The Delaware General Corporation Law (DGCL) allows immense freedom for a business to adopt the most appropriate terms for the organization, finance and governance of its enterprise.[1] To keep it current and maintain its national preeminence,[2] in 2025, the Delaware Legislature enacted two significant amendments to the DGCL: Senate Bill 21 and Senate Bill 95.

Although there have not been corresponding updates in Oklahoma, Delaware’s developments merit close attention due to their direct impact on Oklahoma corporations incorporated in Delaware. Even for entities not incorporated there, Delaware law remains influential, as the Oklahoma Supreme Court has acknowledged the similarities between the two jurisdictions and frequently cites Delaware decisions as persuasive authority in the absence of binding precedent.[3] Notably, certain provisions of Senate Bill 21 are currently under review by the Delaware Supreme Court, a topic this article examines in detail later.[4] The court’s interpretation could significantly influence how the law is applied going forward.

This article will examine the recent updates and independently detail the context of each revised section.

SENATE BILL 21

First, Senate Bill 21 (SB 21) was passed by the Delaware Legislature in March 2025 and signed into law by Gov. Matt Meyer on March 25, 2025. The legislation was a direct and hurried response to recent Delaware court rulings, including the Delaware Supreme Court’s 2024 decision in In re Match Group Inc. Derivative Litigation.[5]

In Match Group, minority stockholders challenged a series of transactions by which a controlling stockholder effectuated a reverse spinoff.[6] The Court of Chancery applied the business judgment rule, finding that the defendants satisfied the Kahn v. M&F Worldwide Corp. (MFW) framework[7] through approval by an independent and disinterested “separation committee" and a majority of uncoerced, fully informed and unaffiliated stockholders.[8] On appeal, stockholders challenged the Court of Chancery’s rulings with respect to whether the special committee was independent and whether the stockholder vote was fully informed.[9] The defendants argued on appeal that the Court of Chancery properly applied the MFW framework.[10] Defendants argued, in the alternative, that because the case did not involve a freeze-out transaction, the use of either an independent committee or minority vote procedural devices was sufficient to invoke business judgment review.[11] The Supreme Court of Delaware found the Court of Chancery had improperly applied the business judgment rule and remanded the case for the Court of Chancery to analyze the transaction, applying the entire fairness standard.[12] The court reasoned instead that, to satisfy MFW, the special committee must be wholly independent, and, therefore, one member’s lack of independence would destroy the entire special committee’s independence for purposes of MFW.[13] The court also held that the MFW framework applies to all controlling stockholder transactions whereby the controller obtains a unique nonratable benefit, reasoning that a controlling stockholder has inherently coercive authority over the board and its minority stockholders in any transaction setting, not only in freeze-out mergers.[14]

This decision has prompted concerns among corporate boards and controlling stockholders, as it makes it more challenging for conflicted transactions to qualify for protection under the business judgment rule. Indeed, SB 21 overrules Match Group and lessens the procedural requirements for a controller transaction to evade the entire fairness review standard.[15] SB 21’s primary focus was to create “safe harbors” for conflicted corporate transactions and restrict stockholders’ access to corporate books and records by specifying and narrowing the categories of documents available for inspection.

Safe-Harbor (§§144(a), 144(b))

