HOUSE BILL NO. 565
AN ACT TO AMEND CHAPTER 1, TITLE 8 OF THE DELAWARE CODE RELATING TO THE DELAWARE GENERAL CORPORATION LAW.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each House thereof concurring therein):
Section 1. Amend Chapter 1, Title 8 of the Delaware Code by redesignating present Subchapter XVI as new Subchapter XVII and by designating a new Subchapter XVI to be entitled "Domestication and Transfer of Non-United States Corporations."
Section 2. Amend Chapter 1, Title 8, Delaware Code by adding thereto a new Section 388 to read as follows:
"§388. Domestication of non-United States Corporations
(a) As used in this section, the term:
(1) 'Corporation' includes any incorporated organization, private law corporation (whether or not organized for business purposes), public law corporation, and partnership, proprietorship, Joint venture, foundation, trust, association or similar entity, and
(2) 'Non-United States corporation' means any corporation the internal affairs of which are governed by the laws of any Jurisdiction other than the United States, any State, the District of Columbia. Puerto Rico, Guam or any possession or territory of the United States.
(b) Any non-United States Corporation may become domesticated in this State by filing with the Secretary of State: (i) a certificate of domestication which shall be executed and acknowledged In accordance with subsection (g) and filed and recorded in accordance with §103 of this title, and (11) a certificate of Incorporation, which shall be executed, acknowledged, filed and recorded in accordance with §103 of this title.
(c) The certificate of domestication shall certify:
(i) the date on which and Jurisdiction where the corporation was first formed, incorporated or otherwise came into being, (ii) the name of the corporation immediately prior to the filing of the certificate of domestication and (iii) the Jurisdiction that constituted the seat, siege social, or principal place of business or central administration of the corporation, or any other equivalent thereto under applicable law, immediately prior to the filing of the certificate of domestication.
(d) Upon filing with the Secretary of State of the certificate of domestication and certificate of incorporation, the corporation shall be domesticated in this State and the corporation shall thereafter be subject to all the provisions of this title, except that notwithstanding §106, the existence of the corporation shall be deemed to have commenced on the date the corporation commenced its existence in the Jurisdiction in which the corporation was first formed, incorporated or otherwise came into being.
(e) The domestication of any corporation in this State shall not be deemed to affect any obligations or liabilities of the corporation incurred prior to its domestication.
(f) The filing of a certificate of domestication shall not affect the choice of law applicable to the corporation. except that from the date the certificate of domestication is filed, the law of the State of Delaware, including the provisions of this title, shall apply to the corporation to the same extent as if the corporation had been incorporated as a corporation of this State on that date.
(g) The certificate of domestication shall be signed by any corporation officer, director, trustee, manager, partner or other person performing functions equivalent to those of an officer or director. however named or described, and who is authorized to sign the certificate of domestication on behalf of the corporation."
Section 3. Amend Chapter I, Title 8, Delaware Code by adding thereto a new Section 389 to read as follows:
"§389. Temporary transfer of domicile into this State
(a) As used in this section, the term:
(1) 'Corporation' and the term 'non-United States corporation' shall have the same meanings as set forth in §388(a) of this title.
(2) The terms 'officers' and 'directors' include, in addition to such persons, trustees, managers, partners and all other persons performing functions equivalent to those of officers and directors, however named or described in any relevant instrument.
(3) The term 'emergency conditon' as used herein shall be deemed to include but not be limited to any of the following: war or other armed conflict; revolution or insurrection; invasion or occupation by foreign military forces; rioting or civil commotion of an extended nature; domination by a foreign power; expropriation, nationalization or confiscation of a material part of the assets or property of the corporation; impairment of the institution of private property (including private property held abroad); the taking of any action under the laws of the United States whereby persons resident in the jurisdiction, the law of which governs the internal affairs of the corporation, might be treated as 'enemies' or otherwise restricted under laws of the United States relating to trading with enemies of the United States; or the immediate threat of any of the foregoing; and such other event which, under the law of the jurisdiction governing the internal affairs of the corporation, permits the corporation to transfer its domicile.
