner shares in
distributions from the limited partnership.
(2) When a partner becomes entitled to
receive a distribution, the partner has the status of and is entitled to all
remedies available to a creditor of the limited partnership with respect to the
distribution. [1985 c.677 §§36,37; 1987 c.543 §24]
70.270
Limit on distribution. A
partner may not receive a distribution from a limited partnership to the extent
that, after giving effect to the distribution, the liabilities of the limited
partnership exceed the fair value of the partnership assets. For purposes of
this section, the following shall be disregarded as liabilities of the limited
partnership:
(1) Liabilities to partners on account of
their partnership interests; and
(2) With respect to any liability as to
which the recourse of creditors is limited to specific property of the limited
partnership, the amount by which such liability exceeds the fair value of such
specific property. [1985 c.677 §38]
70.275
Liability of partner who receives return of contribution. (1) If a partner has received the return of
any part of the partners contribution without violation of the partnership
agreement or this chapter, the partner is liable to the limited partnership for
a period of one year after receipt of the return for the amount of the returned
contribution, but only to the extent necessary to discharge the limited
partnerships liabilities to creditors who extended credit to the limited
partnership during the period the contribution was held by the partnership.
(2) If a partner has received the return
of any part of the partners contribution in violation of the partnership
agreement or this chapter, the partner is liable to the limited partnership for
a period of six years after receipt of the return for the amount of the
contribution wrongfully returned.
(3) A partner receives a return of the
partners contribution to the extent that a distribution to the partner reduces
the partners share of the fair value of the net assets of the limited
partnership below the value of the partners contribution, as set forth in the
partnership records required to be kept pursuant to ORS 70.050, that has not
been distributed to the partner. [1985 c.677 §39; 1987 c.543 §25]
ASSIGNMENT OF
PARTNERSHIP INTERESTS
70.285
Partnership as personal property. A partnership interest is personal property. [1985 c.677 §40]
70.290
Assignability of partnership interest. Except as provided in the partnership agreement, a partnership interest
is assignable in whole or in part. An assignment of a partnership interest does
not dissolve a limited partnership or entitle the assignee to become or to
exercise any rights of a partner. An assignment entitles the assignee to
receive, to the extent assigned, only the distribution to which the assignor
would be entitled. Except as provided in the partnership agreement, a partner
ceases to be a partner upon assignment of all the partners partnership
interest. [1985 c.677 §41]
70.295
Rights of judgment creditor of partner. On application to a court of competent jurisdiction by any judgment
creditor of a partner, the court may charge the partnership interest of the
partner with payment of the unsatisfied amount of the judgment with interest.
To the extent so charged, the judgment creditor has only the rights of an
assignee of the partnership interest. This chapter does not deprive any partner
of the benefit of any exemption laws applicable to the partners partnership
interest. [1985 c.677 §42]
70.300
Assignee of partnership interest as limited partner. (1) An assignee of a partnership interest,
including an assignee of a general partner, may become a limited partner if and
to the extent that:
(a) The assignor gives the assignee that
right in accordance with authority described in the partnership agreement; or
(b) All other partners consent.
(2) An assignee who has become a limited
partner has, to the extent assigned, the rights and powers, and is subject to
the restrictions and liabilities, of a limited partner under the partnership
agreement and this chapter. An assignee who becomes a limited partner also is
liable for the obligations of the assignor to make and return contributions as
provided in ORS 70.225 to 70.275. However, the assignee is not obligated for
liabilities that were unknown to the assignee at the time the assignee became a
limited partner and that could not be ascertained from the certificate of
limited partnership.
(3) If an assignee of a partnership
interest becomes a limited partner, the assignor is not released from the
assignors liability to the limited partnership under ORS 70.105 and 70.230. [1985
c.677 §43; 1987 c.543 §26]
70.305
Death, incompetency, dissolution or termination of partner. (1) If a partner who is an individual dies
or a court of competent jurisdiction adjudges the partner to be incompetent to
manage the partners person or property, the partners executor, administrator,
guardian, conservator or other legal representative may exercise all the
partners rights for the purpose of settling the partners estate or
administering the partners property, including any power the partner held to
give an assignee the right to become a limited partner.
(2) If a partner is a corporation, trust
or other entity and is dissolved or terminated, the powers of that partner may
be exercised by its legal representative or successor. [1985 c.677 §44]
DISSOLUTION
70.325
When dissolution occurs. A
limited partnership is dissolved and its affairs shall be wound up when the first
of any of the following events occurs:
(1) Upon reaching the time for dissolution
specified in the certificate of limited partnership.