Section 1 amends §144 of Title 8 to provide safe harbor procedures for acts or transactions in which one or more directors or officers, as well as controlling stockholders and members of control groups, have interests or relationships that might render them interested or not independent with respect to the act or transaction.[16] Under revised §144(a), certain acts or transactions involving such directors or officers will be protected if approved or ratified by a majority of the disinterested directors or by a majority of the votes cast by the disinterested stockholders entitled to vote thereon in each case upon disclosure or in full knowledge of the material facts giving rise to the conflict or potential conflict.[17] In addition, the amendments define which parties constitute a controlling stockholder or control group and provide safe harbor procedures that can be followed to insulate from challenge specified acts or transactions from which a controlling stockholder or control group receives a unique benefit.[18] Under the new §144(b), a controlling stockholder transaction that does not constitute a “going private transaction” may be entitled to the statutory safe harbor protection if it is approved or recommended, as applicable, by a committee consisting of a majority of disinterested directors or approved or ratified by a majority of the votes cast by the disinterested stockholders.[19] Under the new §144(c), a controlling stockholder transaction that constitutes a “going private transaction” may be entitled to the statutory safe harbor protection if it is negotiated and approved or recommended, as applicable, by a committee consisting of a majority of disinterested directors and approved or ratified by a vote of a majority of the votes cast by the disinterested stockholders entitled to vote thereon.[20] The amendments to §144 also set forth criteria for determining the independence and disinterestedness of directors and stockholders.[21] The amendments provide that controlling stockholders and control groups, in their capacity as such, cannot be liable for monetary damages for breach of the duty of care.[22] The amendments do not displace any safe harbor procedures or other protections available at common law.[23]

Inspections of Books and Records (§220)

Section 2 amends §220 of Title 8 to define the materials a stockholder may demand to inspect pursuant to a request for books and records of the corporation.[24] The amendments also set forth certain conditions a stockholder must satisfy in order to make an inspection of books and records.[25] The amendments make clear that information from books and records obtained by a stockholder from a production under §220 will be deemed to be incorporated by reference into any complaint filed by or at the direction of a stockholder on the basis of information obtained through a demand for books and records.[26] The new §220(b)(4) preserves whatever independent rights of inspection exist under the referenced sources and does not create any rights, either expressly or by implication.[27] The new §220(f) provides that if the corporation does not have specified books and records, including minutes of board and committee meetings, actions of the board or any committee, financial statements and director and officer independence questionnaires, the Court of Chancery may order the production of additional corporate records necessary and essential for the stockholder’s proper purpose.[28]

Because Section 3 states that the amendments “apply to all acts and transactions, whether occurring before, on, or after the enactment date of this Act,” except that it does not apply to pending or completed lawsuits, a series of litigation followed in Delaware, particularly from minority stockholders.[29] In June, the Delaware Supreme Court accepted two certified questions from Clearway.[30]

The certified questions now in front of the Delaware Supreme Court en banc are:

• “Does Section 1 of Senate Bill 21, codified at 8 Del. C. §144—eliminating the Court of Chancery’s ability to award ‘equitable relief’ or ‘damages’ where the Safe Harbor Provisions are satisfied—violate the Delaware Constitution of 1897 by purporting to divest the Court of Chancery of its equitable jurisdiction?”[31]
• “Does Section 3 of Senate Bill 21 – applying the Safe Harbor Provisions to plenary breach of fiduciary claims arising from acts or transactions that occurred before the date that Senate Bill 21 was enacted – violate the Delaware Constitution of 1897 by purporting to eliminate causes of action that had already accrued or vested?”[32]

SENATE BILL 95

Senate Bill 95 (SB 95) was introduced April 8, 2025, and signed into law by the governor on June 30, 2025. It took effect Aug. 1, 2025. This act continues the practice of amending the DGCL periodically to keep it current and maintain its national preeminence.[33] Sections 1, 3 and 4 amend §§102(f), 109(b) and 115 so that the same statutory safeguards that apply to certificate and bylaw provisions regulating internal corporate claims will also apply to certificate and bylaw provisions addressing the intracorporate affairs claims permitted under the reasoning of the Salzberg[34] decision.[35] In Salzberg, the Delaware Supreme Court held that corporate charter provisions that require claims under the Securities Act of 1933 (the “Securities Act”) to be filed in federal court are facially valid.[36] The following outlines the key amendments and additional provisions contained in SB 95.