(b) Any non-United States corporation may, subject to and upon compliance with the further provisions of this section, transfer its domicile (which term, as used in this section, shall be deemed to refer in addition to the seat, siege social, or principal place of business or central administration of such corporation, or any other equivalent thereto under applicable law) into this State, and may perform the acts described in the further provisons of this section, so long as the law by which the internal affairs of such corporation are governed does not expressly prohibit such transfer.
(c) Any corporation that shall propose to transfer its domicile into this State shall submit to the Secretary of State for his review, at least 30 days prior to the proposed transfer of domicile, the following:
(1) a copy of its certificate of incorporation and by-laws (or the equivalent thereof under applicable law), certified as true and correct by the appropriate director, officer or government official;
(2) a certificate issued by an authorized officer of the jurisdiction the law of which governs the internal affairs of the corporation evidencing its corporate existence;
(3) a list indicating the person or persons who, in the event of a transfer pursuant to this section, shall be the authorized officers and directors of the corporation, together with evidence of their authority to act and their respective executed agreements in writing regarding service of process as set out in subsection (j) of this section;
(4) a certificate executed by the appropriate officer or director of the corporation, setting forth (i) the name and address of its registered agent in this State, (U) a general description of the business in which it is engaged, (Ili) that the filing of such certificate has been duly authorizeed by any necessary corporate action and does not violate the certificate of incorporation or by-laws (or equivalents thereof under applicable law) or any material agreement or instrument binding on such corporation, (iv) a list indicating the person or persons authorized to sign the written communications required by subsection (e) of this section, (v) an affirmance that such transfer is not expressly prohibited under the law by which the internal affairs of the corporation are governed, and (vi) an undertaking that any transfer of domicile into this State will take place only in the event of an emergency condition in the jurisdiction the law of which governs the internal affairs of the corporation and that such transfer shall continue only so long as such emergency condition, in the judgment of the corporation's management, so requires; and
(5) the examination fee prescribed under §391 of this title.
If any of the documents referred to above are not in English, a translation thereof, under oath of the translator, shall be attached thereto. If such documents satisfy the requirements of this section, and if the name of the corporaiton meets the requirements of §102(a)(1) of this title, the Secretary of State shall notify the corporation that such documents have been accepted for filing, and the records of the Secretary of State shall reflect such acceptance and such notification. In addition, the Secretary of State shall enter the name of the corporation on his reserved list to remain there so long as the corporation is in compliance with the provisions of this section. No document submitted under this subsection shall be available for public Inspection pursuant to Title 29, Chapter 100, Delaware Code, until and unless, such corporation effects a transfer of its domicile as provided In this section. The Secretary of State may waive the 30-day period and translation requirement provided for in this subsection, upon request by such corporation supported by facts (including, without limitation, the existence of an emergency condition) justifying such waiver.
(d) On or before the 1st day of March in each year, prior to the transfer of its domicile as provided for in subsection (e) below, during any such transfer and, in the event that it desires to continue to be subject to a transfer of domicile under this section, after its domicile has ceased to be in this State, the corporation shall file a certificate executed by an appropriate officer or director of the corporation, certifying that the documents submitted pursuant to this section remain in full force and effect or attaching any amendments or supplements thereto and translated as required above, together with the filing fee prescribed under §391 of this title. In the event that any corporation fails to file the required certificate on or before the 1st day of March in each year, all certificates and filings made pursuant to this section shall become null and void on the 2nd day of March in such year, and any proposed transfer thereafter shall be subject to all of the required submissions and the examination fee set forth in subsection (c) of this section.
(e) If the Secretary of State accepts the documents submitted pursuant to subsection (c) for filing, such corporation may transfer its domicile to this State at any time by means of a written communication to such effect addressed to the Secretary of State, signed by one of the persons named on the list filed pursuant to subsection (c)(4)(iv), and confirming that the statements made pursuant to subsection (c)(4) remain true and correct; provided, that if emergency conditions have affected ordinary means of communication, such notification may be made by telegram, telex, telecopy or other form of writing so long as a duly signed duplicate is received by the Secretary of State within 30 days thereafter. The records of the Secretary of State shall reflect the fact of such transfer. Upon the payment to the Secretary of State of the fee prescribed under §391 of this title, the Secretary of State shall certify that the corporation has filed all documents and paid all fees required by this title. Such certificate of the Secretary of State shall be prima facie evidence of transfer by such corporation of its domicile into this State.
