Delaware General Corporation Law – Subchapter XII

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§ 311. | § 312. | § 313. | § 314.

Corporations

CHAPTER 1. GENERAL CORPORATION LAW

Subchapter XII. Renewal, Revival, Extension and Restoration of Certificate of Incorporation or Charter

§ 311. Revocation of voluntary dissolution.

(a) At any time prior to the expiration
of 3 years following the dissolution of a corporation pursuant to § 275
of this title, or, at any time prior to the expiration of such longer
period as the Court of Chancery may have directed pursuant to § 278 of
this title, a corporation may revoke the dissolution theretofore
effected by it in the following manner:

(1) For purposes of this section, the
term “stockholders” shall mean the stockholders of record on the date
the dissolution became effective.

(2) The board of directors shall adopt a
resolution recommending that the dissolution be revoked and directing
that the question of the revocation be submitted to a vote at a special
meeting of stockholders;

(3) Notice of the special meeting of
stockholders shall be given in accordance with § 222 of this title to
each of the stockholders.

(4) At the meeting a vote of the
stockholders shall be taken on a resolution to revoke the dissolution.
If a majority of the stock of the corporation which was outstanding and
entitled to vote upon a dissolution at the time of its dissolution
shall be voted for the resolution, a certificate of revocation of
dissolution shall be executed, and acknowledged in accordance with §
103 of this title, which shall state:

a. The name of the corporation;

b. The names and respective addresses of its officers;

c. The names and respective addresses of its directors;

d. That a majority of the stock of the
corporation which was outstanding and entitled to vote upon a
dissolution at the time of its dissolution have voted in favor of a
resolution to revoke the dissolution; or, if it be the fact, that, in
lieu of a meeting and vote of stockholders, the stockholders have given
their written consent to the revocation in accordance with § 228 of
this title.

(b) Upon the filing in the office of the
Secretary of State of the certificate of revocation of dissolution, the
Secretary of State, upon being satisfied that the requirements of this
section have been complied with, shall issue a certificate that the
dissolution has been revoked. Upon the issuance of such certificate by
the Secretary of the State, the revocation of the dissolution shall
become effective and the corporation may again carry on its business.

(c) Upon the issuance of the certificate
by the Secretary of State to which subsection (b) of this section
refers, the provisions of § 211(c) of this title shall govern, and the
period of time the corporation was in dissolution shall be included
within the calculation of the 30-day and 13-month periods to which §
211(c) of this title refers. An election of directors, however, may be
held at the special meeting of stockholders to which subsection (a) of
this section refers, and in that event, that meeting of stockholders
shall be deemed an annual meeting of stockholders for purposes of §
211(c) of this title.

(d) If after the dissolution became
effective any other corporation organized under the laws of this State
shall have adopted the same name as the corporation, or shall have
adopted a name so nearly similar thereto as not to distinguish it from
the corporation, or any foreign corporation shall have qualified to do
business in this State under the same name as the corporation or under
a name so nearly similar thereto as not to distinguish it from the
corporation, then, in such case, the corporation shall not be
reinstated under the same name which it bore when its dissolution
became effective, but shall adopt and be reinstated under some other
name, and in such case the certificate to be filed under this section
shall set forth the name borne by the corporation at the time its
dissolution became effective and the new name under which the
corporation is to be reinstated.

(e) Nothing in this section shall be
construed to affect the jurisdiction or power of the Court of Chancery
under § 279 or 280 of this title. (8 Del. C. 1953, § 311; 56 Del. Laws,
c. 50; 56 Del. Laws, c. 186, § 25; 57 Del. Laws, c. 148, § 33; 70 Del.
Laws, c. 587, § 28; 73 Del. Laws, c. 82, §§ 33, 34; 73 Del. Laws, c.
298, § 11.)

§ 312. Renewal, revival, extension and restoration of certificate of incorporation.

(a) As used in this section, the term
“certificate of incorporation” includes the charter of a corporation
organized under any special act or any law of this State.

(b) Any corporation may, at any time
before the expiration of the time limited for its existence and any
corporation whose certificate of incorporation has become forfeited or
void pursuant to this title and any corporation whose certificate of
incorporation has expired by reason of failure to renew it or whose
certificate of incorporation has been renewed, but, through failure to
comply strictly with the provisions of this chapter, the validity of
whose renewal has been brought into question, may at any time procure
an extension, restoration, renewal or revival of its certificate of
incorporation, together with all the rights, franchises, privileges and
immunities and subject to all of its duties, debts and liabilities
which had been secured or imposed by its original certificate of
incorporation and all amendments thereto.

