CHAPTER 125

GENERAL PROVISIONS RESPECTING 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 State of Delaware in General Assembly met (two-thirds of all the members elected to each Branch thereof concurring thereon):

SEC. 1. That Section 2 of Chapter 65 of the Revised Code of Delaware of 1935, being Section 2034 of said Revised Code, as amended, be and the same hereby is further amended by adding thereto a new paragraph to be numbered 10. and to read as follows

10. To indemnify any and all of its directors or officers or former directors or officers or any person who may have served at its request as a director or officer of another corporation in which it owns shares of capital stock or of which it is a creditor against expenses actually and necessarily incurred by them in connection with the defense of any action, suit or proceeding in which they, or any of them, are made parties, or a party, by reason of being or having been directors or officers or a director or officer of the corporation, or of such other corporation, except in relation to matters as to which any such director or officer or former director or officer or person shall be adjudged in such action, suit or proceeding to be liable for negligence or misconduct in the performance of duty. Such indemnification shall not be deemed exclusive of any other rights to which those indemnified may be entitled, under any by-law, agreement, vote of stockholders, or otherwise.

SEC. 2. That Section 9 of Chapter 65 of the Revised Code of Delaware of 1935, being Section 2041 of said Revised Code, as amended, be and the same hereby is further amended by adding thereto the following sentence, viz.:

A Director of any corporation organized under the provisions of this Chapter, or a member of any Committee designated by the Board of Directors pursuant to authority conferred by this Chapter, shall in the performance of his duties be fully protected in relying in good faith upon the books of account or reports made to the corporation by any of its officials, or by an independent certified public accountant, or by an appraiser selected with reasonable care by the Board of Directors or by any such Committee, or in relying in good faith upon other records of the corporation.

SEC. 3. That Section 10 of Chapter 65 of the Revised Code of Delaware of 1935, being Section 2042 of said Revised Code, as amended, be and the same hereby is further amended by adding to the second paragraph thereof, now reading:

"Any two offices (but not more than two) may be held by the same person."

the following sentence, viz.:

More than two offices other than the offices of President and Secretary may be held by the same person if the Bylaws so provide.

SEC. 4. That Section 39 of Chapter 65 of the Revised Code of Delaware of 1935, being Section 2071 of said Revised Code, as amended, be and the same hereby is further amended by striking out all of said Section 39, as amended, and inserting in lieu thereof the following:

2071. Sec. 39. Dissolution; Proceedings for:--If it should be deemed advisable, in the judgment of the Board of Directors, and most for the benefit of any corporation organized under this Chapter, that it should be dissolved, the said board, within ten days after the adoption of a resolution to that effect by a majority of the whole board at any meeting called for that purpose,

of which meeting every director shall have received at least three days' notice, shall cause notice of the adoption of such resolution to be mailed to each stockholder of record having voting power, and also cause a like notice to be inserted in a newspaper published in the county wherein the corporation shall have its principal office in the State of Delaware, at least three weeks successively, once a week, next preceding the time appointed for the same, of a meeting of the stockholders having voting power, to be held at the office of the corporation, to take action upon the resolution so adopted by the Board of Directors, which meeting shall be convened between the hours of ten o'clock in the forenoon and three o'clock in the afternoon of the day so named, and which meeting may, by consent of a majority in interest of the stockholders present in person or by proxy, having voting power, be adjourned or recessed from time to time; and if at any such meeting two-thirds in interest of all the stockholders, having voting power, shall consent that a dissolution shall take place and signify their consent in writing, such consent, together with a list of the names and residences of the directors and officers, certified by the President or a Vice-President and the Secretary or an Assistant Secretary, and verified by oath of one of said officers, shall be filed in the office of the Secretary of State, who, upon being satisfied by due proof that the requirements aforesaid have been complied with, shall issue a certificate that such consent has been filed, and the Secretary of State shall cause such certificate to be published in one issue in a newspaper published in the county wherein was situated the principal office in the State of Delaware of the dissolved corporation. The Secretary of State shall ascertain the charge for publishing the certificate of dissolution as aforesaid, and collect the amount from the corporation before the certificate of dissolution is issued, and upon the filing in the office of the Secretary of State of an affidavit of the manager or publisher of the said newspaper that said certificate has been published one time, in said newspaper, the corporation shall be dissolved.

Whenever all the stockholders, having voting power, shall consent in writing to a dissolution, no meeting of stockholders shall be necessary, but on filing such consent in the office of the

Secretary of State, he shall, as above provided, issue a certificate of dissolution, which shall be published as above provided.

Whenever the Secretary of State issues a certificate of dissolution it shall be recorded in the office of the Recorder of the County in which the principal office of the corporation was maintained.