(2) Upon the happening of events specified
in writing in the partnership agreement.
(3) By the vote or such other action of
the partners as is provided in writing in the partnership agreement, or if the
partnership agreement does not so provide in writing, by the written consent of
all partners.
(4) An event of withdrawal of a general
partner unless at the time there is at least one other general partner and the
written provisions of the partnership agreement permit the business of the
limited partnership to be carried on by the remaining general partner and that
partner does so. However, a limited partnership is not dissolved under this
subsection and is not required to be wound up by reason of any event of
withdrawal if, not later than the 90th day after the withdrawal, all partners
agree in writing to continue the business of the limited partnership and to the
appointment of one or more additional general partners if necessary or desired.
(5) Entry of a judgment or judicial order
of involuntary dissolution under ORS 70.330. [1985 c.677 §45; 1987 c.543 §27]
70.330
Judgment of dissolution. On
application by or for a partner, the circuit court may enter a judgment for the
dissolution of a limited partnership whenever it is not reasonably practicable
to carry on the business in conformity with the partnership agreement. [1985
c.677 §46; 2003 c.576 §332]
70.335
Who may wind up partnership affairs. Except as provided in the partnership agreement, the general partners
who have not wrongfully dissolved a limited partnership or, if no such general
partners, the limited partners, may wind up the limited partnerships affairs.
However, the circuit court upon cause shown may wind up the limited partnerships
affairs upon application of any partner, or the partners legal representative
or assignee. [1985 c.677 §47]
70.340
Distribution of assets. Upon
the winding up of a limited partnership, the assets shall be distributed as
follows:
(1) To the extent permitted by law, to
creditors, including partners who are creditors, in satisfaction of liabilities
of the limited partnership other than liabilities for distributions to partners
under ORS 70.250 or 70.260.
(2) Except as provided in the partnership
agreement, to partners and former partners in satisfaction of liabilities for
distributions under ORS 70.250 or 70.260.
(3) Except as provided in the partnership
agreement, to partners as follows:
(a) First, for the return of their
contributions; and
(b) Secondly, respecting their partnership
interests, in the proportions in which the partners share in distributions. [1985
c.677 §48]
FOREIGN
LIMITED PARTNERSHIPS
70.350
Law applicable to foreign limited partnership. (1) The laws of the jurisdiction under which
a foreign limited partnership is organized govern its organization and internal
affairs and the liability of its limited partners.
(2) A foreign limited partnership may not
be denied registration by reason of any difference between those laws and the
laws of this state. [1985 c.677 §49]
70.355
Registration of foreign limited partnership; rules. (1) Before transacting business in this
state, a foreign limited partnership shall register with the Secretary of
State. In order to register, a foreign limited partnership shall submit for
filing to the Office of Secretary of State an application for registration as a
foreign limited partnership. The application shall be signed by a general
partner and shall set forth the following:
(a) The name of the foreign limited
partnership.
(b) The jurisdiction and the date of
formation of the foreign limited partnership.
(c) The name and street address of the
initial registered agent which the foreign limited partnership and all general
partners thereof are required to maintain in this state under ORS 70.025.
(d) A mailing address to which the
Secretary of State may mail notices as required by this chapter.
(e) The address of the office where the
records listed in ORS 70.050 are maintained together with an undertaking by the
foreign limited partnership to keep these records until the foreign limited
partnerships registration in this state is canceled.
(f) The name and business address of each
general partner.
(g) Any additional identifying information
that the Secretary of State may require by rule.
(2) A person who signs the application for
registration as a foreign limited partnership as an agent or fiduciary need not
exhibit evidence of such authority as a prerequisite to filing.
(3) The execution by a general partner of
the application for registration as a foreign limited partnership constitutes
an affirmation under the applicable penalties of false swearing or perjury that
the facts stated therein are true.