(c) The extension, restoration, renewal
or revival of the certificate of incorporation may be procured by
executing, acknowledging and filing a certificate in accordance with §
103 of this title.

(d) The certificate required by subsection (c) of this section shall state:

(1) The name of the corporation, which
shall be the existing name of the corporation or the name it bore when
its certificate of incorporation expired, except as provided in
subsection (f) of this section, and the date of filing of its original
certificate of incorporation with the Secretary of State;

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

(3) Whether or not the renewal,
restoration or revival is to be perpetual and if not perpetual the time
for which the renewal, restoration or revival is to continue and, in
case of renewal before the expiration of the time limited for its
existence, the date when the renewal is to commence, which shall be
prior to the date of the expiration of the old certificate of
incorporation which it is desired to renew;

(4) That the corporation desiring to be
renewed or revived and so renewing or reviving its certificate of
incorporation was organized under the laws of this State;

(5) The date when the certificate of
incorporation would expire, if such is the case, or such other facts as
may show that the certificate of incorporation has become forfeited or
void pursuant to this title, or that the validity of any renewal has
been brought into question;

(6) That the certificate for renewal or
revival is filed by authority of those who were directors or members of
the governing body of the corporation at the time its certificate of
incorporation expired or who were elected directors or members of the
governing body of the corporation as provided in subsection (h) of this
section.

(e) Upon the filing of the certificate in
accordance with § 103 of this title the corporation shall be renewed
and revived with the same force and effect as if its certificate of
incorporation had not been forfeited or void pursuant to this title, or
had not expired by limitation. Such reinstatement shall validate all
contracts, acts, matters and things made, done and performed within the
scope of its certificate of incorporation by the corporation, its
officers and agents during the time when its certificate of
incorporation was forfeited or void pursuant to this title, or after
its expiration by limitation, with the same force and effect and to all
intents and purposes as if the certificate of incorporation had at all
times remained in full force and effect. All real and personal
property, rights and credits, which belonged to the corporation at the
time its certificate of incorporation became forfeited or void pursuant
to this title, or expired by limitation and which were not disposed of
prior to the time of its revival or renewal shall be vested in the
corporation, after its revival and renewal, as fully and amply as they
were held by the corporation at and before the time its certificate of
incorporation became forfeited or void pursuant to this title, or
expired by limitation, and the corporation after its renewal and
revival shall be as exclusively liable for all contracts, acts, matters
and things made, done or performed in its name and on its behalf by its
officers and agents prior to its reinstatement, as if its certificate
of incorporation had at all times remained in full force and effect.

(f) If, since the certificate of
incorporation became forfeited or void pursuant to this title, or
expired by limitation, any other corporation organized under the laws
of this State shall have adopted the same name as the corporation
sought to be renewed or revived or shall have adopted a name so nearly
similar thereto as not to distinguish it from the corporation to be
renewed or revived or any foreign corporation qualified in accordance
with § 371 of this title shall have adopted the same name as the
corporation sought to be renewed or revived or shall have adopted a
name so nearly similar thereto as not to distinguish it from the
corporation to be renewed or revived, then in such case the corporation
to be renewed or revived shall not be renewed under the same name which
it bore when its certificate of incorporation became forfeited or void
pursuant to this title, or expired but shall adopt or be renewed under
some other name and in such case the certificate to be filed under the
provisions of this section shall set forth the name borne by the
corporation at the time its certificate of incorporation became
forfeited or void pursuant to this title, or expired and the new name
under which the corporation is to be renewed or revived.

(g) Any corporation that renews or
revives its certificate of incorporation under this chapter shall pay
to this State a sum equal to all franchise taxes, penalties and
interest thereon due at the time its certificate of incorporation
became forfeited or void pursuant to this title, or expired by
limitation or otherwise; provided, however, that any corporation that
renews or revives its certificate of incorporation under this chapter
whose certificate of incorporation has been forfeited, void or expired
for more than 5 years shall, in lieu of the payment of the franchise
taxes and penalties otherwise required by this subsection, pay a sum
equal to 3 times the amount of the annual franchise tax that would be
due and payable by such corporation for the year in which the renewal
or revival is effected, computed at the then current rate of taxation.
No payment made pursuant to this subsection shall reduce the amount of
franchise tax due under Chapter 5 of this title for the year in which
the renewal or revival is effected.

