On June 25, 2012, the Governor of the State of Delaware signed a bill into law that will make a number of amendments to the General Corporation Law of the State of Delaware (the “DGCL”) effective August 1, 2012. The amendments will enhance the administrative functioning of the Office of the Secretary of State of the State of Delaware (the “Secretary of State”).
Under amendments to Sections 254(d)(1), 263(c)(1) and 267(a) of the DGCL, a certificate of merger filed in connection with the merger of a Delaware corporation and a business entity formed under the laws of a jurisdiction other than Delaware will be required to identify the type of non-Delaware entity constituent to the merger. Similarly, certificates of conversion will be required to set forth the type of business entity which is converting into a Delaware corporation under amended Section 265 of the DGCL.
A number of provisions of the DGCL indirectly addressing Delaware registered agents also will be amended. All corporations incorporated in Delaware are required to have a registered agent in Delaware to accept service of process on behalf of the corporation. Certificates filed with the Secretary of State to revoke the filing of a certificate of dissolution will be required to identify the name and address of the corporation’s registered agent under amended Section 311 of the DGCL. The registered agent of a foreign corporation, which is qualified to do business in the State of Delaware, may be an individual or any type of entity under the amendments to Section 377 of the DGCL. Section 377 of the DGCL will be further amended by adding a new procedure for the reinstatement of a foreign corporation’s qualification to do business in Delaware which has lost such qualification for failure to appoint a registered agent. In addition, Section 390(b)(5) of the DGCL will be amended to clarify that the address for service of process provided by a domestic corporation in a certificate of transfer to a foreign jurisdiction may not be that of the corporation’s Delaware registered agent without the written consent of such registered agent.
Foreign corporations that are qualified to do business in the State of Delaware will be required to provide a certificate attesting to the surrender of their qualification to do business in Delaware should they decide to cease doing business in Delaware. Under current Section 381, a foreign corporation that dissolved in its jurisdiction of incorporation may surrender its authority to do business in the State of Delaware by filing with the Secretary of State the certificate of dissolution that was filed in the jurisdiction of incorporation without the filing of a certificate of withdrawal with the Secretary of State. Finally, Section 391 of the DGCL will be amended to clarify that the fees charged by the Secretary of State for filings under this section, such as certificates of incorporation and certificates of merger, are fees, not taxes.
With one exception, the amendments described above will become effective on August 1, 2012. The new procedures for the reinstatement of the qualification of a foreign corporation to do business in Delaware for failure to appoint a registered agent will become effective on August 1, 2013.