(4) The foreign limited partnership shall
deliver with the completed application a certificate of existence or a similar
document that is current within 60 days of the date of delivery. The
certificate or document shall be authenticated by the official having custody
of limited partnership records in the state or country under whose law the
partnership is organized. [1985 c.677 §50; 1987 c.543 §28; 1991 c.132 §9; 1995
c.215 §19; 1999 c.486 §16]
70.360 [1985 c.677 §51; 1987 c.543 §29; repealed by
1993 c.190 §24]
70.365
Name requirements. The
Secretary of State shall not register a foreign limited partnership whose name
does not meet the requirements of ORS 70.010 (1)(c) unless the foreign limited
partnership states its name on its application as (name of limited
partnership), a limited partnership of (place of registration), which shall be
the real and true name of the limited partnership. [1985 c.677 §52; 1987
c.543 §30]
70.370
Correction of application.
If any statement in the application for registration of a foreign limited
partnership was false when made or any arrangements or other facts described
have changed, making the application inaccurate in any respect, the foreign
limited partnership shall promptly submit for filing to the Office of Secretary
of State a certificate, signed by a general partner, correcting the statement. [1985
c.677 §53; 1987 c.543 §30a]
70.375
Cancellation of registration.
(1) A foreign limited partnership may cancel its registration by submitting for
filing a certificate of cancellation to the Office of Secretary of State signed
by a general partner.
(2) A certificate of cancellation shall
set forth:
(a) The name of the limited partnership
and the state or country under the laws of which it is organized;
(b) A statement that the limited
partnership is not transacting business in this state;
(c) A statement that the limited
partnership revokes the authority of its registered agent in this state to
accept service of process, notice or demand and consents that service of
process, notice or demand in any action, suit or proceeding based upon any
transaction, event or occurrence that took place in this state prior to the
filing of the certificate of cancellation may thereafter be made on the limited
partnership by service on the Secretary of State; and
(d) A mailing address to which the person
initiating any proceeding may mail a copy of any process, notice or demand to
the limited partnership that has been served on the Secretary of State.
(3) The certificate of cancellation shall
be signed by one of the general partners or, if the foreign limited partnership
is in the hands of a receiver or trustee, shall be signed by the receiver or
trustee.
(4) If the Secretary of State finds that
the certificate conforms to the filing requirements of this chapter, the
Secretary of State shall file the certificate and return an acknowledgment of
filing to the sender. Upon the filing of the certificate of cancellation, the
authority of the foreign limited partnership to transact business in this state
shall cease.
(5) A cancellation does not terminate the
authority of the Secretary of State to accept service of process on the foreign
limited partnership with respect to causes of action arising out of the transaction
of business in this state. [1985 c.677 §54; 1987 c.543 §31; 1999 c.486 §17]
70.380
Registration prerequisite to suing in state; effect on contracts, liability;
agent. (1) A foreign limited
partnership transacting business in this state may not maintain any action or
proceeding in any court of this state until it has registered in this state.
(2) The failure of a foreign limited
partnership to register in this state does not impair the validity of any
contract or act of the foreign limited partnership or prevent the foreign
limited partnership from defending any action or proceeding in any court of
this state.
(3) A limited partner of a foreign limited
partnership is not liable as a general partner of the foreign limited
partnership solely by reason of having transacted business in this state
without registration.
(4) A foreign limited partnership, by
transacting business in this state without registration, appoints the Secretary
of State as its agent for service of process with respect to causes of action
arising out of the transaction of business in this state. [1985 c.677 §55]
70.385
Attorney Generals enforcement.
