SPONSOR: |
Rep. Valihura & Sen. Vaughn & Rep. Wagner |
|
Reps. George, Johnson |
HOUSE OF REPRESENTATIVES 143rd GENERAL ASSEMBLY |
HOUSE
BILL NO. 150 |
AN ACT TO AMEND TITLE 8 OF THE |
BE IT ENACTED
BY THE GENERAL ASSEMBLY OF THE STATE OF
Section
1. Amend Section 141(d), Title 8,
Delaware Code, by deleting the text thereof in its entirety and substituting in
lieu thereof the following:
“(d) The directors of any corporation organized under this
chapter may, by the certificate of incorporation or by an initial bylaw, or by
a bylaw adopted by a vote of the stockholders, be divided into 1, 2 or 3
classes; the term of office of those of the first class to expire at the annual
meeting next ensuing; of the second class 1 year thereafter; of the third class
2 years thereafter; and at each annual election held after such classification
and election, directors shall be chosen for a full term, as the case may be, to
succeed those whose terms expire. The certificate of incorporation may confer
upon holders of any class or series of stock the right to elect 1 or more
directors who shall serve for such term, and have such voting powers as shall
be stated in the certificate of incorporation. The terms of office and voting
powers of the directors elected separately by the holders of any class or
series of stock may be greater than or less than those of any other director or
class of directors. In addition, the
certificate of incorporation may confer upon one or more directors, whether or
not elected separately by the holders of any class or series of stock, voting
powers greater than or less than those of other directors. If the certificate of incorporation provides
that one or more directors shall have more or less than 1 vote per director on
any matter, every reference in this chapter to a majority or other proportion
of the directors shall refer to a majority or other proportion of the votes of
the directors.”
Section
2. Amend Section 158, Title 8,
Delaware Code, by deleting the third sentence thereof in its entirety and
substituting in lieu thereof the following:
“Every
holder of stock represented by certificates shall be entitled to have a
certificate signed by, or in the name of the corporation by the chairperson or
vice-chairperson of the board of directors, or the president or vice-president,
and by the treasurer or an assistant treasurer, or the secretary or an assistant
secretary of such corporation representing the number of shares registered in
certificate form.”
Section
3. Amend Section 251(g), Title 8,
Delaware Code, by deleting the text of subdivision (7)(ii) thereof in its
entirety and substituting in lieu thereof the following:
“(ii) the organizational documents of the surviving
entity may be amended in the merger (A) to reduce the number of classes and
shares of capital stock or other equity interests or units that the surviving
entity is authorized to issue and (B) to eliminate any provision authorized by
subsection (d) of § 141 of this title; and”.
Section
4. Amend Section 265(a), Title 8,
Delaware Code, by deleting the text thereof in its entirety and substituting in
lieu thereof the following:
“(a) As used in this section, the term “other entity” means a
limited liability company, statutory trust, business trust or association, real
estate investment trust, common-law trust or any other unincorporated business
including a partnership (whether general (including a limited liability
partnership) or limited (including a limited liability limited partnership)),
or a foreign corporation.”
Section
5. Amend Section 265(b), Title 8,
Delaware Code, by deleting “incorporated under the laws” therefrom and by deleting
“(g)” therefrom and substituting in lieu thereof “(h)”.
Section 6. Amend Section 265(b)(1), Title 8, Delaware
Code, by inserting “to corporation” after “conversion” and by deleting “(h)”
therefrom and substituting in lieu thereof “(i)”.
Section 7. Amend Section 265(c), Title 8, Delaware Code,
by inserting “to corporation” after “conversion”.
Section 8. Amend Section 265(c)(1), Title 8, Delaware
Code, by deleting the text thereof in its entirety and substituting in lieu
thereof the following:
“(1) The date on which and jurisdiction where the other entity
was first created, incorporated, formed or otherwise came into being and, if it
has changed, its jurisdiction immediately prior to its conversion to a domestic
corporation;”.
Section 9. Amend Section 265(c)(2), Title 8, Delaware
Code, by deleting “;” therefrom and substituting in lieu thereof “to
corporation; and”.
Section 10. Amend Section 265(c)(3), Title 8, Delaware
Code, by deleting “; and” therefrom and substituting in lieu thereof “.”.
Section 11. Amend Section 265(c)(4), Title 8, Delaware
Code, by deleting subsection (c)(4) in its entirety.
Section 12. Amend Section 265(d), Title 8, Delaware Code,
by inserting “to corporation” after “certificate of conversion”, by deleting
“into” after “shall be converted” and substituting in lieu thereof “to” and by
inserting “in the jurisdiction in which the other entity was first created,
formed, incorporated or otherwise came into being” at the end of subsection
(d).
