Delaware – General Corporation Law – Foreign Corporations

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Corporations

CHAPTER 1. GENERAL CORPORATION LAW

Subchapter XV. Foreign Corporations

§ 371. Definition; qualification to do business in State; procedure.

(a) As used in this chapter, the words
“foreign corporation” mean a corporation organized under the laws of
any jurisdiction other than this State.

(b) No foreign corporation shall do any
business in this State, through or by branch offices, agents or
representatives located in this State, until it shall have paid to the
Secretary of State of this State for the use of this State, $80, and
shall have filed in the office of the Secretary of State:

(1) A certificate issued by an authorized
officer of the jurisdiction of its incorporation evidencing its
corporate existence. If such certificate is in a foreign language, a
translation thereof, under oath of the translator, shall be attached
thereto;

(2) A statement executed by an authorized
officer of each corporation setting forth (i) the name and address of
its registered agent in this State, which agent shall be either an
individual resident in this State when appointed or another corporation
authorized to transact business in this State, (ii) a statement, as of
a date not earlier than 6 months prior to the filing date, of the
assets and liabilities of the corporation, and (iii) the business it
proposes to do in this State, and a statement that it is authorized to
do that business in the jurisdiction of its incorporation. The
statement shall be acknowledged in accordance with § 103 of this title.

(c) The certificate of the Secretary of
State, under seal of office, of the filing of the certificates required
by subsection (b) of this section, shall be delivered to the registered
agent upon the payment to the Secretary of State of the fee prescribed
for such certificates, and the certificate shall be prima facie
evidence of the right of the corporation to do business in this State;
provided, that the Secretary of State shall not issue such certificate
unless the name of the corporation is such as to distinguish it upon
the records in the office of the Division of Corporations in the
Department of State from the names that are reserved on such records
and from the names on such records of each other corporation,
partnership, limited partnership, limited liability company or
statutory trust organized or registered as a domestic or foreign
corporation, partnership, limited partnership, limited liability
company or statutory trust under the laws of this State, except with
the written consent of the person who has reserved such name or such
other corporation, partnership, limited partnership, limited liability
company or statutory trust, executed, acknowledged and filed with the
Secretary of State in accordance with § 103 of this title. If the name
of the foreign corporation conflicts with the name of a corporation,
partnership, limited partnership, limited liability company or
statutory trust organized under the laws of this State, or a name
reserved for a corporation, partnership, limited partnership, limited
liability company or statutory trust to be organized under the laws of
this State, or a name reserved or registered as that of a foreign
corporation, partnership, limited partnership, limited liability
company or statutory trust under the laws of this State, the foreign
corporation may qualify to do business if it adopts an assumed name
which shall be used when doing business in this State as long as the
assumed name is authorized for use by this section. (8 Del. C. 1953, §
371; 56 Del. Laws, c. 50; 57 Del. Laws, c. 148, § 35; 57 Del. Laws, c.
150, § 9; 57 Del. Laws, c. 421, §§ 11, 12; 60 Del. Laws, c. 371, § 14;
66 Del. Laws, c. 352, § 12; 67 Del. Laws, c. 229, § 1; 69 Del. Laws, c.
234, § 1; 70 Del. Laws, c. 186, § 1; 73 Del. Laws, c. 329, § 47; 75
Del. Laws, c. 306, § 6.)

§ 372. Additional requirements in case of change of name, change of business purpose or merger or consolidation.

(a) Every foreign corporation admitted to
do business in this State which shall change its corporate name, or
enlarge, limit or otherwise change the business which it proposes to do
in this State, shall, within 30 days after the time said change becomes
effective, file with the Secretary of State a certificate, which shall
set forth:

(1) The name of the foreign corporation as it appears on the records of the Secretary of State of this State;

(2) The jurisdiction of its incorporation;

(3) The date it was authorized to do business in this State;

(4) If the name of the foreign
corporation has been changed, a statement of the name relinquished, a
statement of the new name and a statement that the change of name has
been effected under the laws of the jurisdiction of its incorporation
and the date the change was effected;

(5) If the business it proposes to do in
this State is to be enlarged, limited or otherwise changed, a statement
reflecting such change and a statement that it is authorized to do in
the jurisdiction of its incorporation the business which it proposes to
do in this State.

(b) Whenever a foreign corporation
authorized to transact business in this State shall be the survivor of
a merger permitted by the laws of the state or country in which it is
incorporated, it shall, within 30 days after the merger becomes
effective, file a certificate, issued by the proper officer of the
state or country of its incorporation, attesting to the occurrence of
such event. If the merger has changed the corporate name of such
foreign corporation or has enlarged, limited or otherwise changed the
business it proposes to do in this State, it shall also comply with
subsection (a) of this section.

