SENATE BILL NO. 116
AN ACT TO AMEND TITLE 8 OF THE DELAWARE CODE RELATING TO THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two thirds of all members elected to cach House thcrcof concurring therein):
Section 1. Amend paragraph (4) of subsection (a) of §102, Title 8, Delaware Code, by deleting the second sentence thcrcof in its entirety and substituting in licu thcrcof the following:
"lf thc corporation is to be authorized to issue more than one class of stock, the certlficatc of incorporation shall set forth the total number of shares of all classes of stock which the corporation shall have authority to issue and the number of shares of each class, and shall specify with respect to each class those shares that are to be without par value and those shares that are to havc a par value and the par value of each share of each such class. The certificate of incorporation shall also set forth a stateMcnt of thc designations and the powers, prcfcrcnccs and rights, and the qualifications, limitations or restrictions thcrcof, which are permitted by §1S1 of this Title in rcspcct of any class or classes of stock or any series of any class of stock of the corporation and the fixing of which by the certificate of incorporation is desired„ and an express grant of such authority as it may then be desired to grant to the board of directors to fix by resolution or resolutions any thereof that may be desired but which shall not be fixed by the ccrtificatc of incorporation. Such grant of authority may include the power to specify the number of shares of any series."
Section 2. Amend §122, Title 8, Delaware Code, deleting thc period at the end of paragraph (13) thereof and substituting a comma therefor and adding thereto the folluwing:
"and make other contracts of guaranty and surctyship which are necessary or convenient to the conduct, promotion or attainmcnt of the business of the contracting corporation;"
Section 3. Amend subsection (c) of §I41, Title 8, Dclawarc Code, by inserting in the fourth scntcncc thcrcof the phrase "the designations and" between the word "fix" and the word "any" and by inserting the phrase "or fix the number of shares of any series of stock or authorize the increase or decrease of the shares of any scries" at the end of and within the paranthetical phrase in such scntcncc.
Section 4. Amend subsection (g) of §I51, Title 8, Delaware Code, by deleting such subsection in its entirety and Inserting in lieu thereof the following:
"When any corporation desires to issue any shares of stock of any class or of any scrics of any class of which thc powers, designations, prcfcrcnccs and relative, participating, optional or other rights, If any, or the qualifications, limitations or restrictions thcrcof, if any, shall not have bccn act forth in the certificate of incorporation or in any amendment thereto but shall be provided for in a resolution or resolutions adopted by the board of directors pursuant to authority expressly vested in it by the provisions of the certificate of incorporation or any amendment thereto, a certificate of designations setting forth a copy of such resolution or resolutions and the number of shares of stock of such class or series as to which the rcsolution or resolutions apply shall be cxecuted, acknowledged, filed, recorded, and shall become effective, In accordance with §I03 of this Title. Unless otherwise providcd in any such resolution or resolutions, the numbcr of shares of stock of any such class or series to which such rcsolution or resolutions apply may be increased (but not above the number of shares of the class authorizcd by the ccrtificatc of incorporation with respect to which the powers, designations, prcfcrcnccs and rights have not bccn set forth) or decreased (but not below thc numbcr of shares thcrcof then outstanding) by a certificate likewise executed, acknowledged, filcd and recorded setting forth a statement that a specified increase or decrease therein had bccn authorizcd and directed by a resolution or resolutions likewise adopted by the board of directors. In cast thc numbcr of such shares shall be decreased thc number of shares so specified in the certificate shall resume the status which they had prior to the adoption of the first resolution or resolutions When no shares of any such class or series arc outstanding, either because nonc wcrc issued or because no issued shares of any such class or series remain outstanding, a ccrtificatc setting forth a resolution or resolutions adopted by thc board of directors that none of the authorized shares of such class or soles are outstanding, and that none will be issued subject to the ccrtificatc of designations previously filed with respect to such class or scrics, may be executed, acknowledged, filed and rccordcd in accordance with §103 of this Title and, when such certificate becomes effective, it shall have the effect of eliminating from the certificate of incorporation all matters set forth in the ccrtificatc of designations with respect to such class or series of stock.