Section 13. Amend Section 265(e), Title 8, Delaware Code,
by deleting “into” after “other entity” and substituting in lieu thereof “to”.
Section 14. Amend Section 265, Title 8, Delaware Code, by
adding a new subsection (f) thereto as follows:
“(f) When an other entity has been converted to a corporation of
this State pursuant to this section, the corporation of this State shall, for
all purposes of the laws of the State of Delaware, be deemed to be the same
entity as the converting other entity.
When any conversion shall have become effective under this section, for
all purposes of the laws of the State of Delaware, all of the rights,
privileges and powers of the other entity that has converted, and all property,
real, personal and mixed, and all debts due to such other entity, as well as
all other things and causes of action belonging to such other entity, shall
remain vested in the domestic corporation to which such other entity has
converted and shall be the property of such domestic corporation and the title
to any real property vested by deed or otherwise in such other entity 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 such other entity shall be
preserved unimpaired, and all debts, liabilities and duties of the other entity
that has converted shall remain attached to the corporation of this State to
which such other entity has converted, and may be enforced against it to the
same extent as if said debts, liabilities and duties had originally been
incurred or contracted by it in its capacity as a corporation of this
State. The rights, privileges, powers
and interests in property of the other entity, as well as the debts,
liabilities and duties of the other entity, shall not be deemed, as a consequence
of the conversion, to have been transferred to the domestic corporation to
which such other entity has converted for any purpose of the laws of the State
of
Section 15. Amend Section 265(f), Title 8, Delaware Code,
by redesignating subsection (f) as subsection (g) and by deleting “or otherwise
provided by any laws of this State applicable to the converting limited
liability company, partnership or statutory trust” therefrom and substituting
in lieu thereof “for all purposes of the laws of the State of Delaware or as
required under applicable non-Delaware law”.
Section 16. Amend Section 265(g), Title 8, Delaware Code,
by redesignating subsection (g) as subsection (h) and by inserting “to
corporation” after “certificate of conversion”.
Section 17. Amend Section 265(h), Title 8, Delaware Code,
by deleting the text thereof in its entirety and substituting in lieu thereof
the following:
“(i) The certificate of conversion to corporation shall be
signed by any person who is authorized to sign the certificate of conversion to
corporation on behalf of the other entity.”
Section 18. Amend Section 265, Title 8, Delaware Code, by
adding a new subsection (j) thereto as follows:
“(j) In connection with a conversion hereunder, rights or securities
of, or interests in, the other entity which is to be converted to a corporation
of this State may be exchanged for or converted into cash, property, or shares
of stock, rights or securities of such corporation of this State or, in
addition to or in lieu thereof, may be exchanged for or converted into cash,
property, or shares of stock, rights or securities of or interests in another domestic corporation or other entity or may
be cancelled.”
Section 19. Amend Section 266(a), Title 8, Delaware Code,
by deleting the text thereof in its entirety and substituting in lieu thereof
the following:
“(a) A corporation of this State may, upon the
authorization of such conversion in accordance with this section, convert to a
limited liability company, statutory trust, business trust or association, real
estate investment trust, common-law trust or any other unincorporated business
including a partnership (whether general (including a limited liability
partnership) or limited (including a limited liability limited partnership)) or
a foreign corporation.”
Section 20. Amend Section 266(b), Title 8, Delaware Code,
by deleting in its entirety that portion of the fifth sentence thereof that
precedes and includes the colon and substituting in lieu thereof the following:
“If all outstanding shares of
stock of the corporation, whether voting or nonvoting, shall be voted for the
adoption of the resolution, the conversion shall be authorized.”
Section 21. Amend Section 266(b), Title 8, Delaware Code,
by deleting subsections (b)(1), (b)(2), (b)(3) and (b)(4) thereof in their
entirety and substituting in lieu thereof the following:
“(c) If a corporation shall convert in accordance with this
section to another entity organized, formed or created under the laws of a
jurisdiction other than the State of Delaware, the corporation shall file with
the Secretary of State a certificate of conversion 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 name and jurisdiction of the entity to which the
corporation shall be converted;
(4) That the conversion 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 the State of Delaware in any action, suit or proceeding for
enforcement of any obligation of the corporation arising while it was a
corporation of this State, and that it irrevocably appoints the Secretary of
State as its agent to accept service of process in any such action, suit or
proceeding; and
(6) The address to which a copy of the process referred to in
subsection (c)(5) shall be mailed to it by the Secretary of State. In the event of such service upon the
Secretary of State in accordance with subsection (c)(5), the Secretary of State
shall forthwith notify such corporation that has converted out of the State of
Delaware by letter, certified mail, return receipt requested, directed to such
corporation that has converted out of the State of Delaware at the address so
specified, unless such corporation 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 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, 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 5 years from receipt of the service of process.”