The Attorney General may bring an action to restrain a foreign limited
partnership from transacting business in this state in violation of ORS 70.350
to 70.385. [1985 c.677 §56]
DERIVATIVE
ACTIONS
70.400
Action by limited partner upon refusal of general partner. A limited partner may bring an action in the
right of a limited partnership to recover a judgment in its favor if general
partners with authority to do so have refused to bring the action or if an
effort to cause those general partners to bring the action is not likely to
succeed. [1985 c.677 §57]
70.405
Status of plaintiff. In a
derivative action, the plaintiff must be a partner when the plaintiff brings
the action and:
(1) The plaintiff must have been a partner
at the time of the transaction of which the plaintiff complains; or
(2) The plaintiffs status as a partner
must have devolved upon the plaintiff from a person who was a partner at the
time of the transaction. [1985 c.677 §58]
70.410
Content of complaint. In a
derivative action, the complaint shall set forth with particularity the effort
of the plaintiff to secure initiation of the action by a general partner or the
reasons for not making the effort. [1985 c.677 §59]
70.415
Remittance of proceeds received by plaintiff; attorney fees. If a derivative action is successful in
whole or in part or if anything is received by the plaintiff as a result of a
judgment, compromise or settlement of an action or claim, the court shall
direct the plaintiff to remit to the limited partnership the remainder of those
proceeds received by the plaintiff. The court may award reasonable attorney
fees to the prevailing party in a derivative action. [1985 c.677 §60; 1995
c.618 §43]
INACTIVATION
OF CERTIFICATE OR REGISTRATION
70.430
Grounds for administrative action to inactivate certificate or registration of
limited partnership. The
Secretary of State may commence a proceeding under ORS 70.435 to inactivate a
certificate of limited partnership or the registration of a foreign limited
partnership if:
(1) The limited partnership does not pay
when due any fees imposed by this chapter;
(2) The limited partnership does not
deliver its annual report to the Secretary of State when due;
(3) The limited partnership is without a
registered agent or registered office in this state;
(4) The limited partnership does not
notify the Secretary of State that its registered agent or registered office
has been changed, that its registered agent has resigned or that its registered
office has been discontinued; or
(5) The limited partnerships period of
duration stated in its certificate of limited partnership expires. [1993 c.190 §13]
70.435
Notice of administrative inactivation; effect of inactivation on authority of
registered agent. (1) If the
Secretary of State determines that one or more grounds exist under ORS 70.430
for inactivating a certificate of limited partnership or the registration of a
foreign limited partnership, the Secretary of State shall give the limited
partnership notice of that determination.
(2) If the limited partnership, within 45
days after the notice is given, does not correct each ground for inactivation
or demonstrate to the satisfaction of the Secretary of State that each ground
determined by the Secretary of State does not exist, the Secretary of State
shall inactivate the certificate of limited partnership or the registration of
a foreign limited partnership.
(3) The administrative inactivation of a
certificate of domestic limited partnership does not terminate the authority of
its registered agent.
(4) The administrative inactivation of the
registration of a foreign limited partnership terminates the authority of the
registered agent of the foreign limited partnership. [1993 c.190 §14; 2001
c.315 §38]
70.440
Reinstatement following administrative inactivation. (1) A limited partnership administratively
inactivated under ORS 70.430 may apply to the Secretary of State for
reinstatement within five years from the date of inactivation. The application
shall:
(a) State the name of the limited
partnership and effective date of its administrative inactivation; and
(b) State that the ground or grounds for
inactivation either did not exist or have been eliminated.
(2) If the Secretary of State determines
that the application contains the information required by subsection (1) of
this section, that the information is correct and that the limited partnerships
name satisfies the requirements of ORS 70.010, the Secretary of State shall
reinstate the limited partnership.
(3) When the reinstatement is effective,
it relates back to and takes effect as of the effective date of the
administrative inactivation and the limited partnership is considered to resume
carrying on its business as if the administrative inactivation had never
occurred. [1995 c.215 §20]
70.450 [1985 c.677 §61; renumbered 70.600 in 1999]
70.455 [1985 c.677 §62; renumbered 70.605 in 1999]
70.460 [1985 c.677 §62a; 1987 c.543 §32; 1987 c.843
§23; 1991 c.132 §10; 1993 c.190 §11; 1995 c.215 §21; renumbered 70.610 in 1999]
70.465 [1985 c.677 §63; 1997 c.775 §89; 1999 c.86 §19;
renumbered 70.615 in 1999]
70.470 [1987 c.543 §9b; renumbered 70.620 in 1999]
70.490 [1985 c.677 §1; renumbered 70.625 in 1999]
CONVERSIONS
AND MERGERS
70.500
Definitions for ORS 70.500 to 70.540. As used in ORS 70.500 to 70.540:
(1) Business entity means:
(a) Any of the following for-profit
entities:
(A) A professional corporation organized
under ORS chapter 58, predecessor law or comparable law of another
jurisdiction;
(B) A corporation organized under ORS
chapter 60, predecessor law or comparable law of another jurisdiction;
(C) A limited liability company organized
under ORS chapter 63 or comparable law of another jurisdiction;
(D) A partnership organized in Oregon
after January 1, 1998, or that is registered as a limited liability
partnership, or that has elected to be governed by ORS chapter 67, and a
partnership governed by law of another jurisdiction that expressly provides for
conversions and mergers; and
(E) A limited partnership organized under
this chapter, predecessor law or comparable law of another jurisdiction; and
(b) A cooperative organized under ORS chapter
62, predecessor law or comparable law of another jurisdiction.
