DELAWARE GENERAL CORPORATION LAW 
Delaware Code Title 8 / Chapter 1
Subchapter XIII. Suits Against Corporations, Directors, Officers or Stockholders
§ 321. Service of process on corporations.
(a) Service of legal process upon any corporation
of this State shall be made by delivering a copy personally to any officer or
director of the corporation in this State, or the registered agent of the
corporation in this State, or by leaving it at the dwelling house or usual place
of abode in this State of any officer, director or registered agent (if the
registered agent be an individual), or at the registered office or other place
of business of the corporation in this State. If the registered agent be a
corporation, service of process upon it as such agent may be made by serving, in
this State, a copy thereof on the president, vice-president, secretary,
assistant secretary or any director of the corporate registered agent. Service
by copy left at the dwelling house or usual place of abode of any officer,
director or registered agent, or at the registered office or other place of
business of the corporation in this State, to be effective must be delivered
thereat at least 6 days before the return date of the process, and in the
presence of an adult person, and the officer serving the process shall
distinctly state the manner of service in such person's return thereto. Process
returnable forthwith must be delivered personally to the officer, director or
registered agent.
(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) hereof. 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, certified mail, return receipt
requested, directed to the corporation at its principal place of business as it
appears on the records relating to such corporation on file with the Secretary
of State or, if no such address appears, at its last registered office. Such
letter shall enclose a copy of the process and any other papers served on 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 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 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.
(c) Service upon corporations may also be made in
accordance with § 3111 of Title 10 or any other statute or rule of court. (8
Del. C. 1953, § 321; 56 Del. Laws, c. 50; 64 Del. Laws, c. 112, § 57; 67 Del.
Laws, c. 190, § 7; 71 Del. Laws, c. 339, §§ 65, 66.)
§ 322. Failure of corporation to obey order of court;
appointment of receiver.
Whenever any corporation shall refuse, fail or
neglect to obey any order or decree of any court of this State within the time
fixed by the court for its observance, such refusal, failure or neglect shall be
a sufficient ground for the appointment of a receiver of the corporation by the
Court of Chancery. If the corporation be a foreign corporation, such refusal,
failure or neglect shall be a sufficient ground for the appointment of a
receiver of the assets of the corporation within this State. (8 Del. C. 1953, §
322; 56 Del. Laws, c. 50.)
§ 323. Failure of corporation to obey writ of mandamus; quo
warranto proceedings for forfeiture of charter.
If any corporation fails to obey the mandate of any
peremptory writ of mandamus issued by a court of competent jurisdiction of this
State for a period of 30 days after the serving of the writ upon the corporation
in any manner as provided by the laws of this State for the service of writs,
any party in interest in the proceeding in which the writ of mandamus issued may
file a statement of such fact prepared by such party or such party's attorney
with the Attorney General of this State, and it shall thereupon be the duty of
the Attorney General to forthwith commence proceedings of quo warranto against
the corporation in a court of competent jurisdiction, and the court, upon
competent proof of such state of facts and proper proceedings had in such
proceeding in quo warranto, shall decree the charter of the corporation
forfeited. (8 Del. C. 1953, § 323; 56 Del. Laws, c. 50; 71 Del. Laws, c. 339, §
67.)
§ 324. Attachment of shares of stock or any option, right or
interest therein; procedure; sale; title upon sale; proceeds.
(a) The shares of any person in any corporation
with all the rights thereto belonging, or any person's option to acquire the
shares, or such person's right or interest in the shares, may be attached under
this section for debt, or other demands, if such person appears on the books of
the corporation to hold or own such shares, option, right or interest. So many
of the shares, or so much of the option, right or interest therein may be sold
at public sale to the highest bidder, as shall be sufficient to satisfy the
debt, or other demand, interest and costs, upon an order issued therefor by the
court from which the attachment process issued, and after such notice as is
required for sales upon execution process. Except as to an uncertificated
security as defined in § 8-102 of Title 6, the attachment is not laid and no
order of sale shall issue unless § 8-112 of Title 6 has been satisfied. No order
of sale shall be issued until after final judgment shall have been rendered in
any case. If the debtor lives out of the county, a copy of the order shall be
sent by registered or certified mail, return receipt requested, to such debtor's
last known address, and shall also be published in a newspaper published in the
county of such debtor's last known residence, if there be any, 10 days before
the sale; and if the debtor be a nonresident of this State shall be mailed as
aforesaid and published at least twice for 2 successive weeks, the last
publication to be at least 10 days before the sale, in a newspaper published in
the county where the attachment process issued. If the shares of stock or any of
them or the option to acquire shares or any such right or interest in shares, or
any part of them, be so sold, any assignment, or transfer thereof, by the
debtor, after attachment, shall be void.
