Virginia Law

Article 12. Domestication and Conversion.

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

"Articles of organization" has the same meaning specified in § 13.1-1002.

"Converting entity" means the domestic or foreign business trust, corporation, limited liability company, limited partnership, partnership, or other entity that adopts a plan of domestication or plan of entity conversion pursuant to this article.

"Corporation" and "domestic corporation" have the same meaning specified in § 13.1-603.

"Domesticated business trust" means the domesticating business trust as it continues in existence after a domestication.

"Domesticating business trust" means the domestic business trust that approves a plan of domestication pursuant to § 13.1-1267 or the foreign business trust that approves a domestication pursuant to the organic law of the foreign business trust.

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

"Domestic entity" means a domestic corporation, limited liability company, limited partnership, partnership, or other entity.

"Foreign corporation" has the same meaning specified in § 13.1-603.

"Foreign entity" means a foreign business trust, corporation, limited liability company, limited partnership, partnership, or other entity.

"Foreign limited liability company" has the same meaning specified in § 13.1-1002.

"Foreign limited partnership" has the same meaning specified in § 50-73.1.

"Foreign partnership" has the same meaning specified in § 13.1-1002.

"Limited liability company" and "domestic limited liability company" have the same meaning specified in § 13.1-1002.

"Limited partnership" and "domestic limited partnership" have the same meaning specified in § 50-73.1.

"Member" has the same meaning specified in § 13.1-1002.

"Membership interest" or "interest" has the same meaning specified in § 13.1-1002.

"Other entity" means a domestic real estate investment trust or common law trust.

"Partnership" and "domestic partnership" mean an association of two or more persons to carry on as co-owners a business for profit formed under § 50-73.88, or predecessor law of this Commonwealth, and includes, for all purposes of the laws of this Commonwealth, a registered limited liability partnership.

"Resulting entity" means the domestic limited liability company or business trust that is in existence upon consummation of an entity conversion pursuant to this article.

"Surviving entity" means the domestic business trust that is in existence upon consummation of a domestication pursuant to this article.

2002, c. 621; 2016, c. 288; 2021, Sp. Sess. I, c. 487.

A. A foreign business trust may become a domestic business trust if the laws of the jurisdiction in which the foreign entity is formed authorize it to domesticate in another jurisdiction. The laws of this Commonwealth shall govern the effect of domesticating in this Commonwealth pursuant to this article.

B. A domestic business trust not required by law to be a domestic business trust may become a foreign business trust if the jurisdiction in which the business trust 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 business trust domesticates shall govern the effect of domesticating in that jurisdiction.

2002, c. 621; 2021, Sp. Sess. I, c. 487.

A. The plan of domestication shall set forth:

1. The name of the state or other jurisdiction under whose laws the domestic business trust or foreign entity is formed, organized, or incorporated;

2. A statement of the jurisdiction in which the domestic business trust or foreign entity is to be domesticated;

3. The terms and conditions of the domestication, provided that such terms and conditions may not alter the ownership proportion or the relative rights, preferences and limitations of the interests of the beneficial owners except to the extent required to conform to the requirements of this chapter; and

4. For a foreign entity that is to become a domestic business trust, as a referenced attachment, the amended and restated articles of trust that comply with § 13.1-1212 as they will be in effect upon consummation of the domestication.

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

C. The plan of domestication may also include a provision that the management of the converting entity may amend the plan at any time prior to issuance of the certificate of domestication or such other document required by the laws of the other jurisdiction to consummate the domestication. An amendment made subsequent to the submission of the plan to the beneficial owners of the foreign entity, if required, shall not alter or change any of the terms or conditions of the plan if the change would adversely affect the interests of the beneficial owners.

2002, c. 621; 2012, c. 130.

A. The plan of domestication shall be approved by the trustees of the domestic business trust in the manner provided in the business trust's governing instrument or articles of trust for amendments or, if no such provision is made in a governing instrument or articles of trust, by the sole trustee or a majority of the trustees of the business trust.

B. The business trust shall notify each trustee, whether or not entitled to vote, and each member of a voting group of the proposed trustees' meeting at which the plan of domestication is to be submitted for approval. The notice, which shall be given no less than twenty-five nor more than sixty days before the meeting date, shall state that a purpose of the meeting is to consider the plan of domestication and shall contain or be accompanied by a copy of the plan.