SEC. 5. That Section 59 of Chapter 65 of the Revised Code of Delaware of 1935, being Section 2091 of said Revised Code, as amended, be and the same hereby is further amended by striking out the fourth paragraph of said Section 59 and inserting in lieu thereof, the following, viz.:

If the corporation resulting from or surviving such consolidation or merger is to be governed by the Laws of any State other than the laws of this State, it shall agree that it may be served with process in this State in any proceeding for enforcement of any obligation of any constituent corporation of this State, as well as for enforcement of any obligation of the resulting or surviving corporation arising from the merger, including any suit or other proceeding to enforce the right of any stockholder as determined in appraisal proceedings pursuant to the provisions of Section 61 of this Chapter, and shall irrevocably appoint the Secretary of State as its agent to accept service of process in any such suit or other proceeding and shall specify the address to which a copy of such process shall be mailed by the Secretary of State. Service of such process shall be made by personally delivering to and leaving with the Secretary of State duplicate copies of such process. The Secretary of State shall forthwith send by registered mail one of such copies to such resulting or surviving corporation at its address so specified, unless such resulting or surviving corporation shall thereafter have designated in writing to the Secretary of State a different address for such purpose, in which case it shall be mailed to the last address so designated.

Sec. 6. That Section 61 of Chapter 65 of the Revised Code of Delaware of 1935, being Section 2093 of said Revised Code, as amended, be and the same hereby is further amended by

striking out the whole of said Section 61 and inserting in lieu thereof, the following, viz.:

2093. Sec. 61. Consolidation or Merger; Payment for Stock of Dissatisfied Stockholder:--If any stockholder in any corporation of this State consolidating or merging as aforesaid, who objected thereto in writing and whose shares were not voted in favor of such consolidation or merger, and who filed such written objection with the corporation before the taking of the vote on such consolidation or merger, shall within twenty days after the date on which the agreement of consolidation or merger has been filed and recorded, as aforesaid, demand in writing, from the corporation resulting from or surviving such consolidation or merger, payment for his stock, such resulting or surviving corporation shall, within thirty days after the expiration of said period of twenty days, pay to him the value of his stock on the date of the recording of said agreement of consolidation or merger, exclusive of any element of value arising from the expectation or accomplishment of such consolidation or merger, If during said period of thirty days the corporation and any such stockholder fail to agree as to the value of such stock, any such stockholder, or the corporation resulting from or surviving such consolidation or merger, may by petition filed in the Court of Chancery within four months after the expiration of said period of thirty days demand a determination of the value of the stock of all such stockholders by an appraiser to be appointed by the Chancellor.

Upon the filing of any such petition by a stockholder, service of a copy thereof shall be made upon the corporation, which shall within ten days after such service file in the office of the Register in Chancery in which said petition was filed a duly verified list containing the names and addresses of all stockholders who have demanded payment of their shares and with whom agreements as to the value of their shares have not been reached by the corporation. If the petition shall be filed by the corporation, the petition shall be accompanied by such a duly verified list. The Register in Chancery shall give notice of the time and place fixed for the hearing of such petition by registered mail to the corporation and to the stockholders shown

upon said list at the addresses therein stated, and notice shall also be given by publishing a notice at least once a week for two successive weeks, the second publication to appear at least one week before the day of the hearing, in a newspaper of general circulation published in the City of Wilmington, Delaware. The Court shall have power to direct such additional publications of notice as it may deem advisable. The forms of the notices by mail and by publication shall be approved by the Court.

After the hearing of such petition the Court shall determine the shareholders who have complied with the provisions of this section and become entitled to the valuation of and payment for their shares, and shall appoint an appraiser to determine such value. Such appraiser shall have power to examine any of the books and records of the corporation the stock of which he is charged with the duty of valuing, and he shall make a determination of the value of the shares upon such investigation as to him may seem proper. The appraiser shall also afford a reasonable opportunity to the parties interested to submit to him pertinent evidence on the value of the shares. The appraiser, also, shall have such powers and authority as may be conferred upon Masters by the Rules of the Court of Chancery or by the order of his appointment.

The appraiser shall determine the value of the stock of the stockholders adjudged by the Chancellor to be entitled to payment therefor and shall file his report respecting such value in the office of the Register in Chancery and notice of the filing of such report shall be given by the Register in Chancery to the parties in interest. Such report shall be subject to exceptions to be heard before the Court both upon the law and facts. After hearing exceptions to the said report the Court shall by its decree determine the value of the stock of the stockholders entitled to payment therefor and shall direct the payment of such value to the stockholders entitled thereto by the resulting or surviving corporation upon the transfer to it of the certificates representing such stock, which decree may be enforced as other decrees in the Court of Chancery may be enforced, whether such resulting or surviving corporation be a corporation of this State

or of any other State of the United States of America. The shares of the surviving or resulting corporation into which the shares of such dissenting stockholders would have been converted had they assented to the consolidation or merger shall have the status of authorized and unissued shares of the surviving or resulting corporation, as the case may be.

The cost of any such appraisal, including a reasonable fee to and the reasonable expenses of the appraiser, but exclusive of fees of counsel or of experts retained by any party, may on application of any party in interest be determined by the Chancellor and taxed upon the parties to such appraisal or any of them as may appear to be equitable, except that the cost of giving the notice by publication and by registered mail hereinabove provided for shall be paid by the corporation.

