As used in this article, unless the context otherwise requires:
(1) "Certificate of limited partnership" means the certificate referred to in section eight of this article and the certificate as amended;
(2) "Contribution" means any cash, property, services rendered or a promissory note or other binding obligation to contribute cash or property or to perform services, which a partner contributes to a limited partnership in his or her capacity as a partner;
(3) "Deliver" or "delivery" means any method of delivery used in conventional commercial practice, including, but not limited to, delivery by hand, mail, commercial delivery and electronic transmission;
(4) "Electronic transmission" or "electronically transmitted" means any process of communication not directly involving the physical transfer of paper that is suitable for the retention, retrieval and reproduction of information by the recipient;
(5) "Event of withdrawal of a general partner" means an event that causes a person to cease to be a general partner as provided in section twenty-three of this article;
(6) "Foreign limited partnership" means a partnership formed under the laws of any state other than this state and having as partners one or more general partners and one or more limited partners;
(7) "General partner" means a person who has been admitted to a limited partnership as a general partner in accordance with the partnership agreement and named in the certificate of limited partnership as a general partner;
(8) "Limited partner" means a person who has been admitted to a limited partnership as a limited partner in accordance with the partnership agreement;
(9) "Limited partnership" and "domestic limited partnership" means a partnership formed by two or more persons under the laws of this state and having one or more general partners and one or more limited partners;
(10) "Partner" means a limited or general partner;
(11) "Partnership agreement" means any valid agreement, written or oral, of the partners as to the affairs of a limited partnership and the conduct of its business;
(12) "Partnership interest" means a partner's share of the profits and losses of a limited partnership and the right to receive distributions of partnership assets;
(13) "Person" means a natural person, partnership, limited partnership (domestic or foreign), limited liability company, professional limited liability company, trust, estate, association, corporation, or any other legal or commercial entity;
(14) "Sign" or "signature" includes, but is not limited to, any manual, facsimile, conformed or electronic signature with means to identify a record by a signature, mark or other symbol, with intent to authenticate it; and
(15) "State" means a state, territory or possession of the United States, the District of Columbia or the Commonwealth of Puerto Rico.
(1) Shall contain the words "limited partnership," or the abbreviation "Ltd. Partnership," "LP" or "L.P.";
(2) May not contain the name of a limited partner unless: (i) It is also the name of a general partner or the corporate name of a corporate general partner; or (ii) the business of the limited partnership had been carried on under the name before the admission of that limited partner;
(3) May not be the same as, and must be distinguishable from, the name of any corporation, limited partnership, limited liability partnership, or limited liability company organized under the laws of this state or licensed or registered as a foreign corporation, limited partnership, limited liability partnership, or limited liability company in this state; and
(4) May not include the words "engineer", "engineers", "engineering" or any combination of those words unless the purpose of the corporation is to practice professional engineering as defined in article thirteen, chapter thirty of this code, as amended, and one or more of the incorporators is a registered professional engineer as defined therein.
(1) Any person intending to organize a limited partnership under this article and to adopt that name;
(2) Any domestic limited partnership or any foreign limited partnership registered in this state which, in either case, intends to adopt that name;
(3) Any foreign limited partnership intending to register in this state and adopt that name; and
(4) Any person intending to organize a foreign limited partnership and intending to have it registered in this state and adopt that name.
(b) The reservation shall be made by filing with the secretary of state an application, executed by the applicant, to reserve a specified name along with the fee prescribed by section two, article one, chapter fifty-nine of this code. If the secretary of state finds that the name is available for use by a domestic or foreign limited partnership, he shall reserve that name for the exclusive use of the applicant for a period of one hundred twenty days. The reservation may be renewed for one additional period of one hundred twenty days, but may not thereafter be reserved by the same or associated persons within one calendar year of the expiration of the last reservation period. The right to the exclusive use of a reserved name may be transferred to any other person by filing in the office of the secretary of state a notice of the transfer, executed by the applicant for whom the name was reserved and specifying the name and address of the transferee.
