CHAPTER 131 - CORPORATIONS

AN ACT TO AMEND CHAPTER 65 OF THE REVISED CODE OF THE STATE OF DELAWARE OF 1935 RELATING TO CORPORATIONS.

Be it enacted by the Senate and House of Representatives of the Stage (of Delaware in General Assembly met (two-thirds of all the members elected to etch branch thereof concurring therein):

Section 1. That Section 48 of said Chapter 65 of the Revised Code of the State of Delaware of 1935, being Section 2080 of said Code, be, and the same is hereby, amended by striking out the first paragraph of said Section 48 and inserting in lieu thereof the following:

"2080. Sec. 48. Service of Legal Process on Corporations:--Service of legal process upon any corporation created under this Chapter shall be made by delivering a copy thereof personally to the president of such corporation, or by leaving the same at his dwelling house or usual place of abode. If the president resides out of the State, service thereof may be made by delivering a copy thereof to the secretary or one of the directors of said corporation, or upon the resident agent in charge of the principal office of the company in this State, or by leaving the same at the dwelling house or usual place of abode of such secretary, director or resident agent (if such resident agent be an individual), or at the principal office or place of business of the corporation in this State. If such resident agent be a corporation, service of process upon it as such agent may be made by serving a copy thereof on the president, vice-president, secretary, assistant secretary, or any director of said corporate resident agent. Service by copy left at the dwelling house or usual place of abode or at the principal office or place of business in this State, to be effective must be delivered thereat at least six days before the return 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 his return thereto; provided, that process returnable forthwith must be served personally."

Section 2. That said Chapter 65 of said Revised Code of the State of Delaware of 1935, be, and the same is hereby, amended by adding thereto a new Section to be known as Code Section 2091A, Section 59A as follows:

"2091A. Sec. 59A. Merger of Parent Corporation and Wholly Owned Subsidiary; Proceedings For:--Any corporation now or hereafter organized under the provisions of this Chapter or existing under the laws of this State, for the purpose of carrying on any kind of business, owning all the stock of any other corporation now or hereafter organized under the provisions of this Chapter or existing under the laws of this State, or now or hereafter organized under the laws of any other State of the United States of America, if the laws under which said other corporation is formed shall permit a merger as herein provided, may file in the office of the Secretary of State a certificate of such ownership in its name and under its corporate seal, signed by its president or a vice-president, and its secretary or treasurer, and setting forth a copy of the resolution of its board of directors to merge such other corporation, and to assume all of its obligations and the date of the adoption thereof; and a certified copy of said Certificate shall be recorded in the office of the Recorder of Deeds of the County in which the principal place of business of the parent corporation is located, and if the other corporation is also a Delaware corporation and its principal place of business is located in a different County, another certified copy of said Certificate shall be recorded in the office of the Recorder of Deeds of such other County. Thereupon, all of the estate, property, rights, privileges and franchises of such other corporation shall vest in and be held and enjoyed by such parent corporation as fully and entirely and without change or diminution as the same were before held and enjoyed by such other corporation, and be managed and controlled by such parent corporation, and except as hereinafter in this section provided, in its name, but subject to all liabilities and obligations of such other corporation and the rights of all creditors thereof. The parent corporation shall not thereby acquire power to engage in any business, or to exercise any right, privilege or franchise, of a kind which it could not lawfully engage in or exercise under the provisions of the law by or pursuant to which such parent corporation is organized. The parent corporation shall be deemed to have assumed all the liabilities and obligations of the merged corporation, and shall be liable in the same manner as if it had itself incurred such liabilities and obligations. The parent corporation may relinquish its corporate name and assume in place thereof the name of the merged corporation, by including it in a provision to that effect in the Resolution of Merger adopted by the directors and set forth in the Certificate of Ownership, and upon the filing of such Certificate the change of name shall be completed, with the same force and effect and subject to the same conditions and consequences as if such change had been accomplished by proceedings under the appropriate section of this chapter. Any plan of consolidation or merger which requires or contemplates any changes other than those herein specifically authorized with respect to the parent corporation, shall be accomplished under the provisions of Section 59 of this chapter. The provisions of Section 61 of this chapter shall not apply to any merger effected under this Section."

Section 3. That said Chapter 65 of said Revised Code of the State of Delaware of 1935, be, and the same is hereby, amended by adding thereto a new Section to be known as Code Section 2091B, Section 59B as follows:

"2091B. Sec. 59B. Merger and Consolidation of Joint Stock and Other Associations and Corporations; Proceedings For:--The term "joint-stock association", as used herein, shall include any association of the kind commonly known as joint-stock association or joint-stock company and any unincorporated association, trust or enterprise having outstanding shares of stock or other evidences of financial or beneficial interest therein, whether formed by agreement or under statutory authority or otherwise, but does not include a corporation. The term "stockholder" includes every member of such joint-stock association or holder of a share of stock or other evidence of financial or beneficial interest therein.