Section 22. Amend Section 266(c), Title 8, Delaware Code,
by redesignating subsection (c) as subsection (d), by deleting “Upon the filing
of a certificate of conversion in accordance with subsection (b) of this
section, the filing of any document required to be filed by the statute
governing the formation of the entity into which the corporation is converting”
therefrom and substituting in lieu thereof “Upon the filing in the Office of
the Secretary of State of a certificate of conversion to non-Delaware entity in
accordance with subsection (c) of this section or upon the future effective
date or time of the certificate of conversion to non-Delaware entity” and by
inserting “out of the State of Delaware” at the end of the second sentence
thereof.
Section 23. Amend Section 266, Title 8, Delaware Code, by
deleting subsections (d) and (e) thereof in their entirety and substituting in
lieu thereof the following:
“(e) The conversion of a corporation out of the State of Delaware
in accordance with this section and the resulting cessation of its existence as
a corporation of this state pursuant to a certificate of conversion to
non-Delaware entity shall not be deemed to affect any obligations or
liabilities of the corporation incurred prior to such conversion or the
personal liability of any person incurred prior to such conversion, nor shall
it be deemed to affect the choice of law applicable to the corporation with
respect to matters arising prior to such conversion.”
Section 24. Amend Section 266(f), Title 8, Delaware Code,
by deleting “and shall constitute a continuation of the existence of the
converting corporation in the form of the applicable other entity of this
State” therefrom.
Section 25. Amend Section 266, Title 8, Delaware Code, by
adding a new subsection (g) thereto as follows:
“(g) In connection with a conversion of a domestic corporation to
another entity pursuant to this section, shares of stock, of the corporation of
this State which is to be converted may be exchanged for or converted into
cash, property, rights or securities of, or interests in, the entity to which
the corporation of this State is being converted or, in addition to or in lieu
thereof, may be exchanged for or converted into cash, property, shares of
stock, rights or securities of, or interests in, another domestic corporation
or other entity or may be cancelled.”
Section 26. Amend Section 266, Title 8, Delaware Code, by
adding a new subsection (h) thereto as follows:
“(h) When a corporation has been converted to another entity or
business form pursuant to this section, the other entity or business form
shall, for all purposes of the laws of the State of
Section 27. Amend Section 266, Title 8, Delaware Code, by
adding a new subsection (i) thereto as follows:
“(i) No vote of stockholders of a corporation
shall be necessary to authorize a conversion if no shares of the stock of such
corporation shall have been issued prior to the adoption by the board of
directors of the resolution approving the conversion.”
Section 28. Amend Section 271, Title 8, Delaware Code, by
adding a new subsection (c) thereto as follows:
“(c) For purposes of this section only, the property and assets
of the corporation include the property and assets of any subsidiary of the
corporation. As used in this subsection,
“subsidiary” means any entity wholly-owned and controlled, directly or
indirectly, by the corporation and includes, without limitation, corporations,
partnerships, limited partnerships, limited liability partnerships, limited
liability companies, and/or statutory trusts.
Notwithstanding subsection (a) of this section, except to the extent the
certificate of incorporation otherwise provides, no resolution by stockholders
or members shall be required for a sale, lease or exchange of property and
assets of the corporation to a subsidiary.”
Section 29. Amend Section 388, Title 8, Delaware Code, by
deleting “corporations” from the heading thereof and substituting in lieu
thereof “entities”.
Section 30. Amend Section 388(a), Title 8, Delaware Code,
by deleting the text thereof in its entirety and substituting in lieu thereof
the following:
“(a) As used in this section, the term: (1)
“foreign jurisdiction” means any foreign country or other foreign jurisdiction
(other than the United States, any state, the District of Columbia, or any
possession or territory of the United States); and (2) “non-United States entity” means a corporation, a limited
liability company, a statutory trust, a business trust or association, a real
estate investment trust, a common-law trust, or any other unincorporated
business or entity, including a partnership (whether general (including a
limited liability partnership) or limited (including a limited liability
limited partnership)), formed, incorporated, created or that otherwise came
into being under the laws of any foreign jurisdiction.”
Section 31. Amend Section 388(b), Title 8, Delaware Code,
by deleting “Any non-United States corporation may become domesticated in this
State by filing with the Secretary of State” therefrom and substituting in lieu
thereof “Any non-United States entity may become domesticated as a corporation
in this State by complying with subsection (h) of this section and filing with
the Secretary of State”.
Section 32. Amend Section 388(b)(1), Title 8, Delaware
Code, by inserting “corporate” before “domestication”.
