CORPORATE TRANSACTIONS & COMPLIANCE BLOG

Three New Types of Filings in Delaware

By: John Morrissey, COGENCY GLOBAL INC. on Thu, Mar 27, 2014

Effective April 1, 2014, the Delaware Division of Corporations will begin accepting three new types of filings:

Filings in DelawareCertificate of Validation

Title 8, Section 204 of the Delaware General Corporation Law (DGCL) provides a statutory process to ratify “defective corporate acts.” A defective corporate act is defined as “an overissue, an election or appointment of directors that is void or voidable due to a failure of authorization, or any act or transaction purportedly taken by or on behalf of the corporation that is, and at the time such act or transaction was purportedly taken would have been, within the power of a corporation under subchapter II of this chapter, but is void or voidable due to a failure of authorization."

The certificate must include a resolution adopted by the corporation’s board of directors which sets forth: the defective corporate act to be ratified; the time of the defective corporate act; the nature of the failure of authorization in respect of the defective corporate act(s) to be ratified and the approval of the ratification by the board. If the defective corporate act included the issuance of shares of putative stock, the resolution must state the number and type of shares of putative stock issued and the date(s) upon which putative shares were purported to have been issued.

In addition to the resolution, the certificate must include the name of the corporation and such provisions as would be required under any other section of the DGCL to be included in the certificate that otherwise would have been required to be filed pursuant to the DGCL with respect to such defective corporate act. If the defective corporate act affected any previous filing, the title and date of the prior filing and any corrections to the filing must also be included in the certificate. The certificate must be executed in accordance with section 103 of the DGCL.

Certificate of Reinstatement

A Certificate of Reinstatement pursuant to Title 8, Section 377(d) provides for the reinstatement of a foreign corporation whose qualification to do business was forfeited for failure to appoint a new agent subsequent to the resignation or disqualification of its registered agent pursuant to sections 132(f)(4) or 136(b). Previously, it was possible to reinstate a foreign corporation whose right to do business within Delaware had been terminated for failure to file its annual report or that ceased to be registered as a foreign corporation for failure to pay required fees or taxes. But a corporation that was forfeited for failure to maintain a registered agent was required to requalify. The certificate must include the name of the foreign corporation, the name and address of the corporation’s new registered agent and the effective date of forfeiture. The certificate must be executed by an authorized officer.

Application for Reinstatement of Statement of Qualification

An Application of Reinstatement of Statement of Qualification pursuant to Title 6, Section 17-214(k) of the Delaware Revised Uniform Limited Partnership Act provides for the reinstatement of a limited liability limited partnership whose statement of qualification has been canceled pursuant to Section 17-104(d) or Section 17-104(i)(4) for failure to maintain an agent.

The application must be executed by a general partner and include the name of limited partnership (if such name is not available at the time of reinstatement, the name under which the Statement of Qualification is to be reinstated), the effective date of the cancellation, a statement that the limited partnership has obtained and designated a new registered agent and the name and address of the new agent and the address of the limited partnership’s registered office in the state of Delaware.

If the underlying limited partnership has also been revoked, a Certificate of Revival pursuant to Title 6, Section 17-1111 must be filed with the Application for Reinstatement.

While these new types of filings in Delaware may not be required very often, being aware of them can be extremely helpful on those occasions when the need does arise.

 

This article is provided for informational purposes only and should not be considered, or relied upon, as legal advice.

Topics: Company Formation and Filing Considerations, Delaware Corporate, UCC and Compliance