2002, c. 621.

A. After the domestication of a foreign entity is approved in the manner required by the laws of the jurisdiction in which the foreign entity is formed, the foreign entity shall file with the Commission articles of domestication setting forth:

1. The name of the foreign entity immediately prior to the filing of the articles of domestication and, if that name is unavailable for use in the Commonwealth or the foreign entity desires to change its name in connection with the domestication, a name that satisfies the requirements of § 13.1-1214;

2. The plan of domestication;

3. The original jurisdiction, entity type and date of formation of the foreign entity, and each subsequent jurisdiction, entity type and date the foreign entity was domesticated in each such jurisdiction or converted to a new entity type, if any, prior to the filing of the articles of domestication; and

4. A statement that the domestication is permitted by the laws of the jurisdiction in which the business trust is formed and that the business trust 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 § 13.1-1203.

D. A foreign entity's existence as a domestic business trust 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 business trust have been complied with and that the business trust has been formed under this chapter.

E. If the foreign business trust is authorized to transact business in the Commonwealth under Article 9 (§ 13.1-1241 et seq.), its certificate of authority shall be canceled automatically on the effective date of the certificate of domestication issued by the Commission.

2002, c. 621; 2012, c. 130.

A. Whenever a domestic business trust has adopted and approved, in the manner required by this article, a plan of domestication providing for the business trust to be domesticated under the laws of another jurisdiction, the business trust shall file with the Commission articles of trust surrender setting forth:

1. The name of the business trust;

2. The business trust's new jurisdiction of formation;

3. The business trust's new entity type, if any;

4. The plan of domestication;

5. A statement that the articles of trust surrender are being filed in connection with the domestication of the business trust as a foreign entity to be formed under the laws of another jurisdiction and that the business trust is surrendering its charter under the laws of this Commonwealth;

6. A statement that the plan was adopted by the business trust in accordance with § 13.1-1267;

7. A statement that the domestic business trust 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 formed in this Commonwealth;

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

9. A commitment to notify the clerk of the Commission in the future of any change in the mailing address of the business trust.

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

C. The business trust shall automatically cease to be a domestic business trust when the certificate of trust surrender becomes effective.

D. If the former domestic business trust intends to continue to transact business in the Commonwealth, then, within thirty days after the effective date of the certificate of trust surrender, it shall deliver to the Commission an application for a certificate of authority to transact business in the Commonwealth pursuant to the applicable provisions of the Code of Virginia for the resulting entity type of the former domestic business trust.

2002, c. 621.

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

1. The title to all real estate and other property remains in the business trust without reversion or impairment;

2. The liabilities remain the liabilities of the business trust;

3. A proceeding pending may be continued by or against the business trust as if the domestication did not occur;

4. The articles of trust attached to the articles of domestication constitute the articles of trust of the business trust; and

5. The business trust is deemed to:

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

b. Be the same business trust as the business trust that existed under the laws of the jurisdiction or jurisdictions in which it was originally formed or formerly domiciled; and

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

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

2002, c. 621.

A. Unless otherwise provided in the plan of domestication, after a plan of domestication has been approved by a domestic business trust as required by this article, and at any time before the certificate of trust surrender or certificate of domestication has become effective, the plan may be abandoned by the business trust without action by its trustees in accordance with any procedures set forth in the plan or, if no such procedures are set forth in the plan, by a vote of the trustees that is equal to or greater than the vote cast for the plan of domestication pursuant to § 13.1-1267.

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

C. If a domestication is abandoned after articles of trust surrender or articles of domestication have been filed with the Commission but before the certificate of trust surrender or certificate of domestication has become effective, a statement of abandonment signed by the domesticating business trust shall be delivered to the Commission for filing prior to the effective time and date of the certificate of trust 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 business trust and its jurisdiction of formation;

2. When the domesticating business trust is a foreign business trust, the name of the domesticated business trust set forth in the articles of domestication;

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

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

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

2002, c. 621; 2021, Sp. Sess. I, c. 487.

A. A domestic business trust may become a domestic limited liability company pursuant to a plan of entity conversion that is approved by the domestic business trust in accordance with the provisions of this article.

