CHAPTER 61

FORMERLY

SENATE BILL NO. 146

AN ACT TO AMEND CHAPTER 1, TITLE 8 OF THE DELAWARE CODE, RELATING TO THE GENERAL CORPORATION LAW.

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. Amend § 102(b)(7), Chapter 1, Title 8, Delaware Code, by deleting the last sentence of such subsection and inserting in lieu thereof

the following: All references in this paragraph to a director shall also be deemed to refer (x) to a member of the governing body of a corporation which is not authorized to issue capital stock, and (y) to such other person or persons, if any, who, pursuant to a provision of the certificate of incorporation in accordance with subsection (a) of § 141 of this title,

exercise or perform any of the powers or duties otherwise conferred or imposed upon the board of directors by this title."

Section 2. Amend § 104, Chapter 1, Title 8, Delaware Code, by adding the numbers "263-264," following the numbers "251-258," and before the number "303" in said section.

Section 3. Amend § 170(a), Chapter 1, Title 8, Delaware Code, by adding a new sentence at the end of said subsection as follows: "Nothing in this subsection shall invalidate or otherwise affect a note, debenture or other obligation of the corporation paid by it as a dividend on shares of its stock, or any payment made thereon, if at the time such note, debenture or obligation was delivered by the corporation, the corporation had either surplus or net profits as provided in clauses (1) or (2) of this subsection from which the dividend could lawfully have been paid."

Section 4. Amend § 252(a), Chapter I, Title 8, Delaware Code, by deleting the last sentence of said subsection and inserting in lieu thereof the following: "In addition, any 1 or more corporations existing under the laws of this State may merge or consolidate with 1 or more corporations organized under the laws of any jurisdiction other than 1 of the United States if the laws under which the other corporation or corporations are organized permit a corporation of such jurisdiction to merge or consolidate with a corporation of another jurisdiction."

Section 5. Amend § 252(c)(1), Chapter 1, Title 8, Delaware Code, by adding the words or jurisdiction" after the word "state" and before the words "of incorporation" in said subsection.

Section 6. Amend § 252(d), Chapter 1, Title 8, Delaware Code, by adding the words or jurisdiction" after the words "or any state" and before the words "other than this State" in the first clause of the first sentence of said subsection.

Section 7. Amend § 253(a), Chapter 1, Title 8, Delaware Code, by adding the words "or jurisdiction" after the words "or any state" and before the words "other than this State" in the last sentence of said subsection.

Section 8. Amend § 253(e), Chapter 1, Title 8, Delaware Code, by deleting the words and provided further that the surviving or resulting corporation shall be a corporation of this State" in said subsection, and by deleting the ;" following the words "another jurisdiction" in said subsection and Inserting a "." in lieu thereof.

Section 9. Amend § 254(a), Chapter 1, Title 8, Delaware Code, by deleting the word or between the words "corporation" and "partnership" in the first sentence of said subsection, inserting a "," in lieu thereof and inserting the words or limited liability company" after the word "partnership" at the end of the first sentence of said subsection.

Section 10. Amend § 262(b), Chapter 1, Title 8, Delaware Code, by deleting the word "or" between the number "258" and the number "263" in the first sentence of said subsection, inserting in lieu thereof a "," and by adding the phrase "or 264" after the number "263" and before the words "of this title" in said sentence and by deleting the word "and" between the number "258" and the number "263" in paragraph (2) of said subsection, inserting in lieu thereof a "," and by adding the phrase "and 264" after the number "263" and before the words "of this title" in said paragraph.

Section 11. Amend Chapter 1, Title 8, Delaware Code, by adding thereto a new § 264 as follows:

"§ 264. Merger or consolidation of domestic corporation and limited liability company.

(a) Any 1 or more corporations of this State may merge or consolidate with 1 or more limited liability companies, of this State or of any other state or states of the United States, or of the District of Columbia, unless the laws of such other state or states or the District of Columbia forbid such merger or consolidation. Such corporation or corporations and such 1 or more limited liability companies may merge with or into a corporation, which may be any 1 of such corporations, or they may merge with or into a limited liability company, which may be any 1 of such limited liability companies, or they may consolidate into a new corporation or limited liability company formed by the consolidation, which shall be a corporation or limited liability company of this State or any other state of the United States, or the District of Columbia, which permits such merger or consolidation, pursuant to an agreement of merger or consolidation, as the case may be, complying and approved in accordance with this section.

