CHAPTER 349

FORMERLY

SENATE BILL NO. 363

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 103(d), Title 8, Delaware Code, by deleting the last sentence thereof and substituting the following sentence; "If any instrument filed in accordance with subsection (e) of this section provides for a future effective date or time and if the transaction is terminated or its terms are amended to change the future effective 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 the original instrument, 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 the manner in which it has been amended."

Section 2. Amend Section 141(c), Title 8, Delaware Code, by denominating the current text thereof as subsection "(1)" of such section; by adding the following two sentences as the first two sentences of such section: "All corporations incorporated prior to July 1, 1996, shall be governed by subsection (1) of this section, provided that any such corporation may by a resolution adopted by a majority of the whole board elect to be governed by subsection (2) of this section, in which ease subsection (1) of this section shall not apply to such corporation. All corporations incorporated on or after July 1, 1996, shall be governed by subsection (2) of this section."; and by adding the following as subsection (2) of such section: "(2) The board of directors may designate I or more committees, each committee to consist of I or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. The bylaws may provide that in the absence or disqualification of a member of a committee, the member or members present at any meeting and not disqualified from voting, whether or not such member or members 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. Any such committee, to the extent provided in the resolution of the board of directors, or in the bylaws of the corporation, shall have and may exercise all the powers and authority 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; but no such committee shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the stockholders, any action or matter expressly required by this chapter to be submitted to stockholders for approval or (ii) adopting, amending or repealing any bylaw of the corporation,"

Section 3. Amend Section 160(a)(1), Title 8, Delaware Code, by adding after the words "class or series of its stock" appearing in the first sentence the phrase ",or, if no shares entitled to such a preference are outstanding, any of its own shares.".

Section 4. Amend Section 228(d), Title 8, Delaware Code, by adding the following words at the end of the first sentence: and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for such meeting had been the date that written consents signed by a sufficient number of holders or members to take the action were delivered to the corporation as provided in subsection (c) of this section"; and by deleting the following phrase from the end of the subsection: ", and that written notice has been given as provided in this section".

Section 5. Amend Section 242(a), Title 8, Delaware Code, by adding the words ", subdivision, combination" immediately following the word "reclassification" in the two places where such word appears in Section 242(a).

Section 6. Amend Section 242(a)(3), Title 8, Delaware Code, by inserting immediately before "; or at the end of such section the following: ", or by subdividing or combining the outstanding shares of any class or series of a class of shares into a greater or lesser number of outstanding shares".

Section 7. Amend Section 242(c), Title 8, Delaware Code, by adding the words the effectiveness of immediately following the words "prior to".

Section 8. Amend Section 251(b), Title 8, Delaware Code, by adding the following sentence at the end thereof: The term 'facts,' as used in the preceding sentence, includes, but is not limited to, the occurrence of any event, including a determination or action by any person or body, including the corporation."

Section 9. Amend Section 252(b), Title 8, Delaware Code, by adding the following

sentence at the end thereof: The term 'facts; as used in the preceding sentence, includes, but is not limited to, the occurrence of any event, including a determination or action by any person or body, including the corporation."

Section 10. Amend Section 253(a), Title 8, Delaware Code, by inserting the following immediately after the first sentence of subsection 253(a): Any of the terms of the resolution of the board of directors to so merge may be made dependent upon facts ascertainable outside of such resolution, provided that the manner in which such facts shall operate upon the terms of the resolution is clearly and expressly set forth in the resolution. The term 'facts', as used in the preceding sentence, includes, but is not limited to, the occurrence of any event, including a determination or action by any person or body, including the corporation."

Section 11. Amend Section 254(c), Title 8, Delaware Code, by adding the following sentence at the end thereof: The term 'facts; as used in the preceding sentence, includes, but is not limited to, the occurrence of any event, including a determination or action by any person or body, including the corporation."

Section 12. Amend Section 255(b), Title 8, Delaware Code, by adding the following sentence at the end thereof: "The term 'facts; as used in the preceding sentence, includes, but is not limited to, the occurrence of any event, including a determination or action by any person or body, including the corporation."