B. A domestic limited liability company may become a domestic business trust pursuant to a plan of entity conversion that is approved by the limited liability company in accordance with the provisions of Article 15 (§ 13.1-1081 et seq.) of Chapter 12.

C. Unless otherwise provided for in Chapter 2.2 (§ 50-73.79 et seq.) of Title 50, a domestic partnership that has filed either a statement of partnership authority or a statement of registration as a registered limited liability partnership with the Commission that is not canceled may become a domestic business trust pursuant to a plan of entity conversion that is approved by the domestic partnership in accordance with the provisions of this article.

D. Unless otherwise provided for in Chapter 2.1 (§ 50-73.1 et seq.) of Title 50, a domestic limited partnership that has filed a certificate of limited partnership with the Commission that is not canceled may become a domestic business trust pursuant to a plan of entity conversion that is approved by the domestic limited partnership in accordance with the provisions of this article.

E. An other entity may become a domestic business trust pursuant to a plan of entity conversion that is approved by the other entity in accordance with the provisions of its governing instrument for amendments to the governing instrument.

2002, c. 621; 2016, c. 288.

A. In the case of a domestic business trust that is a converting entity:

1. The business trust shall approve a plan of entity conversion setting forth:

a. A statement of the business trust's intention to convert to a domestic limited liability company;

b. The terms and conditions of the conversion, including the manner and basis of converting the beneficial interests of the business trust into membership interests of the limited liability company, preserving the ownership proportion and relative rights, preferences, and limitations of each beneficial interest;

c. As an attachment to the plan, the full text of the articles of organization of the converting entity as they will be in effect upon consummation of the conversion; and

d. Any other provision relating to the conversion that may be desired.

2. The plan of entity conversion may also include a provision that the plan may be amended before the effective time and date of the certificate of entity conversion. An amendment made after the submission of the plan to the trustees shall not alter or change any of the terms or conditions of the plan if the change would adversely affect the beneficial interests of the converting entity, unless the amendment has been approved by the trustees in the manner set in § 13.1-1274.

B. In the case of a domestic partnership or limited partnership that is a converting entity:

1. The partnership or limited partnership shall approve a plan of entity conversion setting forth:

a. A statement of the partnership's or limited partnership's intention to convert to a domestic business trust;

b. The terms and conditions of the conversion, including the manner and basis of converting the partnership interests of the limited partnership or partnership into beneficial interests of the business trust, preserving the ownership proportion and relative rights, preferences, and limitations of each partnership interest;

c. As an attachment to the plan, the full text of the articles of trust of the resulting entity as they will be in effect upon consummation of the conversion; and

d. Any other provision relating to the conversion that may be desired.

2. The plan of entity conversion may also include a provision that the plan may be amended before the effective time and date of the certificate of entity conversion. An amendment made after the submission of the plan:

a. To the partners of a partnership shall not alter or change any of the terms or conditions of the plan if the change would adversely affect the partnership interests of the partnership, unless the amendment has been approved by the partners in the manner set forth in § 13.1-1274; and

b. To the partners of a limited partnership shall not alter or change any of the terms or conditions of the plan if the change would adversely affect the partnership interests of the limited partnership, unless the amendment has been approved by the partners in the manner set forth in § 13.1-1274.

C. In the case of an other entity that is a converting entity:

1. The other entity shall approve a plan of entity conversion setting forth:

a. A statement of the other entity's intention to convert to a domestic business trust;

b. The terms and conditions of the conversion, including the manner and basis of converting the interests of the other entity into beneficial interests of the business trust, preserving the ownership proportion and relative rights, preferences, and limitations of each interest of the other entity;

c. As an attachment to the plan, the full text of the articles of trust of the resulting entity as they will be in effect upon consummation of the conversion; and

d. Any other provision relating to the conversion that may be desired.

2. The plan of entity conversion may also include a provision that the plan may be amended before the effective time and date of the certificate of entity conversion. An amendment made after the submission of the plan to the persons who are authorized to approve the plan of entity conversion on behalf of the other entity shall not alter or change any of the terms or conditions of the plan if the change would adversely affect the interests of the other entity, unless the amendment has been approved by the persons who are authorized to approve the plan in the manner set forth in § 13.1-1274.