Section 33. Amend Section 388(c), Title 8, Delaware Code,
by inserting “corporate” before “domestication”.
Section 34. Amend Section 388(c)(1), Title 8, Delaware
Code, by deleting “corporation” therefrom and substituting in lieu thereof
“non-United States entity” and by inserting “, created” after “incorporated”.
Section 35. Amend Section 388(c)(2), Title 8, Delaware
Code, by deleting “corporation” therefrom and substituting in lieu thereof
“non-United States entity” and by inserting “corporate” before “domestication”.
Section 36. Amend Section 388(c)(4), Title 8, Delaware
Code, by inserting “,” after “social”, by deleting “corporation” therefrom and
substituting in lieu thereof “non-United States entity” and by deleting
“certificate of domestication.” therefrom and substituting in lieu thereof
“certificate of corporate domestication; and”.
Section 37. Amend Section 388(c), Title 8, Delaware Code,
by adding a new subsection (c)(5) thereto as follows:
“(5) That
the domestication has been approved in the manner provided for by the document,
instrument, agreement or other writing, as the case may be, governing the
internal affairs of the non-United States entity and the conduct of its
business or by applicable non-Delaware law, as appropriate.”
Section 38. Amend Section 388(d), Title 8, Delaware Code,
by deleting the text thereof in its entirety and substituting in lieu thereof
the following:
“(d) Upon
the certificate of corporate domestication and the certificate of
incorporation becoming effective in
accordance with § 103 of this title, the non-United States entity
shall be domesticated as a corporation
in this State and the corporation shall thereafter be subject to all of the provisions of this title,
except that notwithstanding § 106 of this title, the existence of the
corporation shall be deemed to have commenced on the date the non-United States entity commenced its
existence in the jurisdiction in which the non-United States entity was first formed, incorporated, created or otherwise came into
being.”
Section 39. Amend Section 388(e), Title 8, Delaware Code,
by deleting the text thereof in its entirety and substituting in lieu thereof
the following:
“(e) The domestication of any non-United States
entity as a corporation in this State shall not be deemed to affect any
obligations or liabilities of the non-United States entity incurred prior to
its domestication as a corporation in this State, or the personal liability of
any person therefor.”
Section
40. Amend Section 388(f), Title 8,
Delaware Code, by deleting the text thereof in its entirety and substituting in
lieu thereof the following:
“(f) The filing of a certificate of corporate
domestication shall not affect the choice of law applicable to the non-United States entity, except that,
from the effective time of the domestication,
the law of the State of Delaware, including this title,
shall apply to the non-United States
entity to the same extent as if the non-United States entity had been incorporated as a corporation of
this State on that date.”
Section
41. Amend Section 388(g), Title 8,
Delaware Code, by deleting the text thereof in its entirety and substituting in
lieu thereof the following:
“(g) The certificate of corporate domestication shall be signed by any person who is authorized to sign the
certificate of corporate
domestication on behalf of the non-United
States entity.”
Section
42. Amend Section 388, Title 8,
Delaware Code, by adding a new subsection (h) thereto as follows:
“(h) Prior
to the filing of a certificate of corporate domestication with the Secretary of
State, the domestication shall be approved in the manner provided for by the
document, instrument, agreement or other writing, as the case may be, governing
the internal affairs of the non-United States entity and the conduct of its
business or by applicable non-Delaware law, as appropriate, and the certificate
of incorporation shall be approved by the same authorization required to
approve the domestication.”
Section
43. Amend Section 388, Title 8,
Delaware Code, by adding a new subsection (i) thereto as follows:
“(i) When
a non-United States entity has become domesticated as a corporation pursuant to
this section, for all purposes of the laws of the State of Delaware, the
corporation shall be deemed to be the same entity as the domesticating
non-United States entity and the domestication shall constitute a continuation
of the existence of the domesticating non-United States entity in the form of a
corporation of this State. When any
domestication shall have become effective under this section, for all purposes
of the laws of the State of Delaware, all of the rights, privileges and powers
of the non-United States entity that has been domesticated, and all property,
real, personal and mixed, and all debts due to such non-United States entity,
as well as all other things and causes of action belonging to such non-United
States entity, shall remain vested in the corporation to which such non-United
States entity has been domesticated (and also in the non-United States entity,
if and for so long as the non-United States entity continues its existence in
the foreign jurisdiction in which it was existing immediately prior to the
domestication) and shall be the property of such corporation (and also of the
non-United States entity, if and for so long as the non-United States entity
continues its existence in the foreign jurisdiction in which it was existing
immediately prior to the domestication), and the title to any real property
vested by deed or otherwise in such non-United States entity shall not revert
or be in any way impaired by reason of this title; but all rights of creditors
and all liens upon any property of such non-United States entity shall be
preserved unimpaired, and all debts, liabilities and duties of the non-United
States entity that has been domesticated shall remain attached to the
corporation to which such non-United States entity has been domesticated (and
also to the non-United States entity, if and for so long as the non-United
States entity continues its existence in the foreign jurisdiction in which it
was existing immediately prior to the domestication), and may be enforced
against it to the same extent as if said debts, liabilities and duties had
originally been incurred or contracted by it in its capacity as such
corporation. The rights, privileges,
powers and interests in property of the non-United States entity, as well as
the debts, liabilities and duties of the non-United States entity, shall not be
deemed, as a consequence of the domestication, to have been transferred to the
corporation to which such non-United States entity has domesticated for any
purpose of the laws of the State of Delaware.”
