CHAPTER 79

FORMERLY

SENATE BILL NO. 175

AN ACT TO AMEND 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 Section 102(a)(1), Title 8, Delaware Code, by inserting the numeral "(1)" after the word "which" and before the words "shall contain" in said paragraph.

Section 2. Amend Section 102(a)(1), Title 8, Delaware Code, by striking the comma after the parenthetical "(provided they are written in roman characters or letters)" in said paragraph, and inserting in lieu thereof the following:

"; provided, however, that the Division of Corporations in the Department of State may waive such requirement (unless it determines that such name is, or might otherwise appear to be, that of a natural person) if such corporation executes, acknowledges and files with the Secretary of State in accordance with §103 of this title a certificate stating that its total assets, as defined in subsection (i) of §503 of this title, are not less than 10 million dollars".

Section 3. Amend Section 102(a)(1), Title 8, Delaware Code, by striking the word "which" and inserting in its place the numeral "(2)" after the word "and" and before the words "shall be in said paragraph.

Section 4. Amend Section 103(d) by adding a new sentence at the end of said subsection to read:

"If any instrument filed in accordance with sections 251, 252, 253, 254, 255, 256, 257, 258, 263, or 264 provides for a future effective date or time and if the merger or consolidation is terminated or amended to change the future date or time prior to the future effective date or time, the instrument shall be terminated or amended by the filing, prior to the future effective date or time set forth in such instrument, of a certificate of termination or amendment of a certificate of merger or consolidation, executed in accordance with subsection (a) of this section, which shall identify the instrument which has been terminated or amended and shall state that the instrument has been terminated or amended."

Section 5. Amend Section 136(a), Chapter 1, Title 8, Delaware Code by striking said subsection in its entirety and by inserting a new subsection in its place to read:

"(a) The registered agent of one or more corporations may resign

without appointing a successor by filing a certificate of resignation with the Secretary of State; but such resignation shall not become effective until 30 days after the certificate is filed. The certificate shall be acknowledged by the registered agent, shall contain a statement that written notice of resignation was given to the corporation at least 30 days prior to the filing of the certificate by mailing or delivering such notice to the corporation at its address last known to the registered agent, and shall set forth the date of such notice."

Section 6. Amend Section 136, Chapter 1, Title 8, Delaware Code by deleting subsection (b) in its entirety and redesignating subsection (c) to (b) and redesignating subsection (d) to (c).

Section 7. Amend Section 141(c), Subchapter IX, Chapter 1, Title 8 of the Delaware Code by inserting another "§" before the number "251", deleting the word "or" after the number "251", inserting a comma after the number "251", and inserting immediately after the number "252" the following ", 254, 255, 256, 257, 258, 263 or 264".

Section 8. Amend Section 203(a), Title 8, Delaware Code, by deleting the word "date" the three times it appears in the section and inserting in lieu thereof the word "time"; and by deleting the word "On" at the beginning of subsection (a)(3) and inserting in lieu thereof the word "At".

Section 9. Amend Section 203(b), Title 8, Delaware Code, by inserting "be effective immediately in the case of a corporation that both (i) has never had a class of voting stock that falls within any of the three categories set out in subsection (b)(4) hereof, and (ii) has not elected by a provision in its original certificate of incorporation or any amendment thereto to be governed by this section. In all other cases, an amendment adopted pursuant to this paragraph shall" after the word "shall" in the second sentence of subsection (b)(3); deleting the words "an inter-dealer quotation system of a registered national securities association" in subsection (b)(4) and substituting The NASDAQ Stock Market" in lieu thereof; inserting the words "itself of ownership or after the word "divests" in subsection (b)(5); inserting the words "of ownership" after the word "acquisition" at the end of subsection (b)(5); deleting the word "or" immediately before subsection (b)(6); inserting "or during the period described in paragraph (7) of this subsection (b)" after the words "board of directors" in subsection (b)(6)(ii); deleting the words "Notwithstanding paragraphs (1), (2), (3) and (4) of this subsection, a corporation may elect by a provision of its original certificate of incorporation or any amendment thereto to be governed by this section; provided that any such amendment to the certificate of incorporation shall not apply to restrict a business combination between the corporation and an interested stockholder of the corporation if the interested stockholder became such prior to the effective date of the amendment." at the end of subsection (b)(6) and substituting "; or" in lieu thereof; adding the following language after subsection (b)(6): "(7) The business combination is with an interested stockholder who became an interested stockholder at a time when the restrictions contained in this section did not apply by reason of any of paragraphs (1) through (4) of this subsection (b), provided, however, that this paragraph (7) shall not apply if, at the time such interested stockholder became an interested stockholder, the corporation's certificate of incorporation contained a provision authorized by the last sentence of this subsection (b)"; and, at the end of subsection (b), add the following language: "Notwithstanding paragraphs (1), (2), (3) and (4) of this subsection, a corporation may elect by a provision of its original certificate of incorporation or any amendment thereto to be governed by this section; provided that any such amendment to the certificate of incorporation shall not apply to restrict a business combination between the corporation and an interested stockholder of the corporation if the interested stockholder became such prior to the effective date of the amendment."