Forum Selection Provisions (§115)

Amended §115 specifies that a certificate of incorporation or bylaw provision addressing intracorporate affairs claims must be consistent with applicable jurisdictional requirements and must allow stockholders to bring the claims in at least one court in Delaware that has jurisdiction over such claims.[37] Rather than specifically defining the types of noninternal claims that constitute intracorporate affairs claims, amended §115 authorizes forum selection provisions that relate to “the business of the corporation, the conduct of its affairs, or the rights or powers of the corporation or its stockholders, directors or officers.”[38]

Fee-Shifting Provisions (§§102(f), 109(b))

In 2014, the Delaware Supreme Court ruled a fee-shifting bylaw in a nonstock corporation as facially valid.[39] The decision concerned a private tennis association, but it led some public corporations to try to add similar fee-shifting provisions to their own bylaws to discourage litigation. Then, in 2015, the Legislature swiftly amended the DGCL to invalidate the type of fee-shifting provisions in connection with an internal corporate claim.[40] In 2025, through SB 95, the Legislature built upon the 2015 amendment by strengthening the existing ban and expanding it to cover certain intracorporate affairs claims.[41]

By adding “or in connection with any other claim that a stockholder, acting in its capacity as a stockholder or in the right of the corporation, has brought in an action, suit or proceeding” to the end of pre-2025 amendment §§102(f) and 109(b) – §102 governing the certificate of incorporation and §109 governing the bylaws – the provision expands protections for stockholders by prohibiting fee-shifting in suits brought in their capacity as stockholders or on behalf of the corporation.[42]

Sections 102(f) and 109(b) have expanded protection for stockholders. Prior to the 2025 amendments, fee-shifting provisions could not be included in a corporation’s certificate of incorporation or bylaws with respect to internal corporate claims. This meant companies were prohibited from shifting attorney fees when the claim involved internal corporate matters. Internal corporate claim is a defined term that includes 1) claims based upon a violation of a duty by a current or former director or officer or stockholder in such capacity or 2) claims over which the Delaware Court of Chancery has jurisdiction under Title 8.[43] Under the amended provisions, the restrictions on fee-shifting now extend beyond internal corporate claims. Put simply, even if a claim does not involve internal affairs, if it is brought in the stockholder’s capacity or in the right of the corporation, the company may not shift fees. However, this protection does not apply when the company initiates a claim against the stockholder. Additionally, the Legislature clarified that the amended §102(f) and §109(b) do not prohibit fee-shifting provisions if they are included in a stockholder agreement or other written instrument signed by the stockholder against whom the provision is to be enforced.[44]

Certificate of Correction (§103(f))

In addition to correcting a previously filed instrument, a certificate of correction may nullify a previously filed instrument by specifying the inaccuracy or defect with respect to such previously filed instrument and providing that the previously filed instrument is nullified.[45] A statement that the previously filed instrument is nullified or void, or a statement with words of similar meaning, will constitute a sufficient provision for the nullification.[46]

Registered Office and Agent (§§131(b), 132(b))

The amendments to §131(b) provide that all references in Title 8 to a corporation’s “registered office” in Delaware shall be deemed to mean and refer to the address of the registered agent located in the state that has been appointed to accept service of process and otherwise perform the duties of a registered agent.[47] The amendments also delete the provisions in §131(b) that, in certain instances, deemed a corporation’s registered office to be the corporation’s principal office or principal place of business in the state for purposes of Title 8 and the certificate of incorporation.[48] As amended, Title 8 does not include provisions that automatically treat a corporation’s registered office as a principal office or a principal place of business of the corporation.[49] Also, amended §131(b) specifies that a registered agent may not perform its duties or functions solely through the use of either or both of a virtual office or the retention by the agent of a mail forwarding service.[50] Amended §132(b) defines “virtual office” as the performance of duties or functions solely through the internet or solely through other means of remote communication.[51]

Fractions of Shares (§155)