(c) Whenever a foreign corporation
authorized to transact business in this State ceases to exist because
of a statutory merger or consolidation, it shall comply with § 381 of
this title.

(d) The Secretary of State shall be paid,
for the use of the State, $50 for filing and indexing each certificate
required by subsection (a) or (b) of this section, and in the event of
a change of name an additional $20 shall be paid for a certificate to
be issued as evidence of filing the change of name. (8 Del. C. 1953, §
372; 56 Del. Laws, c. 50; 57 Del. Laws, c. 421, § 13; 67 Del. Laws, c.
229, § 13.)

§ 373. Exceptions to requirements.

(a) No foreign corporation shall be required to comply with §§ 371 and 372 of this title, under any of the following conditions:

(1) If it is in the mail order or a
similar business, merely receiving orders by mail or otherwise in
pursuance of letters, circulars, catalogs or other forms of
advertising, or solicitation, accepting the orders outside this State,
and filling them with goods shipped into this State;

(2) If it employs salespersons, either
resident or traveling, to solicit orders in this State, either by
display of samples or otherwise (whether or not maintaining sales
offices in this State), all orders being subject to approval at the
offices of the corporation without this State, and all goods applicable
to the orders being shipped in pursuance thereof from without this
State to the vendee or to the seller or such seller’s agent for
delivery to the vendee, and if any samples kept within this State are
for display or advertising purposes only, and no sales, repairs or
replacements are made from stock on hand in this State;

(3) If it sells, by contract consummated
outside this State, and agrees, by the contract, to deliver into this
State, machinery, plants or equipment, the construction, erection or
installation of which within this State requires the supervision of
technical engineers or skilled employees performing services not
generally available, and as a part of the contract of sale agrees to
furnish such services, and such services only, to the vendee at the
time of construction, erection or installation;

(4) If its business operations within
this State, although not falling within the terms of paragraphs (1),
(2) and (3) of this subsection or any of them, are nevertheless wholly
interstate in character;

(5) If it is an insurance company doing business in this State;

(6) If it creates, as borrower or lender, or acquires, evidences of debt, mortgages or liens on real or personal property;

(7) If it secures or collects debts or enforces any rights in property securing the same.

(b) This section shall have no
application to the question of whether any foreign corporation is
subject to service of process and suit in this State under § 382 of
this title or any other law of this State. (8 Del. C. 1953, § 373; 56
Del. Laws, c. 50; 59 Del. Laws, c. 438, § 1; 71 Del. Laws, c. 339, §
79.)

§ 374. Annual report.

On or before the 30th day of June in each
year, a foreign corporation doing business in this State shall file a
report with the Secretary of State. The report shall be made on behalf
of the corporation by its president, secretary, treasurer or other
officer duly authorized so to act, or by any 2 of its directors, or by
any incorporator in the event its board of directors shall not have
been elected. The fact that an individual’s name is signed on a
certification attached to a corporate report shall be prima facie
evidence that such individual is authorized to certify the report on
behalf of the corporation; however the official title or position of
the individual signing the corporate report shall be designated. The
report shall be on a calendar year basis and shall state the address
(which shall include the street, number, city and county) of its
registered office in this State; the name of its registered agent at
such address upon whom service of process against the corporation may
be served; the address (which shall include the street, number, city,
state or foreign country) of the main or headquarters place of business
of the corporation without this State; the names and addresses of all
the directors and officers of the corporation and when the term of each
expires; the date appointed for the next annual meeting of the
stockholders for the election of directors; the number of shares of
each class of its capital stock which it is authorized to issue, if
any, and the par value thereof when applicable; and the number of
shares of each class of the capital stock actually issued, if any; the
amount of capital invested in real estate and other property in this
State, and the tax paid thereon; and, if exempt from taxation in this
State for any cause, the specific facts entitling the corporation to
such exemption from taxation. (8 Del. C. 1953, § 374; 56 Del. Laws, c.
50; 64 Del. Laws, c. 112, § 60.)

§ 375. Failure to file report.

Upon the failure, neglect or refusal of
any foreign corporation to file an annual report as required by § 374
of this title, the Secretary of State may, in the Secretary of State’s
discretion, investigate the reasons therefor and shall terminate the
right of the foreign corporation to do business within this State upon
failure of the corporation to file an annual report within any 2-year
period. (8 Del. C. 1953, § 375; 56 Del. Laws, c. 50; 58 Del. Laws, c.
216, § 1; 71 Del. Laws, c. 339, § 80.)