Section
44. Amend Section 388, Title 8,
Delaware Code, by adding a new subsection (j) thereto as follows:
“(j) Unless
otherwise agreed or otherwise required under applicable non-Delaware law, the
domesticating non-United States entity shall not be required to wind up its
affairs or pay its liabilities and distribute its assets, and the domestication
shall not be deemed to constitute a dissolution of such non-United States
entity. If, following domestication, a
non-United States entity that has become domesticated as a corporation of this
State continues its existence in the foreign jurisdiction in which it was
existing immediately prior to domestication, the corporation and such
non-United States entity shall, for all purposes of the laws of the State of
Delaware, constitute a single entity formed, incorporated, created or otherwise
having come into being, as applicable, and existing under the laws of the State
of Delaware and the laws of such foreign jurisdiction.”
Section
45. Amend Section 388, Title 8,
Delaware Code, by adding a new subsection (k) thereto as follows:
“(k) In
connection with a domestication under this section, shares of stock, rights or
securities of, or interests in, the non-United States entity that is to be
domesticated as a corporation of this State may be exchanged for or converted
into cash, property, or shares of stock, rights or securities of such
corporation or, in addition to or in lieu thereof, may be exchanged for or
converted into cash, property, or shares of stock, rights or securities of, or
interests in, another corporation or other entity or may be cancelled.”
Section 46. Amend Section 389(a)(1), Title 8, Delaware
Code, by deleting the text thereof in its entirety and substituting in lieu
thereof the following:
“(1) The term “foreign jurisdiction” and the term
“non-United States entity” shall have the same meanings as set forth in
§ 388(a) of this title.”
Section 47. Amend Section 389(a)(3)f., Title 8, Delaware
Code, by deleting “corporation” therefrom and substituting in lieu thereof
“non-United States entity”.
Section 48. Amend Section 389(a)(3)h., Title 8, Delaware
Code, by deleting “corporation” therefrom and substituting in lieu thereof
“non-United States entity”.
Section 49. Amend Section 389(a)(3)j., Title 8, Delaware
Code, by deleting the text thereof in its entirety and substituting in lieu
thereof the following:
“j. Such other event which, under the law of the
jurisdiction governing the internal affairs of the non-United States entity,
permits the non-United States entity to transfer its domicile.”
Section 50. Amend Section 389(b), Title 8, Delaware Code,
by deleting the text thereof in its entirety and substituting in lieu thereof
the following:
“(b) Any non-United States entity may, subject to
and upon compliance with this section, transfer its domicile (which term, as
used in this section, shall be deemed to refer in addition to the seat, siege
social or principal place of business or central administration of such entity,
or any other equivalent thereto under applicable law) into this State, and may
perform the acts described in this section, so long as the law by which the
internal affairs of such entity are governed does not expressly prohibit such
transfer.”
Section 51. Amend Section 389(c), Title 8,
Delaware Code, by deleting “corporation” therefrom and substituting in lieu thereof
“non-United States entity”.
Section 52. Amend Section 389(c)(2), Title 8, Delaware
Code, by deleting the text thereof in its entirety and substituting in lieu
thereof the following:
“(2) A certificate issued by an authorized
official of the jurisdiction the law of which governs the internal affairs of
the non-United States entity evidencing its existence;”
Section 53. Amend Section 389(c)(3), Title 8, Delaware
Code, by deleting “corporation” therefrom and substituting in lieu thereof
“non-United States entity”.
Section 54. Amend Section 389(c)(4), Title 8, Delaware
Code, by deleting “corporation” therefrom and substituting in lieu thereof
“non-United States entity”.
Section 55. Amend Section 389(c)(4)c., Title 8, Delaware
Code, by deleting “corporate” therefrom and by deleting “corporation” therefrom
and substituting in lieu thereof “entity”.