(b) When attachment process issues for shares of
stock, or any option to acquire such or any right or interest in such, a
certified copy of the process shall be left in this State with any officer or
director, or with the registered agent of the corporation. Within 20 days after
service of the process, the corporation shall serve upon the plaintiff a
certificate of the number of shares held or owned by the debtor in the
corporation, with the number or other marks distinguishing the same, or in the
case the debtor appears on the books of the corporation to have an option to
acquire shares of stock or any right or interest in any shares of stock of the
corporation, there shall be served upon the plaintiff within 20 days after
service of the process a certificate setting forth any such option, right or
interest in the shares of the corporation in the language and form in which the
option, right or interest appears on the books of the corporation, anything in
the certificate of incorporation or bylaws of the corporation to the contrary
notwithstanding. Service upon a corporate registered agent may be made in the
manner provided in § 321 of this title.
(c) If, after sale made and confirmed, a certified
copy of the order of sale and return and the stock certificate, if any, be left
with any officer or director or with the registered agent of the corporation,
the purchaser shall be thereby entitled to the shares or any option to acquire
shares or any right or interest in shares so purchased, and all income, or
dividends which may have been declared, or become payable thereon since the
attachment laid. Such sale, returned and confirmed, shall transfer the shares or
the option to acquire shares or any right or interest in shares sold to the
purchaser, as fully as if the debtor, or defendant, had transferred the same to
such purchaser according to the certificate of incorporation or bylaws of the
corporation, anything in the certificate of incorporation or bylaws to the
contrary notwithstanding. The court which issued the levy and confirmed the sale
shall have the power to make an order compelling the corporation, the shares of
which were sold, to issue new certificates or uncertificated shares to the
purchaser at the sale and to cancel the registration of the shares attached on
the books of the corporation upon the giving of an open end bond by such
purchaser adequate to protect such corporation.
(d) The money arising from the sale of the shares
or from the sale of the option or right or interest shall be applied and paid,
by the public official receiving the same, as by law is directed as to the sale
of personal property in cases of attachment. (8 Del. C. 1953, § 324; 56 Del.
Laws, c. 50; 59 Del. Laws, c. 106, § 17; 64 Del. Laws, c. 112, § 58; 71 Del.
Laws, c. 339, §§ 68-70.)
§ 325. Actions against officers, directors or stockholders
to enforce liability of corporation; unsatisfied judgment against corporation.
(a) When the officers, directors or stockholders of
any corporation shall be liable by the provisions of this chapter to pay the
debts of the corporation, or any part thereof, any person to whom they are
liable may have an action, at law or in equity, against any 1 or more of them,
and the complaint shall state the claim against the corporation, and the ground
on which the plaintiff expects to charge the defendants personally.
(b) No suit shall be brought against any officer,
director or stockholder for any debt of a corporation of which such person is an
officer, director or stockholder, until judgment be obtained therefor against
the corporation and execution thereon returned unsatisfied. (8 Del. C. 1953, §
325; 56 Del. Laws, c. 50; 71 Del. Laws, c. 339, § 71.)
§ 326. Action by officer, director or stockholder against
corporation for corporate debt paid.
When any officer, director or stockholder shall pay
any debt of a corporation for which such person is made liable by the provisions
of this chapter, such person may recover the amount so paid in an action against
the corporation for money paid for its use, and in such action only the property
of the corporation shall be liable to be taken, and not the property of any
stockholder. (8 Del. C. 1953, § 326; 56 Del. Laws, c. 50; 71 Del. Laws, c. 339,
§ 72.)
§ 327. Stockholder's derivative action; allegation of stock
ownership.
In any derivative suit instituted by a stockholder
of a corporation, it shall be averred in the complaint that the plaintiff was a
stockholder of the corporation at the time of the transaction of which such
stockholder complains or that such stockholder's stock thereafter devolved upon
such stockholder by operation of law. (8 Del. C. 1953, § 327; 56 Del. Laws, c.
50; 71 Del. Laws, c. 339, § 73.)
§ 328. Effect of liability of corporation on impairment of
certain transactions.
The liability of a corporation of this State, or
the stockholders, directors or officers thereof, or the rights or remedies of
the creditors thereof, or of persons doing or transacting business with the
corporation, shall not in any way be lessened or impaired by the sale of its
assets, or by the increase or decrease in the capital stock of the corporation,
or by its merger or consolidation with 1 or more corporations or by any change
or amendment in its certificate of incorporation. (8 Del. C. 1953, § 328; 56
Del. Laws, c. 50.)
§ 329. Defective organization of corporation as defense.
(a) No corporation of this State and no person sued
by any such corporation shall be permitted to assert the want of legal
organization as a defense to any claim.
(b) This section shall not be construed to prevent
judicial inquiry into the regularity or validity of the organization of a
corporation, or its lawful possession of any corporate power it may assert in
any other suit or proceeding where its corporate existence or the power to
exercise the corporate rights it asserts is challenged, and evidence tending to
sustain the challenge shall be admissible in any such suit or proceeding. (8
Del. C. 1953, § 329; 56 Del. Laws, c. 50.)
§ 330. Usury; pleading by corporation.
No corporation shall plead any statute against
usury in any court of law or equity in any suit instituted to enforce the
payment of any bond, note or other evidence of indebtedness issued or assumed by
it. (8 Del. C. 1953, § 330; 56 Del. Laws, c. 50.)
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