(f) Except to the extent expressly prohibitd by the laws of this State, from and after the time that a non-United States corporation transfers its domicile to this State pursuant to the provisions of this section, the corporation shall have all of the powers which it had immediately prior to such transfer under the law of the jurisdiction governing its internal affairs and the directors and officers designated pursuant to subsection (c)(3), and their successors, may manage the business and affairs of the corporation in accordance with the laws of such jurisdiction. Any such activity conducted pursuant to this section shall not be deemed to be doing business within this State for purposes of §371 of this title. Any reference in this section to the law of the jurisdiction governing the internal affairs of a corporation which has transferred its domicile into this State shall be deemed to be a reference to such law as in effect immediately prior to the transfer of domicile.
(g) For purposes of any action in the courts of this State, no corporation which has obtained the certificate of the Secretary of State referred to in subsection (e) shall be deemed to be an 'enemy' person or entity for any purpose, including, without limitation, in relation to any claim of title to its assets, wherever located, or to its ability to institute suit in said courts.
(h) The transfer by any corporation of its domicile into this State shall not be deemed to affect any obligations or liabilities of such corporation incurred prior to such transfer.
(i) The directors of any corporation which has transferred its domicile into this State may withhold from any stockholder any amounts payable to such stockholder on account of dividends or other distributions, if the directors shall determine that such stockholder will not have the full benefit of such payment, so long as the directors shall make provision for the retention of such withheld payment in escrow or under some similar arrangement for the benefit of such stockholder.
(j) All process issued out of any court of this State, all orders made by any court of this State, and all rules and notices of any kind required to be served on any corporation which has transferred its domicile into this State may be served on the corporation pursuant to §321 of this title in the same manner as if such corporation were a corporation of this State. The directors of a corporation which has transferred its domicile into this State shall agree in writing that they will be amenable to service of process by the same means as, and subject to the jurisdiction of, the courts of this State to the same extent as are directors of corporations of this State, and such agreements shall be submitted to the Secretary of State for filing before the respective directors take office.
(k) Any corporation which has transferred its domicile into this State may voluntarily return to the jurisdiction the law of which governs Its internal affairs by filing with the Secretary of State an application to withdraw from this State. Such application shall be accompanied by a resolution of the directors of the corporation authorizing such withdrawal and by a certificate of the highest diplomatic or consular officer of such jurisdiction accredited to the United States indicating the consent of such jurisdiction to such withdrawal. The application shall also contain, or be accompanied by, the agreement of the corporation that it may be served with process in this State in any proceeding for enforcement of any obligation of the corporation arising prior to its withdrawal from this State, which agreement shall include the appointment of the Secretary of State as the agent of the corporation to accept service of process in any such proceeding and shall specify the address to which a copy of process served upon the Secretary of State shall be mailed. Upon the payment of any fees and taxes owed to this State, the Secretary of State shall file the application and the corporation's domicile shall, as of the time of filing, cease to be in this State."
Section 4. Amend §391, Chapter 1, Title 8, Delaware Code by redesignating paragraphs (18) and (19) of subsection (a) thereof as new paragraphs (21) and (22), respectively, and by inserting after paragraph (17) of subsection (a) the following:
"(18) For receiving and filing and/or indexing by the Secretary of State of a certificate of domestication and certificate of incorporation prescribed in §388(d) of this Title, a fee of $100, plus the tax and fee payable upon the receipt for filing of an original certificate of incorporation, shall be paid.
(19) For receiving, reviewing and filing and/or indexing by the Secretary of State of the documents prescribed in §389(c) of this title, a fee of $10,000 shall be paid.
(20) For receiving, reviewing and filing and/or indexing by the Secretary of State of the documents prescribed in §389(d) of this title, an annual fee of $2,500 shall be paid."
Section 5. If any provision of this Act or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the Act which can be given effect without the invalid provision or application.
Section 6. This Act shall take effect on July 1, 1984.
Approved July 2, 1984.