Delaware compliance for lawyers serving founders

Summary research brief: Delaware compliance for lawyers serving founders — key requirements, statutes, deadlines, and practical next steps.Key findings (high level):- Franchise tax & annual reports: Delaware corporations must file an annual report and pay franchise tax on or before March 1 each year; Delaware LLCs/LPs/LLPs owe an annual tax (flat $300) due June 1.

Corporations have two methods to calculate tax (Authorized Shares method and Assumed Par Value Capital method) with minimums and maximums; penalties and interest apply for late filing/payment.- Registered agent & Division of Corporations processes: Delaware requires a registered office/agent; filings and payments are made through the Delaware Division of Corporations portal.- DGCL §102(b)(7) exculpation: Delaware law permits exculpation of directors (and, following amendment, certain officers) from monetary liability for breaches of the duty of care, subject to specified statutory exceptions (duty of loyalty, bad faith/intentional misconduct, improper personal benefit, certain statutory exceptions).

Corporations must adopt such provisions affirmatively in their certificates of incorporation to take effect.- Delaware LLC Act (Title 6, Chapter 18): The LLC Act explicitly permits parties to expand, restrict or eliminate fiduciary duties by agreement (operating agreement), subject to the implied covenant of good faith and fair dealing; LLC agreements may limit or eliminate liabilities for breach of duties, with statutory limits on eliminating bad-faith violations of the implied covenant.- Court of Chancery and Delaware precedent: Delaware’s Court of Chancery is the specialized forum for corporate disputes and is central to Delaware governance predictability; forum-selection provisions and corporate governance choices interact with Chancery precedent and statutory changes.- BOI / Corporate Transparency Act (FinCEN): As of March 26, 2025, FinCEN issued an interim final rule revising the definition of “reporting company” to exclude entities formed in the United States (domestic reporting companies).

The current ruleed approach means BOI reporting obligations apply to certain foreign entities that register to do business in U.S. jurisdictions; deadlines for such foreign reporting companies were provided (e.g., April 25, 2025 for those registered before March 26, 2025).

Counsel must monitor FinCEN guidance for updates and exceptions.- 83(b) elections: An 83(b) election (to accelerate income inclusion on receipt of substantially nonvested property) must be filed no later than 30 days after the date the property was transferred; IRS Form 15620 or a written statement complying with Treas.

Reg. §1.83-2 may be used; best practice is certified mail or IRS-designated private delivery service and furnishing copies to the employer and retaining proof.Practical compliance checklist for lawyers advising founders (actionable items):1.

Formation & charter documents- Draft and review certificate of incorporation/bylaws (corporation) or certificate of formation/operating agreement (LLC) to address exculpation, indemnification, officer exculpation (if desired), fiduciary duty allocation, forum selection clauses, transfer restrictions, and vesting/repurchase rights.- For corporations, consider whether to adopt a §102(b)(7) exculpation clause for officers and directors and disclose limits (not a substitute for careful fiduciary compliance).

Obtain required corporate approvals and filings for charter amendments.

Summary research brief: Delaware compliance for lawyers serving founders — key requirements, statutes, deadlines, and practical next steps.Key findings (high level):- Franchise tax & annual reports: Delaware corporations must file an annual report and pay franchise tax on or before March 1 each year; Delaware LLCs/LPs/LLPs owe an annual tax (flat $300) due June 1.

Corporations have two methods to calculate tax (Authorized Shares method and Assumed Par Value Capital method) with minimums and maximums; penalties and interest apply for late filing/payment.- Registered agent & Division of Corporations processes: Delaware requires a registered office/agent; filings and payments are made through the Delaware Division of Corporations portal.- DGCL §102(b)(7) exculpation: Delaware law permits exculpation of directors (and, following amendment, certain officers) from monetary liability for breaches of the duty of care, subject to specified statutory exceptions (duty of loyalty, bad faith/intentional misconduct, improper personal benefit, certain statutory exceptions).

