2025–2026 Proposed Amendments to the Delaware General Corporation Law

The Corporation Law Section of the Delaware State Bar Association has approved proposed amendments to the General Corporation Law of the State of Delaware (“DGCL”) for consideration by the Delaware General Assembly in its current term. The proposed amendments address certain voting requirements to amend the certificate of incorporation of a Delaware corporation under Section 242(d), the procedures related to the dissolution of a corporation, and revival of a nonstock corporation. If approved by the Delaware General Assembly, the amendments will take effect on August 1, 2026.

Voting Requirements to Increase or Decrease Authorized Shares (Section 242)

The proposed amendment to Section 242, which governs the requirements to amend a certificate of incorporation, clarifies that Section 242(d)’s more lenient votes cast standard may still apply even if the certificate of incorporation includes a provision that “opts out” of the default class vote specified in Section 242(b)(2).

Section 242(b)(2) provides that, notwithstanding whether a class of stock is entitled to vote pursuant to the certificate of incorporation, holders of shares of a class of stock shall be entitled to vote separately as a class on any amendment that would increase or decrease the number of authorized shares of that class. The second sentence of Section 242(b)(2) creates an option to “opt out” of this class vote requirement for such amendments. The corporation may “opt out” if the certificate of incorporation provides that the number of authorized shares of the class of stock may be increased or decreased by the affirmative vote of holders of a majority of the stock entitled to vote irrespective of Section 242(b)(2). If a certificate of incorporation includes a provision that “opts out” of this class vote, then the class vote requirement no longer applies.

However, Section 242(d), which was added to the DGCL in 2023, sets forth lower voting thresholds for specific types of amendments unless a different voting standard is expressly required by the certificate of incorporation. For example, Section 242(d)(2) provides that if the shares of a class are listed on a national securities exchange, an amendment to the certificate of incorporation to increase or decrease the authorized number of shares may be approved using a votes cast standard.

The proposed amendment to Section 242 addresses commentary in recent Delaware court decisions highlighting the ambiguity in the interplay between the “opt out” in Section 242(b)(2) and new Section 242(d), which has created uncertainty for public corporations looking to increase or decrease the authorized shares of common stock.^[1]

The proposed amendment confirms that a provision that “opts out” of the class vote specified in Section 242(b)(2) will not be deemed an express provision that has the effect of opting out of the default provisions of Section 242(d). Instead, Section 242(d) will apply unless the Section 242(b)(2) “opt out” expressly states that the corporation is not governed by Section 242(d)(1) or (2), or the Section 242(b)(2) “opt out” provision specifies a greater or additional vote to increase or decrease the authorized number of shares of one or more classes of stock.

Procedures for the Dissolution of a Corporation (Section 275)

The proposed amendments to Section 275, which addresses the dissolution of a corporation, add new Sections 275(h) and (i), and modify Sections 275(d) and (f).

Newly added Section 275(h) provides that the authority and responsibilities of the registered agent of the corporation terminate at the time the dissolution of the corporation becomes effective, except with respect to service of process that the registered agent has received before that time.

The proposed amendments to Sections 275(d) and (f) expand on certain information required to be included in a corporation’s certificate of dissolution by requiring a corporation to include in such a certificate an agreement that the dissolved corporation may be served with process by service to the Delaware secretary of state in accordance with applicable rules and regulations. These proposed amendments go hand in hand with newly added Section 275(i), which establishes the procedures for the secretary of state to accept service of process for a dissolved corporation after the dissolution has become effective.

Revival of Nonstock Corporations (Section 312)

Section 312 enables a corporation to revive its certificate of incorporation after the certificate has become forfeited or void, and Section 312(j) addresses how these procedures apply to nonstock corporations. The proposed amendment to Section 312(j) clarifies that revival of a nonstock corporation does not require approval by members entitled to vote on dissolution and that member action to elect persons to the governing body is required only if there are no such persons holding such offices at the time to revive the corporation.

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