Any stockholder who shall have demanded payment of his stock as herein provided shall not thereafter be entitled to vote such stock for any purpose or be entitled to the payment of dividends or other distribution on said stock (except dividends payable to stockholders of record at a date which is prior to the date of the recording of said agreement) unless the appointment of an appraiser shall not be applied for within the time herein provided, or the proceeding be dismissed as to such stockholder, or unless such stockholder shall with the written approval of the corporation deliver to the corporation a written withdrawal of his objections to and an acceptance of such consolidation or merger, in any of which cases the right of such stockholder to payment of his stock shall cease.

At the time of appointing the appraiser or, at any time thereafter the Court may require the dissenting stockholders to submit their certificates of stock to the Register in Chancery for notation thereon of the pendency of the appraisal proceedings, and if any stockholder fails to comply with such direction the Court may dismiss the proceedings as to such stockholder.

This section shall apply only to cases of agreements of consolidation or merger filed after the date of the approval of this Act. All prior cases shall be governed by the law in force immediately prior to the approval of this Act, which, as to such cases, and only such cases, is continued in force and effect.

SEC. 7. That Section 77A of Chapter 65 of the Revised Code of Delaware of 1935, being Section 2109A of said Revised Code, as amended, be and the same hereby is further amended, (1), by striking out the first paragraph of said Section 77A and inserting in lieu thereof, the following, viz. :

2109A. Sec. 77A. Plan of Reorganization Under National Bankruptcy Act, Execution of, Filing Certificate:--(1) Any corporation organized under this Chapter or existing under the laws of this State, a plan of reorganization of which, pursuant to any of the provisions of the Act of Congress entitled "An Act to Establish a Uniform System of Bankruptcy Throughout the United States", approved June 1, 1898, and Acts amendatory thereof and supplementary thereto, is contemplated or 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. and, (2) by striking out the third numbered paragraph of said Section 77A and substituting in lieu thereof, the following, viz.:

(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 provision for the making of such certificate, agreement or instrument is contained in a decree or order of a court or judge having jurisdiction of a proceeding under said National Bankruptcy Act for the reorganization of such corporation.

SEC. 8. That Section 80 of Chapter 65 of the Revised Code of Delaware of 1935, being Section 2112 of said Revised Code, as amended, be and the same hereby is further amended by striking out the first paragraph of said Section 80 and substituting in lieu thereof, the following, viz.:

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 or a Vice-President and Secretary or an Assistant 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.

SEC. 9. That Chapter 65 of the Revised Code of Delaware of 1935, as amended, be and the same hereby is further amended by inserting therein a new section to be known as Code Section 2113A, Sec. 81A, as follows, viz.:

2113A, Sec. 81A. When Notice Not Required:--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, to any person with whom communication is made unlawful by any law of the United States of America now or hereafter enacted, or by any rule, regulation, proclamation or executive order issued under any such law, then the giving of such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or _agency for a license or permit to give such notice to such person ; and any action or meeting which has been or hereafter shall be taken or held without notice to any such person or without giving or without applying for a license or permit to give any such notice to any such person with whom communication is made unlawful as aforesaid, shall have the same force and effect as if such notice had been given as provided under the provisions of this Chapter or under the provisions of the Certificate of Incorporation or By-Laws of any corporation organized under this Chapter. In the event that the action taken by the corporation is such as to require the filing of a certificate under any of the other sections of this Chapter, the certificate shall state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication is made unlawful by any law, rule, regulation, proclamation or executive order as aforesaid.

SEC. 10. That Section 219 of Chapter 65 of the Revised Code of Delaware of 1935, being Section 2251 of said Revised Code, as amended, be and the same hereby is further amended by striking out the whole of said Section 219 and inserting in lieu thereof, the following, viz.:

2251. Sec. 219. Agent for Service of Process:--Any such foreign corporation, by filing a certificate of the same kind and nature, executed as aforesaid, may change such agent or person and substitute another person or agent for the purposes aforesaid, provided, however, every such person or agent shall at the time of his appointment be a resident of this State. Any individual or corporation that has been designated by a foreign corporation as its authorized agent for service of process may resign by filing with the Secretary of State a signed statement that he or it is unwilling to continue to act as the agent of such corporation for service of process, including in such statement the post office address of such corporation. Upon the expiration of thirty days after the filing of such statement with the Secretary of State, the capacity of such individual or corporation, as such agent, shall terminate. Upon the filing of such statement, the Secretary of State forthwith shall give written notice, by mail, to such corporation of the filing of such statement, which notice shall be addressed to such corporation at the post office address given in such statement. If any person or agent designated and certified as aforesaid shall die or remove from this State, or resign, then the foreign corporation for which such person or agent had been so designated and certified shall, within ten days after the death or removal or resignation as aforesaid of such agent or person, substitute, designate and certify to the Secretary of State, the name of another person or agent for the purposes aforesaid, and all process, orders, rules and notices mentioned in the foregoing Section 218, may be served on or given to such substituted person or agent with like effect as is prescribed in said Section.

Approved April 15, 1943.