Corporations must adopt such provisions affirmatively in their certificates of incorporation to take effect.- Delaware LLC Act (Title 6, Chapter 18): The LLC Act explicitly permits parties to expand, restrict or eliminate fiduciary duties by agreement (operating agreement), subject to the implied covenant of good faith and fair dealing; LLC agreements may limit or eliminate liabilities for breach of duties, with statutory limits on eliminating bad-faith violations of the implied covenant.- Court of Chancery and Delaware precedent: Delaware’s Court of Chancery is the specialized forum for corporate disputes and is central to Delaware governance predictability; forum-selection provisions and corporate governance choices interact with Chancery precedent and statutory changes.- BOI / Corporate Transparency Act (FinCEN): As of March 26, 2025, FinCEN issued an interim final rule revising the definition of “reporting company” to exclude entities formed in the United States (domestic reporting companies).

The current ruleed approach means BOI reporting obligations apply to certain foreign entities that register to do business in U.S. jurisdictions; deadlines for such foreign reporting companies were provided (e.g., April 25, 2025 for those registered before March 26, 2025).

Counsel must monitor FinCEN guidance for updates and exceptions.- 83(b) elections: An 83(b) election (to accelerate income inclusion on receipt of substantially nonvested property) must be filed no later than 30 days after the date the property was transferred; IRS Form 15620 or a written statement complying with Treas.

Reg. §1.83-2 may be used; best practice is certified mail or IRS-designated private delivery service and furnishing copies to the employer and retaining proof.Practical compliance checklist for lawyers advising founders (actionable items):1.

Formation & charter documents- Draft and review certificate of incorporation/bylaws (corporation) or certificate of formation/operating agreement (LLC) to address exculpation, indemnification, officer exculpation (if desired), fiduciary duty allocation, forum selection clauses, transfer restrictions, and vesting/repurchase rights.- For corporations, consider whether to adopt a §102(b)(7) exculpation clause for officers and directors and disclose limits (not a substitute for careful fiduciary compliance).

Obtain required corporate approvals and filings for charter amendments.

Registered agent & entity records- Confirm a Delaware registered agent is in place and that the agent address is current. Maintain a corporate minute book, stock ledger/cap table, board minutes and written consents.

Franchise tax & annual filings- Calendar March 1 (corporations) and June 1 (LLCs/LPs/LLPs) recurring deadlines; advise clients on tax-calculation methods for corporations and consider alternative method when beneficial; track payment windows and estimated installment rules for large filers.- Ensure foreign (out‑of‑state) corporations that are registered to do business in Delaware (or vice versa) understand the separate foreign filing deadlines (Delaware foreign corp annual report due June 30 per Division guidance for foreign corps registered to do business in DE).4. Securities & equity issuance- Implement proper founder stock purchase agreements, stock ledger updates, board approvals, and 83(b) election counsel (inform founders of the absolute 30-day deadline and best practices for filing and recordkeeping).- Coordinate with securities counsel on Reg D or other federal/state exemptions for equity grants; track state “blue sky” filing requirements where founders/stockholders reside or the company operates.

Operating agreements & LLC-specific governance- For LLCs, draft clear, “plain and unambiguous” provisions if the parties intend to expand, restrict or eliminate fiduciary duties or to include exculpation clauses, while preserving the implied covenant of good faith and fair dealing.- Consider whether to use a Series LLC structure where relevant, and evaluate asset segregation and recording practices.

Foreign qualification & multi-state compliance- If founders or operations are outside Delaware, advise on foreign qualification in operating states, nexus for state taxes, payroll and withholding registrations, local business licenses, and multi-state filings.

BOI/FinCEN monitoring- Monitor FinCEN guidance

after the March 26, 2025 interim final rule, reporting obligations currently apply to certain foreign-formed entities that register in U.S. jurisdictions. Counsel should verify client status and any residual BOI obligations (and watch for further rulemaking or litigation developments).

Ongoing governance & litigation risk management- Maintain strong board processes, indemnification and D&O insurance where appropriate, robust conflicts disclosure and recusal procedures, and documented business-judgment recordkeeping to reduce fiduciary risk in Chancery claims.