CHAPTER 88

AN ACT TO AMEND CHAPTERS 1 AND 5 OF TITLE 8, DELAWARE CODE, RELATING TO CORPORATIONS.

Be it enacted by the General Assembly of the State of Delaware (two-thirds of all Members elected to each House thereof concurring therein):

Section 1. § 109, Title 8, Delaware Code, is amended by striking out said section in its entirety and substituting in lieu thereof a new Section 109 as follows:

§ 109. By-laws; Emergency By-laws and Other Powers in Emergency

(a) The original by-laws of a corporation may be adopted by the incorporators. Thereafter, the power to make, alter or repeal by-laws shall be in the stockholders, but any corporation may, in the certificate of incorporation, confer that power upon the directors.

(b) The board of directors of any corporation may adopt emergency by-laws, subject to repeal or change by action of the stockholders, which shall notwithstanding any different provision elsewhere in this Title or in Chapters 3 and 5 of Title 26, or in Chapter 7 of Title 5, or in the articles of incorporation or by-laws, be operative during any emergency resulting from an attack on the United States or on a locality in which the corporation conducts its business or customarily holds meetings of its board of directors or its stockholders, or during any nuclear or atomic disaster, or during the existence of any catastrophe, or other similar emergency condition, as a result of which a quorum of the board of directors or a standing committee thereof cannot readily be convened for action. The emergency by-laws may make any provision that may be practical and necessary for the circumstances of the emergency, including provisions that:

(i) A meeting of the board of directors or a committee thereof may be called by any officer or director in such manner and under such conditions as shall be prescribed in the emergency by-laws;

(ii) The director or directors in attendance at the meeting, or any greater number fixed by the emergency by-laws, shall constitute a quorum; and

(iii) The officers or other persons designated on a list approved by the board of directors before the emergency, all in such order of priority and subject to such conditions and for such period of time (not longer than reasonably necessary after the termination of the emergency) as may be provided in the emergency by-laws or in the resolution approving the list, shall, to the extent required to provide a quorum at any meeting of the board of directors, be deemed directors for such meeting.

The board of directors, either before or during any such emergency, may provide, and from time to time modify, lines of succession in the event that during such emergency any or all officers or agents of the corporation shall for any reason be rendered incapable of discharging their duties.

The board of directors, either before or during any such emergency, may, effective in the emergency, change the head office or designate several alternative head offices or regional offices, or authorize the officers so to do.

No officer, director or employee acting in accordance with any emergency by-laws shall be liable except for willful misconduct.

To the extent not inconsistent with any emergency by-laws so adopted, the by-laws of the corporation shall remain in effect during any emergency and upon its termination the emergency by-laws shall cease to be operative.

Unless otherwise provided in emergency by-laws, notice of any meeting of the board of directors during such an emergency may be given only to such of the directors as it may be feasible to reach at the time and by such means as may be feasible at the time, including publication or radio.

To the extent required to constitute a quorum at any meeting of the board of directors during such an emergency, the officers of the corporation who are present shall, unless otherwise provided in emergency by-laws, be deemed, in order of rank and within the same rank in order of seniority, directors for such meeting.

(c) Nothing contained in sub-section (b) hereof shall be deemed exclusive of any other provisions for emergency powers consistent with other sections of this Title which have been or may be adopted by corporations created under the provisions of this Chapter.

Section 2. § 122 (4), Title 8, Delaware Code, is amended by striking out said sub-section in its entirety and substituting in lieu thereof a new sub-section as follows:

(4) Hold, purchase and convey real and personal estate, and to mortgage or lease any such real and personal estate with its franchises. The power to hold real and personal estate shall include the power to take the same by bequest or devise.

Section 3. § 141 (c), Title 8, Delaware Code, is amended by striking out the first sentence thereof and substituting in lieu thereof the following:

(c) The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of two or more of the directors of the corporation. Any such committee, to the extent provided in the resolution or in the by-laws of the corporation, shall have and may exercise the powers of the board of directors in the management of the business and affairs of the corporation, and may authorize the seal of the corporation to be affixed to all papers which may require it; provided, however, the by-laws may provide that, in the absence or disqualification of any member of such committee or committees, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member.

Section 4. § 158, Title 8 of the Delaware Code, is amended by striking out the first sentence thereof and inserting in lieu thereof a new first sentence as follows:

Every holder of stock in a corporation shall be entitled to have a certificate signed by, or in the name of the corporation by the chairman or vice-chairman of the board of directors, or the president or a vice-president, and by the treasurer or an assistant treasurer, or the secretary or an assistant secretary of such corporation certifying the number of shares owned by him in such corporation.

Section 5. § 242 (d) (1), Title 8, Delaware Code, is amended by striking out the first two sentences thereof and substituting in lieu thereof the following:

(1) If the corporation has capital stock, its board of directors shall adopt a resolution setting forth the amendment proposed, declaring its advisability, and either calling a special meeting of the stockholders entitled to vote in respect thereof for the consideration of such amendment or directing that the amendment proposed be considered at the next annual meeting of the stockholders. Such special or annual meeting shall be called and held upon such notice as the certificate of incorporation or by-laws of the corporation shall provide, or, in the absence of such provision, upon notice thereof to each stockholder so entitled to vote, either delivered to such stockholder or mailed to him at his post office address, if known, at least ten days before the date fixed for the meeting.