(2) Organizational document means the
following for an
(a) In the case of a corporation,
professional corporation or cooperative, articles of incorporation;
(b) In the case of a limited liability
company, articles of organization;
(c) In the case of a partnership, a
partnership agreement and, for a limited liability partnership, its registration;
and
(d) In the case of a limited partnership,
a certificate of limited partnership.
(3) Owner means a:
(a) Shareholder of a corporation or of a
professional corporation;
(b) Member or shareholder of a
cooperative;
(c) Member of a limited liability company;
(d) Partner of a partnership; and
(e) General partner or limited partner of
a limited partnership. [1999 c.362 §56; 2003 c.80 §29]
70.505
Conversion. (1) A business
entity other than a limited partnership may be converted to a limited partnership
organized under this chapter, and a limited partnership organized under this
chapter may be converted to another business entity organized under the laws of
this state, if conversion is permitted by the statutes governing the other
business entity, by approving a plan of conversion and filing articles of
conversion. A limited partnership organized under this chapter may be converted
to a business entity organized under the laws of another jurisdiction if:
(a) The conversion is permitted by the laws
of that jurisdiction;
(b) A plan of conversion is approved by
the converting limited partnership;
(c) Articles of conversion are filed in
this state;
(d) The converted business entity submits
an application to transact business as a foreign business entity of that type
to the Secretary of State for filing and meets all other requirements
prescribed under the laws of this state for authorization to transact business
as a foreign business entity of that type; and
(e) The limited partnership complies with
any requirements imposed under the laws of the other jurisdiction with respect
to the conversion.
(2) A plan of conversion shall set forth:
(a) The name and type of business entity
prior to conversion;
(b) The name and type of the business
entity after conversion;
(c) A summary of the material terms and
conditions of the conversion;
(d) The manner and basis of converting the
ownership interests of each owner into ownership interests or obligations of
the converted business entity or any other business entity, or into cash or
other property in whole or in part; and
(e) Any additional information required in
the organizational document of the converted business entity by the statutes
governing that type of business entity.
(3) The plan of conversion may set forth
other provisions relating to the conversion. [1999 c.362 §57; 2001 c.315 §20;
2003 c.80 §24]
70.510
Action on plan of conversion.
(1) A plan of conversion shall be approved as follows:
(a) In the case of a limited partnership,
by all the partners, unless a lesser vote is provided for in the certificate of
limited partnership or, in the case of a foreign limited partnership, by the
law of the jurisdiction in which the limited partnership is organized.
(b) In the case of a business entity other
than a limited partnership, as provided by the statutes governing that business
entity.
(2) After a plan of conversion is
approved, and at any time before articles of conversion are filed, the planned
conversion may be abandoned, subject to any contractual rights:
(a) By a limited partnership, without
further action by the limited partners, in accordance with the procedure set
forth in the plan of conversion or, if none is set forth, in the manner
determined by the general partners.
(b) By a party to the conversion that is
not a limited partnership, in accordance with the procedure set forth in the
plan of conversion or, if none is set forth, in the manner permitted by the
statutes governing that business entity. [1999 c.362 §58]
70.515
Articles of conversion. (1)
After conversion is approved by the owners, the converting business entity
shall file articles of conversion, which shall state the name and type of
business entity prior to conversion and the name and type of business entity
after conversion, and shall include the plan of conversion.