Any foreign limited partnership which shall conduct affairs or do or transact business in this state without having been authorized so to do pursuant to the provisions of this article shall be conclusively presumed to have appointed the Secretary of State as its attorney-in-fact with authority to accept service of notice and process on behalf of such limited partnership and upon whom service of notice and process may be made in this state for and upon every such limited partnership in any action or proceeding described in the next following paragraph of this section. No act of such limited partnership appointing the Secretary of State as such attorney-in-fact shall be necessary. Immediately after being served with or accepting any such process or notice, of which process or notice two copies for each defendant shall be furnished the Secretary of State with the original notice or process, together with the fee required by section two, article one, chapter fifty-nine of this code, the Secretary of State shall file in his office a copy of such process or notice, with a note thereon endorsed of the time of service or acceptance, as the case may be, and transmit one copy of such process or notice by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to such limited partnership at the address of its principal office, which address shall be stated in such process or notice. Such service or acceptance of such process or notice shall be sufficient if such return receipt shall be signed by an agent or employee of such limited partnership. After receiving verification from the United States postal service that acceptance of process or notice has been signed, the Secretary of State shall notify the clerk's office of the court from which the process or notice was issued by a means which may include electronic notification. If the process or notice was refused or undeliverable by the United States postal service the Secretary of State shall return refused or undeliverable mail to the clerk's office of the court from which the process or notice was issued. No process or notice shall be served on the Secretary of State or accepted by him less than ten days before the return date thereof. The court may order such continuances as may be reasonable to afford each defendant opportunity to defend the action or proceedings.
For the purpose of this section, a foreign limited partnership not authorized to conduct affairs or do or transact business in this state pursuant to the provisions of this article shall nevertheless be deemed to be conducting affairs or doing or transacting business herein: (a) If such limited partnership makes a contract to be performed, in whole or in part, by any party thereto in this state; (b) if such limited partnership commits a tort, in whole or in part, in this state; or (c)if such limited partnership manufactures, sells, offers for sale or supplies any product in a defective condition and such product causes injury to any person or property within this state notwithstanding the fact that such limited partnership had no agents, servants or employees or contacts within this state at the time of said injury. The making of such contract, the committing of such tort or the manufacture or sale, offer of sale or supply of such defective product as herein above described shall be deemed to be the agreement of such limited partnership that any notice or process served upon, or accepted by, the Secretary of State pursuant to the next preceding paragraph of this section in any action or proceeding against such limited partnership arising from or growing out of such contract, tort or manufacture or sale, offer of sale or supply of such defective product shall be of the same legal force and validity as process duly served on such limited partnership in this state.
(1) A current list of the full name and last known business address of each partner, separately identifying the general and the limited partners, set forth in alphabetical order;
(2) A copy of the certificate of limited partnership and all certificates of amendment thereto, together with executed copies of any power of attorney pursuant to which any certificate has been executed;
(3) A copy of the limited partnership's federal, state and local income tax returns and reports, if any, for the three most recent years;
(4) A copy of any then effective written partnership agreements and of any financial statements of the limited partnership for the three most recent years; and
(5) Unless contained in a written partnership agreement, a writing setting out:
(A) The amount of cash and a description and statement of the agreed value of the other property or services contributed by each partner and which each partner has agreed to contribute;
(B) The times at which or events on the happening of which any additional contributions agreed to be made by each partner are to be made;
(C) Any right of a partner to receive, or of a general partner to make, distributions to a partner which include a return of all or any part of the partner's contribution; and
(D) Any events upon the happening of which the limited partnership is to be dissolved and its affairs wound up.
(b) Such records shall be available for inspection and copying at the reasonable request, and at the expense, of any partner during ordinary business hours.
(1) The name of the limited partnership;
(2) The general character of its business;
(3) The mailing address of the principal office and the name and address of the agent for service of process, if any;
(4) The name and the business address of each general partner;
(5) Any other matters the general partners determine to include therein.
(b) A limited partnership is formed at the time of the filing of the certificate of limited partnership in the office of the Secretary of State or at any later time specified in the certificate of limited partnership if, in either case, there has been substantial compliance with the requirements of this section.
(1) The name of the limited partnership;
(2) The date of the filing of the certificate; and
(3) The amendment to the certificate.
(b) Within thirty days after the happening of any of the following events, an amendment to a certificate of limited partnership reflecting the occurrence of the event or events shall be filed:
(1) The admission of a new partner;
(2) The withdrawal of a partner; or
(3) The continuation of the business under section forty-four of this article after an event of withdrawal of a general partner.
(c) A general partner who becomes aware that any statement in a certificate of limited partnership was false when made or that any arrangements or other facts described have changed, making the certificate inaccurate in any respect, shall promptly amend the certificate.
(d) A certificate of limited partnership may be amended at any time for any other proper purpose the general partners determine.
