Delaware – General Corporation Law – Formation

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Corporations

CHAPTER 1. GENERAL CORPORATION LAW

Subchapter I. Formation

§ 101. Incorporators; how corporation formed; purposes.

(a) Any person, partnership, association
or corporation, singly or jointly with others, and without regard to
such person’s or entity’s residence, domicile or state of
incorporation, may incorporate or organize a corporation under this
chapter by filing with the Division of Corporations in the Department
of State a certificate of incorporation which shall be executed,
acknowledged and filed in accordance with § 103 of this title.

(b) A corporation may be incorporated or
organized under this chapter to conduct or promote any lawful business
or purposes, except as may otherwise be provided by the Constitution or
other law of this State.

(c) Corporations for constructing,
maintaining and operating public utilities, whether in or outside of
this State, may be organized under this chapter, but corporations for
constructing, maintaining and operating public utilities within this
State shall be subject to, in addition to this chapter, the special
provisions and requirements of Title 26 applicable to such
corporations. (8 Del. C. 1953, § 101; 56 Del. Laws, c. 50; 70 Del.
Laws, c. 186, § 1; 70 Del. Laws, c. 587, § 1; 71 Del. Laws, c. 339, §
1.)

§ 102. Contents of certificate of incorporation.

(a) The certificate of incorporation shall set forth:

(1) The name of the corporation, which
(i) shall contain 1 of the words “association,” “company,”
“corporation,” “club,” “foundation,” “fund,” “incorporated,”
“institute,” “society,” “union,” “syndicate,” or “limited,” (or
abbreviations thereof, with or without punctuation), or words (or
abbreviations thereof, with or without punctuation) of like import of
foreign countries or jurisdictions (provided they are written in roman
characters or letters); provided, however, that the Division of
Corporations in the Department of State may waive such requirement
(unless it determines that such name is, or might otherwise appear to
be, that of a natural person) if such corporation executes,
acknowledges and files with the Secretary of State in accordance with §
103 of this title a certificate stating that its total assets, as
defined in subsection (i) of § 503 of this title, are not less than
$10,000,000, (ii) shall be 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 foreign corporation or domestic or
foreign 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 and (iii) shall not
contain the word “bank,” or any variation thereof, except for the name
of a bank reporting to and under the supervision of the State Bank
Commissioner of this State or a subsidiary of a bank or savings
association (as those terms are defined in the Federal Deposit
Insurance Act, as amended, at 12 U.S.C. § 1813), or a corporation
regulated under the Bank Holding Company Act of 1956, as amended, 12
U.S.C. § 1841 et seq., or the Home Owners’ Loan Act, as amended, 12
U.S.C. § 1461 et seq.; provided, however, that this section shall not
be construed to prevent the use of the word “bank,” or any variation
thereof, in a context clearly not purporting to refer to a banking
business or otherwise likely to mislead the public about the nature of
the business of the corporation or to lead to a pattern and practice of
abuse that might cause harm to the interests of the public or the State
as determined by the Division of Corporations in the Department of
State;

(2) The address (which shall include the
street, number, city and county) of the corporation’s registered office
in this State, and the name of its registered agent at such address;

(3) The nature of the business or
purposes to be conducted or promoted. It shall be sufficient to state,
either alone or with other businesses or purposes, that the purpose of
the corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of
Delaware, and by such statement all lawful acts and activities shall be
within the purposes of the corporation, except for express limitations,
if any;

(4) If the corporation is to be
authorized to issue only 1 class of stock, the total number of shares
of stock which the corporation shall have authority to issue and the
par value of each of such shares, or a statement that all such shares
are to be without par value. If the corporation is to be authorized to
issue more than 1 class of stock, the certificate of incorporation
shall set forth the total number of shares of all classes of stock
which the corporation shall have authority to issue and the number of
shares of each class and shall specify each class the shares of which
are to be without par value and each class the shares of which are to
have par value and the par value of the shares of each such class. The
certificate of incorporation shall also set forth a statement of the
designations and the powers, preferences and rights, and the
qualifications, limitations or restrictions thereof, which are
permitted by § 151 of this title in respect of any class or classes of
stock or any series of any class of stock of the corporation and the
fixing of which by the certificate of incorporation is desired, and an
express grant of such authority as it may then be desired to grant to
the board of directors to fix by resolution or resolutions any thereof
that may be desired but which shall not be fixed by the certificate of
incorporation. The foregoing provisions of this paragraph shall not
apply to corporations which are not to have authority to issue capital
stock. In the case of such corporations, the fact that they are not to
have authority to issue capital stock shall be stated in the
certificate of incorporation. The conditions of membership of such
corporations shall likewise be stated in the certificate of
incorporation or the certificate may provide that the conditions of
membership shall be stated in the bylaws;

(5) The name and mailing address of the incorporator or incorporators;

(6) If the powers of the incorporator or
incorporators are to terminate upon the filing of the certificate of
incorporation, the names and mailing addresses of the persons who are
to serve as directors until the first annual meeting of stockholders or
until their successors are elected and qualify.