The new amendment eliminates the ability of a corporation to issue scrip or warrants in bearer form in lieu of issuing fractional shares of stock.[52] Amended §155 continues to permit corporations to issue scrip or warrants in registered form.[53] The amendment is intended to bring §155 in line with the Corporate Transparency Act, 31 U.S.C. §5336(f), which prohibits corporations from issuing certificates in bearer form for either a whole or a fractional interest in an entity.[54]

Merger Filings (§252(c))

Section 8 amends §252(c), which lists the information that a corporation must include in a certificate filed with the secretary of state to merge or consolidate domestic corporations with foreign corporations.[55] The amendments delete from §252(c) a requirement that a certificate of merger or consolidation list the authorized capital stock of each foreign corporation that has ceased to exist as a result of the merger or consolidation.[56]

Certificate of Revocation of Dissolution or Restoration (§§311, 311(a)(4))

Section 9 amends §311, which addresses the procedures for revoking the dissolution of a corporation and restoring an expired corporation.[57] Amended §311(a)(4) requires that a certificate of revocation of dissolution or certificate of restoration state the date of filing of the corporation’s original certificate of incorporation with the secretary of state and state the date of filing of the corporation’s certificate of dissolution with the secretary of state.[58]

Revival of Certificate of Incorporation (§312)

Section 10 amends §312, which enables a corporation to revive its certificate of incorporation after the certificate has become forfeited or void.[59] Amended §312(g) addresses circumstances when a corporation has been revived under §312 and later files a certificate of validation under §204 to ratify one or more defective corporate acts.[60] If the certificate of validation relates to a time during which the corporation was forfeited or void, amended §312(g) requires the corporation to file the annual franchise tax reports and pay the annual franchise taxes that would have been required to be filed and paid during the period the certificate of incorporation had been forfeited or void.[61] The franchise taxes owed include the interest accrued on the taxes, and the filings and payments must be made at the time the certificate of validation is filed.[62]

Foreign Corporation’s Reinstatement (§377)

Section 377 addresses the procedures that a foreign corporation must follow to reinstate its qualification to do business in Delaware after the qualification has been forfeited under §132 or §136.[63] In connection with such a reinstatement, amended §377(e) requires a foreign corporation to file all annual reports and pay all required fees that would have been required to be filed or paid during the time the foreign corporation’s qualification to do business in Delaware had been forfeited.[64]

Reports (§502(a))

Section 12 amends §502, which requires a corporation to file an annual report with the secretary of state.[65] Amended §502(a) requires that the report disclose the nature of the business of the corporation and confirms that no office of any registered agent may be disclosed as the address of the principal place of business of the corporation, except when the corporation maintains its principal place of business in Delaware and serves as its own registered agent.[66] The paragraphs of amended §502(a) have also been renumbered.[67]

Franchise Taxes (§503)

Section 13 amends §503, which provides the rates and means of computing franchise taxes.[68] Amended §503(e) provides that the filing of a certificate of validation to ratify one or more defective corporate acts pursuant to §204 will not reduce the interest owed on the franchise taxes owed for prior periods and specifies that a corporation is not entitled to a franchise tax refund for any period prior to the filing of the certificate of validation.[69] The amendments also repeal §503(h), which specified an alternative franchise tax rate for regulated investment companies.[70]

Refund (§505)

Section 14 amends §505 by clarifying that a corporation is not entitled to a refund of taxes, penalties or interest in connection with filing a certificate of correction under §103(f) or a certificate of validation under §204.[71]

OKLAHOMA

Oklahoma has not yet adopted updates corresponding to Delaware’s 2025 DGCL amendments, but these developments merit close attention. This is because Oklahoma has historically acted soon after Delaware’s changes. For example, in 2024, Oklahoma enacted SB 620, amending Section 1006.B.7 of the OGCA to allow corporations to extend exculpatory protections to officers as well as directors, following Delaware’s 2022 amendment.[72] The amendments in SB 620 track earlier Delaware amendments to ensure continued guidance from the Delaware case law.[73] Likewise, Oklahoma’s current forum-selection provisions mirror Delaware’s pre-2025 framework, suggesting that similar updates could be adopted in the coming years.