Section 56. Amend Section 389(c)(4)e., Title 8, Delaware
Code, by deleting “corporation” therefrom and substituting in lieu thereof
“non-United States entity”.
Section 57. Amend Section 389(c)(4)f., Title 8, Delaware
Code, by deleting “corporation” therefrom and substituting in lieu thereof
“non-United States entity” and by deleting “corporation’s” therefrom and
substituting in lieu thereof “entity’s”.
Section 58. Amend Section 389(c), Title 8, Delaware Code,
by deleting the last paragraph thereof in its entirety and substituting in lieu
thereof the following:
“If
any of the documents referred to in paragraphs (1)-(5) of this subsection are
not in English, a translation thereof, under oath of the translator, shall be
attached thereto. If such documents
satisfy the requirements of this section, and if the name of the non-United
States entity meets the requirements of § 102(a)(1) of this title, the
Secretary of State shall notify the non-United States entity that such
documents have been accepted for filing, and the records of the Secretary of
State shall reflect such acceptance and such notification. In addition, the Secretary of State shall
enter the name of the non-United States entity on the Secretary of State’s
reserved list to remain there so long as the non-United States entity is in
compliance with this section. No
document submitted under this subsection shall be available for public
inspection pursuant to Chapter 100 of Title 29 until, and unless, such entity
effects a transfer of its domicile as provided in this section. The Secretary of State may waive the 30-day
period and translation requirement provided for in this subsection upon request
by such entity, supported by facts (including, without limitation, the
existence of an emergency condition) justifying such waiver.”
Section 59. Amend Section 389(d), Title 8, Delaware Code,
by deleting the text thereof in its entirety and substituting in lieu thereof
the following:
“(d) On or before the 1st day of March in each
year, prior to the transfer of its domicile as provided for in subsection (e)
of this section, during any such transfer and, in the event that it desires to
continue to be subject to a transfer of domicile under this section, after its
domicile has ceased to be in this State, the non-United States entity shall
file a certificate executed by an appropriate officer or director of the
non-United States entity, certifying that the documents submitted pursuant to
this section remain in full force and effect or attaching any amendments or
supplements thereto and translated as required in subsection (c) of this
section, together with the filing fee prescribed under § 391 of this title.
In the event that any non-United States
entity fails to file the required certificate on or before the 1st day of March
in each year, all certificates and filings made pursuant to this section shall
become null and void on the 2nd day of March in such year, and any proposed
transfer thereafter shall be subject to all of the required submissions and the
examination fee set forth in subsection (c) of this section.”
Section 60. Amend Section 389(e), Title 8, Delaware Code,
by deleting the text thereof in its entirety and substituting in lieu thereof
the following:
“(e) If the Secretary of State accepts the
documents submitted pursuant to subsection (c) of this section for filing, such
entity may transfer its domicile to this State at any time by means of a
written communication to such effect addressed to the Secretary of State,
signed by 1 of the persons named on the list filed pursuant to subparagraph d.
of paragraph (4) of subsection (c) of this section, and confirming that the
statements made pursuant to paragraph (4) of subsection (c) of this section
remain true and correct; provided, that if emergency conditions have affected
ordinary means of communication, such notification may be made by telegram,
telex, telecopy or other form of writing so long as a duly signed duplicate is
received by the Secretary of State within 30 days thereafter. The records of the Secretary of State shall
reflect the fact of such transfer. Upon
the payment to the Secretary of State of the fee prescribed under § 391 of
this title, the Secretary of State shall certify that the non-United States
entity has filed all documents and paid all fees required by this title. Such certificate of the Secretary of State
shall be prima facie evidence of transfer by such non-United States entity of
its domicile into this State.”
Section 61. Amend Section 389(f), Title 8, Delaware Code,
by deleting the text thereof in its entirety and substituting in lieu thereof
the following:
“(f) Except to the extent expressly prohibited by
the laws of this State, from and after the time that a non-United States entity
transfers its domicile to this State pursuant to this section, the non-United
States entity shall have all of the powers which it had immediately prior to
such transfer under the law of the jurisdiction governing its internal affairs
and the directors and officers designated pursuant to paragraph (3) of
subsection (c) of this section, and their successors, may manage the business
and affairs of the non-United States entity in accordance with the laws of such
jurisdiction. Any such activity
conducted pursuant to this section shall not be deemed to be doing business
within this State for purposes of § 371 of this title. Any reference in this section to the law of
the jurisdiction governing the internal affairs of a non-United States entity
which has transferred its domicile into this State shall be deemed to be a
reference to such law as in effect immediately prior to the transfer of
domicile.”
Section 62. Amend Section 389(g), Title 8, Delaware Code,
by deleting “corporation” therefrom and substituting in lieu thereof
“non-United States entity”.