(b) In addition to the matters required
to be set forth in the certificate of incorporation by subsection (a)
of this section, the certificate of incorporation may also contain any
or all of the following matters:

(1) Any provision for the management of
the business and for the conduct of the affairs of the corporation, and
any provision creating, defining, limiting and regulating the powers of
the corporation, the directors, and the stockholders, or any class of
the stockholders, or the members of a nonstock corporation; if such
provisions are not contrary to the laws of this State. Any provision
which is required or permitted by any section of this chapter to be
stated in the bylaws may instead be stated in the certificate of
incorporation;

(2) The following provisions, in haec verba, viz:

“Whenever a compromise or arrangement is
proposed between this corporation and its creditors or any class of
them and/or between this corporation and its stockholders or any class
of them, any court of equitable jurisdiction within the State of
Delaware may, on the application in a summary way of this corporation
or of any creditor or stockholder thereof or on the application of any
receiver or receivers appointed for this corporation under § 291 of
Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for this
corporation under § 279 of Title 8 of the Delaware Code order a meeting
of the creditors or class of creditors, and/or of the stockholders or
class of stockholders of this corporation, as the case may be, to be
summoned in such manner as the said court directs. If a majority in
number representing three fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement
and to any reorganization of this corporation as consequence of such
compromise or arrangement, the said compromise or arrangement and the
said reorganization shall, if sanctioned by the court to which the said
application has been made, be binding on all the creditors or class of
creditors, and/or on all the stockholders or class of stockholders, of
this corporation, as the case may be, and also on this corporation”;

(3) Such provisions as may be desired
granting to the holders of the stock of the corporation, or the holders
of any class or series of a class thereof, the preemptive right to
subscribe to any or all additional issues of stock of the corporation
of any or all classes or series thereof, or to any securities of the
corporation convertible into such stock. No stockholder shall have any
preemptive right to subscribe to an additional issue of stock or to any
security convertible into such stock unless, and except to the extent
that, such right is expressly granted to such stockholder in the
certificate of incorporation. All such rights in existence on July 3,
1967, shall remain in existence unaffected by this paragraph unless and
until changed or terminated by appropriate action which expressly
provides for the change or termination;

(4) Provisions requiring for any
corporate action, the vote of a larger portion of the stock or of any
class or series thereof, or of any other securities having voting
power, or a larger number of the directors, than is required by this
chapter;

(5) A provision limiting the duration of
the corporation’s existence to a specified date; otherwise, the
corporation shall have perpetual existence;

(6) A provision imposing personal
liability for the debts of the corporation on its stockholders or
members to a specified extent and upon specified conditions; otherwise,
the stockholders or members of a corporation shall not be personally
liable for the payment of the corporation’s debts except as they may be
liable by reason of their own conduct or acts;

(7) A provision eliminating or limiting
the personal liability of a director to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, provided that such provision shall not eliminate or limit the
liability of a director: (i) For any breach of the director’s duty of
loyalty to the corporation or its stockholders; (ii) for acts or
omissions not in good faith or which involve intentional misconduct or
a knowing violation of law; (iii) under § 174 of this title; or (iv)
for any transaction from which the director derived an improper
personal benefit. No such provision shall eliminate or limit the
liability of a director for any act or omission occurring prior to the
date when such provision becomes effective. All references in this
paragraph to a director shall also be deemed to refer (x) to a member
of the governing body of a corporation which is not authorized to issue
capital stock, and (y) to such other person or persons, if any, who,
pursuant to a provision of the certificate of incorporation in
accordance with § 141(a) of this title, exercise or perform any of the
powers or duties otherwise conferred or imposed upon the board of
directors by this title.

(c) It shall not be necessary to set
forth in the certificate of incorporation any of the powers conferred
on corporations by this chapter.

