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Analyzing the Latest Amendments to the Delaware General Corporation Law

August 18, 2008, Michael B. Tumas, John F. Grossbauer

For 2010, two bills containing amendments to the Delaware General Corporation Law (the “DGCL”) have been proposed by the Delaware State Bar Association and introduced into the Delaware legislature. One bill, addressing nonstock corporations, has been signed into law by the Governor. As discussed more fully below, all amendments will become effective in August 2010.

The 2010 amendments include a comprehensive revision of the DGCL with respect to nonstock corporations, which is intended to ensure that the provisions of the DGCL are consistently applied to non-stock corporations. In addition, the 2010 amendments add a new Section 267 to the DGCL, which permits a short-form merger between a subsidiary Delaware corporation and a non-corporate parent entity.

Also included among the 2010 amendments are changes to Section 145 to clarify the application of indemnification and advancement rights to persons other than a corporation’s current directors and officers, a revision of Section 251 to permit the certificate of incorporation of a surviving corporation to be restated in a merger, changes to Section 278 to confirm that the provisions of the DGCL governing the winding-up of corporations apply to corporations that have expired by their terms, revisions to Sections 242 and 251 of the DGCL to streamline the board process for submitting certificates of amendment and merger agreements to stockholders, and revisions to various sections of the DGCL to modernize the manner in which service of process may be made upon the Delaware Secretary of State.

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