(e) No person has any liability because an amendment to a certificate of limited partnership has not been filed to reflect the occurrence of any event referred to in subsection (b) of this section if the amendment is filed within the thirty-day period specified in subsection (b).
(f) A restated certificate of limited partnership may be executed and filed in the same manner as a certificate of amendment.
(1) The name of the limited partnership;
(2) The date of filing of its certificate of limited partnership;
(3) The reason for filing the certificate of cancellation;
(4) The effective date, which shall be a date certain, of cancellation if it is not to be effective upon the filing of the certificate; and
(5) Any other information the general partners filing the certificate determine.
(1) An original certificate of limited partnership must be signed by all general partners;
(2) A certificate of amendment must be signed by at least one general partner and by each other general partner designated in the certificate as a new general partner; and
(3) A certificate of cancellation must be signed by all general partners.
(b) Any person may sign a certificate by an attorney-in-fact, but a power of attorney to sign a certificate relating to the admission of a general partner must specifically describe the admission.
(c) The execution of a certificate by a general partner constitutes an affirmation under the penalties of perjury that the facts stated therein are true.
(a) One signed copy of the certificate of limited partnership and of any certificates of amendment or cancellation, or of any judicial decree of amendment or cancellation, shall be delivered to the secretary of state. Delivery may be made by electronic transmission if permitted by the secretary of state. A person who executes a certificate as an agent or fiduciary need not exhibit evidence of his authority as a prerequisite to filing. Unless the secretary of state finds that any certificate does not conform to law, upon receipt of all filing fees required by law, he or she shall file it and deliver to the limited partnership or its representative a receipt for the record and the fees.
(b) Upon the filing of a certificate of amendment, or judicial decree of amendment, in the office of the secretary of state the certificate of limited partnership shall be amended as set forth therein, and upon the effective date of a certificate of cancellation, or a judicial decree thereof, the certificate of limited partnership is canceled.
This filing, or failure to file, shall in no way affect the formation of the limited partnership. Only the filing in the office of the secretary of state, required by section eight of this article, shall determine the validity of the limited partnership.
(1) Any person who executes the certificate, or causes another to execute it on his behalf, and knew, and any general partner who knew or should have known, the statement to be false at the time the certificate was executed; and
(2) Any general partner who thereafter knows or should have known that any arrangement or other fact described in the certificate has changed, making the statement inaccurate in any respect within a sufficient time before the statement was relied upon reasonably to have enabled that general partner to cancel or amend the certificate, or to file a petition for its cancellation or amendment under section twelve of this article.
Upon the return by the secretary of state pursuant to section thirteen of this article of a receipt for the record and the fees the general partners shall promptly deliver or mail a copy of the receipt for the record and the fees to each limited partner unless the partnership agreement provides otherwise.
(1) The date the original certificate of limited partnership is filed; or
(2) The date stated in the records of the limited partnership as the date that person becomes a limited partner.
(b) After the filing of a limited partnership's original certificate of limited partnership, a person may be admitted as an additional limited partner:
(1) In the case of a person acquiring a partnership interest directly from the limited partnership, upon the compliance with the partnership agreement or, if the partnership agreement does not so provide, upon the written consent of all partners; and
(2) In the case of an assignee of a partnership interest of a partner who has the power, as provided in section forty- two of this article, to grant the assignee the right to become a limited partner, upon the exercise of that power and compliance with any conditions limiting the grant or exercise of that power.
(b) A limited partner does not participate in the control of the business within the meaning of subsection (a) of this section solely by doing one or more of the following:
(1) Being a contractor for or an agent or employee of the limited partnership or of a general partner or being an officer, director or shareholder of a general partner that is a corporation;
(2) Consulting with and advising a general partner with respect to the business of the limited partnership;
(3) Acting as surety for the limited partnership or guaranteeing or assuming one or more specific obligations of the limited partnership;
(4) Taking any action required or permitted by law to bring or pursue a derivative action in the right of the limited partnership;
(5) Requesting or attending a meeting of partners;
(6) Proposing, approving or disapproving, by voting or otherwise on one or more of the following matters:
(i) The dissolution and winding up of the limited partnership;
(ii) The sale, exchange, lease, mortgage, pledge or other transfer of all or substantially all of the assets of the limited partnership;
(iii) The incurrence of indebtedness by the limited partnership other than in the ordinary course of its business;
(iv) A change in the nature of the business;
(v) The admission or removal of a general partner;
(vi) The admission or removal of a limited partner;
(vii) A transaction involving an actual or potential conflict of interest between a general partner and the limited partnership or the limited partners;
(viii) An amendment to the partnership agreement or certificate of limited partnership; or
(ix) Matters related to the business of the limited partnership not otherwise enumerated in this subsection (b), which the partnership agreement states in writing may be subject to the approval or disapproval of limited partners;
(7) Winding up the limited partnership pursuant to section forty-six of this article; or
(8) Exercising any right or power permitted to limited partners under this article and not specifically enumerated in this subsection (b).