§ 376. Service of process upon qualified foreign corporations.

(a) All process issued out of any court
of this State, all orders made by any court of this State, all rules
and notices of any kind required to be served on any foreign
corporation which has qualified to do business in this State may be
served on the registered agent of the corporation designated in
accordance with § 371 of this title, or, if there be no such agent,
then on any officer, director or other agent of the corporation then in
this State.

(b) In case the officer whose duty it is
to serve legal process cannot by due diligence serve the process in any
manner provided for by subsection (a) of this section, it shall be
lawful to serve the process against the corporation upon the Secretary
of State and such service shall be as effectual for all intents and
purposes as if made in any of the ways provided for in subsection (a)
of this section. In the event of service upon the Secretary of State
pursuant to this subsection, the Secretary of State shall forthwith
notify the corporation by letter, certified mail, return receipt
requested, directed to the corporation at its principal place of
business as it appears on the last annual report filed pursuant to §
374 of this title or, if no such address appears, at its last
registered office. Such letter shall enclose a copy of the process and
any other papers served upon the Secretary of State pursuant to this
subsection. It shall be the duty of the plaintiff in the event of such
service to serve process and any other papers in duplicate, to notify
the Secretary of State that service is being effected pursuant to this
subsection, and to pay the Secretary of State the sum of $50 for the
use of the State, which sum shall be taxed as a part of the costs in
the proceeding if the plaintiff shall prevail therein. The Secretary of
State shall maintain an alphabetical record of any such service setting
forth the name of the plaintiff and the defendant, the title, docket
number and nature of the proceeding in which process has been served
upon the Secretary of State, the fact that service has been effected
pursuant to this subsection, the return date thereof, and the day and
hour when the service was made. The Secretary of State shall not be
required to retain such information for a period longer than 5 years
from receipt of such service. (8 Del. C. 1953, § 376; 56 Del. Laws, c.
50; 56 Del. Laws, c. 186, § 28; 64 Del. Laws, c. 112, § 61; 67 Del.
Laws, c. 190, § 8; 71 Del. Laws, c. 339, § 81.)

§ 377. Change of registered agent.

(a) Any foreign corporation, which has
qualified to do business in this State, may change its registered agent
and substitute another registered agent by filing a certificate with
the Secretary of State, acknowledged in accordance with § 103 of this
title, setting forth: (1) The name and address of its registered agent
designated in this State upon whom process directed to said corporation
may be served; and (2) a revocation of all previous appointments of
agent for such purposes. Such registered agent shall be either an
individual residing in this State when appointed or a corporation
authorized to transact business in this State.

(b) Any individual or corporation
designated by a foreign corporation as its registered agent for service
of process may resign by filing with the Secretary of State a signed
statement that the registered agent is unwilling to continue to act as
the registered agent of the corporation for service of process,
including in the statement the post-office address of the main or
headquarters office of the foreign corporation, but such resignation
shall not become effective until 30 days after the statement is filed.
The statement shall be acknowledged by the registered agent and shall
contain a representation that written notice of resignation was given
to the corporation at least 30 days prior to the filing of the
statement by mailing or delivering such notice to the corporation at
its address given in the statement.

(c) If any agent designated and certified
as required by § 371 of this title shall die or remove from this State,
or resign, then the foreign corporation for which the agent had been so
designated and certified shall, within 10 days after the death, removal
or resignation of its agent, substitute, designate and certify to the
Secretary of State, the name of another registered agent for the
purposes of this subchapter, and all process, orders, rules and notices
mentioned in § 376 of this title may be served on or given to the
substituted agent with like effect as is prescribed in that section. (8
Del. C. 1953, § 377; 56 Del. Laws, c. 50; 63 Del. Laws, c. 25, § 15; 71
Del. Laws, c. 120, § 19.)

§ 378. Penalties for noncompliance.

Any foreign corporation doing business of
any kind in this State without first having complied with any section
of this subchapter applicable to it, shall be fined not less than $200
nor more than $500 for each such offense. Any agent of any foreign
corporation that shall do any business in this State for any foreign
corporation before the foreign corporation has complied with any
section of this subchapter applicable to it, shall be fined not less
than $100 nor more than $500 for each such offense. (8 Del. C. 1953, §
378; 56 Del. Laws, c. 50.)

§ 379. Banking powers denied.

