Delaware General Corporation Law

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The Delaware General Corporation Law (Title 8, Chapter 1 of the Delaware Code) is the statute governing corporate law in the U.S. state of Delaware. Over 50% of U.S. publicly traded corporations and 60% of the Fortune 500 companies are incorporated in that state.[1]

History[edit]

Delaware acquired its status as a corporate haven in the early 20th century. Following the example of New Jersey, which enacted corporate-friendly laws at the end of the 19th century to attract businesses from New York, Delaware played the game of fiscal competition by adopting in 1899 a general incorporation act aimed at attracting more businesses. Before the rise of general incorporation acts, forming a corporation required a special act of the state legislature. General incorporation allowed anyone to form a corporation by simply raising money and filing articles of incorporation with the state government's secretary of state.

Incorporation and corporate operational provisions[edit]

[2]

  • §102(b)(6) shareholders are not liable for corporate debts.
  • §106 A corporation is considered to be in existence after its certificate of incorporation is filed with the secretary of state.[3]
  • §109(a) shareholders have the right to change the bylaws.
  • §126 Corporations cannot act as banks.[4]
  • §132(a) Every corporation must maintain a registered agent in the state.[5]
  • §141(a) 'The business and affairs of every corporation organized under this chapter shall be managed by or under the direction of a board of directors, except as may be otherwise provided in this chapter or in its certificate of incorporation.' So there is a requirement for a board of directors or a comparable organ.
  • §141(b) the board's quorum for director meetings cannot be under one third.
  • §141(c) committees of the board cannot be given authority to amend the certificate of incorporation, merge, or recommend dissolution or sale to shareholders, or amend by laws.
  • §141(d), a director can serve no longer than three years, and if the board is classified one class must stand for election each year
  • §141(k) states that directors can be removed without any cause, unless the board is "classified", meaning that directors only come up for re-appointment on different years. If the board is classified, then directors cannot be removed unless there is gross misconduct.
  • §170, regulation of distributions.
  • §202(b), restrictions on transferability of stock cannot be imposed on shares previously issued without the shareholder's consent.
  • §211, there must be an annual meeting of shareholders for election of directors and (d) shareholder meetings can only be called if the constitution allows for it.
  • §216, the quorum for shareholder meetings cannot be less than one-third of those entitled to vote. Also allows for plurality voting.
  • §218, a voting trust cannot last longer than ten years.
  • §219, shareholders have the right to inspect the shareholder register within ten days of a meeting.
  • §220, right to inspect corporations books and record for a proper purpose at any time.
  • §242(b)(1) any constitutional amendment requires a resolution by the directors, and then a majority vote of shareholders, and the affected classes.
  • §271, sale of substantially all the corporation requires majority shareholder approval.
  • §275, dissolution of the corporation requires majority shareholder approval.
  • §262, shareholders dissenting from a merger have the right to be bought out at a fair value ("appraisal rights").
  • §327, shareholders have the right to a derivative claim for a breach of duties of care or loyalty.

Other legal aspects[edit]

Because of the extensive experience of the Delaware courts, Delaware has a more well-developed body of case law than other states, which serves to give corporations and their counsel greater guidance on matters of corporate governance and transaction liability issues. Disputes over the internal affairs of Delaware corporations are usually filed in the Delaware Court of Chancery, which is a separate court of equity, as opposed to a court of law.[6] Because it is a court of equity, there are no juries, and its cases are heard by the judges, called chancellors. Since 1989, the court has consisted of one Chancellor and four Vice Chancellors. The court is a trial court, with one chancellor hearing each case. Litigants may appeal final decisions of the Court of Chancery to the Delaware Supreme Court.