(d) Except for provisions included
pursuant to subdivisions (a)(1), (a)(2), (a)(5), (a)(6), (b)(2),
(b)(5), (b)(7) of this section, and provisions included pursuant to
subdivision (a)(4) of this section specifying the classes, number of
shares, and par value of shares the corporation is authorized to issue,
any provision of the certificate of incorporation may be made dependent
upon facts ascertainable outside such instrument, provided that the
manner in which such facts shall operate upon the provision is clearly
and explicitly set forth therein. The term “facts,” as used in this
subsection, includes, but is not limited to, the occurrence of any
event, including a determination or action by any person or body,
including the corporation.

(e) The exclusive right to the use of a
name that is available for use by a domestic or foreign corporation may
be reserved by or on behalf of:

(1) Any person intending to incorporate
or organize a corporation with that name under this chapter or
contemplating such incorporation or organization;

(2) Any domestic corporation or any
foreign corporation qualified to do business in the State of Delaware,
in either case, intending to change its name or contemplating such a
change;

(3) Any foreign corporation intending to
qualify to do business in the State of Delaware and adopt that name or
contemplating such qualification and adoption; and

(4) Any person intending to organize a
foreign corporation and have it qualify to do business in the State of
Delaware and adopt that name or contemplating such organization,
qualification and adoption.

The reservation of a specified name may
be made by filing with the Secretary of State an application, executed
by the applicant, certifying that the reservation is made by or on
behalf of a domestic corporation, foreign corporation or other person
described in paragraphs (e)(1)-(4) of this section above, and
specifying the name to be reserved and the name and address of the
applicant. If the Secretary of State finds that the name is available
for use by a domestic or foreign corporation, the Secretary shall
reserve the name for the use of the applicant for a period of 120 days.
The same applicant may renew for successive 120-day periods a
reservation of a specified name by filing with the Secretary of State,
prior to the expiration of such reservation (or renewal thereof), an
application for renewal of such reservation, executed by the applicant,
certifying that the reservation is renewed by or on behalf of a
domestic corporation, foreign corporation or other person described in
paragraphs (e)(1)-(4) of this section above and specifying the name
reservation to be renewed and the name and address of the applicant.
The right to the exclusive use of a reserved name may be transferred to
any other person by filing in the office of the Secretary of State a
notice of the transfer, executed by the applicant for whom the name was
reserved, specifying the name reservation to be transferred and the
name and address of the transferee. The reservation of a specified name
may be cancelled by filing with the Secretary of State a notice of
cancellation, executed by the applicant or transferee, specifying the
name reservation to be cancelled and the name and address of the
applicant or transferee. Unless the Secretary of State finds that any
application, application for renewal, notice of transfer, or notice of
cancellation filed with the Secretary of State as required by this
subsection does not conform to law, upon receipt of all filing fees
required by law the Secretary of State shall prepare and return to the
person who filed such instrument a copy of the filed instrument with a
notation thereon of the action taken by the Secretary of State. A fee
as set forth in § 391 of this title shall be paid at the time of the
reservation of any name, at the time of the renewal of any such
reservation and at the time of the filing of a notice of the transfer
or cancellation of any such reservation. (8 Del. C. 1953, § 102; 56
Del. Laws, c. 50; 57 Del. Laws, c. 148, § 1; 65 Del. Laws, c. 127, § 1;
65 Del. Laws, c. 289, §§ 1, 2; 66 Del. Laws, c. 136, § 1; 66 Del. Laws,
c. 352, § 1; 67 Del. Laws, c. 376, § 1; 69 Del. Laws, c. 61, § 1; 70
Del. Laws, c. 79, §§ 1-3; 71 Del. Laws, c. 120, § 1; 71 Del. Laws, c.
339, § 2; 72 Del. Laws, c. 123, § 1; 72 Del. Laws, c. 343, § 1; 73 Del.
Laws, c. 82, § 1; 73 Del. Laws, c. 329, § 43; 74 Del. Laws, c. 326, §
1; 75 Del. Laws, c. 306, §§ 1, 2.)

§ 103. Execution,
acknowledgment, filing, recording and effective date of original
certificate of incorporation and other instruments; exceptions.