(a) No foreign corporation shall, within
the limits of this State, by any implication or construction, be deemed
to possess the power of discounting bills, notes or other evidence of
debt, of receiving deposits, of buying and selling bills of exchange,
or of issuing bills, notes or other evidences of debt upon loan for
circulation as money, anything in its charter or articles of
incorporation to the contrary notwithstanding, except as otherwise
provided in subchapter VII of Chapter 7 or in Chapter 14 of Title 5.

(b) All certificates issued by the
Secretary of State under § 371 of this title shall expressly set forth
the limitations and restrictions contained in this section. (8 Del. C.
1953, § 379; 56 Del. Laws, c. 50; 57 Del. Laws, c. 148, § 36; 70 Del.
Laws, c. 112, § 78; 71 Del. Laws, c. 254, § 35.)

§ 380. Foreign corporation as fiduciary in this State.

A corporation organized and doing
business under the laws of the District of Columbia or of any state of
the United States other than Delaware, duly authorized by its
certificate of incorporation or bylaws so to act, may be appointed by
any last will and testament or other testamentary writing, probated
within this State, or by a deed of trust, mortgage or other agreement,
as executor, guardian, trustee or other fiduciary, and may act as such
within this State, when and to the extent that the laws of the District
of Columbia or of the state in which the foreign corporation is
organized confer like powers upon corporations organized and doing
business under the laws of this State. (8 Del. C. 1953, § 380; 56 Del.
Laws, c. 50; 56 Del. Laws, c. 186, § 29; 64 Del. Laws, c. 353, § 1.)

§ 381. Withdrawal of foreign corporation from State; procedure; service of process on Secretary of State.

(a) Any foreign corporation which shall
have qualified to do business in this State under § 371 of this title,
may surrender its authority to do business in this State and may
withdraw therefrom by filing with the Secretary of State:

(1) A certificate executed in accordance
with § 103 of this title, stating that it surrenders its authority to
transact business in the state and withdraws therefrom; and stating the
address to which the Secretary of State may mail any process against
the corporation that may be served upon the Secretary of State, or

(2) A copy of a certificate of
dissolution issued by the proper official of the State or other
jurisdiction of its incorporation, certified to be a true copy under
the hand and official seal of the official, together with a
certificate, which shall be executed in accordance with paragraph (1)
of this subsection, stating the address to which the Secretary of State
may mail any process against the corporation that may be served upon
the Secretary of State; or

(3) A copy of an order or decree of
dissolution made by any court of competent jurisdiction or other
competent authority of the State or other jurisdiction of its
incorporation, certified to be a true copy under the hand of the clerk
of the court or other official body, and the official seal of the court
or official body or clerk thereof, together with a certificate executed
in accordance with paragraph (1) of this subsection, stating the
address to which the Secretary of State may mail any process against
the corporation that may be served upon the Secretary of State.

(b) The Secretary of State shall, upon
payment to the Secretary of State of the fees prescribed in § 391 of
this title, issue a sufficient number of certificates, under the
Secretary of State’s hand and official seal, evidencing the surrender
of the authority of the corporation to do business in this State and
its withdrawal therefrom. One of the certificates shall be furnished to
the corporation withdrawing and surrendering its right to do business
in this State; 1 certificate shall be delivered to the agent of the
corporation designated as such immediately prior to the withdrawal.

(c) Upon the issuance of the certificates
by the Secretary of State, the appointment of the registered agent of
the corporation in this State, upon whom process against the
corporation may be served, shall be revoked, and the corporation shall
be deemed to have consented that service of process in any action, suit
or proceeding based upon any cause of action arising in this State,
during the time the corporation was authorized to transact business in
this State, may thereafter be made by service upon the Secretary of
State.

(d) In the event of service upon the
Secretary of State in accordance with subsection (c) of this section,
the Secretary of State shall forthwith notify the corporation by
letter, certified mail, return receipt requested, directed to the
corporation at the address stated in the certificate which was filed by
the corporation with the Secretary of State pursuant to subsection (a)
of this section. Such letter shall enclose a copy of the process and
any other papers served upon the Secretary of State. It shall be the
duty of the plaintiff in the event of such service to serve process and
any other papers in duplicate, to notify the Secretary of State that
service is being made pursuant to this subsection, and to pay the
Secretary of State the sum of $50 for the use of the State, which sum
shall be taxed as part of the cost of the action, suit or proceeding if
the plaintiff shall prevail therein. The Secretary of State shall
maintain an alphabetical record of such service setting forth the name
of the plaintiff and defendant, the title, docket number and nature of
the proceeding in which the process has been served upon the Secretary
of State, the fact that service has been effected pursuant to this
subsection, the return date thereof, and the day and hour when the
service was made. The Secretary of State shall not be required to
retain such information for a period longer than 5 years from receipt
of the service of process. (8 Del. C. 1953, § 381; 56 Del. Laws, c. 50;
58 Del. Laws, c. 235, § 7; 64 Del. Laws, c. 112, § 62; 67 Del. Laws, c.
190, § 9; 70 Del. Laws, c. 79, § 18; 71 Del. Laws, c. 339, §§ 82-85.)

