Delaware Law Update – Recent Legislative Developments – April 9, 2025
On April 8, 2025, the Delaware State Senate introduced Senate Bill No. 95.
04.09.25
SB 95 proposes various amendments to the Delaware General Corporation Law. If the amendments are enacted, they will take effect on August 1, 2025, and have implications for stakeholders in Delaware corporations considering litigation and corporate counsel providing guidance to Delaware corporations.
Two proposed amendments are of note for such stakeholders considering litigation involving Delaware corporations. First, the proposed amendment to DGCL Sections 102(f) and 109(b) would further limit Delaware corporations’ ability to adopt charter or bylaw provisions that would impose liability on stockholders for attorneys’ fees in unsuccessful stockholder or derivative litigation.
Second, the proposed amendment to DGCL Section 115 would further expand Delaware corporations’ right to include in their charters and bylaws forum selection clauses requiring or allowing stockholders to bring claims in one or more specified courts, as long as at least one Delaware state or federal court is included among the forum options (assuming jurisdictional requirements are otherwise satisfied). This amendment would authorize these forum selection clauses not only as to “internal corporate claims” — as is the current law — but also to a much broader category of claims — those that “relate to the business of the corporation, the conduct of its affairs, or the rights or powers of the corporation or its stockholders, directors or officers.”
The proposed amendments in SB 95 include several other changes to the DGCL of importance to corporate counsel, including:
- Section 103 (confirming that, in addition to correcting a previously filed instrument, a certificate of correction filed with the Delaware Secretary of State may nullify a previously filed instrument).
- Section 131 (removing provisions to automatically treat a corporation’s registered office as its principal office or principal place of business).
- Section 132 (relating to restrictions on Delaware registered agents from performing duties solely through a virtual office or a mail forwarding service).
- Section 155 (eliminating the ability of a corporation to issue scrip or warrants in bearer form in lieu of issuing fractional shares of stock to bring Section 155 in line with the Corporate Transparency Act, 31 U.S.C. Section 5336(f)).
- Section 252(c) (deleting a requirement that a certificate of merger or consolidation list the authorized capital stock of each foreign corporation that has ceased to exist as a result of the merger or consolidation).
- Section 311 (relating to procedures for revoking a Delaware corporation’s dissolution and restoring an expired corporation).
- Section 312 (relating to the calculation of annual franchise taxes following the revival of a Delaware corporation’s charter after it has become void).
- Section 377 (relating to procedures that a non-Delaware corporation must follow to reinstate its qualification to conduct business in Delaware).
- Section 502 (requiring that a Delaware corporation’s annual report filed with the Delaware Secretary of State disclose the nature of the business of the corporation and providing that no office of any registered agent may be disclosed as the address of the principal place of business of the corporation, except where the corporation maintains its principal place of business in Delaware and serves as its own registered agent).
- Section 503 (clarifying mechanics for the computation of franchise taxes for Delaware corporations).
- Section 505 (relating to limits on refunds of tax, penalty and interest in connection with filing a certificate of correction or validation).
The full bill is located on the Delaware General Assembly’s website.
For questions or more information about the recent amendments, please contact Tom Ayala or Elizabeth Webb Bucilla.
Co-author Tom Ayala is a partner in the Litigation Department. Co-author Elizabeth Webb Bucilla is a partner in the Corporate & Securities Department.