(c) The enumeration in subsection (b) of this section does not mean that the possession or exercise of any other powers by a limited partner constitutes participation by him in the business of the limited partnership.
(d) A limited partner who knowingly permits his name to be used in the name of the limited partnership, except under circumstances permitted by subdivision (2), section two of this article, is liable to creditors who extend credit to the limited partnership without actual knowledge that the limited partner is not a general partner.
(1) Causes an appropriate certificate of limited partnership or a certificate of amendment to be executed and filed; or
(2) Withdraws from future equity participation in the enterprise by executing and filing in the office of the secretary of state a certificate declaring withdrawal under this section.
(b) A person who makes a contribution of the kind described in subsection (a) of this section, is liable as a general partner to any third party who transacts business with the enterprise (i) before the person withdraws and an appropriate certificate is filed to show withdrawal, or (ii) before an appropriate certificate is filed to show that he is not a general partner, but in either case only if the third party actually believed in good faith that the person was a general partner at the time of the transaction.
(1) Inspect and copy any of the partnership records required to be maintained by section five of this article;
(2) Obtain from the general partners from time to time upon reasonable demand (i) true and full information regarding the state of the business and financial condition of the limited partnership, (ii) promptly after becoming available, a copy of the limited partnership's federal, state and local income tax returns from each year, and (iii) other information regarding the affairs of the limited partnership as is just and reasonable.
(1) The general partner withdraws from the limited partnership as provided in section thirty-two of this article;
(2) The general partner ceases to be a member of the limited partnership as provided in section forty of this article;
(3) The general partner is removed as a general partner in accordance with the partnership agreement;
(4) Unless otherwise provided for in writing in the partnership agreement, the general partner: (i) makes an assignment for the benefit of creditors; (ii) files a voluntary petition in bankruptcy; (iii) is adjudicated a bankrupt or insolvent; (iv) files a petition or answer seeking for himself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation; (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against him in any proceeding of this nature; or (vi) seeks, consents to, or acquiesces in the appointment of a trustee, receiver or liquidator of the general partner or of all or any substantial part of his properties;
(5) Unless otherwise provided in writing in the partnership agreement, one hundred twenty days after the commencement of any proceeding against the general partner seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation, the proceeding has not been dismissed, or if within ninety days after the appointment without his consent or acquiescence of a trustee, receiver or liquidator of the general partner or of all or any substantial part of his properties, the appointment is not vacated or stayed or within ninety days after the expiration of any such stay, the appointment is not vacated;
(6) In the case of a general partner who is a natural person, (i) his death; or (ii) the entry by a court of competent jurisdiction adjudicating him incompetent to manage his person or his estate;
(7) In the case of a general partner who is acting as a general partner by virtue of being a trustee of a trust, the termination of the trust, but not merely the substitution of a new trustee;
(8) In the case of a general partner that is a separate partnership, the dissolution and commencement of winding up of the separate partnership;
(9) In the case of a general partner that is a corporation, the filing of a certificate of dissolution, or its equivalent, for the corporation or the revocation of its charter; or
(10) In the case of an estate, the distribution by the fiduciary of the estate's entire interest in the partnership.
(b) Except as provided in this article, a general partner of a limited partnership has the liabilities of a partner in a partnership without limited partners to persons other than the partnership and the other partners. Except as provided in this article or in the partnership agreement, a general partner of a limited partnership has the liabilities of a partner in a partnership without limited partners to the partnership and to other partners.
(b) Except as provided in the partnership agreement, a partner is obligated to the limited partnership to perform any enforceable promise to contribute cash or property or to perform services, even if he is unable to perform because of death, disability or any other reason. If a partner does not make the required contribution of property or services, he is obligated at the option of the limited partnership to contribute cash equal to the portion of the value, as stated in the partnership records required to be kept by section five of this article of the stated contribution that has not been made.
