On August 1, 2025, legislation went into effect amending the Delaware General Corporation Law (DGCL) of the state of Delaware as contained in Senate Bill No. 95. The following is a brief summary of some of the more significant amendments to the DGCL: (i) internal corporate claims; (ii) nullification procedures for corporate filings; (iii) registered offices of Delaware corporations and the prohibition of the use of virtual offices by registered agents; (iv) merger and consolidation filings; (v) the revocation of dissolution, restoration, and revival; (vi) the reinstatement of a foreign corporation’s qualification in Delaware; (vii) annual reports of Delaware corporations; (viii) franchise taxes owed by Delaware corporations; and (ix) tax refunds available to Delaware corporations.
Internal Corporate Claims
The provisions of Sections 102(f), 109(b), and 115 of the DGCL include provisions relating to the regulation of “internal corporate claims” (i.e., claims that are based on a violation of a duty by a current or former director or an officer or a stockholder in such capacity). The amendments broaden such existing statutory protections relating to internal corporate claims and extend them to “intra-corporate affairs,” thereby codifying the Delaware Supreme Court’s approach in Salzberg v. Sciabacucchi, 227 A.3d 102 (Del. 2020).
The amendments to Sections 102(f) and 109(b) prohibit a corporation from including fee-shifting provisions in either its certificate of incorporation or bylaws that purport to impose liability on a stockholder for the attorneys’ fees or expenses of the corporation or any other party with respect to any claim that a stockholder has brought, in its capacity as a stockholder or in the right of the corporation, in an action, a suit, or a proceeding.
The amendments to Section 115 specify that a certificate of incorporation or bylaw provision addressing intra-corporate affairs claims must be consistent with applicable jurisdictional requirements and must allow stockholders to bring the claims in at least one court in the state of Delaware that has jurisdiction over such claims.
Section 115 does not define which types of claims are considered intra-corporate affairs claims, but it does authorize forum selection provisions 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.” Such language was taken from Sections 102(b)(1) and 109(b) and is aligned with the Salzberg decision, which relied on similar language from Section 102(b)(1) to uphold the validity of forum selection provisions related to certain intra-corporate affairs claims.
The amendments are not intended to (1) prevent the application of a provision on fee-shifting—or the selection of a forum other than a court in the state of Delaware—if the provision is included in a stockholder agreement or other writing signed by the stockholder against whom the provision is to be enforced, (2) foreclose evaluation of whether the specific terms and manner of adoption of a particular provision authorized by Section 115 comport with any relevant fiduciary obligation or operate reasonably in the circumstances, or (3) limit or expand the jurisdiction of the Delaware Court of Chancery or the Superior Court over such claims.
Nullification Procedures for Corporate Filings
The DGCL provides that a certificate of correction may be filed correcting an instrument previously filed with the Delaware secretary of state that is an inaccurate record of the corporate action therein referred to or was defectively or erroneously executed. The amendments are intended to confirm that, in addition to correcting a previously filed instrument, a certificate of correction may be filed with the secretary of state to nullify any previously filed instrument by specifying the inaccuracy or defect contained in such filed instrument and providing that such filed instrument is nullified.
Registered Offices and Prohibition of Virtual Offices
Section 131 of the DGCL requires that a corporation have a registered office in the state of Delaware. The amendments to such section redefine “registered office” to mean the address of the corporation’s registered agent located in the state of Delaware appointed to accept service of process and otherwise perform the duties of a registered agent. The amendments removed provisions that deemed the registered office to be the corporation’s principal office or principal place of business in the state of Delaware. The amendments also make clear that registered agents of Delaware corporations are required to have a physical office in the state of Delaware. The amendments provide that registered agents of Delaware corporations may not perform their duties as a registered agent solely through the use of a virtual office, the retention by the registered agent of a mail forwarding service, or both. The DGCL defines a “virtual office” as the performance of duties or functions solely through the internet or solely through other means of remote communication.
Merger and Consolidation Filings
Section 252(c) of the DGCL previously required, when a merger or consolidation occurred involving a non-Delaware corporation, if the surviving corporation was a Delaware corporation, such Delaware corporation was required to specify in its certificate of merger the authorized capital stock of each constituent foreign corporation. The amendments eliminate such requirement that the certificate of merger or consolidation list the authorized stock of each foreign corporation that ceases to exist post-merger or post-consolidation.
Revocation of Dissolution, Restoration, and Revival
The amendments to the DGCL also address the procedures for revoking the dissolution of a corporation or restoring an expired corporation. Section 311(a)(4) of the DGCL has been amended to additionally require that a certificate of revocation of dissolution or a certificate of restoration state the filing date of the original certificate of incorporation and the filing date of the certificate of dissolution.
Section 312 of the DGCL, which enables a corporation to revive its certificate of incorporation after the certificate has become forfeited or void, has been amended to address circumstances where a corporation has been revived under Section 312 and later files a certificate of validation to ratify one or more defective corporate acts. If the certificate of validation relates to a time during which the corporation was forfeited or void, the amendments to Section 312 require that the corporation file the annual franchise tax reports and pay the annual franchise taxes that would have been required to be filed and paid during the period that the certificate of incorporation had been forfeited or void. The franchise taxes owed include the interest accrued on the taxes, and the filings and payments must be made at the time the certificate of validation is filed.
Reinstatement of Foreign Corporation Qualification
Section 377 of the DGCL, which addresses the procedures that a foreign corporation must follow to reinstate its qualification to do business in the state of Delaware after the qualification has been forfeited, was amended to require that a foreign corporation reinstating its forfeited qualification to do business in the state of Delaware file all annual reports and pay all fees that would have been required to be filed or paid during the time the foreign corporation’s qualification to do business in the state had been forfeited.
Annual Reports
Section 502 of the DGCL, regarding annual reports, has been amended to additionally require that a corporation disclose the nature of its business in its annual report. The amendments to Section 502 also prohibit using a registered agent’s office as the corporation’s principal business address, unless the corporation maintains its principal place of business in the state of Delaware and serves as its own registered agent.
Franchise Taxes
The amendments to the DGCL also revised Section 503, which relates to the rates and means of computing franchise taxes. The amendments to Section 503(e) provide for the filing of a certificate of validation to ratify one or more defective corporate acts pursuant to Section 204 of the DGCL. The amendments also repealed former Section 503(h), which provided an alternative franchise tax rate for regulated investment companies. Unlike the other amendments, the revocation of Section 503(h) takes effect for tax years beginning on or after January 1, 2026.
Tax Refunds
Section 505 of the DGCL, relating to a corporation’s claim that the annual franchise tax or any penalties or interest were erroneously or illegally fixed or paid, has been amended to clarify that no refunds are available in connection with the filing of a certificate of correction or a certificate of validation.
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