Bainbridge's Business Associations: Agency, Partnerships, LLCs, and Corporations, 2026 Statutes and Rules

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This edition incorporates recent updates to the Model Business Corporation Act and the Delaware General Corporation Law. The MBCA amendments relate to appraisal rights. The affected sections are Sections 1.40 and 6.40 and Chapter 13. The Delaware amendments include those made by SB 21 and SB 95. The former extensively amended §§ 144 and 220. As amended, § 144:

• Provides safe harbors for transactions involving interested directors, officers, or controlling stockholders when approved by an informed, disinterested majority of directors or stockholders.
• Clarifies that controlling stockholder transactions can receive business judgment review (instead of the stricter "entire fairness" standard) if approved by either an independent committee or a majority of disinterested stockholders, no longer requiring both.
• Adopts a definition of Controlling Stockholder, which establishes a specific ownership threshold, requiring at least a one-third ownership stake plus managerial authority to be considered a controlling stockholder.

As amended, § 220 limits the scope of "books and records" that shareholders can demand access to under DGCL Section 220. It also presumptively restricts access to formal board-level materials, effectively excluding informal communications like emails and texts from inspection demands.

SB 95 made three significant changes:

• It expanded the forum selection rules by amending DGCL § 115 to allow corporations to specify courts for various legal claims, including those beyond internal corporate matters. The amended provision prohibits corporations from excluding Delaware state or federal courts from forum options and clarifies that forum provisions for federal claims must allow them to be brought in the U.S. District Court for the District of Delaware.
• It put new restrictions on fee-shifting provisions by further limiting a corporation's ability to adopt charter or bylaw provisions that impose liability on stockholders for legal fees in unsuccessful suits. The prohibition now applies to any claim brought by a stockholder, in their capacity as a stockholder or on behalf of the corporation.
• It codifies the Delaware Supreme Court decision in Salzberg v. Sciabacucchi, ensuring that protections for internal corporate claims also apply to similar "intra-corporate affairs" claims, like those under the Securities Act of 1933.