Code of Virginia

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Code of Virginia
Title 13.1. Corporations
Chapter 12. Virginia Limited Liability Company Act
1/25/2022

Article 14. Domestication.

§ 13.1-1074. Definitions.

As used in this article, unless the context requires a different meaning:

"Domesticated limited liability company" means the domesticating limited liability company as it continues in existence after a domestication.

"Domesticating limited liability company" means the domestic limited liability company that approves a plan of domestication pursuant to § 13.1-1075 or the foreign limited liability company that approves a domestication pursuant to the organic law of the foreign limited liability company.

"Domestication" means a transaction pursuant to this article, including domestication of a foreign limited liability company as a domestic limited liability company or domestication of a domestic limited liability company in another jurisdiction, where the other jurisdiction authorizes such a transaction even if by another name.

2006, c. 912; 2013, c. 17; 2021, Sp. Sess. I, c. 487.

§ 13.1-1075. Domestication.

A. A foreign limited liability company may become a domestic limited liability company if the laws of the jurisdiction in which the foreign limited liability company is organized authorize it to domesticate in another jurisdiction. The laws of the Commonwealth shall govern the effect of domesticating in the Commonwealth pursuant to this article.

B. A domestic limited liability company not required by law to be a domestic limited liability company may become a foreign limited liability company if the jurisdiction in which the limited liability company intends to domesticate allows for the domestication. Regardless of whether the laws of the foreign jurisdiction require the adoption of a plan of domestication, the domestication shall be approved in the manner provided in this article. The laws of the jurisdiction in which the limited liability company domesticates shall govern the effect of domesticating in that jurisdiction.

C. The plan of domestication shall set forth:

1. The name of the state or other jurisdiction under whose laws the domestic or foreign limited liability company is organized;

2. A statement of the jurisdiction in which the domestic or foreign limited liability company is to be domesticated;

3. The terms and conditions of the domestication, provided that such terms and conditions may not alter the ownership proportion and relative rights, preferences, and limitations of the interests of the limited liability company; and

4. For a foreign limited liability company that is to become a domestic limited liability company, as a referenced attachment, amended and restated articles of organization that comply with § 13.1-1011 as they will be in effect upon consummation of the domestication.

D. The plan of domestication may include any other provision relating to the domestication.

E. The plan of domestication may also include a provision that the members may amend the plan at any time prior to the effective date of the certificate of domestication or such other document required by the laws of the other jurisdiction to consummate the domestication.

2006, c. 912; 2012, c. 130; 2021, Sp. Sess. I, c. 487.

§ 13.1-1076. Action on plan of domestication by a domestic limited liability company.

In the case of a domestic limited liability company, unless the articles of organization or a written operating agreement of the limited liability company provides otherwise, the members of the limited liability company shall approve the plan of domestication in the manner provided in the limited liability company's operating agreement for amendments to the operating agreement by the members or, if no provision is made in an operating agreement, by all the members.

2006, c. 912; 2016, c. 288.

§ 13.1-1077. Articles of domestication.

A. After the domestication of a foreign limited liability company to a domestic limited liability company is approved in the manner required by the laws of the jurisdiction in which the limited liability company is organized, the limited liability company shall deliver to the Commission for filing articles of domestication setting forth:

1. The name of the foreign limited liability company immediately before the filing of the articles of domestication and the name of the limited liability company upon its domestication as a domestic limited liability company, which shall satisfy the requirements of § 13.1-1012;

2. The date on which the foreign limited liability company was originally formed, organized, or incorporated, and its original name, entity type, and jurisdiction of formation, organization, or incorporation, and, for each subsequent change of entity type or jurisdiction of formation, organization, or incorporation made before the filing of the articles of domestication, the effective date of the change and the limited liability company's name, entity type, and jurisdiction of formation, organization, or incorporation upon consummation of the change;

3. The plan of domestication, including the full text of the amended and restated articles of organization of the domestic limited liability company that comply with the requirements of this chapter, as they will be in effect upon consummation of the domestication; and

4. A statement that the domestication is permitted by the laws of the jurisdiction in which the foreign limited liability company is organized and that the foreign limited liability company has complied with those laws in effecting the domestication.

B. If the Commission finds that the articles of domestication comply with the requirements of law and that all required fees have been paid, it shall issue a certificate of domestication.

C. The certificate of domestication shall become effective pursuant to subsection D of § 13.1-1004.

D. A foreign limited liability company's existence as a domestic limited liability company shall begin when the certificate of domestication is effective. Upon becoming effective, the certificate of domestication shall be conclusive evidence that all conditions precedent required to be performed by the foreign limited liability company have been complied with and that the limited liability company has been organized under this chapter.

E. If the foreign limited liability company is authorized to transact business in the Commonwealth under Article 10 (§ 13.1-1051 et seq.), its certificate of registration shall be canceled automatically on the effective time and date of the certificate of domestication issued by the Commission.

2006, c. 912; 2012, c. 130; 2013, c. 17; 2016, c. 288.