Section 10. Amend Section 203(c), Title 8, Delaware Code, by deleting the words "or organization" in subsection (c)(2)(i) and inserting ", partnership, unincorporated association or other entity" in lieu thereof; by inserting ", partnership, unincorporated association or other entity" after the word "corporation" the first time it appears in subsection (c)(3)(i)(B); by deleting the word "corporation" the last time it appears in subsection (c)(3)(i)(B) and inserting the word "entity" in lieu thereof; by inserting the words "(B) pursuant to a merger under Section 251(g) of this title;" immediately following the words "stockholder became such;" and changing "(B)" to "(C)", "(C)" to "(D)", "(D)" to "(E)" and "(B) - (D)" to "(C) - (E)" in subsection (c)(3)(iii); by deleting the second sentence of subsection (c)(4) and inserting in lieu thereof the following sentence: "A person who is the owner of 20% or more of the outstanding voting stock of any corporation, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary," by deleting the word "corporation" at the end of subsection (c)(4) and substituting the word "entity" in lieu thereof; by inserting "either (I)" between the words "90 days thereafter and" and the words "continued to own shares" in subsection (c)(5); by inserting the language "or (II) is an affiliate or associate of the corporation and so continued (or so would have continued but for action by the corporation) to be the owner of 15% or more of the outstanding voting stock of the corporation at any time within the 3-year period immediately prior to the date on which it is sought to be determined whether such a person is an interested stockholder" after the words but for action by the corporation" and before "or (B)" in subsection (c)(5); by deleting the word "he" and substituting the words such person" in lieu thereof immediately before the words "acquires additional shares of voting stock" in subsection (c)(5); by inserting a new definition at subsection (c)(7) to read as follows: "(7) "Stock" means, with respect to any corporation, capital stock and, with respect to any other entity, any equity interest."; by deleting prior "(7)" of subsection (c) and substituting in lieu thereof "(8) "Voting stock" means, with respect to any corporation, stock of any class or series entitled to vote generally in the election of directors and, with respect to any entity that is not a corporation, any equity interest entitled to vote generally in the election of the governing body of such entity."; and be renumbering prior "(8)" in subsection (c) as "(9)".

Section 11. Amend Section 220(a), Title 8, Delaware Code, by inserting of stock in a stock corporation and also a member of a nonstock corporation as reflected on the records of the nonstock corporation." at the end of the first sentence and the following as a second sentence: As used in this section, the term "list of stockholders" includes lists of members in a nonstock corporation."

Section 12. Amend Section 220(d), Title 8, Delaware Code, by inserting "(including a member of the governing body of a nonstock corporation)" after the second word in the first sentence; and by deleting the words "stocklist" in the third sentence and substituting in lieu thereof the words "list of stockholders".

Section 13. Amend Section 251(d), Subchapter IX, Chapter 1, Title 8 of the Delaware Code by deleting the words "filing of the agreement (or a certificate in lieu thereof) with the Secretary of State" where they appear in the first and second sentences thereof' and inserting in lieu thereof in both sentences the words time that the agreement (or a certificate in lieu thereof) filed with the Secretary of State becomes effective in accordance with §103 of this title."

Section 14. Amend Section 251(d), Subchapter IX, Chapter 1, Title 8 of the Delaware Code by inserting immediately before the "." at the end of the first sentence the following: '`; in the event the agreement of merger or consolidation is terminated after the filing of the agreement (or a certificate in lieu thereof) with the Secretary of State but before the agreement (or a certificate in lieu thereof) has become effective, a certificate of termination or merger or consolidation shall be filed in accordance with §103 of this title", and add by inserting immediately before the "." at the end of the second sentence the following: "; in the event the agreement of merger or consolidation is amended after the filing thereof with the Secretary of State but before the agreement has become effective, a certificate of amendment of merger or consolidation shall be filed in accordance with §103 of this title."