(2) The conversion takes effect on the
latest of:
(a) The filing of the articles of
conversion;
(b) If the surviving business entity is
not a limited partnership, satisfaction of any additional filing requirements
imposed pursuant to the statutes governing that business entity; or
(c) On the delayed effective date and time
set forth in the filings. [1999 c.362 §59; 2001 c.315 §11]
70.520
Effect of conversion; assumed business name. (1) When a conversion to or from a limited partnership pursuant to ORS
70.505 takes effect:
(a) The business entity continues its
existence despite the conversion;
(b) Title to all real estate and other
property owned by the converting business entity is vested in the converted
business entity without reversion or impairment;
(c) All obligations of the converting
business entity, including, without limitation, contractual, tort, statutory
and administrative obligations, are obligations of the converted business
entity;
(d) An action or proceeding pending
against the converting business entity or its owners may be continued as if the
conversion had not occurred, or the converted business entity may be
substituted as a party to the action or proceeding;
(e) The ownership interests of each owner
that are to be converted into ownership interests or obligations of the
converted business entity or any other business entity, or into cash or other
property, are converted as provided in the plan of conversion;
(f) Liability of an owner for obligations
of the business entity, including, without limitation, contractual, tort,
statutory and administrative obligations, shall be determined:
(A) As to obligations incurred prior to
conversion, according to the laws applicable prior to conversion, except as
provided in paragraph (g) of this subsection; and
(B) As to obligations incurred after
conversion, according to the laws applicable after conversion, except as
provided in paragraph (h) of this subsection;
(g) If the converting business entity is a
limited partnership or a foreign limited partnership and its obligations
incurred before the conversion are not satisfied by the converted business
entity, the persons who were general partners of the converting business entity
immediately before the effective date of the conversion shall contribute the
amount necessary to satisfy the converting business entitys obligations in the
manner provided in ORS 67.315, or in the limited partnership statutes of the
jurisdiction in which the entity was formed, as if the converting business
entity were dissolved; and
(h) If prior to conversion an owner of a
business entity was a partner of a partnership or general partner of a limited
partnership or foreign limited partnership, and was personally liable for the
business entitys obligations, and after conversion is an owner normally
protected from personal liability, then such owner shall continue to be
personally liable for the business entitys obligations incurred during the 12
months following conversion, if the other party or parties to the transaction
reasonably believed that the owner would be personally liable and had not
received notice of the conversion.
(2) Owners of the business entity that
converted are entitled to the rights provided in the plan of conversion and:
(a) In the case of a limited partnership,
a limited partner who did not vote in favor of the conversion is considered to
be a partner who has withdrawn from the limited partnership effective
immediately upon the effective date of the conversion unless, within 60 days
after the later of the effective date of the conversion or the date the partner
receives notice of the conversion, the partner notifies the partnership of the
partners desire not to withdraw. A withdrawal under this paragraph is not a
wrongful withdrawal; and
(b) In the case of owners of business
entities other than limited partnerships, the rights provided in the statutes
applicable to the business entity prior to conversion, including, without
limitation, any rights to dissent, to dissociate, to withdraw, to recover for
breach of any duty or obligation owed by the other owners, and to obtain an
appraisal or payment for the value of an owners interest.
(3) Unless the converted business entity
is a partnership, the registration of an assumed business name of a business
entity under ORS chapter 648 shall continue as the assumed business name of the
converted business entity. If the converted business entity is a partnership,
the converting business entity shall amend or cancel the registration of the
assumed business name under ORS chapter 648, and the partners of the
partnership shall register the name as an assumed business name under ORS
chapter 648. [1999 c.362 §60; 2001 c.315 §6]
70.525
Merger. (1) One or more business
entities may merge into a limited partnership organized under this chapter if
the merger is permitted by the statutes governing each other business entity
that is a party to the merger, a plan of merger is approved by each business
entity that is a party to the merger and articles of merger are filed. A
limited partnership organized under this chapter may be merged into a business
entity organized under the laws of this state or under the laws of another
jurisdiction if:
(a) The merger is permitted by the laws of
this state or by the laws of the other jurisdiction that govern the other
business entity;
(b) A plan of merger is approved by each
business entity that is a party to the merger;
(c) Articles of merger are filed in this
state; and
(d) The limited partnership complies with
all requirements imposed under the laws of this state and, if applicable, the
laws of the other jurisdiction with respect to the merger.
(2) The plan of merger shall set forth:
(a) The name and type of each business
entity planning to merge;
(b) The name and type of the business
entity that will survive;
(c) A summary of the material terms and
conditions of the merger;
(d) The manner and basis of converting the
ownership interests of each owner into ownership interests or obligations of
the surviving business entity or any other business entity, or into cash or
other property in whole or in part, and the status of each owner; and
(e) If any party is a business entity
other than a limited partnership, any additional information required for a
merger by the statutes governing that business entity.
(3) The plan of merger may set forth:
(a) Amendments to the certificate of
limited partnership, if a limited partnership is the surviving business entity;
and
(b) Other provisions relating to the
merger. [1999 c.362 §61; 2001 c.315 §21; 2003 c.80 §25]
70.530
Action on plan of merger.
(1) A plan of merger shall be approved by each business entity that is a party
to the merger, as follows:
(a) In the case of a limited partnership,
by all the partners, unless a lesser vote is provided for in the certificate of
limited partnership or, in the case of a foreign limited partnership, by the
law of the jurisdiction in which the limited partnership is formed.
