Delaware Company Converting From a Corporation To A Limited Liability Company - Q2 2000

By the Division of Banks

A sales finance company licensed pursuant to Mass. Gen. Laws chapter 255B and its implementing regulation at 209 CMR 20.00 et seq., wishes to change its form of organization to a limited liability company under Delaware law. This change will require a change in the name of the corporation.

The subject of converting from a corporation to a limited liability company is addressed at 6 Del. C. sec 18-214. Paragraph (d) to said section provides that "[U]pon the filing in the office of the Secretary of State of the certificate of conversion to limited liability company and the certificate of formation or upon the future effective date or time of the certificate of conversion to limited liability company and the limited liability company shall thereafter be subject to all the provisions of this chapter...the existence of the limited liability company shall be deemed to have been commenced on the date the other entity commenced its existence in the jurisdiction in which the other entity was first created, formed, incorporated or otherwise came into being." The term "other company" includes a corporation such as this one. In essence, the corporation is converting directly into a limited liability company under Delaware law with its date of formation being deemed to being when the company was incorporated.

It is the position of the Division that based upon the facts described above as well as applicable law that the authority granted to the company inures to the resulting limited liability corporation. However, the Division notes that the limited liability will have a name different from that originally granted.