Any one or more corporations organized under the provisions of this Chapter, or existing under the laws of this State, may consolidate or merge with one or more joint-stock associations, except a joint-stock association formed under the laws of a State which forbids such consolidation or merger. Such corporation or corporations and such one or more joint-stock associations may merge into a single corporation which may be any one of such corporations, or they may consolidate to form a new corporation which shall be a corporation of this State. All of such corporations and such joint-stock association or joint-stock associations shall enter into an agreement in writing which shall prescribe the terms and conditions of the consolidation or merger, the mode of carrying the same into effect, the manner of converting the shares of each of said corporations and of the stock or shares of each of said joint-stock associations or financial or beneficial interests therein into shares of the corporation resulting from or surviving such consolidation or merger and such other details and provisions as shall be deemed necessary or proper. There shall also be set forth in said agreement such other facts as shall then be required to be set forth in certificates of incorporation by the laws of this State and that can be stated in the case of such consolidation or merger. Said agreement shall be authorized, adopted, approved, signed and acknowledged by each of said corporations in the manner provided in the two immediately preceding paragraphs, and in the case of said joint-stock associations in accordance with their Articles of Association or other instrument containing the provisions by which they are organized or regulated or in accordance with the laws of the State under which they are formed, as the case may be. The agreement so authorized, adopted, approved, signed and acknowledged shall be filed in the office of the Secretary of State and said agreement shall henceforth be taken and deemed to be the agreement and act of consolidation or merger of said corporation or corporations and of said joint-stock association or joint-stock associations, for all purposes of the laws of this State. A copy of said agreement duly certified by the Secretary of State under the seal of his office shall also be recorded as provided in this section with respect to the consolidation or merger of corporations of this State.

The provisions of Sections 60, 61, 62, 63 and 64 of this Chapter shall, in so far as they are applicable, apply to mergers and consolidations between corporations and joint-stock associations, the word "corporation", where applicable, as used therein being deemed to include joint-stock associations as defined herein; provided that the personal liability, if any, of any stockholder of a joint-stock association existing at the time of such merger or consolidation shall not thereby be extinguished, shall remain personal to such stockholder and shall not become the liability of any subsequent transferee of any share of stock in such merged or consolidated corporation or of any other stockholder of such merged or consolidated corporation."

Section 4. That said Chapter 65 of said Revised Code of the State of Delaware of 1935, be, and the same is hereby, amended by adding thereto a new Code Section to be known as Code Section 2109A, Section 77A as follows:

"2109A. Section 77A. Plan of Reorganization Under Section 77B National Bankruptcy Act, Execution of; Filing Certificate:--(1) Any corporation now or hereafter organized under this Chapter or existing under the Laws of this State, a plan of reorganization of which, pursuant to the provisions of Section 77B of the Act of Congress of July 1, 1898, entitled "An Act to Establish a Uniform System of Bankruptcy Throughout the United States," as amended and supplemented (herein referred to as the National Bankruptcy Act), has been or shall be confirmed by the decree or order of a court of competent jurisdiction, shall have full power and authority to put into effect and carry out the plan and the decrees and orders of the court or judge relative thereto and may take any proceeding and do any act provided in the plan or directed by such decrees and orders, without further action by its directors or stockholders. Such power and authority may be exercised, and such proceedings and acts may be taken, as may be directed by such decrees or orders, by the trustee or trustees of such corporation appointed in the reorganization proceedings (or a majority thereof), or if none be appointed and acting, by designated officers of the corporation, or by a master or other representative appointed by the court or judge, with like effect as if exercised and taken by unanimous action of the directors and stockholders of the corporation.

(2) Such corporation may, in the manner above provided, but without limiting the generality or effect of the foregoing, alter, amend or repeal its by-laws; constitute or reconstitute and classify or reclassify its board of directors, and name, constitute or appoint directors and officers in place of or in addition to all or some of the directors or officers then in office; amend its certificate of incorporation, and make any change in its capital or capital stock, or any other amendment, change, or alteration, or provision, authorized by this Chapter; be dissolved,' transfer all or part of its assets, merge or consolidate as permitted by this Chapter, in which case, however, no stockholder shall have any statutory right of appraisal of his stock; change the location of its principal office and remove or appoint an agent to receive service of process; authorize and fix the terms, manner and conditions of, the issuance of bonds, debentures or other obligations, whether or not convertible into stock of any class, or bearing warrants or other evidences of optional rights to purchase or subscribe for stock of any class; or lease its property and franchises to any corporation, if permitted by law.

(3) A certificate, executed as hereinafter provided, of any amendment, change or alteration, or of dissolution, or any agreement of merger or consolidation, made by such corporation pursuant to the foregoing provisions, shall be filed in the office of the Secretary of State, and a certified copy thereof recorded in the office of the Recorder of Deeds of the County in ,which the principal place of business is located, and shall thereupon become effective in accordance with its terms and the provisions hereof. Such certificate, agreement of merger or other instrument shall be made, executed and acknowledged, as may be directed by such decrees or orders, by the trustee or trustees appointed in the reorganization proceedings (or a majority thereof), or, if none be appointed and acting, by officers of the corporation, or by a master or other representative appointed by the court or judge, and shall certify that (a) provision for the making of such certificate, agreement or instrument is contained in the plan of reorganization or in a decree or order of the court or judge relative thereto; and (b) that the plan has been confirmed, as provided in the National Bankruptcy Act.