(a) Whenever any instrument is to be
filed with the Secretary of State or in accordance with this section or
chapter, such instrument shall be executed as follows:

(1) The certificate of incorporation, and
any other instrument to be filed before the election of the initial
board of directors if the initial directors were not named in the
certificate of incorporation, shall be signed by the incorporator or
incorporators (or, in the case of any such other instrument, such
incorporator’s or incorporators’ successors and assigns). If any
incorporator is not available by reason of death, incapacity, unknown
address, or refusal or neglect to act, then any such other instrument
may be signed, with the same effect as if such incorporator had signed
it, by any person for whom or on whose behalf such incorporator, in
executing the certificate of incorporation, was acting directly or
indirectly as employee or agent, provided that such other instrument
shall state that such incorporator is not available and the reason
therefor, that such incorporator in executing the certificate of
incorporation was acting directly or indirectly as employee or agent
for or on behalf of such person, and that such person’s signature on
such instrument is otherwise authorized and not wrongful.

(2) All other instruments shall be signed:

a. By any authorized officer of the corporation; or

b. If it shall appear from the instrument
that there are no such officers, then by a majority of the directors or
by such directors as may be designated by the board; or

c. If it shall appear from the instrument
that there are no such officers or directors, then by the holders of
record, or such of them as may be designated by the holders of record,
of a majority of all outstanding shares of stock; or

d. By the holders of record of all outstanding shares of stock.

(b) Whenever this chapter requires any instrument to be acknowledged, such requirement is satisfied by either:

(1) The formal acknowledgment by the
person or 1 of the persons signing the instrument that it is such
person’s act and deed or the act and deed of the corporation, and that
the facts stated therein are true. Such acknowledgment shall be made
before a person who is authorized by the law of the place of execution
to take acknowledgments of deeds. If such person has a seal of office
such person shall affix it to the instrument.

(2) The signature, without more, of the
person or persons signing the instrument, in which case such signature
or signatures shall constitute the affirmation or acknowledgment of the
signatory, under penalties of perjury, that the instrument is such
person’s act and deed or the act and deed of the corporation, and that
the facts stated therein are true.

(c) Whenever any instrument is to be
filed with the Secretary of State or in accordance with this section or
chapter, such requirement means that:

(1) The signed instrument shall be delivered to the office of the Secretary of State;

(2) All taxes and fees authorized by law
to be collected by the Secretary of State in connection with the filing
of the instrument shall be tendered to the Secretary of State; and

(3) Upon delivery of the instrument, the
Secretary of State shall record the date and time of its delivery. Upon
such delivery and tender of the required taxes and fees, the Secretary
of State shall certify that the instrument has been filed in the
Secretary of State’s office by endorsing upon the signed instrument the
word “Filed”, and the date and time of its filing. This endorsement is
the “filing date” of the instrument, and is conclusive of the date and
time of its filing in the absence of actual fraud. The Secretary of
State shall file and index the endorsed instrument. Except as provided
in paragraph (4) of this subsection and in subsection (i) of this
section, such filing date of an instrument shall be the date and time
of delivery of the instrument.

(4) Upon request made upon or prior to
delivery, the Secretary of State may, to the extent deemed practicable,
establish as the filing date of an instrument a date and time after its
delivery. If the Secretary of State refuses to file any instrument due
to an error, omission or other imperfection, the Secretary of State may
hold such instrument in suspension, and in such event, upon delivery of
a replacement instrument in proper form for filing and tender of the
required taxes and fees within 5 days after notice of such
suspension is given to the filer, the Secretary of State shall
establish as the filing date of such instrument the date and time that
would have been the filing date of the rejected instrument had it been
accepted for filing. The Secretary of State shall not issue a
certificate of good standing with respect to any corporation with an
instrument held in suspension pursuant to this subsection. The
Secretary of State may establish as the filing date of an instrument
the date and time at which information from such instrument is entered
pursuant to subdivision (c)(7) of this section if such instrument is
delivered on the same date and within 4 hours after such information is
entered.

(5) The Secretary of State, acting as
agent for the recorders of each of the counties, shall collect and
deposit in a separate account established exclusively for that purpose
a county assessment fee with respect to each filed instrument and shall
thereafter weekly remit from such account to the recorder of each of
the said counties the amount or amounts of such fees as provided for in
subdivision (c)(5) of this section or as elsewhere provided by law.
Said fees shall be for the purposes of defraying certain costs incurred
by the counties in merging the information and images of such filed
documents with the document information systems of each of the
recorder’s offices in the counties and in retrieving, maintaining and
displaying such information and images in the offices of the recorders
and at remote locations in each of such counties. In consideration for
its acting as the agent for the recorders with respect to the
collection and payment of the county assessment fees, the Secretary of
State shall retain and pay over to the General Fund of the State an
administrative charge of 1 percent of the total fees collected.