§ 13.1-1078. Surrender of articles of organization upon domestication.

A. Whenever a domestic limited liability company has approved, in the manner required by this article, a plan of domestication providing for the limited liability company to be domesticated under the laws of another jurisdiction, the limited liability company shall deliver to the Commission for filing articles of organization surrender setting forth:

1. The name of the limited liability company immediately before the filing of the articles of organization surrender;

2. The jurisdiction in which the limited liability company is to be domesticated and the name of the limited liability company upon its domestication under the laws of that jurisdiction;

3. The plan of domestication;

4. A statement that the plan of domestication was adopted by the limited liability company in accordance with § 13.1-1076;

5. A statement that the articles of organization surrender are being filed in connection with the domestication of the limited liability company as a foreign limited liability company to be organized under the laws of another jurisdiction and that the limited liability company is surrendering its certificate of organization under the laws of this Commonwealth;

6. A statement that the limited liability company revokes the authority of its registered agent to accept service on its behalf and appoints the clerk of the Commission as its agent for service of process in any proceeding based on a cause of action arising during the time it was organized in the Commonwealth;

7. A mailing address to which the clerk may mail a copy of any process served on him under subdivision 6; and

8. A commitment by the limited liability company to notify the clerk of the Commission in the future of any change in the mailing address of the limited liability company.

B. If the Commission finds that the articles of organization surrender comply with the requirements of law and that all required fees have been paid, it shall issue a certificate of organization surrender.

C. The limited liability company shall automatically cease to be a domestic limited liability company when the certificate of organization surrender becomes effective.

D. If the former domestic limited liability company intends to continue to transact business in the Commonwealth, then, within thirty days after the effective date of the certificate of organization surrender, it shall deliver to the Commission an application for a certificate of registration to transact business in the Commonwealth pursuant to § 13.1-1052 together with a copy of its instrument of domestication and articles of organization and all amendments thereto, duly authenticated by the Secretary of State or other official having custody of limited liability company records in the state or other jurisdiction under whose laws it is organized or domesticated.

2006, c. 912; 2009, c. 201; 2016, c. 288.

§ 13.1-1079. Effect of domestication.

A. When a foreign limited liability company's certificate of domestication in this Commonwealth becomes effective, with respect to that limited liability company:

1. The title to all real estate and other property remains in the limited liability company without reversion or impairment;

2. The liabilities remain the liabilities of the limited liability company;

3. A proceeding pending may be continued by or against the limited liability company as if the domestication did not occur;

4. The articles of organization attached to the articles of domestication constitute the articles of organization of the limited liability company; and

5. The limited liability company is deemed to:

a. Be organized under the laws of this Commonwealth for all purposes;

b. Be the same limited liability company as the limited liability company that existed under the laws of the jurisdiction or jurisdictions in which it was originally organized or formerly domesticated; and

c. Have been organized on the date it was originally formed or organized.

B. Any member of a foreign limited liability company that domesticates into this Commonwealth who, prior to the domestication, was liable for the liabilities or obligations of the limited liability company is not released from those liabilities or obligations by reason of the domestication.

2006, c. 912.

§ 13.1-1080. Abandonment of domestication.

A. Unless otherwise provided in the plan of domestication, after a plan of domestication has been approved by a domestic limited liability company as required by this article, and at any time before the certificate of organization surrender has become effective, the plan may be abandoned by the limited liability company without action by its members in accordance with any procedures set forth in the plan or, if no procedures are set forth in the plan, by a vote of the members of the limited liability company that is equal to or greater than the vote cast for the plan of domestication pursuant to § 13.1-1076.

B. A domesticating limited liability company that is a foreign limited liability company may abandon its domestication to a domestic limited liability company in the manner prescribed by its organic law.

C. If a domestication is abandoned after articles of organization surrender or articles of domestication have been filed with the Commission but before the certificate of organization surrender or certificate of domestication has become effective, a statement of abandonment signed by the domesticating limited liability company shall be delivered to the Commission for filing prior to the effective time and date of the certificate of organization surrender or certificate of domestication. If the Commission finds that the statement of abandonment complies with the requirements of law, it shall issue a certificate of abandonment, effective as of the date and time the statement of abandonment was received by the Commission, and the domestication shall be deemed abandoned and shall not become effective.

D. The statement of abandonment shall contain:

1. The name of the domesticating limited liability company and its jurisdiction of formation;

2. When the domesticating limited liability company is a foreign limited liability company, the name of the domesticated limited liability company set forth in the articles of domestication;

3. The date on which the articles of organization surrender or articles of domestication were filed with the Commission;

4. The date and time on which the Commission's certificate of organization surrender or certificate of domestication becomes effective; and

5. A statement that domestication is being abandoned in accordance with this section or, when the domesticating limited liability company is a foreign limited liability company, a statement that the foreign limited liability company abandoned the domestication as required by its organic law.

2006, c. 912; 2016, c. 288; 2021, Sp. Sess. I, c. 487.