(4) The provisions of this Section shall cease to apply to such corporation upon the entry of a final decree in the reorganization proceedings closing the case and discharging the trustee or trustees, if any.

(5) On filing any certificate, agreement, report or other paper made or executed pursuant to the provisions of this Act, there shall be paid to the Secretary of State for the use of the State the same fees as are payable by corporations not in reorganization upon the filing of like certificates, agreements, reports or other papers."

Section 5. That Section 80 of said Chapter 65 of said Revised Code of the State of Delaware of 1935, being Section 2112 of said Revised Code, be, and the same is hereby, amended by striking out from said Section the paragraphs thereof numbered 1 and 2, and inserting in lieu thereof the following:

"2112. Sec. 80. Change of Location of Principal Office; Change of Resident Agent:--(1) The Board of Directors of any corporation organized under the laws of this State may change the location of the principal office of such corporation within this State to any other place within this State by resolution adopted at a regular or special meeting of such Board; by like resolution, the resident agent of such corporation may be changed to any other person or corporation. In either such case, such resolution shall be as detailed in its statement as is provided in Paragraph 2 of Section 5 of this Chapter. Upon the adoption of a resolution as aforesaid, a copy thereof shall be filed in the office of the Secretary of State signed by the President and Secretary of such corporation, and sealed with its corporate seal; and a certified copy recorded in the office of the Recorder in and for the County in which said new office may be located; and, if such new office be located in a county other than that in which the former office was located, a certified copy of such resolution shall also be recorded in the office of the Recorder in and for the county in which such former office was located. For filing the said certificate, the Secretary of State shall charge a fee of five dollars.

(2) The location of the office of any resident agent of corporations in any City or Town of this State may be transferred from one address to another in the same City or Town, or from any City or Town in this State to any other City or Town in this State, upon making and executing by such resident agent of a certificate, duly acknowledged before an officer authorized by the laws of this State to take acknowledgments of deeds, setting forth the names of all the corporations, represented by such resident agent, and the address at which such resident agent has maintained the principal office for each of such corporations, and further certifying to the new address to which such resident agency will be transferred on a given day, and at which new address such resident agent will thereafter maintain the principal office for each of the corporations recited in said certificate. Upon the filing of such certificate, in duplicate, in the office of the Secretary of State, the said Secretary shall furnish a certified copy of the same under his hand and seal of office, and said certified copy shall be recorded in the office of the Recorder of Deeds of the County where the principal office of said corporation is located in this State, in a book kept for that purpose and thereafter, or until further change of address, as authorized by law, the principal office in this State of each of the corporations recited in said certificate shall be located at the new address of the resident agent thereof as given in the certificate. If the location of such office shall be changed from one County to another County, a certified copy of such certificate shall also be recorded in the office of the Recorder of Deeds in and for the County in which such office was formerly located. The fees to be charged by the Secretary of State for the use of the State for the filing of said certificate shall be Fifty Dollars, plus the same fees for receiving, filing, indexing, copying and certifying the same as is charged in the case of filing a charter."

Section 6. That Section 81 of said Chapter 65 of said Revised Code of the State of Delaware of 1935, being Section 2113 of said Revised Code, be, and the same is hereby amended by striking out the whole of said Section 81 and inserting in lieu thereof the following:

"2113. Sec. 81. Waiver of Notices:--Whenever any notice whatever is required to be given under the provisions of this Chapter, or under the provisions of the certificate of incorporation or by-laws of any corporation organized under the provisions of this Chapter, a waiver thereof in writing, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Whenever the vote of stockholders at a meeting thereof is required or permitted to be taken in connection with any corporate action, by any Section of this Chapter, the meeting and vote of stockholders may be dispensed with, if all of the stockholders who would have been entitled to vote upon the action if such meeting were held, shall consent in writing to such corporate action being taken, provided, how:- ever, that nothing herein contained shall be construed to alter or modify the provisions of Section 65 of this Chapter.. In the event that the action which is consented to is such as would have required the filing of a certificate under any of the other sections of this Chapter, if such faction had been voted upon by the stockholders at a meeting thereof, the certificate filed under such other section shall state that written consent has been given hereunder, in lieu of stating that the stockholders have voted upon the corporate action in question, if such last mentioned statement is required thereby."

Section 7. That said Chapter 65 of said Revised Code of the State of Delaware of 1935, be, and the same is hereby, amended by adding thereto a new section to be known as Code Section 2114A, Section 82A, as follows:

"2114A. Sec. 82A. Certificates or Other Documents Improperly Recorded; Effect of:--In case any certificate or other document of any kind required by any of the provisions of this Chapter to be recorded in the office of any of the Recorders of the several counties of this State shall have heretofore been, or shall hereafter be, recorded in the 'office of the Recorder of a county of this Slate other than the county in which such certificate or other document is required to be recorded, the subsequent recording of such certificate or other document in the Recorder's office in which such certificate or other document should have been recorded shall validate and confirm all acts done under or pursuant to such certificate or document, with like force and effect as if such certificate or document had been originally recorded as required by the provisions of this Chapter."

Approved April 13, 1937.