(6) The assessment fee to the counties
shall be $24 for each 1-page instrument filed with the Secretary of
State in accordance with this section and $9 for each additional page
for instruments with more than 1 page. The recorder’s office to receive
the assessment fee shall be the recorder’s office in the county in
which the corporation’s registered office in this State is, or is to
be, located, except that an assessment fee shall not be charged for
either a certificate of dissolution qualifying for treatment under §
391(a)(5)b. of this title or a document filed in accordance with
Subchapter XV of this chapter.

(7) The Secretary of State, acting as
agent, shall collect and deposit in a separate account established
exclusively for that purpose a courthouse municipality fee with respect
to each filed instrument and shall thereafter monthly remit funds from
such account to the treasuries of the municipalities designated in §
301 of Title 10. Said fees shall be for the purposes of defraying
certain costs incurred by such municipalities in hosting the primary
locations for the Delaware Courts. The fee to such municipalities shall
be $20 for each instrument filed with the Secretary of State in
accordance with this section. The municipality to receive the fee shall
be the municipality designated in § 301 of Title 10 in the county in
which the corporation’s registered office in this State is, or is to
be, located, except that a fee shall not be charged for a certificate
of dissolution qualifying for treatment under § 391(a)(5)b. of this
title, a resignation of agent without appointment of a successor under
§ 136 of this title, or a document filed in accordance with Subchapter
XV of this chapter.

(8) The Secretary of State shall cause to
be entered such information from each instrument as the Secretary of
State deems appropriate into the Delaware Corporation Information
System or any system which is a successor thereto in the office of the
Secretary of State, and such information and a copy of each such
instrument shall be permanently maintained as a public record on a
suitable medium. The Secretary of State is authorized to grant direct
access to such system to registered agents subject to the execution of
an operating agreement between the Secretary of State and such
registered agent. Any registered agent granted such access shall
demonstrate the existence of policies to ensure that information
entered into the system accurately reflects the content of instruments
in the possession of the registered agent at the time of entry.

(d) Any instrument filed in accordance
with subsection (c) of this section shall be effective upon its filing
date. Any instrument may provide that it is not to become effective
until a specified time subsequent to the time it is filed, but such
time shall not be later than a time on the 90th day after the date of
its filing. If any instrument filed in accordance with subsection (c)
of this section provides for a future effective date or time and if the
transaction is terminated or its terms are amended to change the future
effective date or time prior to the future effective date or time, the
instrument shall be terminated or amended by the filing, prior to the
future effective date or time set forth in such instrument, of a
certificate of termination or amendment of the original instrument,
executed in accordance with subsection (a) of this section, which shall
identify the instrument which has been terminated or amended and shall
state that the instrument has been terminated or the manner in which it
has been amended.

(e) If another section of this chapter
specifically prescribes a manner of executing, acknowledging or filing
a specified instrument or a time when such instrument shall become
effective which differs from the corresponding provisions of this
section, then such other section shall govern.

(f) Whenever any instrument authorized to
be filed with the Secretary of State under any provision of this title,
has been so filed and is an inaccurate record of the corporate action
therein referred to, or was defectively or erroneously executed, sealed
or acknowledged, the instrument may be corrected by filing with the
Secretary of State a certificate of correction of the instrument which
shall be executed, acknowledged and filed in accordance with this
section. The certificate of correction shall specify the inaccuracy or
defect to be corrected and shall set forth the portion of the
instrument in corrected form. In lieu of filing a certificate of
correction the instrument may be corrected by filing with the Secretary
of State a corrected instrument which shall be executed, acknowledged
and filed in accordance with this section. The corrected instrument
shall be specifically designated as such in its heading, shall specify
the inaccuracy or defect to be corrected, and shall set forth the
entire instrument in corrected form. An instrument corrected in
accordance with this section shall be effective as of the date the
original instrument was filed, except as to those persons who are
substantially and adversely affected by the correction and as to those
persons the instrument as corrected shall be effective from the filing
date.

(g) Notwithstanding that any instrument
authorized to be filed with the Secretary of State under this title is
when filed inaccurately, defectively or erroneously executed, sealed or
acknowledged, or otherwise defective in any respect, the Secretary of
State shall have no liability to any person for the preclearance for
filing, the acceptance for filing or the filing and indexing of such
instrument by the Secretary of State.