Section 15. Amend Section 251, Title 8, Delaware Code, by adding a new subsection (g) as follows:

"(g) Notwithstanding the requirements of subsection (c) of this section, unless expressly required by its certificate of incorporation, no vote of stockholders of a constituent corporation shall be necessary to authorize a .merger with or into a single direct or indirect wholly-owned subsidiary of such constituent corporation if: (1) such constituent corporation and the direct or indirect wholly-owned subsidiary of such constituent corporation are the only constituent corporations to the merger; (2) each share or fraction of a share of the capital stock of the constituent corporation outstanding immediately prior to the effective time of the merger is converted in the merger into a share or equal fraction of share of capital stock of a holding company having the same designations, rights, powers and preferences, and the qualifications, limitations and restrictions thereof, as the share of stock of the constituent corporation being converted in the merger; (3) the holding company and each of the constituent corporations to the merger are corporations of this State; (4) the certificate of incorporation and by-laws of the holding company immediately following the effective time of the merger contain provisions identical to the certificate of incorporation and by-laws of the constituent corporation immediately prior to the effective time of the merger (other than provisions, if any, regarding the incorporator or incorporators, the corporate name, the registered office and agent, the initial board of directors and the initial subscribers for shares and such provisions contained in any amendment to the certificate of incorporation as were necessary to effect a change, exchange, reclassification or cancellation of stock, if such change, exchange, reclassification or cancellation has become effective); (5) as a result of the merger the constituent corporation or its successor corporation becomes or remains a direct or indirect wholly-owned subsidiary of the holding company; (6) the directors of the constituent corporation become or remain the directors of the holding company upon the effective time of the merger; (7) the certificate of incorporation of the surviving corporation immediately following the effective time of the merger is identical to the certificate of incorporation of the constituent corporation immediately prior to the effective time of the merger (other than provisions, if any, regarding the incorporator or incorporators, the corporate name, the registered office and agent, the initial board of directors and the initial subscribers for shares and such provisions contained in any amendment to the certificate of incorporation as were necessary to effect a change, exchange, reclassification or cancellation of stock, if such change, exchange, reclassification or cancellation has become effective); provided, however, that (i) the certificate of incorporation of the surviving corporation shall be amended in the merger to contain a provision requiring that any act or transaction by or involving the surviving corporation that requires for its adoption under this Chapter or its certificate of incorporation the approval of the stockholders of the surviving corporation shall, by specific reference to this subsection, require, in addition, the approval of the stockholders of the holding company (or any successor by merger), by the same vote as is required by this Chapter and/or by the certificate of incorporation of the surviving corporation, and (ii) the certificate of incorporation of the surviving corporation may be amended in the merger to reduce the number of classes and shares of capital stock that the surviving corporation is authorized to issue; and (8) the stockholders of the constituent corporation do not recognize gain or loss for United States federal income tax purposes as determined by the board of directors of the constituent corporation. As used in this subsection only, the term "holding company" means a corporation which, from its incorporation until consummation of a merger governed by this subsection, was at all times a direct or indirect wholly-owned subsidiary of the constituent corporation and whose capital stock is issued in such merger. From and after the effective time of a merger adopted by a constituent corporation by action of its board of directors and without any vote of stockholders pursuant to this subsection: (i) to the extent the restrictions of §203 of this Chapter applied to the constituent corporation and its stockholders at the effective time of the merger, such restrictions shall apply to the holding company and its stockholders immediately after the effective time of the merger as though it were the constituent corporation, and all shares of stock of the holding company acquired in the merger shall for purposes of §203 be deemed to have been acquired at the time that the shares of stock of the constituent corporation converted in the merger were acquired, and provided further that any stockholder who immediately prior to the effective time of the merger was not an interested stockholder within the meaning of §203 shall not solely by reason of the merger become an interested stockholder of the holding company, and (ii) if the corporate name of the holding company immediately following the effective time of the merger is the same as the corporate name of the constituent corporation immediately prior to the effective time of the merger, the shares of capital stock of the holding company into which the shares of capital stock of the constituent corporation are converted in the merger shall be represented by the stock certificates that previously represented shares of capital stock of the constituent corporation. If an agreement of merger is adopted by a constituent corporation by action of its board of directors and without any vote of stockholders pursuant to this subsection, the secretary or assistant secretary of the constituent corporation shall certify on the agreement that the agreement has been adopted pursuant to this subsection and that the conditions specified in the first sentence of this subsection have been satisfied. The agreement so adopted and certified shall then be filed and become effective, in accordance with §103 of this title. Such filing shall constitute a representation by the person who executes the agreement that the facts stated in the certificate remain true immediately prior to such filing."

