Delaware Charter Audit Before Your Term Sheet: 2026 Changes

You are about to send a term sheet, and the first document a lawyer will ask for is your certificate of incorporation. It may still be written for the old rules. Five Delaware measures — HB 298, HB 352, HB 353, HB 354, and HB 400 — became operative on August 1, 2026. Companies incorporated before that date may need a quick pass on the charter, agent file, and series language. Companies incorporated after that date should already reflect the new defaults. Either way, a short audit protects the control, service, and cleanup rules you expect to have.

The records that can move without your consent

Your entity records have a few key pieces. The certificate says who can vote on certain control moves. The registered agent file says where the state can reach you. The series or partnership language says how you can change the structure later. When the law changes, those pieces can move without your consent.

A pre-raise audit finds the places where your records may need a lawyer’s attention before a term sheet creates pressure. It is also useful before revenue, because lenders and customers may ask for entity documents. You do not need to rewrite the company; you need to know which records are current and which ones need a small fix.

Under Delaware House Bill 353, the Secretary of State serves as the post-dissolution agent for receiving legal process for a corporation once the dissolution is effective. The old registered agent’s authority and duties end when the certificate of dissolution filing becomes effective, except for process already received before that moment. Your cleanup plan should not assume the agent will keep receiving papers after the entity is gone.

The 2026 Delaware General Corporation Law amendment clarifies that a charter provision rejecting Section 242(b)(2) voting does not by itself reject Section 242(d) voting. A Section 242(d) opt-out must be expressly written into the certificate of incorporation. Search for that express language before you rely on an older 242(b)(2) rejection.

Delaware House Bill 352 creates a statutory definition of a certificate of registered series in Section 18-101 of the Delaware Limited Liability Company Act. Your operating agreement or series certificate should match that definition when it uses the term. If you are not using registered series, note that fact in your audit file so a future reader does not assume you are.

Delaware House Bill 354 creates Section 17-202(d) of the Delaware Limited Partnership Act to allow amendment filings by a person who is no longer a general partner. When your partnership has had a general partner leave, check whether your amendment process still names a person who can file. If it does not, you may need a simple internal fix before a buyer or investor asks for it.

Fees are the least dramatic item, but they are easy to verify. Effective August 1, 2026, Delaware’s UCC paper filing fee rises from $100 to $125 and its web filing fee rises from $50 to $70. Use the current web fee when you can file online. Budget for the higher paper amount when you must file on paper.

Run the five checks before the term sheet

• Confirm your registered agent file is current and your dissolution service plan is documented.
• Search your certificate for an express Section 242(d) opt-out.
• Check whether your limited liability company series language names a certificate of registered series.
• Verify your limited partnership amendment process covers a former general partner.
• Set your UCC filing budget to the current web or paper fee.

Each check is small enough to finish quickly. If a check fails, write down what you found and what you need from your lawyer. Do not let a missing provision or an old record become a surprise in the term sheet conversation.

A short audit file keeps the work useful

Save the relevant documents in a single folder: certificate, registered agent confirmation, series or partnership amendment language, and fee worksheet. Add a short note for each check. When your lawyer asks, you can point to the file instead of explaining it from memory.