(b) In the case of a business entity other
than a limited partnership, as provided by the statutes governing that business
entity.
(2) After a merger is authorized, and at
any time before articles of merger are filed, the planned merger may be
abandoned, subject to any contractual rights:
(a) By the limited partnership, without
further action by the limited partners, in accordance with the procedure set
forth in the plan of merger or, if none is set forth, in the manner determined
by the general partners.
(b) By a party to the merger that is not a
limited partnership, in accordance with the procedure set forth in the plan of
merger or, if none is set forth, in the manner permitted by the statutes
governing that business entity. [1999 c.362 §62]
70.535
Articles of merger. (1) After
a plan of merger is approved by each business entity that is a party to the
merger, the surviving business entity shall deliver to the Office of Secretary
of State, for filing, articles of merger setting forth:
(a) The plan of merger; and
(b) A statement that the plan of merger
was duly authorized and approved by any party that was a limited partnership in
accordance with ORS 70.525, and by any party that was another business entity
in accordance with the statutes governing that business entity.
(2) The merger takes effect on the latest
of:
(a) The filing of the articles of merger;
(b) The filing of all documents required
to be filed by the statute governing any party to the merger that is a business
entity other than a limited partnership; or
(c) Any later effective date specified in
the articles of merger. [1999 c.362 §63; 2001 c.104 §22]
70.540
Effect of merger. (1) When a
merger involving a limited partnership takes effect:
(a) Every other business entity that is a
party to the merger merges into the surviving business entity, and the separate
existence of every other party ceases;
(b) The title to all real estate and other
property owned by each of the business entities that were parties to the merger
is vested in the surviving business entity without reversion or impairment;
(c) All obligations of each of the
business entities that were parties to the merger, including, without
limitation, contractual, tort, statutory and administrative obligations, are
obligations of the surviving business entity;
(d) An action or proceeding pending
against each of the business entities or its owners that were parties to the
merger may be continued as if the merger had not occurred, or the surviving
business entity may be substituted as a party to the action or proceeding;
(e) If a limited partnership is the
surviving business entity, its certificate of limited partnership is amended to
the extent provided in the plan of merger;
(f) The shares or other ownership
interests of each partner or other owner that are to be converted into shares
or other ownership interests or obligations of the surviving business entity or
any other business entity, or into cash or other property, are converted as
provided in the plan of merger;
(g) Liability of an owner for obligations
of a business entity, including, without limitation, contractual, tort,
statutory and administrative obligations, shall be determined:
(A) As to obligations incurred prior to
merger, according to the laws applicable prior to merger, except as provided in
paragraph (h) of this subsection; and
(B) As to obligations incurred after
merger, according to the laws applicable after merger, except as provided in
paragraph (i) of this subsection;
(h) If a party to the merger is a limited
partnership or a foreign limited partnership, and its obligations incurred
before the merger are not satisfied by the surviving business entity, the
persons who were general partners of the merging business entity immediately
before the effective date of the merger shall contribute the amount necessary
to satisfy the merging business entitys obligation to the surviving business
entity in the manner provided in ORS 67.315, or in the limited partnership
statutes of the jurisdiction in which the entity was formed, as if the merged
party were dissolved;
(i) If prior to merger an owner of a
business entity was a general partner of a limited partnership or a foreign
limited partnership, and after merger is an owner normally protected from
personal liability, then such owner shall continue to be personally liable for
the business entitys obligations incurred during the 12 months following
merger, if the other party or parties to the transaction reasonably believed
that the owner would be personally liable and had not received notice of the
merger; and
(j) The registration of an assumed
business name of a business entity under ORS chapter 648 shall continue as the
assumed business name of the surviving business entity.
(2) Owners of the business entity that
merged are entitled to the rights provided in the plan of merger and:
(a) Any limited partner who did not vote
in favor of the merger is deemed to have withdrawn from the limited partnership
effective immediately before the merger unless, within 60 days after the later
of the effective date of the merger or the date the partner receives notice of
the merger, the partner notifies the limited partnership of the partners
desire not to withdraw. A withdrawal under this paragraph is not a wrongful
withdrawal; and
(b) In the case of owners of business
entities other than limited partnerships, the rights provided in the statutes
applicable to the business entity prior to merger, including, without
limitation, any rights to dissent, to dissociate, to withdraw, to recover for
breach of any duty or obligation owed by the other owners, and to obtain an
appraisal or payment for the value of an owners interest. [1999 c.362 §64]
MISCELLANEOUS
70.600
Construction to promote uniformity. This chapter shall be so applied and construed to carry out its
general purpose of making the law with respect to limited partnerships uniform
among states enacting this chapter. [Formerly 70.450]
70.605
Application to partnerships existing prior to July 1, 1986. (1) Any limited partnership formed on or after
July 1, 1986, shall be governed by this chapter.