(a) Each such corporation and limited liability company shall enter into a written agreement of merger or consolidation. The agreement shall state: (1) the terms and conditions of the merger or consolidation; (2) the mode

of carrying the same into effect; (3) the manner of converting the shares of stock of each such corporation and the limited liability company interests of each such limited liability company into shares, limited liability company interests or other securities of the entity surviving or resulting from such merger or consolidation, and if any shares of any such corporation or any limited liability company interests of any such limited liability company are not to be converted solely into shares, limited liability company interests or other securities of the entity surviving or resulting from such merger or consolidation, the cash, property, rights or securities of any other corporation or entity which the holders of such shares or limited liability company interests are to receive in exchange for, or upon conversion of such shares or limited liability company interests and the surrender of any certificates evidencing them, which cash, property, rights or securities of any other corporation or entity may be in addition to or in lieu of shares, limited liability company interests or other securities of the entity surviving or resulting from such merger or consolidation; and (4) such other details or provisions as are deemed desirable, including, without limiting the generality of the foregoing, a provision for the payment of cash in lieu of the issuance of fractional shares or interests of the surviving or resulting corporation or limited liability company. Any of the terms of the agreement of merger or consolidation may be made dependent upon facts ascertainable outside of such agreement, provided that the manner in which such facts shall operate upon the terms of the agreement is clearly and expressly set forth in the agreement of merger or consolidation.

(a) The agreement required by subsection (b) shall be adopted, approved, certified, executed and acknowledged by each of the corporations in the same manner as is provided in § 251 of this title and, in the case of the limited liability companies, in accordance with their limited liability company agreements and in accordance with the laws of the state under which they are formed, as the case may be. The agreement shall be filed and recorded and shall become effective for all purposes of the laws of this State when and as provided in § 251 of this title with respect to the merger or consolidation of corporations of this State. In lieu of filing and recording the agreement of merger or consolidation, the surviving or resulting corporation or limited liability company may file a certificate of merger or consolidation, executed in accordance with § 103 of this title, if the surviving or resulting entity is a corporation, or by an authorized person, if the surviving or resulting entity is a limited liability company, which states: (1) the name and state of domicile of each of the constituent entities; (2) that an agreement of merger or consolidation has been approved, adopted, certified, executed and acknowledged by each of the constituent entities in accordance with this subsection; (3) the name of the surviving or resulting corporation or limited liability company; (4) in the case of a merger in which a corporation is the surviving entity, such amendments or changes in the certificate of incorporation of the surviving corporation as are desired to be effected by the merger, or, if no such amendments or changes are desired, a statement that the certificate of incorporation of the surviving corporation shall be its certificate of incorporation; (5) in the case of a consolidation fn which a corporation is the resulting entity, that the certificate of incorporation of the resulting corporation shall be as is set forth in an attachment to the certificate; (6) that the executed agreement of consolidation or merger is on file at the principal place of business of the surviving corporation or limited liability company and the address thereof; (7) that a copy of the agreement of consolidation or merger will be furnished by the surviving or resulting entity, on request and without cost, to any stockholder of any constituent corporation or any member of any constituent limited liability company; and (8) the agreement, if any, required by subsection (d) of this section.

(d) If the entity surviving or resulting from the merger or consolidation is to be governed by the laws of the District of Columbia or any state other than 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 or limited liability company of this State, as well as for enforcement of any obligation of the surviving or resulting corporation or limited liability company arising from the merger or consolidation, including any suit or other proceeding to enforce the right of any stockholders as determined in appraisal proceedings pursuant to the provisions of § 262 of this title, and shall irrevocably appoint the Secretary of State as its agent to accept service of process in any such suit or other proceedings and shall specify the address to which a copy of such process shall be mailed by the Secretary of State. In the event of such service upon the Secretary of State in accordance with this subsection, the Secretary of State shall forthwith notify such surviving or resulting corporation or limited liability company thereof by letter, certified mail, return receipt requested, directed to such surviving or resulting corporation or limited liability company at its address so specified, unless such surviving or resulting corporation or limited liability company shall 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. Such letter shall enclose a copy of the process and any other papers served on the Secretary of State pursuant to this subsection. It shall be the duty of the plaintiff in the event of such service to serve process and any other papers in duplicate, to notify the Secretary of State that service is being effected pursuant to this subsection and to pay the Secretary of State the sum of $50 for the use of the State, which sum shall be taxed as part of the costs in the proceeding, if the plaintiff shall prevail therein. The Secretary of State shall maintain an alphabetical record of any such service setting forth the name of the plaintiff and the defendant, the title, docket number and nature of the proceeding in which process has been served upon him, the fact that service has been effected pursuant to this subsection, the return date thereof, and the day and hour service was made. The Secretary of State shall not be required to retain such information longer than five years from his receipt of the service of process.

(e) Sections 251(d), 251(e), 251(f), 259 through 261 and 328 of this title shall, insofar as they are applicable, apply to mergers or consolidations between corporations and limited liability companies.

Section 12. This Bill shall become effective on July 1, 1993.

Approved July 1, 1993.