Section 16. Amend Section 262(b)(1), Title 8, Delaware Code, by deleting the words "subsection (t)" and inserting in lieu thereof the words "subsections (f) or (g)".

Section 17. Amend Section 277, Chapter 1, Title 8, of the Delaware Code by inserting after the word "dissolved" the words "or merged."

Section 18. Amend Section 381(a)(1), Chapter 1, Title 8, of the Delaware Code by deleting same and replacing said subsection with the following:

"(1) A certificate executed in accordance with §103 of this title, stating that it surrenders its authority to transact business in the state and withdraws therefrom; and stating the address to which the Secretary of State may mail any process against the corporation that may be served upon the Secretary of State, or

Section 19. Amend Subchapter XVI, Chapter 1, Title 8, Delaware Code, by deleting of Non-United States Corporations" in the title line.

Section 20. Amend Subchapter XVI, Chapter 1, Title 8, Delaware Code, by adding a new section 390 as follows:

"§390 Transfer and continuance of domestic corporations.

(a) Upon compliance with the provisions of this section any corporation existing under the laws of this State may transfer to any jurisdiction other than the United States, any State, the District of Columbia, Puerto Rico, Guam or any possession or territory of the United States, which permits the transfer to or domestication or continuance in such jurisdiction of a corporation existing under the laws of this State.

(b) The board of directors of the corporation which desires to transfer to another jurisdiction shall adopt a resolution approving such transfer specifying the jurisdiction in which the corporation shall be domesticated or continued and recommending the approval of such transfer by the stockholders of the corporation. Such resolution shall be submitted to the stockholders of the corporation at an annual or special meeting. Due notice of the time, place and purpose of the meeting shall be mailed to each holder of stock, whether voting or nonvoting, of the corporation at the address of the stockholder as it appears on the records of the corporation, at least 20 days prior to the date of the meeting. At the meeting, the resolution shall be considered and a vote taken for its adoption or rejection. If all outstanding shares of stock of the corporation, whether voting or nonvoting, shall be voted for the adoption of the resolution, the corporation shall file with the Secretary of State a certificate of transfer, executed in accordance with §103 of this title, which certifies:

(1) The name of the corporation, and if it has been changed, the name under which it was originally incorporated.

(2) The date of filing of its original certificate of incorporation with the Secretary of State.

(3) The jurisdiction to which the corporation will transfer or in which it will be domesticated or continued.

(4) That the transfer of the corporation has been approved in accordance with the provisions of this section.

(5) The agreement of the corporation that it may be served with
process in this State in any proceeding for enforcement of any obligation of the corporation arising while it was a corporation of this State which shall also appoint the Secretary of State as its agent to accept service of process in any such proceeding and specify the address to which a copy of such process shall be mailed by the Secretary of State.

(c) Upon compliance by the corporation with subsection (b) of this section and payment to. the Secretary of State of all fees prescribed under this title, the Secretary of State shall certify that the corporation has filed all documents and paid all fees required by this title, and thereupon the corporation shall cease to exist as a corporation of this State. Such certificate of the Secretary of State shall be prima facie evidence of the transfer by such corporation out of this State.

(d) The transfer of a corporation out of this State shall not be deemed to affect any obligations or liabilities of the corporation incurred prior to such transfer, nor shall it be deemed to affect the choice of law applicable to the corporation with respect to matters arising prior to such transfer."

Section 21. Amend Section 391(a), Subchapter XVII, Chapter 1, Title 8, Delaware Code, by inserting new subparagraph (a)(24) as follows:

"(24) For receiving and filing and/or indexing by the Secretary of State of a certificate of transfer prescribed in §390 of this title, a fee of $1,000 shall be paid."

Section 22. Amend Section 505(c), Title 8, of the Delaware Code by adding the following sentence at the end of such subsection:

"Any refund due to a corporation which has merged into another Delaware domestic corporation shall be credited to the surviving Delaware corporation."

Section 23. This Act shall be effective on July 1, 1995.

Approved June 23, 1995