Section 63. Amend Section 389(h), Title 8, Delaware Code,
by deleting the text thereof in its entirety and substituting in lieu thereof
the following:
“(h) The transfer by any non-United States entity
of its domicile into this State shall not be deemed to affect any obligations
or liabilities of such non-United States entity incurred prior to such
transfer.”
Section 64. Amend Section 389(i), Title 8, Delaware Code,
by deleting the text thereof in its entirety and substituting in lieu thereof
the following:
“(i) The directors of any non-United States entity
which has transferred its domicile into this State may withhold from any holder
of equity interests in such entity any amounts payable to such holder on
account of dividends or other distributions, if the directors shall determine
that such holder will not have the full benefit of such payment, so long as the
directors shall make provision for the retention of such withheld payment in
escrow or under some similar arrangement for the benefit of such holder.”
Section 65. Amend Section 389(j), Title 8, Delaware Code,
by deleting the text thereof in its entirety and substituting in lieu thereof
the following:
“(j) All process issued out of any court of this
State, all orders made by any court of this State and all rules and notices of
any kind required to be served on any non-United States entity which has
transferred its domicile into this State may be served on the non-United States
entity pursuant to § 321 of this title in the same manner as if such
entity were a corporation of this State.
The directors of a non-United States entity which has transferred its
domicile into this State shall agree in writing that they will be amenable to
service of process by the same means as, and subject to the jurisdiction of the
courts of this State to the same extent as are directors of corporations of
this State, and such agreements shall be submitted to the Secretary of State
for filing before the respective directors take office.”
Section 66. Amend Section 389(k), Title 8, Delaware Code,
by deleting the text thereof in its entirety and substituting in lieu thereof
the following:
“(k) Any non-United States entity which has
transferred its domicile into this State may voluntarily return to the
jurisdiction the law of which governs its internal affairs by filing with the
Secretary of State an application to withdraw from this State. Such application shall be accompanied by a
resolution of the directors of the non-United States entity authorizing such
withdrawal and by a certificate of the highest diplomatic or consular official
of such jurisdiction accredited to the
Section
67. Amend Section 390, Title 8,
Delaware Code, by inserting “, domestication” after “Transfer” in the
heading thereof.
Section 68. Amend Section 390(a), Title 8, Delaware Code,
by deleting the text thereof in its entirety and substituting in lieu thereof
the following:
“(a) Upon compliance with the provisions of this
section, any corporation existing under the laws of this State may transfer to
or domesticate or continue in any foreign
jurisdiction and, in connection therewith, may elect to continue its existence
as a corporation of this State. As used
in this section, the term: (1) “foreign jurisdiction” means any foreign
country, or other foreign jurisdiction (other than the United States, any
state, the District of Columbia,
or any possession or territory of the United States); and (2) “resulting entity” means the entity formed, incorporated, created
or otherwise coming into being as a consequence of the transfer of the
corporation to, or its domestication or continuance in, a foreign jurisdiction
pursuant to this section.”
Section 69. Amend Section 390(b), Title 8, Delaware Code,
by amending the first sentence thereof by deleting “another” therefrom and
substituting in lieu thereof “a foreign”, by deleting “transfer or continuance”
therefrom and substituting in lieu thereof “transfer, domestication or
continuance”, by inserting “foreign” before “jurisdiction to which the
corporation shall be transferred” and by inserting “, if applicable, that in
connection with such transfer, domestication or continuance the corporation’s
existence as a corporation of this State is to continue and” before
“recommending the approval of such transfer” and by amending the fifth sentence
thereof by inserting “transfer and domestic” before “continuance”.
Section 70. Amend Section 390(b)(3), Title 8, Delaware
Code, by inserting “foreign” before “jurisdiction” and by inserting “and the
name of the resulting entity” at the end of subsection (b)(3).
Section 71. Amend Section 390(b)(4), Title 8, Delaware
Code, by deleting “or” after “transfer” and substituting in lieu thereof “,”.
Section 72. Amend Section 390(b)(5), Title 8, Delaware
Code, by inserting “irrevocably” before “appoint”.
Section 73. Amend Section 390(b)(6), Title 8, Delaware
Code, by inserting “transfer and domestic” after “the case of a certificate of”
and by inserting “transfer and domestic” before “continuance becomes
effective”.
Section 74. Amend Section 390(c), Title 8, Delaware Code,
by inserting in the second sentence thereof “, domestication or continuance”
after “transfer”.