Section 13. Amend Section 256(b), Title 8, Delaware Code by adding the following sentence at the end thereof: The term 'facts; as used in the preceding sentence, includes, but is not limited to, the occurrence of any event, including a determination or action by any person or body, including the corporation."

Section 14. Amend Section 257(b), Title 8, Delaware Code, by adding the following sentence at the end thereof: "The term 'facts; as used in the preceding sentence, includes, but is not limited to, the occurrence of any event, including a determination or action by any person or body, including the corporation."

Section 15. Amend Section 263(b), Title 8, Delaware Code, by adding the following sentence at the end thereof: The term 'facts; as used in the preceding sentence, includes, but is not limited to, the occurrence of any event, including a determination or action by any person or body, including the corporation."

Section 16. Amend Section 264(b), Title 8, Delaware Code, by adding the following sentence at the end thereof: "The term 'facts,' as used in the preceding sentence, includes, but is not limited to, the occurrence of any event, including a determination or action by any person or body, including the corporation."

Section 17. Amend Section 251(c)(6), Title 8, Delaware Code, by deleting the words "the principal place of business" and inserting in lieu thereof the words an office".

Section 18. Amend Section 252(c)(6), Title 8, Delaware Code, by deleting the words the principal place of business" and inserting in lieu thereof the words an office".

Section 19. Amend Section 254(d)(6), Title 8, Delaware Code, by deleting the words "the principal place of business" and inserting in lieu thereof the words "an office".

Section 20. Amend Section 263(c)(6), Title 8. Delaware Code, by deleting the words the principal place of business" and inserting in lieu thereof the words an office".

Section 21. Amend Section 264(c)(6), Title 8, Delaware Code, by deleting the words "the principal place of business" and inserting in lieu thereof the words "an office".

Section 22. Amend Section 262(d)(2), Title 8, Delaware Code, by deleting its text and substituting the following text: "If the merger or consolidation was approved pursuant to § 228 or § 253 of this title, each constituent corporation, either before the effective date of the merger or consolidation or within ten days thereafter, shall notify each of the holders of any class or series of stock of such constituent corporation who are entitled to appraisal rights of the approval of the merger or consolidation and that appraisal rights are available for any or all shares of such class or series of stock of such constituent corporation, and shall include in such notice a copy of this section; provided that, if the notice is given on or after the effective date of the merger or consolidation, such notice shall be given by the surviving or resulting corporation to all such holders of any class or series of stock of a constituent corporation that are entitled to appraisal rights. Such notice may, and, if given on or after the effective date of the merger or consolidation, shall, also notify such stockholders of the effective date of the merger or consolidation. Any stockholder entitled to appraisal rights may, within twenty days after the date of mailing of such notice, demand in writing from the surviving or resulting corporation the appraisal of such holder's shares. Such demand will be sufficient if it reasonably informs the corporation of the identity of the stockholder and that the stockholder intends thereby to demand the appraisal of such holder's shares. If such notice did not notify stockholders of the effective date of the merger or consolidation, either (i) each such constituent corporation shall send a second notice before the effective date of the merger or consolidation notifying each of the holders of any class or series of stock of such constituent corporation that are entitled to appraisal rights of the effective date of the merger or consolidation or (ii) the surviving or resulting corporation shall send such a second notice to all such holders on or within 10 days after such effective date; provided, however, that if such second notice is sent more than 20 days following the sending of the first notice, such second notice need only be sent to each stockholder who is entitled to appraisal rights and who has demanded appraisal of such holder's shares in accordance with this subsection. An affidavit of the secretary or assistant secretary or of the transfer agent of the corporation that is required to give either notice that such notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. For purposes of determining the stockholders entitled to receive either notice, each constituent corporation may fix, in advance, a record date that shall be not more than 10 days prior to the date the notice is given; provided that, if the notice is given on or after the effective date of the merger or consolidation, the record date shall be such effective date. If no record date is fixed and the notice is given prior to the effective date, the record date shall be the close of business on the day next preceding the day on which the notice is given.

Section 23. Amend Section 273(a), Title 8. Delaware Code, by adding the words ", unless otherwise provided in the certificate of incorporation of the corporation or in a written agreement between the stockholders," immediately after the words "either stockholder may".

Section 24. This Act shall be effective on July 1, 1996.

Approved May 23, 1996