2002, c. 621; 2016, c. 288.

A. In the case of a domestic business trust that is a converting entity, unless the articles of trust or governing instrument of the business trust provides otherwise, the plan of entity conversion shall be approved by the trustees of the business trust in the manner provided in a written governing instrument for amendments to the governing instrument by the trustees or, if no provision is made in the governing instrument, by the sole trustee or a majority of the trustees.

B. In the case of a partnership that is a converting entity, the plan of entity conversion shall be approved by the partners of the partnership in the manner provided in a written partnership agreement for amendments to the partnership agreement by the partners or, if no provision is made in the partnership agreement, by all the partners.

C. In the case of a limited partnership that is a converting entity, the plan of entity conversion shall be approved by the partners of the limited partnership in the manner provided in a written partnership agreement for amendments to the partnership agreement by the partners or, if no provision is made in the partnership agreement, by all the partners.

D. In the case of an other entity that is a converting entity, the plan of entity conversion shall be approved by the persons who have authority to approve the entity conversion in the manner provided in a written governing instrument for amendments to the governing instrument by those persons or, if no provision is made in the governing instrument, by all the persons who have authority to approve the entity conversion on behalf of the other entity.

2002, c. 621; 2016, c. 288.

A. After the conversion of a domestic business trust into a domestic limited liability company has been approved as required by this article, the converting entity shall deliver to the Commission for filing articles of entity conversion setting forth:

1. The name of the domestic business trust immediately before the filing of the articles of entity conversion and the name of the converting entity upon its conversion to a domestic limited liability company, which shall satisfy the requirements of § 13.1-1012;

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

3. The plan of entity conversion, including the full text of the articles of organization of the resulting entity that comply with the requirements of Chapter 12 (§ 13.1-1000 et seq.), as they will be in effect upon consummation of the conversion;

4. The date the plan of entity conversion was approved; and

5. A statement that the plan of entity conversion was adopted by the business trust in accordance with § 13.1-1274.

B. After the conversion of a domestic partnership or limited partnership into a domestic business trust has been approved as required by this article, the converting entity shall deliver to the Commission for filing articles of entity conversion setting forth:

1. The name of the domestic partnership or limited partnership immediately before the filing of the articles of entity conversion and the name of the converting entity upon its conversion to a domestic business trust, which shall satisfy the requirements of this chapter;

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

3. The plan of entity conversion, including the full text of the articles of trust of the resulting entity that comply with the requirements of this chapter as they will be in effect upon consummation of the conversion;

4. The date the plan of entity conversion was approved; and

5. A statement that the plan of entity conversion was adopted by the partnership or limited partnership in accordance with § 13.1-1274.

C. After the conversion of an other entity into a domestic business trust has been approved as required by this article, the converting entity shall deliver to the Commission for filing articles of entity conversion setting forth:

1. The name of the other entity immediately before the filing of the articles of entity conversion and the name of the converting entity upon its conversion to a domestic business trust, which shall satisfy the requirements of this chapter;

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

3. The plan of entity conversion, including the full text of the articles of trust of the resulting entity that comply with the requirements of this chapter as they will be in effect upon consummation of the conversion;

4. The date the plan of entity conversion was approved; and

5. A statement that the plan of entity conversion was adopted by the other entity in accordance with § 13.1-1274.

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

2002, c. 621; 2016, c. 288.

A. When an entity conversion under this article becomes effective, with respect to that entity:

1. The title to all real estate and other property remains in the resulting entity without reversion or impairment;

2. The liabilities of the converting entity remain the liabilities of the resulting entity; and

3. A proceeding pending may be continued by or against the resulting entity as if the conversion did not occur.

B. When the resulting entity is a domestic limited liability company:

1. The articles of organization attached to the articles of entity conversion constitute the articles of organization of the resulting entity;

2. The beneficial interests of the converting entity are reclassified into membership interests of the resulting entity in accordance with the plan of entity conversion; and the holders of the beneficial interests of the converting entity are entitled only to the rights provided in the plan of entity conversion;

3. The resulting entity is deemed to:

a. Be a domestic limited liability company for all purposes;

b. Be the same limited liability company without interruption as the converting entity that existed before the conversion; and

c. Have been organized on the date that the converting entity was originally incorporated, organized, or formed;

4. The converting entity shall cease to be a business trust when the certificate of entity conversion becomes effective; and

5. Any trustee of a converting entity who, before the conversion, was liable for the liabilities or obligations of the converting entity is not released from those liabilities or obligations by reason of the conversion.