(h) Any signature on any instrument
authorized to be filed with the Secretary of State under this title may
be a facsimile, a conformed signature or an electronically transmitted
signature.

(i)(1) If:

a. Together with the actual delivery of
an instrument and tender of the required taxes and fees, there is
delivered to the Secretary of State a separate affidavit (which in its
heading shall be designated as an “quot;affidavit of extraordinary
condition”) attesting, on the basis of personal knowledge of the
affiant or a reliable source of knowledge identified in the affidavit,
that an earlier effort to deliver such instrument and tender such taxes
and fees was made in good faith, specifying the nature, date and time
of such good faith effort and requesting that the Secretary of State
establish such date and time as the filing date of such instrument; or

b. Upon the actual delivery of an
instrument and tender of the required taxes and fees, the Secretary of
State in the Secretary’s discretion provides a written waiver of the
requirement for such an affidavit stating that it appears to the
Secretary of State that an earlier effort to deliver such instrument
and tender such taxes and fees was made in good faith and specifying
the date and time of such effort; and

c. The Secretary of State determines that
an extraordinary condition existed at such date and time, that such
earlier effort was unsuccessful as a result of the existence of such
extraordinary condition, and that such actual delivery and tender were
made within a reasonable period (not to exceed 2 days) after
the cessation of such extraordinary condition,

then the Secretary of State may establish
such date and time as the filing date of such instrument. No fee shall
be paid to the Secretary of State for receiving an affidavit of
extraordinary condition.

(2) For purposes of this subsection, an
“extraordinary condition” means: any emergency resulting from an attack
on, invasion or occupation by foreign military forces of, or disaster,
catastrophe, war or other armed conflict, revolution or insurrection,
or rioting or civil commotion in, the United States or a locality in
which the Secretary of State conducts its business or in which the good
faith effort to deliver the instrument and tender the required taxes
and fees is made, or the immediate threat of any of the foregoing; or
any malfunction or outage of the electrical or telephone service to the
Secretary of State’s office, or weather or other condition in or about
a locality in which the Secretary of State conducts its business, as a
result of which the Secretary of State’s office is not open for the
purpose of the filing of instruments under this chapter or such filing
cannot be effected without extraordinary effort. The Secretary of State
may require such proof as it deems necessary to make the determination
required under paragraph (1)c. of this subsection, and any such
determination shall be conclusive in the absence of actual fraud.

(3) If the Secretary of State establishes
the filing date of an instrument pursuant to this subsection, the date
and time of delivery of the affidavit of extraordinary condition or the
date and time of the Secretary of State’s written waiver of such
affidavit shall be endorsed on such affidavit or waiver and such
affidavit or waiver, so endorsed, shall be attached to the filed
instrument to which it relates. Such filed instrument shall be
effective as of the date and time established as the filing date by the
Secretary of State pursuant to this subsection, except as to those
persons who are substantially and adversely affected by such
establishment and, as to those persons, the instrument shall be
effective from the date and time endorsed on the affidavit of
extraordinary condition or written waiver attached thereto. (8 Del. C.
1953, § 103; 56 Del. Laws, c. 50; 56 Del. Laws, c. 186, § 1; 57 Del.
Laws, c. 148, § 2; 58 Del. Laws, c. 235, § 1; 64 Del. Laws, c. 112, §
2; 66 Del. Laws, c. 352, §§ 1, 2; 67 Del. Laws, c. 190, §§ 1-3; 68 Del.
Laws, c. 211, §§ 1-4; 69 Del. Laws, c. 221, § 1; 69 Del. Laws, c. 235,
§§ 1-3; 70 Del. Laws, c. 79, § 4; 70 Del. Laws, c. 186, § 1; 70 Del.
Laws, c. 349, § 1; 70 Del. Laws, c. 587, §§ 2-6; 71 Del. Laws, c. 339,
§§ 3-5; 72 Del. Laws, c. 343, § 2; 73 Del. Laws, c. 298, § 1; 74 Del.
Laws, c. 9, §§ 1-7; 74 Del. Laws, c. 118, § 1.)

§ 104. Certificate of incorporation; definition.