Additionally, with a lawsuit concerning the retroactive application of the safe harbor clause currently pending before the Delaware Supreme Court, these developments should be closely monitored.[74] Like many other states, Oklahoma recognizes that a state legislature may not retroactively eliminate a cause of action that has already accrued or vested.[75] Given the broad influence of the DGCL across states, the outcome of this litigation could reshape corporate governance norms nationwide.

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ABOUT THE AUTHOR
Jinah Jung is an associate in the Oklahoma City office of Steptoe & Johnson PLLC. She received a Bachelor of Arts degree in 2015 from Hanyang University and a J.D. in 2025 from the OCU School of Law.

 

 

 

 

 

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ENDNOTES

[1] Salzberg, et al. v. Sciabacucchi, 227 A.3d 102, 116 (Del. 2020) (citing Edward P. Welch and Robert S. Saunders, “Freedom and Its Limits in the Delaware General Corporation Law,” 33 Del. J. Corp. L. 845, 856-60 (2008)).

[2] S.B. 95, 2025 Leg., 1st Sess. (Del. 2025).

[3] Johnson v. Brown, 2024 OK CIV APP 18, ¶42, 554 P.3d 781, 790 (approved for publ'n by Okla. Sup. Ct.) (Because Oklahoma corporate law is derived from Delaware law, Oklahoma adopts the construction of statutes by the highest court of that state.); see also Woolf v. Universal Fidelity Life Ins. Co., 1992 OK CIV APP 129, ¶6, 849 P.2d 1093 (holding, “We agree with the trial court that the Oklahoma General Corporation Act is based upon the Delaware General Corporations Act, and should be interpreted in accordance with Delaware decisions.”).

[4] This article was written before the oral argument scheduled for Nov. 5, 2025.

[5] In re Match Group Inc. Derivative Litigation, 315 A.3d 446 (Del. 2024).

[6] Id. at 451.

[7] Kahn v. M & F Worldwide Corp., 88 A.3d 635 (Del. 2014).

[8] Match Group, supra note 5. at 451.

[9] Id.

[10] Id. at 457.

[11] Id. at 458.

[12] Id. at 475.

[13] Id.

[14] Id. at 465.

[15] “Delaware Revises Corporate Law to Strengthen Deals and Limit Stockholder Rights,” Baker Donelson (April 21, 2025), https://bit.ly/4d5qVXd.

[16] S.B. 21, 2025 Leg., 1st Sess. §144 (Del. 2025).

[17] S.B. 21, 2025 Leg., 1st Sess. §144(a) (Del. 2025).

[18] Id.

[19] S.B. 21, 2025 Leg., 1st Sess. §144(b) (Del. 2025).

[20] S.B. 21, 2025 Leg., 1st Sess. §144(c) (Del. 2025).

[21] S.B. 21, 2025 Leg., 1st Sess. §144(d)(2) (Del. 2025).

[22] S.B. 21, 2025 Leg., 1st Sess. §144(d)(5) (Del. 2025).

[23] S.B. 21, 2025 Leg., 1st Sess. §144 (Del. 2025).

[24] S.B. 21, 2025 Leg., 1st Sess. §220 (Del. 2025).

[25] Id.

[26] Id.

[27] S.B. 21, 2025 Leg., 1st Sess. §220(b)(4) (Del. 2025).

[28] S.B. 21, 2025 Leg., 1st Sess. §220(f) (Del. 2025).

[29] Pamela L. Millard and Austin Niggebrugge, “Plaintiffs Raise Constitutional Challenges to March 2025 Milestone Amendments to the DGCL; Delaware Governor Matt Meyer Files Motions to Intervene,” Cole Schotz (June 23, 2025), https://bit.ly/4aSb1hC.