(h) If a sufficient number of the last
acting officers of any corporation desiring to renew or revive its
certificate of incorporation are not available by reason of death,
unknown address or refusal or neglect to act, the directors of the
corporation or those remaining on the board, even if only 1, may elect
successors to such officers. In any case where there shall be no
directors of the corporation available for the purposes aforesaid, the
stockholders may elect a full board of directors, as provided by the
bylaws of the corporation, and the board shall then elect such officers
as are provided by law, by the certificate of incorporation or by the
bylaws to carry on the business and affairs of the corporation. A
special meeting of the stockholders for the purposes of electing
directors may be called by any officer, director or stockholder upon
notice given in accordance with § 222 of this title.

(i) After a renewal or revival of the
certificate of incorporation of the corporation shall have been
effected, the provisions of § 211(c) of this title shall govern and the
period of time the certificate of incorporation of the corporation was
forfeited pursuant to this title, or after its expiration by
limitation, shall be included within the calculation of the 30-day and
13-month periods to which § 211(c) of this title refers. A special
meeting of stockholders held in accordance with subsection (h) of this
section shall be deemed an annual meeting of stockholders for purposes
of § 211(c) of this title.

(j) Whenever it shall be desired to renew
or revive the certificate of incorporation of any corporation organized
under this chapter not for profit and having no capital stock, the
governing body shall perform all the acts necessary for the renewal or
revival of the charter of the corporation which are performed by the
board of directors in the case of a corporation having capital stock.
The members of any corporation not for profit and having no capital
stock who are entitled to vote for the election of members of its
governing body, shall perform all the acts necessary for the renewal or
revival of the certificate of incorporation of the corporation which
are performed by the stockholders in the case of a corporation having
capital stock. In all other respects, the procedure for the renewal or
revival of the certificate of incorporation of a corporation not for
profit or having no capital stock shall conform, as nearly as may be
applicable, to the procedure prescribed in this section for the renewal
or revival of the certificate of incorporation of a corporation having
capital stock. (8 Del. C. 1953, § 312; 56 Del. Laws, c. 50; 59 Del.
Laws, c. 106, § 16; 64 Del. Laws, c. 112, § 56; 66 Del. Laws, c. 352, §
11; 68 Del. Laws, c. 163, § 2; 70 Del. Laws, c. 587, §§ 29, 30; 73 Del.
Laws, c. 82, § 35; 73 Del. Laws, c. 298, § 12; 75 Del. Laws, c. 306, §§
11-16.)

§ 313. Renewal of certificate of incorporation or charter of religious, charitable, educational, etc., corporations.

(a) Every religious corporation, and
every purely charitable or educational association, and every company,
association or society, which by its certificate of incorporation, had,
at the time its certificate of incorporation or charter became void by
operation of law, for its object the assistance of sick, needy or
disabled members, or the defraying of funeral expenses of deceased
members, or to provide for the wants of the widows and families after
death of its members, whose certificate of incorporation or charter has
become inoperative and void, by operation of § 510 of this title for
failure to file annual franchise tax reports required, and for failure
to pay taxes or penalties from which it would have been exempt if the
reports had been filed, shall be deemed to have filed all the reports
and be relieved of all the taxes and penalties, upon satisfactory proof
submitted to the Secretary of State of its right to be classified under
any of the classifications set out in this subsection, and upon filing
with the Secretary of State a certificate of renewal and revival in
manner and form as required by § 312 of this title.

(b) Upon the filing by the corporation of
the proof of classification as required by subsection (a) of this
section, the filing of the certificate of renewal and revival and
payment of the required filing fees, the Secretary of State shall issue
a certificate that the corporation’s certificate of incorporation or
charter has been renewed and revived as of the date of the certificate
and the corporation shall be renewed and revived with the same force
and effect as provided in § 312(e) of this title for other corporations.

(c) Nothing contained in this section
relieves any corporation of any of the classifications set out in
subsection (a) of this section from filing the annual report required
by § 502 of this title. (8 Del. C. 1953, § 313; 56 Del. Laws, c. 50; 56
Del. Laws, c. 186, § 26; 58 Del. Laws, c. 450, § 8; 70 Del. Laws, c.
587, § 31.)

§ 314. Status of corporation.

Any corporation desiring to renew, extend
and continue its corporate existence, shall upon complying with
applicable constitutional provisions of this State, continue for the
time stated in its certificate of renewal, a corporation and shall, in
addition to the rights, privileges and immunities conferred by its
charter, possess and enjoy all the benefits of this chapter, which are
applicable to the nature of its business, and shall be subject to the
restrictions and liabilities by this chapter imposed on such
corporations. (8 Del. C. 1953, § 314; 56 Del. Laws, c. 50.)

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