The term “certificate of incorporation,”
as used in this chapter, unless the context requires otherwise,
includes not only the original certificate of incorporation filed to
create a corporation but also all other certificates, agreements of
merger or consolidation, plans of reorganization, or other instruments,
howsoever designated, which are filed pursuant to §§ 102, 133-136, 151,
241-243, 245, 251-258, 263-264, 303, or any other section of this
title, and which have the effect of amending or supplementing in some
respect a corporation’s original certificate of incorporation. (8 Del.
C. 1953, § 104; 56 Del. Laws, c. 50; 67 Del. Laws, c. 376, § 2; 69 Del.
Laws, c. 61, § 2.)

§ 105. Certificate of incorporation and other certificates; evidence.

A copy of a certificate of incorporation,
or a restated certificate of incorporation, or of any other certificate
which has been filed in the office of the Secretary of State as
required by any provision of this title shall, when duly certified by
the Secretary of State, be received in all courts, public offices and
official bodies as prima facie evidence of:

(1) Due execution, acknowledgment and filing of the instrument;

(2) Observance and performance of all
acts and conditions necessary to have been observed and performed
precedent to the instrument becoming effective; and

(3) Any other facts required or permitted
by law to be stated in the instrument. (8 Del. C. 1953, § 105; 56 Del.
Laws, c. 50; 70 Del. Laws, c. 587, § 7.)

§ 106. Commencement of corporate existence.

Upon the filing with the Secretary of
State of the certificate of incorporation, executed and acknowledged in
accordance with § 103 of this title, the incorporator or incorporators
who signed the certificate, and such incorporator’s or incorporators’
successors and assigns, shall, from the date of such filing, be and
constitute a body corporate, by the name set forth in the certificate,
subject to subsection (d) of § 103 of this title and subject to
dissolution or other termination of its existence as provided in this
chapter. (8 Del. C. 1953, § 106; 56 Del. Laws, c. 50; 71 Del. Laws, c.
339, § 6.)

§ 107. Powers of incorporators.

If the persons who are to serve as
directors until the first annual meeting of stockholders have not been
named in the certificate of incorporation, the incorporator or
incorporators, until the directors are elected, shall manage the
affairs of the corporation and may do whatever is necessary and proper
to perfect the organization of the corporation, including the adoption
of the original bylaws of the corporation and the election of
directors. (8 Del. C. 1953, § 107; 56 Del. Laws, c. 50.)

§ 108. Organization meeting of incorporators or directors named in certificate of incorporation.

(a) After the filing of the certificate
of incorporation an organization meeting of the incorporator or
incorporators, or of the board of directors if the initial directors
were named in the certificate of incorporation, shall be held, either
within or without this State, at the call of a majority of the
incorporators or directors, as the case may be, for the purposes of
adopting bylaws, electing directors (if the meeting is of the
incorporators) to serve or hold office until the first annual meeting
of stockholders or until their successors are elected and qualify,
electing officers if the meeting is of the directors, doing any other
or further acts to perfect the organization of the corporation, and
transacting such other business as may come before the meeting.

(b) The persons calling the meeting shall
give to each other incorporator or director, as the case may be, at
least 2 days’ written notice thereof by any usual means of
communication, which notice shall state the time, place and purposes of
the meeting as fixed by the persons calling it. Notice of the meeting
need not be given to anyone who attends the meeting or who signs a
waiver of notice either before or after the meeting.

(c) Any action permitted to be taken at
the organization meeting of the incorporators or directors, as the case
may be, may be taken without a meeting if each incorporator or
director, where there is more than 1, or the sole incorporator or
director where there is only 1, signs an instrument which states the
action so taken. (8 Del. C. 1953, § 108; 56 Del. Laws, c. 50.)

§ 109. Bylaws.

(a) The original or other bylaws of a
corporation may be adopted, amended or repealed by the incorporators,
by the initial directors if they were named in the certificate of
incorporation, or, before a corporation has received any payment for
any of its stock, by its board of directors. After a corporation has
received any payment for any of its stock, the power to adopt, amend or
repeal bylaws shall be in the stockholders entitled to vote, or, in the
case of a nonstock corporation, in its members entitled to vote;
provided, however, any corporation may, in its certificate of
incorporation, confer the power to adopt, amend or repeal bylaws upon
the directors or, in the case of a nonstock corporation, upon its
governing body by whatever name designated. The fact that such power
has been so conferred upon the directors or governing body, as the case
may be, shall not divest the stockholders or members of the power, nor
limit their power to adopt, amend or repeal bylaws.