[30] Thomas Drew Rutledge v. Clearway Energy Group LLC, et al., 2025-0499-LWW (Del. Ch. 2025).

[31] Pamela L. Millard, supra note 29.

[32] Id.

[33] S.B. 95, 2025 Leg., 1st Sess. (Del. 2025).

[34] Salzberg, supra note 1.

[35] S.B. 95, 2025 Leg., 1st Sess. (Del. 2025).

[36] Salzberg, supra note 1. at 137.

[37] S.B. 95, 2025 Leg., 1st Sess. §115 (Del. 2025).

[38] 8. Del. C. §115(c).

[39] ATP Tour, Inc. v. Deutscher Tennis Bund, 91 A.3d 554 (Del. 2014).

[40] See S.B. 75, 2015 Leg., 1st Sess. (Del. 2015).

[41] S.B. 95, 2015 Leg., 1st Sess. §§102(f), 109(b) (Del. 2025).

[42] Id.

[43] 8 Del. C. §115(b).

[44] S.B. 95, 2025 Leg., 1st Sess. (Del. 2025).

[45] S.B. 95, 2025 Leg., 1st Sess. §103(f) (Del. 2025).

[46] Id.

[47] S.B. 95, 2025 Leg., 1st Sess. §131(b) (Del. 2025).

[48] Id.

[49] See 8 Del. C.

[50] S.B. 95, 2025 Leg., 1st Sess. §131(b) (Del. 2025).

[51] S.B. 95, 2025 Leg., 1st Sess. §132(b) (Del. 2025).

[52] S.B. 95, 2025 Leg., 1st Sess. §155 (Del. 2025).

[53] Id.

[54] Id.

[55] S.B. 95, 2025 Leg., 1st Sess. §252(c) (Del. 2025).

[56] Id.

[57] S.B. 95, 2025 Leg., 1st Sess. §311 (Del. 2025).

[58] S.B. 95, 2025 Leg., 1st Sess. §311(a)(4) (Del. 2025).

[59] S.B. 95, 2025 Leg., 1st Sess. §312 (Del. 2025).

[60] S.B. 95, 2025 Leg., 1st Sess. §312(g) (Del. 2025).

[61] Id.

[62] Id.

[63] S.B. 95, 2025 Leg., 1st Sess. §377 (Del. 2025).

[64] S.B. 95, 2025 Leg., 1st Sess. §377(e) (Del. 2025).

[65] S.B. 95, 2025 Leg., 1st Sess. §502 (Del. 2025).

[66] S.B. 95, 2025 Leg., 1st Sess. §502(a) (Del. 2025).

[67] Id.

[68] S.B. 95, 2025 Leg., 1st Sess. §503 (Del. 2025).

[69] S.B. 95, 2025 Leg., 1st Sess. §503(e) (Del. 2025).

[70] S.B. 95, 2025 Leg., 1st Sess. §503(h) (Del. 2025).

[71] S.B. 95, 2025 Leg., 1st Sess. §505 (Del. 2025).

[72] Gary W. Derrick and Jacob L. Fanning, “Recent Developments for Corporations and LLCs,” OBJ (October 2024), https://bit.ly/4ukoOFw.

[73] Id.

[74] Clearway, supra note 30.  On Feb. 27, 2026, the Delaware Supreme Court issued a decision upholding SB 21 as constitutional and a valid exercise of the Legislature’s authority, and also upheld SB 21’s retroactive application as constitutionally permissible.

[75] St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 782 P.2d 915, 920 (Okla. 1989) (“[T]he right of access to the courts protects only those substantive rights which have vested[.]”); see also Rosenberg v. Town of N. Bergen, 293 A.2d 662, 667 (N.J. 1972); Ieropoli v. AC&S Corp., 842 A.2d 919, 927 (Pa. 2004); Berry By & Through Berry v. Beech Aircraft Corp., 717 P.2d 670, 676 (Utah. 1985).