Section 75. Amend Section 390(d), Title 8, Delaware Code,
by deleting the text thereof in its entirety and substituting in lieu thereof
the following:
“(d) The transfer, domestication or continuance of a corporation out of this State
in accordance with this section and the resulting cessation of its existence as
a corporation of this State pursuant to a certificate of transfer shall not be
deemed to affect any obligations or liabilities of the corporation incurred
prior to such transfer, domestication
or continuance, the personal liability of any person incurred prior to such
transfer, domestication or continuance, or the choice of law applicable
to the corporation with respect to matters arising prior to such transfer, domestication or continuance. Unless otherwise agreed or otherwise provided
in the certificate of incorporation, the transfer, domestication or continuance
of a corporation out of the State of Delaware in accordance with this section
shall not require such corporation to wind up its affairs or pay its
liabilities and distribute its assets under this title and shall not be deemed
to constitute a dissolution of such corporation.”
Section 76. Amend Section 390(e), Title 8, Delaware Code,
by deleting the text thereof in its entirety and substituting in lieu thereof
the following:
“(e) If a corporation files a certificate of transfer and domestic continuance,
after the time the certificate of transfer
and domestic continuance becomes effective, the corporation shall
continue to exist as a corporation of this State, and the law of the State of Delaware, including this title,
shall apply to the corporation to the same extent as prior to such time. So
long as a corporation continues to exist as a corporation of the State of
Delaware following the filing of a certificate of transfer and domestic
continuance, the continuing corporation and the resulting entity shall, for all
purposes of the laws of the State of Delaware, constitute a single entity
formed, incorporated, created or otherwise having come into being, as
applicable, and existing under the laws of the State of Delaware and the laws
of the foreign jurisdiction.”
Section 77. Amend Section 390, Title 8, Delaware Code, by
adding a new subsection (f) thereto as follows:
“(f) When
a corporation has transferred, domesticated or continued pursuant to this
section, for all purposes of the laws of the State of
Section 78. Amend Section 390, Title 8, Delaware Code, by
adding a new subsection (g) thereto as follows:
“(g) In
connection with a transfer, domestication or continuance under this section,
shares of stock of the transferring, domesticating or continuing corporation
may be exchanged for or converted into cash, property, or shares of stock,
rights or securities of, or interests in, the resulting entity or, in addition
to or in lieu thereof, may be exchanged for or converted into cash, property,
or shares of stock, rights or securities of, or interests in, another
corporation or other entity or may be cancelled.”
Section 79. Amend Section 390, Title 8, Delaware Code, by
adding a new subsection (h) thereto as follows:
“(h) No vote of the stockholders of a corporation
shall be necessary to authorize a transfer, domestication or continuance if no
shares of the stock of such corporation shall have been issued prior to the
adoption by the board of directors of the resolution approving the transfer,
domestication or continuance.”
Section 80. This Act shall become effective
SYNOPSIS
Section 1. The amendments to Section 141(d) provide that
the certificate of incorporation may confer greater or lesser voting powers
on one or more directors, whether or not such director or directors is or are
separately elected by the holders of any class or series of stock. Section 2. The amendment to Section 158 eliminates the requirement
that a corporation with uncertificated shares issue a certificate for such
shares upon the request of the holder of such shares. Notwithstanding this amendment, a
corporation with uncertificated shares still is permitted to issue a
certificate upon the request of a holder, but the corporation is not
obligated to do so. Section 3. The amendment to Section 251(g)(7)(ii) now
permits the organizational documents of the surviving entity to be amended to
eliminate a classified board provision or any other provision authorized by
subsection (d) of Section 141 of Title 8. Sections 4 through 18. The amendments to Section 265 provide for
the conversion of an other entity, including a non-Delaware other entity, to
a Sections 19 through 27. The amendments to Section 266 provide for
the conversion of a Section 28. Section 271 has been amended to add new
subsection (c). The purpose of
subsection (c) is to provide that (i) no stockholder vote is required for a
sale, lease or exchange of assets to or with a direct or indirect
wholly-owned and controlled subsidiary, and (ii) the assets of such a
subsidiary are to be treated as assets of its ultimate parent for purposes of
applying, at the parent level, the requirements set forth in subsection
(a). The amendment is not intended to
address the application of subsection (a) to a sale, lease or exchange of
assets by, or to or with, a subsidiary that is not wholly-owned and controlled,
directly or indirectly, by the ultimate parent. Sections 29 through 45. The amendments to Section 388 provide that
any non-United States entity may domesticate in Sections 46 through 66. The amendments to Section 389 reflect the
newly defined terms “non-United States entity” and “foreign jurisdiction” in
Section 388, Title 8, Delaware Code. Sections 67 through 79. The amendments to Section 390 create two
types of filings under Section 390: a certificate of transfer when the Section
80. This section provides for an
effective date of |
|