Section 6. § 251 (c), Title 8, Delaware Code, is amended by adding at the end thereof the following:

An agreement of merger may provide that it is not to become effective until a date to be specified in the agreement, which date may be the date of recording, or a date not later than thirty (30) days after the date on which the agreement is recorded in the proper county or counties of this State as hereinabove provided.

Section 7. § 252 (c), Title 8, Delaware Code, is amended by striking out the last sentence thereof and substituting in lieu thereof the following:

The agreement, when so recorded, shall thenceforth be taken and deemed to be the agreement and act of consolidation or merger of the constituent corporations for all purposes of the laws of this State, provided, however, the right to specify the effective date of such merger, as provided in Section 251 (c), shall apply to mergers consummated under this section.

Section 8. § 253 (a), Title 8, Delaware Code, is amended by adding at the end thereof the following:

The right to specify the effective date of such merger, as provided in Section 251 (c), shall apply to mergers consummated under this section.

Section 9. § 253 (b), Title 8, Delaware Code, is amended by striking out the first sentence thereof and substituting in lieu thereof the following:

(b) Upon the recording of the certificate pursuant to sub-section (a) of this section, or upon the effective date of the merger if otherwise stated in the certificate, all of the estate, property, rights, privileges and franchises of the corporation or corporations which did not survive the merger shall vest in and be held and enjoyed by the surviving corporation as fully and entirely and without change or dimunition as the same were before held and enjoyed by the corporation or corporations which did not survive the merger, and be managed and controlled by the surviving corporation, and except as hereinafter in this section provided, in its name, but subject to all liabilities and obligations of the corporation or corporations which did not survive the merger and the rights of all creditors thereof.

Section 10. § 253 (e), Title 8, Delaware Code, is amended by striking out the first sentence thereof and substituting in lieu thereof the following:

(e) In the event all of the stock of a subsidiary Delaware corporation party to a merger effected under this section is not owned by the parent corporation immediately prior to the merger, the surviving corporation shall within 10 days after the date on which the certificate of ownership and merger has been filed and recorded, or within 10 days after the effective date if an effective date is stated in the certificate, notify each stockholder of such Delaware corporation that the certificate of ownership and merger has been filed and recorded and the terms and conditions of the merger.

Section 11. § 259 (a), Title 8, Delaware Code, is amended by striking out the first sentence thereof and substituting in lieu thereof the following:

(a) When an agreement of consolidation or merger shall have been signed, acknowledged, filed and recorded, in accordance with the requirements of this sub-chapter, or upon the effective date of the merger if otherwise stated in the certificate, for all purposes of the laws of this State the separate existence of all the constituent corporations, parties to said agreement, or of all such constituent corporations except the one into which the other or others of such constituent corporations have been merged, as the case may be, shall cease and the constituent corporations shall become a new corporation, or be merged into one of such corporations, as the case may be, in accordance with the provisions of said agreement, possessing all the rights, privileges, powers and franchises as well of a public as of a private nature, and being subject to all the restrictions, disabilities and duties of each of such corporations so consolidated or merged and all and singular, the rights, privileges, powers and franchises of each of said corporations, and all property, real, personal and mixed, including in the case of banks or trust companies, without any order or action on the part of any court or otherwise, appointments, designations, and nominations and all other rights and interests as trustees, executor. administrator, registrar of stocks and bonds, guardian of estates, assignee, receiver, trustee of estates of lunatics and in every other fiduciary capacity, and all debts due to any of said constituent corporations on whatever account, as well for stock subscriptions as all other things in action or belonging to each of such corporations shall be vested in the corporation resulting from or surviving such consolidation or merger; and all property, rights, privileges, powers and franchises, and all and every other interest shall be thereafter as effectually the property of the resulting or surviving corporation as they were of the several and respective constituents corporations, and the title to any real estate vested by deed or otherwise, under the laws of this State, in any of such constituent corporations, shall not revert or be in any way impaired by reason of this chapter; but all rights of creditors and all liens upon any property of any of said constituent corporations shall be preserved unimpaired, and all debts, liabilities and duties of the respective constituent corporations shall thenceforth attach to said resulting or surviving corporation, and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred or contracted by it.

Section 12. § 262 (b), Title 8, Delaware Code, is amended by striking out the, first sentence thereof and substituting in lieu thereof the following:

(b) The corporation resulting from or surviving any consolidation or merger shall within 10 days after the date on which the agreement of consolidation or merger has been filed and recorded, or within 10 days after the effective date if an effective date is stated in the agreement, notify each stockholder in any corporation of this State consolidating or merging, 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, that the agreement has been filed and recorded.

Section 13. § 275 (d), Title 8, Delaware Code, is amended by striking out the last sentence thereof and substituting in lieu a new sentence as follows:

The consent filed with the Secretary of State shall have attached to it the affidavit of the secretary or some other officer of the corporation stating that the consent has been signed by or on behalf of all the stockholders having voting power; in addition there shall be attached to the consent a certification by the secretary or some other officer of the corporation setting forth the names and residences of the directors and officers of the corporation.

Section 14. § 502 (c), Title 8, Delaware Code, is amended by striking out the phrase "three months" as the same appears in the second sentence thereof and substituting in lieu thereof the phrase "two months".

Approved June 28, 1963.