(2) Any limited partnership formed before
July 1, 1986, shall be governed by this chapter except as follows:
(a) The limited partnership shall not be
required to change its name to comply with ORS 70.010 (1)(a) unless the limited
partnership changes its name after July 1, 1986.
(b) The limited partnership need not file
with the Secretary of State a certificate of amendment that would cause its
certificate of limited partnership to comply with this chapter until the
occurrence of an event that, under this chapter, requires the filing of a
certificate of amendment. If any limited partnership formed before July 1,
1986, fails to file such a certificate of amendment required under this
chapter, the limited partnership nevertheless shall be governed by this
chapter. [Formerly 70.455]
70.610
Annual report; rules. (1)
Each domestic limited partnership and each foreign limited partnership
registered to transact business in this state shall submit for filing an annual
report to the Office of Secretary of State that includes:
(a) The name of the domestic or foreign
limited partnership and the state or country under the laws of which it is
formed;
(b) The street address of its registered
office in this state and the name of its registered agent at that office;
(c) The name and respective address of
each general partner of the domestic or foreign limited partnership;
(d) The category of the classification
code as established by rule of the Secretary of State most closely designating
the primary business activity of the domestic or foreign limited partnership;
(e) The location of the office in which
the records described in ORS 70.050 are kept;
(f) A mailing address to which the
Secretary of State may mail notices as required by this chapter; and
(g) Additional identifying information
that the Secretary of State may require by rule.
(2) The annual report shall be on forms
prescribed and furnished by the Secretary of State. The information contained
in the annual report shall be current as of 30 days before the anniversary of
the domestic or foreign limited partnership.
(3) The annual report shall be signed by
at least one general partner, or if the domestic or foreign limited partnership
is in the hands of a receiver or trustee, it shall be signed on behalf of the
partnership by such receiver or trustee.
(4) The Secretary of State shall mail the
annual report form to the address shown for the limited partnership in the
current records of the Office of Secretary of State. The failure of the limited
partnership to receive the annual report form from the Secretary of State shall
not relieve the limited partnership of its duty to deliver an annual report to
the Office of Secretary of State as required by this section.
(5) If the Secretary of State finds that
the report conforms to the requirements of this chapter and all fees have been
paid, the Secretary of State shall file the report.
(6) A limited partnership may deliver to
the Office of Secretary of State for filing an amendment to the annual report
if a change in the information set forth in the annual report occurs after the
report is delivered to the Office of Secretary of State for filing and before
the next anniversary. This subsection applies only to a change that is not
required to be made by an amendment to the certificate of limited partnership.
The amendment to the annual report shall set forth:
(a) The name of the limited partnership as
shown on the records of the Office of Secretary of State; and
(b) The information as changed. [Formerly
70.460; 2001 c.104 §23; 2001 c.315 §37; 2007 c.186 §12]
70.615
Application of ORS chapter 67.
In any case governing limited partnerships that is not provided for in this
chapter, the provisions of ORS chapter 67 govern. [Formerly 70.465]
70.620
Correction of documents; effective date of correction. (1) A domestic or foreign limited
partnership may correct a document filed by the Secretary of State if the
document contains an incorrect statement or was defectively executed, attested,
sealed, verified or acknowledged.
(2) A domestic or foreign limited
partnership shall correct a document by delivering a certificate of correction
to the Office of Secretary of State. The certificate shall include the
following:
(a) A description of the document,
including its filing date, or a copy of the document.
(b) The incorrect statement and the reason
it is incorrect, or a description of the manner in which the execution,
attestation, seal, verification or acknowledgment is defective.
(c) A correction of the incorrect
statement or defective execution, attestation, seal, verification or
acknowledgment.
(3) Certificates of correction are
effective on the effective date of the document they correct except as to
persons relying on the uncorrected document and adversely affected by the
correction. As to those persons, certificates of correction are effective when
filed. [Formerly 70.470]
70.625
Short title. This chapter
may be cited as the Uniform Limited Partnership Act. [Formerly 70.490]
_______________
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