§ 382. Service of process on nonqualifying foreign corporations.

(a) Any foreign corporation which shall
transact business in this State without having qualified to do business
under § 371 of this title shall be deemed to have thereby appointed and
constituted the Secretary of State of this State its agent for the
acceptance of legal process in any civil action, suit or proceeding
against it in any state or federal court in this State arising or
growing out of any business transacted by it within this State. The
transaction of business in this State by such corporation shall be a
signification of the agreement of such corporation that any such
process when so served shall be of the same legal force and validity as
if served upon an authorized officer or agent personally within this
State.

(b) Section 373 of this title shall not
apply in determining whether any foreign corporation is transacting
business in this State within the meaning of this section; and “the
transaction of business” or “business transacted in this State,” by any
such foreign corporation, whenever those words are used in this
section, shall mean the course or practice of carrying on any business
activities in this State, including, without limiting the generality of
the foregoing, the solicitation of business or orders in this State.
This section shall not apply to any insurance company doing business in
this State.

(c) In the event of service upon the
Secretary of State in accordance with subsection (a) of this section,
the Secretary of State shall forthwith notify the corporation thereof
by letter, certified mail, return receipt requested, directed to the
corporation at the address furnished to the Secretary of State by the
plaintiff in such action, suit or proceeding. Such letter shall enclose
a copy of the process and any other papers served upon the Secretary of
State. It shall be the duty of the plaintiff in the event of such
service to serve process and any other papers in duplicate, to notify
the Secretary of State that service is being made pursuant to this
subsection, and to pay the Secretary of State the sum of $50 for the
use of the State, which sum shall be taxed as a part of the costs in
the proceeding if the plaintiff shall prevail therein. The Secretary of
State shall maintain an alphabetical record of any such process setting
forth the name of the plaintiff and defendant, the title, docket number
and nature of the proceeding in which process has been served upon the
Secretary of State, the fact that service has been effected pursuant to
this subsection, the return date thereof, and the day and hour when the
service was made. The Secretary of State shall not be required to
retain such information for a period longer than 5 years from receipt
of the service of process. (8 Del. C. 1953, § 382; 56 Del. Laws, c. 50;
64 Del. Laws, c. 112, § 63; 67 Del. Laws, c. 190, § 10; 71 Del. Laws,
c. 339, § 86.)

§ 383. Actions by and against unqualified foreign corporations.

(a) A foreign corporation which is
required to comply with §§ 371 and 372 of this title and which has done
business in this State without authority shall not maintain any action
or special proceeding in this State unless and until such corporation
has been authorized to do business in this State and has paid to the
State all fees, penalties and franchise taxes for the years or parts
thereof during which it did business in this State without authority.
This prohibition shall not apply to any successor in interest of such
foreign corporation.

(b) The failure of a foreign corporation
to obtain authority to do business in this State shall not impair the
validity of any contract or act of the foreign corporation or the right
of any other party to the contract to maintain any action or special
proceeding thereon, and shall not prevent the foreign corporation from
defending any action or special proceeding in this State. (8 Del. C.
1953, § 383; 56 Del. Laws, c. 50; 56 Del. Laws, c. 186, § 30.)

§ 384. Foreign corporations doing business without having qualified; injunctions.

The Court of Chancery shall have
jurisdiction to enjoin any foreign corporation, or any agent thereof,
from transacting any business in this State if such corporation has
failed to comply with any section of this subchapter applicable to it
or if such corporation has secured a certificate of the Secretary of
State under § 371 of this title on the basis of false or misleading
representations. The Attorney General shall, upon the Attorney
General’s own motion or upon the relation of proper parties, proceed
for this purpose by complaint in any county in which such corporation
is doing business. (8 Del. C. 1953, § 384; 56 Del. Laws, c. 50; 71 Del.
Laws, c. 339, § 87.)

§ 385. Filing of certain instruments with Recorder of Deeds not required.

No instrument that is required to be
filed with the Secretary of State of this State by this subchapter need
be filed with the Recorder of Deeds of any county of this State in
order to comply with this subchapter. (64 Del. Laws, c. 112, § 64.)

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