Converting a Foreign Entity Into a Delaware Corporation

Delaware law allows a foreign corporation to convert to a Delaware corporation. (Del. Code Ann., tit. 8, 265.) The certificate of conversion must state the jurisdiction where, and the date on which, the other entity was incorporated, the name of the other entity immediately prior to the conversion, and the name of the Delaware corporation in the certificate of incorporation. (Del. Code Ann., tit. 8, 265, subd. (c).) Title 8, section 265 of the Delaware Code provides in pertinent part: "(a) As used in this section, the term 'other entity' means a limited liability company, statutory trust, business trust or association, real estate investment trust, common-law trust or any other unincorporated business including a partnership (whether general (including a limited liability partnership) or limited (including a limited liability limited partnership)), or a foreign corporation. (b) Any other entity may convert to a corporation of this State by complying with subsection (h) of this section and filing in the office of the Secretary of State: (1) A certificate of conversion to corporation that has been executed in accordance with subsection (i) of this section and filed in accordance with 103 of this title; and (2) A certificate of incorporation that has been executed, acknowledged and filed in accordance with 103 of this title. (c) The certificate of conversion to corporation shall state: (1) The date on which and jurisdiction where the other entity was first created, incorporated, formed or otherwise came into being and, if it has changed, its jurisdiction immediately prior to its conversion to a domestic corporation; (2) The name of the other entity immediately prior to the filing of the certificate of conversion to corporation; and (3) The name of the corporation as set forth in its certificate of incorporation filed in accordance with subsection (b) of this section. ... (d) Upon the effective time of the certificate of conversion to corporation and the certificate of incorporation, the other entity shall be converted to a corporation of this State and the corporation shall thereafter be subject to all of the provisions of this title, except that notwithstanding 106 of this title, the existence of the corporation shall be deemed to have 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. (e) The conversion of any other entity to a corporation of this State shall not be deemed to affect any obligations or liabilities of the other entity incurred prior to its conversion to a corporation of this State or the personal liability of any person incurred prior to such conversion. (f) When an other entity has been converted to a corporation of this State pursuant to this section, the corporation of this State shall, for all purposes of the laws of the State of Delaware, be deemed to be the same entity as the converting other entity . When any conversion shall have become effective under this section, for all purposes of the laws of the State of Delaware, all of the rights, privileges and powers of the other entity that has converted, and all property, real, personal and mixed, and all debts due to such other entity, as well as all other things and causes of action belonging to such other entity, shall remain vested in the domestic corporation to which such other entity has converted and shall be the property of such domestic corporation and the title to any real property vested by deed or otherwise in such other entity shall not revert or be in any way impaired by reason of this chapter; but all rights of creditors and all liens upon any property of such other entity shall be preserved unimpaired, and all debts, liabilities and duties of the other entity that has converted shall remain attached to the corporation of this State to which such other entity has converted, and may be enforced against it to the same extent as if said debts, liabilities and duties had originally been incurred or contracted by it in its capacity as a corporation of this State. The rights, privileges, powers and interests in property of the other entity, as well as the debts, liabilities and duties of the other entity, shall not be deemed, as a consequence of the conversion, to have been transferred to the domestic corporation to which such other entity has converted for any purpose of the laws of the State of Delaware. (g) Unless otherwise agreed for all purposes of the laws of the State of Delaware or as required under applicable non-Delaware law, the converting other entity shall not be required to wind up its affairs or pay its liabilities and distribute its assets, and the conversion shall not be deemed to constitute a dissolution of such other entity and shall constitute a continuation of the existence of the converting other entity in the form of a corporation of this State. (h) Prior to filing a certificate of conversion to corporation with the office of the Secretary of State, the conversion shall be 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 other entity and the conduct of its business or by applicable law, as appropriate, and a certificate of incorporation shall be approved by the same authorization required to approve the conversion." When the conversion of a foreign corporation to a Delaware corporation takes effect under Delaware law, the corporation's existence is deemed to have commenced on the date that the foreign corporation commenced its existence in the jurisdiction where it was incorporated. (Del. Code Ann., tit. 8, 265, subd. (d).) The conversion of a foreign corporation to a Delaware corporation does not affect "obligations or liabilities of the other entity incurred prior to its conversion to a Delaware corporation or the personal liability of any person incurred prior to such conversion." (Del. Code Ann., tit. 8, 265, subd. (e).) When a foreign corporation converts to a Delaware corporation pursuant to Delaware law, the resulting Delaware corporation is "deemed to be the same entity" as the converting foreign corporation. (Del. Code Ann., tit. 8, 265, subd. (f).) When the conversion takes effect under Delaware law, the foreign corporation's rights, privileges, powers, property interests and causes of action "remain vested" in the Delaware corporation to which the foreign corporation has converted and are not considered to have been transferred to the Delaware corporation. (Del. Code Ann., tit. 8, 265, subd. (f).) The converting foreign corporation is not required to wind up its affairs or pay its liabilities and distribute its assets, and the conversion is not deemed to constitute a dissolution of the foreign corporation. (Del. Code Ann., tit. 8, 265, subd. (g).)