Delaware has also attracted some major credit card banks because of its relaxed rules regarding interest. Many U.S. states have usury laws limiting the amount of interest a lender can charge. Federal law allows a national bank to "import" these laws from the state in which its principal office is located.[7] Delaware (amongst others) has relatively relaxed interest laws, so several national banks have decided to locate their principal office in Delaware. National banks are, however, corporations formed under federal law, not Delaware law. A corporation formed under Delaware state law benefits from the relaxed interest rules to the extent it conducts business in Delaware, but is subject to restrictions of other states' laws if it conducts business in other states.[citation needed]

Pursuant to the "internal affairs doctrine", corporations which act in more than one state are subject only to the laws of their state of incorporation with regard to the regulation of the internal affairs of the corporation.[8] As a result, Delaware corporations are subject almost exclusively to Delaware law, even when they do business in other states. Among other reasons, this contributes to Delaware's attractiveness as a state of incorporation.[9]

While most states require a for-profit corporation to have at least one director and two officers, Delaware laws do not have this restriction. All offices may be held by a single person who also can be the sole shareholder. The person, who does not need to be U.S. citizen or resident, may also operate anonymously with only the Listing Agent with whom the company is registered with Delaware named. This proves advantageous in civil suits as the owner or owners cannot be disclosed under Delaware law and thus are safe from being sued alongside the company. However, this does not apply if the civil suit is in regards to having committed a criminal act which the business has been found guilty of in court.[citation needed]

Tax benefits and burdens[edit]

[citation needed] However, in general, the state is viewed as a positive location for corporate tax purposes because favorable laws of incorporation allow companies to minimize the corporate expenditures (achieved through legal standardization of corporate legal processes), creating a nucleus in Delaware with operating companies often in other states.[9]

In addition, Delaware has used its position as the state of incorporation to generate revenue from its abandoned and unclaimed property laws. Under U.S. Supreme Court precedent, a state of incorporation gets to keep any abandoned and unclaimed property, such as uncashed checks and unredeemed gift certificates, if the corporation does not have information about the location of the owner of the property.[10] Delaware is becoming increasingly aggressive in auditing and assessing companies for unclaimed property. For example, it has deputized sister states to act as contingency fee auditors for unclaimed property.[citation needed]

A state may levy, however, a franchise tax on the corporations incorporated in it. Franchise taxes in Delaware are actually far higher than in most other states which typically charge little or nothing beyond corporate income taxes on the portion of the corporation's business done in that state. Delaware's franchise taxes supply about one-fifth of its state revenue.[11]

In February 2013 the London-based Economist published an article on tax-friendly jurisdictions, commenting that Delaware stood for “Dollars and Euros Laundered And Washed At Reasonable Expense”. Jeffrey Bullock, Delaware’s secretary of state, insists that it has struck the right balance between curbing criminality and “paying deference to the millions of legitimate businesspeople who benefit” from hassle-free incorporation.[12]

2013 amendments[edit]

On June 30, 2013, Delaware Governor Jack Markell signed into law amendments to the Delaware General Corporation Law that affect several provisions in the current law and could substantially impact the process through which public companies are merged. The new legislation took effect August 1, 2013, except for ratification of defective corporate acts amendment which will take effect in 2014.[13]

See also[edit]

Notes[edit]

  1. ^ "About Agency". Delaware Division of Corporations. 
  2. ^ CHAPTER 1. GENERAL CORPORATION LAW. Delcode.delaware.gov. Retrieved on 2013-09-05.
  3. ^ DelawareInc.com https://www.delawareinc.com/corporation/delaware-general-corporation-law/
  4. ^ DelawareInc.com https://www.delawareinc.com/corporation/delaware-general-corporation-law/
  5. ^ DelawareInc.com https://www.delawareinc.com/corporation/delaware-general-corporation-law/
  6. ^ "Overview of the Delaware Court System". Delaware State Courts. 
  7. ^ "Interpretive Letter #822". Interpretations and Actions (Office of the Comptroller of the Currency) 11 (3). March 1998. 
  8. ^ Edgar v. MITE Corp, 457 U.S. 624 (1982).
  9. ^ a b Ryan, Patrick S. (Winter 2004/2005). "Will There Ever Be a Delaware of Europe?". Columbia Journal of European Law 11: 187. 
  10. ^ Delaware v. New York, 507 U.S. 490 (1992)
  11. ^ "State General Fund Revenues by Category (F.Y. 2002 - F.Y. 2005)". Delaware 2005 Fiscal Notebook. Delaware Department of Finance. 
  12. ^ Onshore financial centres: Not a palm tree in sight. The Economist (2013-02-16). Retrieved on 2013-09-05.
  13. ^ "Significant Amendments to Delaware General Corporation Law Enacted". Holland & Knight Securities Bulletin. August 5, 2013. 

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