(b) The bylaws may contain any provision,
not inconsistent with law or with the certificate of incorporation,
relating to the business of the corporation, the conduct of its
affairs, and its rights or powers or the rights or powers of its
stockholders, directors, officers or employees. (8 Del. C. 1953, § 109;
56 Del. Laws, c. 50; 59 Del. Laws, c. 437, § 1.)

§ 110. Emergency bylaws and other powers in emergency.

(a) The board of directors of any
corporation may adopt emergency bylaws, subject to repeal or change by
action of the stockholders, which shall notwithstanding any different
provision elsewhere in this chapter or in Chapters 3 and 5 of Title 26,
or in Chapter 7 of Title 5, or in the certificate of incorporation or
bylaws, be operative during any emergency resulting from an attack on
the United States or on a locality in which the corporation conducts
its business or customarily holds meetings of its board of directors or
its stockholders, or during any nuclear or atomic disaster, or during
the existence of any catastrophe, or other similar emergency condition,
as a result of which a quorum of the board of directors or a standing
committee thereof cannot readily be convened for action. The emergency
bylaws may make any provision that may be practical and necessary for
the circumstances of the emergency, including provisions that:

(1) A meeting of the board of directors
or a committee thereof may be called by any officer or director in such
manner and under such conditions as shall be prescribed in the
emergency bylaws;

(2) The director or directors in
attendance at the meeting, or any greater number fixed by the emergency
bylaws, shall constitute a quorum; and

(3) The officers or other persons
designated on a list approved by the board of directors before the
emergency, all in such order of priority and subject to such conditions
and for such period of time (not longer than reasonably necessary after
the termination of the emergency) as may be provided in the emergency
bylaws or in the resolution approving the list, shall, to the extent
required to provide a quorum at any meeting of the board of directors,
be deemed directors for such meeting.

(b) The board of directors, either before
or during any such emergency, may provide, and from time to time
modify, lines of succession in the event that during such emergency any
or all officers or agents of the corporation shall for any reason be
rendered incapable of discharging their duties.

(c) The board of directors, either before
or during any such emergency, may, effective in the emergency, change
the head office or designate several alternative head offices or
regional offices, or authorize the officers so to do.

(d) No officer, director or employee
acting in accordance with any emergency bylaws shall be liable except
for wilful misconduct.

(e) To the extent not inconsistent with
any emergency bylaws so adopted, the bylaws of the corporation shall
remain in effect during any emergency and upon its termination the
emergency bylaws shall cease to be operative.

(f) Unless otherwise provided in
emergency bylaws, notice of any meeting of the board of directors
during such an emergency may be given only to such of the directors as
it may be feasible to reach at the time and by such means as may be
feasible at the time, including publication or radio.

(g) To the extent required to constitute
a quorum at any meeting of the board of directors during such an
emergency, the officers of the corporation who are present shall,
unless otherwise provided in emergency bylaws, be deemed, in order of
rank and within the same rank in order of seniority, directors for such
meeting.

(h) Nothing contained in this section
shall be deemed exclusive of any other provisions for emergency powers
consistent with other sections of this title which have been or may be
adopted by corporations created under this chapter. (8 Del. C. 1953, §
110; 56 Del. Laws, c. 50.)

§ 111. Jurisdiction to
interpret, apply, enforce or determine the validity of corporate
instruments and provisions of this title.

(a) Any civil action to interpret, apply, enforce or determine the validity of the provisions of:

(1) The certificate of incorporation or the bylaws of a corporation;

(2) Any instrument, document or agreement
by which a corporation creates or sells, or offers to create or sell,
any of its stock, or any rights or options respecting its stock;

(3) Any written restrictions on the transfer, registration of transfer or ownership of securities under § 202 of this title;

(4) Any proxy under § 212 or 215 of this title;

(5) Any voting trust or other voting agreement under § 218 of this title;

(6) Any agreement or certificate of merger or consolidation governed by § 251-253, 255-258, 263 or 264 of this title;

(7) Any certificate of conversion under § 265 or 266 of this title;

(8) Any certificate of domestication, transfer or continuance under § 388, 389 or 390 of this title; or

(9) Any other instrument, document, agreement, or certificate required by any provision of this title;

May be brought in the Court of Chancery,
except to the extent that a statute confers exclusive jurisdiction on a
court, agency or tribunal other than the Court of Chancery.

(b) Any civil action to interpret, apply
or enforce any provision of this title may be brought in the Court of
Chancery. (72 Del. Laws, c. 123, § 2; 74 Del. Laws, c. 84, § 1.)

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