Subchapter XV. Foreign Corporations
TITLE 8
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, as of a date not earlier than 6 months prior to the filing date, 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 may be any of the foreign corporation itself, an individual resident in this State, a domestic corporation, a domestic partnership (whether general (including a limited liability partnership) or limited (including a limited liability limited partnership)), a domestic limited liability company, a domestic statutory trust, a foreign corporation (other than the foreign corporation itself), a foreign partnership (whether general (including a limited liability partnership) or limited (including a limited liability limited partnership)), a foreign limited liability company or a foreign statutory trust, (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; 77 Del. Laws, c. 290, §§ 28, 29.;
§ 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 $50 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; 77 Del. Laws, c. 78, § 38.;
§ 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. Process may be served upon the Secretary of State under this subsection by means of electronic transmission but only as prescribed by the Secretary of State. The Secretary of State is authorized to issue such rules and regulations with respect to such service as the Secretary of State deems necessary or appropriate. In the event that service is effected through the Secretary of State in accordance with this subsection, the Secretary of State shall forthwith notify the corporation by letter, 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 be sent by a mail or courier service that includes a record of mailing or deposit with the courier and a record of delivery evidenced by the signature of the recipient. 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; 77 Del. Laws, c. 290, § 30.;
§ 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. Process may be served upon the Secretary of State under this subsection by means of electronic transmission but only as prescribed by the Secretary of State. The Secretary of State is authorized to issue such rules and regulations with respect to such service as the Secretary of State deems necessary or appropriate.
(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, 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 be sent by a mail or courier service that includes a record of mailing or deposit with the courier and a record of delivery evidenced by the signature of the recipient. 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; 77 Del. Laws, c. 290, §§ 31, 32.;
§ 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. Process may be served upon the Secretary of State under this subsection by means of electronic transmission but only as prescribed by the Secretary of State. The Secretary of State is authorized to issue such rules and regulations with respect to such service as the Secretary of State deems necessary or appropriate.
(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, 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 be sent by a mail or courier service that includes a record of mailing or deposit with the courier and a record of delivery evidenced by the signature of the recipient. 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; 77 Del. Laws, c. 290, §§ 33, 34.;
§ 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.;