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2023-10-18How to Domesticate a Foreign Entity to Delaware
Domestication, sometimes known as re-domiciliation, transfer, continuance, is a process by which a non-U.S. entity transfers its domicile from a foreign jurisdiction to the U.S. while continuing the existence of the entity in its place of organization.
“Foreign jurisdiction” is defined in the Delaware General Corporation Law (the “Act”) as “any foreign country or other foreign jurisdiction (other that the United States, any state, the District of Columbia, or any possession or territory of the United States).”
“Non-United States entity” is defined in the Delaware General Corporation Law (the “Act”) as “a corporation, a limited liability company, a statutory trust, a business trust or association, a real estate investment trust, a common-law trust, or any other unincorporated business or entity, including a partnership (whether general (including a limited liability partnership) or limited (including a limited liability limited partnership)), formed, incorporated, created or that otherwise came into being under the laws of any foreign jurisdiction.”
According to the Section 388 of the Act, a non-U.S. entity looking to domesticate into Delaware should file a certificate of domestication, accompanied by a certificate of incorporation with the Delaware Secretary of State. The domestication should first be approved in the manner provided by the governing documents of the entity and by any applicable laws of the foreign jurisdiction. For a company to domesticate, it must be permitted in both in its originating jurisdiction and in the destination jurisdiction.
The certificate of corporate domestication shall certify:
(1) The date on which and jurisdiction where the non-United States entity was first formed, incorporated, created or otherwise came into being;
(2) The name of the non-United States entity immediately prior to the filing of the certificate of corporate domestication;
(3) The name of the corporation as set forth in its certificate of incorporation; and
(4) The jurisdiction that constituted the seat, siege social, or principal place of business or central administration of the non-United States entity or any other equivalent thereto under applicable law, immediately prior to the filing of the certificate of corporate domestication; and
(5) That the domestication has been approved in the manner provided for by the document, instrument, agreement or other writing, as the case may be, governing the internal affairs of the non-United States entity and the conduct of its business or by applicable non-Delaware law, as appropriate.
Once the certificate of domestication is effective, the non-U.S. entity is subject to all of the provisions of the Act and the existence of the corporation is deemed to have commenced on the date the non-U.S. entity commenced its existence in the jurisdiction in which it was first formed or incorporated.
According to the Act, domestication “the corporation shall be deemed to be the same entity as the domesticating non-United States entity and the domestication shall constitute a continuation of the existence of the domesticating non-United States entity in the form of a corporation of this State.” Further, all of the rights, privileges, and powers of the non-U.S. entity that has been domesticated, as well as all of its property (real, personal, and mixed) and all debts due to it, shall remain vested in and be the property of the corporation to which the non-U.S. entity has been domesticated.
Reference：
https://delcode.delaware.gov/title8/c001/sc17/index.html
http://publications.ruchelaw.com/news/2016-10/corpmat-domestication.pdf
“Foreign jurisdiction” is defined in the Delaware General Corporation Law (the “Act”) as “any foreign country or other foreign jurisdiction (other that the United States, any state, the District of Columbia, or any possession or territory of the United States).”
“Non-United States entity” is defined in the Delaware General Corporation Law (the “Act”) as “a corporation, a limited liability company, a statutory trust, a business trust or association, a real estate investment trust, a common-law trust, or any other unincorporated business or entity, including a partnership (whether general (including a limited liability partnership) or limited (including a limited liability limited partnership)), formed, incorporated, created or that otherwise came into being under the laws of any foreign jurisdiction.”
According to the Section 388 of the Act, a non-U.S. entity looking to domesticate into Delaware should file a certificate of domestication, accompanied by a certificate of incorporation with the Delaware Secretary of State. The domestication should first be approved in the manner provided by the governing documents of the entity and by any applicable laws of the foreign jurisdiction. For a company to domesticate, it must be permitted in both in its originating jurisdiction and in the destination jurisdiction.
The certificate of corporate domestication shall certify:
(1) The date on which and jurisdiction where the non-United States entity was first formed, incorporated, created or otherwise came into being;
(2) The name of the non-United States entity immediately prior to the filing of the certificate of corporate domestication;
(3) The name of the corporation as set forth in its certificate of incorporation; and
(4) The jurisdiction that constituted the seat, siege social, or principal place of business or central administration of the non-United States entity or any other equivalent thereto under applicable law, immediately prior to the filing of the certificate of corporate domestication; and
(5) That the domestication has been approved in the manner provided for by the document, instrument, agreement or other writing, as the case may be, governing the internal affairs of the non-United States entity and the conduct of its business or by applicable non-Delaware law, as appropriate.
Once the certificate of domestication is effective, the non-U.S. entity is subject to all of the provisions of the Act and the existence of the corporation is deemed to have commenced on the date the non-U.S. entity commenced its existence in the jurisdiction in which it was first formed or incorporated.
According to the Act, domestication “the corporation shall be deemed to be the same entity as the domesticating non-United States entity and the domestication shall constitute a continuation of the existence of the domesticating non-United States entity in the form of a corporation of this State.” Further, all of the rights, privileges, and powers of the non-U.S. entity that has been domesticated, as well as all of its property (real, personal, and mixed) and all debts due to it, shall remain vested in and be the property of the corporation to which the non-U.S. entity has been domesticated.
Reference：
https://delcode.delaware.gov/title8/c001/sc17/index.html
http://publications.ruchelaw.com/news/2016-10/corpmat-domestication.pdf
Disclaimer
All information in this article is only for the purpose of information sharing, instead of professional suggestion. Kaizen will not assume any responsibility for loss or damage.
WhatsApp/Line/Wechat: +852 5616 4140
All information in this article is only for the purpose of information sharing, instead of professional suggestion. Kaizen will not assume any responsibility for loss or damage.
WhatsApp/Line/Wechat: +852 5616 4140
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