(c) Unless otherwise provided in the partnership agreement, the obligation of a partner to make a contribution or return money or other property paid or distributed in violation of this article may be compromised only by consent of all the partners. Notwithstanding the compromise, a creditor of a limited partnership who extends credit or otherwise acts in reliance on that obligation after the partner signs a writing which reflects the obligation, and before the amendment or cancellation thereof to reflect the compromise, may enforce the original obligation.
(b) If a partner has received the return of any part of his contribution in violation of the partnership agreement or this article, he is liable to the limited partnership for a period of six years thereafter for the amount of the contribution wrongfully returned.
(c) A partner receives a return of his contribution to the extent that a distribution to him reduces his share of the fair value of the net assets of the limited partnership below the value, as set forth in the records required to be kept by section five of this article, of his contribution which has not been distributed to him.
(b) An assignee who has become a limited partner has, to the extent assigned, the rights and powers, and is subject to the restrictions and liabilities, of a limited partner under the partnership agreement and this article. An assignee who becomes a limited partner also is liable for the obligations of his assignor to make and return contributions as provided in section thirty-eight of this article: Provided, That the assignee is not obligated for liabilities unknown to the assignee at the time he became a limited partner.
(c) If an assignee of a partnership interest becomes a limited partner, the assignor is not released from his liability to the limited partnership under sections fourteen and twenty-eight of this article.
(1) At the time or upon the happening of events specified in the certificate of limited partnership;
(2) Upon the happening of events specified in writing in the partnership agreement;
(3) The written consent of all partners;
(4) An event of withdrawal of a general partner, unless at the time there is at least one other general partner and the written provisions of the partnership agreement permit the business of the limited partnership to be carried on by the remaining general partner and that partner does so, but the limited partnership is not dissolved and is not required to be wound up by reason of any event of withdrawal if, within ninety days after the withdrawal, all partners agree in writing to continue the business of the limited partnership and to the appointment of one or more additional general partners if necessary or desired; or
(5) Entry of a decree of judicial dissolution under section forty-five of this article.
(1) To creditors, including partners who are creditors, to the extent permitted by law, in satisfaction of liabilities of the limited partnership other than liabilities for distributions to partners under section thirty-one or thirty-four of this article;
(2) Except as provided in the partnership agreement, to partners and former partners in satisfaction of liabilities for distributions under said section thirty-one or thirty- four; and
(3) Except as provided in the partnership agreement, to partners first for the return of their contributions and secondly respecting their partnership interests, in the proportions in which the partners share in distributions.
(1) The name of the foreign limited partnership or if its name is unavailable for use in this state, a limited partnership name that satisfies the requirements of section two of this article, including a copy of the resolution of its partners adopting the fictitious name;
(2) The state and date of its formation;
(3) The name and address of an agent for service of process, if any;
(4) The address of the office required to be maintained in the state of its organization by the laws of that state or, if not so required, of the principal office of the foreign limited partnership;
(5) The name and business address of each general partner; and
(6) The address of the office at which is kept a list of the names and addresses of the limited partners and their capital contributions, together with an undertaking by the foreign limited partnership to keep those records until the foreign limited partnership's registration in this state is canceled or withdrawn.
(b) The foreign limited partnership shall deliver with the completed application a certificate of existence, or a document of similar import, duly authenticated by the Secretary of State or other official having custody of the partnership records in the state or country under whose law it is organized.
If the secretary of state finds that an application for registration conforms to law and all requisite fees have been paid, he shall file it and deliver to the limited partnership or its representative a receipt for the record and the fees.
This filing, or failure to file, shall in no way affect the formation of the limited partnership. Only the filing in the office of the secretary of state, required by section nine of this article, shall determine the validity of the limited partnership.
(b) The failure of a foreign limited partnership to register in the state does not impair the validity of any contract or act of the foreign limited partnership or prevent the foreign limited partnership from defending any action, suit, or proceeding in any court of this state.
(c) A limited partner of a foreign limited partnership is not liable as a general partner of the foreign limited partnership solely by reason of having transacted business in this state without registration.
(d) A foreign limited partnership, by transacting business in the state without registration, appoints the secretary of state as its agent for service of process with respect to claim for relief or cause of action arising out of the transaction of business in this state.
Note: WV Code updated with legislation passed through the 2012 1st Special Session