When any certificate filed under this subsection becomes effective, it shall have the effect of amending the ccrtificatc of incorporation." Section 5. Amend §173, Title 8, Delaware Code, by deleting from the third sentence thereof the phrase "transferred from surplus to the capital account" and inserting in lieu thereof the phrase "designated as capital" and by deleting from the fourth sentence thereof the phrase No transfer from surplus to capital" and inserting in lieu thereof the phrase "No such designation as capital".
Section 6. Amend §221, Title 8, Delaware Code, by changing the reference to "§242(c)(2)" in the last sentence thereof to "§242(b)(2)".
Section 7. Amend §225, Title 8, Delaware Code, by designating the first paragraph thereof as subsection (a). by inserting in the first sentence thereof the phrase or any officer whose title to office is contested," immediately following the phrase "Upon application of any stockholder or director," and by adding a new subsection (b) thereto as follows:
"(b) Upon application of any stockholder or any member of a corporation without capital stock, the Court of Chancery may hear and determine the result of any vote of stockholders or members, as the case may be, upon matters other than the election of directors, officers or members of the governing body. Service of the application upon the registered agent of the corporation shall be deemed to be service upon the corporation, and no other party need be joined in order for the Court to adjudicate the result of the vote. The Court may make such order respecting notice of the application as it deems proper under the circumstances."
Section 8. Amend §230. Title 8, Delaware Code, by designating the first paragraph thereof as subsection (a) and by adding a new subsection (b) thereto to read as follows:
"(b) Whenever notice is required to be given, under any provision of this Chapter or the certificate of incorporation or by laws of any corporation, to any stockholder or, if the corporation is a non stock corporation, to any member, to whom (I) notice of two consecutive annual meetings, and all notices of meetings or of the taking of action by written consent without a meeting to such person during the period between such two consecutive annual meetings, or (ii) all and at least two, payments (if sent by first class mail) of dividends or interest on securities during a twelve month period, have been mailed addressed to such person at his address as shown on the records of the corporation and have been returned undeliverable, the giving of such notice to such person shall not be required. Any action or meeting which shall be taken or held without notice to such person shall have the same force and effect as if such notice had been duly given. If any such person shall deliver to the corporation a written notice setting forth his then current address, the requirement that notice be given to such person shall be reinstated. 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 Title, the certificate need not state that notice was not given to persons to whom notice was not required to be given pursuant to this subsection."
Section 9. Amend subsection (a) of §271, Title 8, Delaware code, by inserting the phrase the holders or between the phrase "resolution adopted by and the phrase "a majority of the outstanding stock".
Section 10. Amend §349, Title 8, Delaware Code by deleting the last sentence thereof in its entirety.
Section 11. Amend §388. Title 8, Delaware Code, by deleting the phrase "and acknowledged" from subsection (b) thereof and by deleting the phrase "and (3)" from subsection (c) thereof and inserting in lieu thereof the phrase "(3) the name of the corporation as set forth in its certificate of incorporation lied in accordance with subsection (b) and (4).
Section 12. Amend subsection (a) of §391, Title 8, Delaware Code, by deleting paragraph (22) thereof in its entirety and substituting in lieu thereof the following:
"(22) In the case of non stock corporations and of religious, charitable or other non profit corporations organized under the laws of the State of Delaware, the total fees payable to the Secretary of State upon the filing of a Certificate of Change of Registered Agent and/or Registered Office shall be $5.00."
Section 13. All rights, privileges and immunities vested or accrued by and under any laws enacted prior to the adoption or amendment of this Act, all suits pending, all rights of action conferred, and all duties, restrictions, liabilities and penalties imposed or required by and under laws enacted prior to the adoption or amendment of this Act, shall not be impaired, diminished or affected by this Act.
Section 14. The provisions of this Act shall become effective on July 1, 1985. Without limiting the foregoing, Section 7 of this Act shall be effective only as to elections and votes of stockholders occurring on or after July 1, 1985 and Section 8 of this Act shall be effective as to all notices required to be given in connection with stockholder action for which the record date is on or after July 1. 1985.
Approved July 4, 1985.