C. When the converting entity is a partnership or a limited partnership:

1. The articles of trust attached to the articles of entity conversion constitute the articles of trust of the resulting entity;

2. The partnership interests of the converting entity are reclassified into beneficial interests of the resulting entity in accordance with the plan of entity conversion; and the partners of the converting entity are entitled only to the rights provided in the plan of entity conversion;

3. The resulting entity is deemed to:

a. Be a domestic business trust for all purposes;

b. Be the same business trust without interruption as the converting entity that existed before the conversion; and

c. Have been organized on the date that the converting entity was originally formed, organized, or incorporated;

4. The converting entity shall cease to be a partnership or limited partnership when the certificate of entity conversion becomes effective;

5. If the converting entity is a partnership, a statement of partnership authority filed by the partnership that has not been canceled shall be deemed canceled when the certificate of entity conversion becomes effective;

6. If the converting entity is a limited partnership, its certificate of limited partnership shall be deemed canceled when the certificate of entity conversion becomes effective;

7. If the partnership or limited partnership is registered as a registered limited liability partnership, that status shall be deemed canceled when the certificate of entity conversion becomes effective; and

8. Any partner of a converting entity who, before the conversion, was liable for the liabilities or obligations of the converting entity is not released from those liabilities or obligations by reason of the conversion.

D. When the converting entity is an other entity:

1. The articles of trust attached to the articles of entity conversion constitute the articles of trust of the resulting entity;

2. The shares or interests of the converting entity are reclassified into beneficial interests of the resulting entity in accordance with the plan of entity conversion; and the persons having an interest in the converting entity are entitled only to the rights provided in the plan of entity conversion;

3. The surviving entity is deemed to:

a. Be a business trust for all purposes;

b. Be the same business trust without interruption as the converting entity that existed before the conversion; and

c. Have been formed on the date that the converting entity was originally incorporated, organized, or formed; and

4. The converting entity shall cease to be an other entity when the certificate of entity conversion becomes effective.

2002, c. 621; 2005, c. 765; 2016, c. 288.

A. Unless otherwise provided in the plan of entity conversion, after a plan of entity conversion has been approved by the converting entity in the manner required by this article and at any time before the certificate of entity conversion has become effective, the plan may be abandoned by the converting entity without action by its trustees or partners, as the case may be, in accordance with any procedures set forth in the plan or, if no such procedures are set forth in the plan:

1. When the converting entity is a business trust, by a vote of the trustees of the business trust that is equal to or greater than the vote cast for the plan of entity conversion pursuant to subsection A of § 13.1-1274;

2. When the converting entity is a domestic partnership, by a vote of the partners of the domestic partnership that is equal to or greater than the vote cast for the plan of entity conversion pursuant to subsection B of § 13.1-1274;

3. When the converting entity is a domestic limited partnership, by a vote of the partners of the domestic limited partnership that is equal to or greater than the vote cast for the plan of entity conversion pursuant to subsection C of § 13.1-1274; and

4. When the converting entity is an other entity, by a vote of the persons who had authority to approve the entity conversion on behalf of the other entity that is equal to or greater than the vote cast for the plan of entity conversion pursuant to subsection D of § 13.1-1274.

B. If an entity conversion is abandoned after articles of entity conversion have been filed with the Commission but before the certificate of entity conversion has become effective, a statement of abandonment shall be signed on behalf of the converting entity and delivered to the Commission for filing prior to the effective time and date of the certificate of entity conversion. 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 entity conversion shall be deemed abandoned and shall not become effective.

C. The statement of abandonment shall contain:

1. The name of the converting entity and its entity type;

2. The name of the resulting entity set forth in the articles of entity conversion;

3. The date on which the articles of the entity conversion were filed with the Commission;

4. The date and time on which the Commission's certificate of entity conversion becomes effective; and

5. A statement that the entity conversion is being abandoned in accordance with this section.

2002, c. 621; 2016, c. 288; 2021, Sp. Sess. I, c. 487.