CHAPTER 148
AN ACT TO AMEND CHAPTER 1 OF TITLE 8 OF THE DELAWARE CODE, ENTITLED "GENERAL CORPORATION LAW," BY MAKING CERTAIN CHANGES IN SECTIONS 102, 103,122, 1526, 141, 144, 151, 153, 155, 212, 213, 214, 218, 224, 228, 229, 242, 251, 252, 253, 256, 258, 262, 271, 275, 311, 344, 371 and 379.
Be it enacted by the General Assembly of the State of Delaware (two-thirds of all the members elected to each House of the General Assembly concurring therein):
Section 1. Section 102 of Title 8 is amended by striking out all of paragraph (3) of subsection (b) and inserting in lieu thereof the following:
(3) Such provisions as may be desired granting to the holders of the stock of the corporation, or the holders of any class or series of a class thereof, the preemptive right to subscribe to any or all additional issues of stock of the corporation of any or all classes or series thereof, or to any securities of the corporation convertible into such stock. No stockholder shall have any preemptive right to subscribe to an additional issue of stock or to any security convertible into such stock unless, and except to the extent that, such right is expressly granted to him in the certificate of incorporation. All such rights in existence on July 3, 1967, shall remain in existence unaffected by this paragraph (3) unless and until changed or terminated by appropriate action which expressly provides for such change or termination.
Section 2. Section 103 of Title 8 is amended by adding a new subsection (f) as follows:
(f) Whenever any instrument authorized to be filed with the Secretary of State under any provision of this title has been so filed and is an inaccurate record of the corporate action therein referred to, or was defectively or erroneously executed, sealed or acknowledged, such instrument may be corrected by filing with the Secretary of State a certificate of correction of such instrument which shall be executed, acknowledged, filed and recorded in accordance with this section. The certificate of correction shall specify the inaccuracy or defect to be corrected and shall set forth the portion of the instrument in corrected form. The corrected instrument shall be effective as of the date the original instrument was filed, except as to those persons who are substantially and adversely affected by the correction and as to those persons the corrected instrument shall be effective from the filing date.
Section 3. Section 122 of Title 8 is amended by striking out all of subsection (a) and inserting in lieu thereof the following:
(12) Transact any lawful business which the corporation's board of directors shall find to be in aid of governmental authority.
Section 4. Section 126 of Title 8 is amended by striking out all of subsection (a) and inserting in lieu thereof the following:
(a) No corporation organized under this chapter shall possess the power of issuing bills, notes, or other evidences of debt for circulation as money, or the power of carrying on the business of receiving deposits of money.
Section 5. Section 141 of Title 8 is amended by striking out subsections (a), (b) and (c), and inserting in lieu thereof the following:
(a) The business and affairs of every corporation organized under this chapter shall be managed by a board of directors, except as may be otherwise provided in this chapter or in its certificate of incorporation. If any such provision is made in the certificate of incorporation, the powers and duties conferred or imposed upon the board of directors by this chapter shall be exercised or performed to such extent and by such person or persons as shall be provided in the certificate of incorporation.
(b) The board of directors of a corporation shall consist of one or more members. The number of directors shall be fixed by, or in the manner provided in, the by-laws, unless the certificate of incorporation fixes the number of directors, in which case a change in the number of directors shall be made only by amendment of the certificate. Directors need not be stockholders unless so required by the certificate of incorporation or the by-laws. Each director shall hold office until his successor is elected and qualified or until his earlier resignation or removal. Any director may resign at any time upon written notice to the corporation. A majority of the total number of directors shall constitute a quorum for the transaction of business unless the certificate of incorporation or the by-laws require a greater number. Unless the certificate of incorporation provides otherwise, the by-laws may provide that a number less than a majority shall constitute a quorum which in no case shall be less than one-third of the total number of directors except that when a board of one director is authorized under the provisions of this section, then one director shall constitute a quorum. The vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors unless the certificate of incorporation or the by-laws shall require a vote of a greater number.
(c) The board of directors may, by resolution passed by a majority of the whole board, designate one or more committees, each committee to consist of one 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 by-laws may provide that in the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they 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 by-laws 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 amending the certificate of incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the corporation's property and assets, recommending to the stockholders a dissolution of the corporation or a revocation of a dissolution, or amending the by-laws of the corporation; and, unless the resolution, by-laws, or certificate of incorporation expressly so provide, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of stock.
Section 6. Section 141 of Title 8 is amended by striking out all of subsection (h) and inserting two new subsections (h) and (i) as follows:
(h) Unless otherwise restricted by the certificate of incorporation or by-laws, the board of directors shall have the authority to fix the compensation of directors.
(i) Unless otherwise restricted by the certificate of incorporation or by-laws, members of the board of directors or the governing body of any corporation, or any committee designated by such board or body, may participate in a meeting of such board, body or committee by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation in a meeting pursuant to this subsection shall constitute presence in person at such meeting.
Section 7. Section 144 of Title 8 is amended by striking out all of subsections (a) and (b) and inserting in lieu thereof the following:
(a) No contract or transaction between a corporation and one or more of its directors or officers, or between a corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or officers, are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the board of directors or the committee, and the board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or
(2) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the shareholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the shareholders; or
(3) The contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified, by the board of directors, a committee thereof, or the shareholders.
(b) Common or interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or of a committee which authorizes the contract or transaction.
Section 8. Section 151, Title 8, Delaware Code, is amended by striking subsection (e) in its entirety, and inserting in lieu thereof the following:
(e) Any stock of any class or of any series thereof may be made convertible into, or exchangeable for, at the option of either the holder or the corporation or upon the happening of a specified event, shares of any other class or classes or any other series of the same or any other class or classes of stock of the corporation, at such price or prices or at such rate or rates of exchange and with such adjustments as shall be stated in the certificate of incorporation or in the resolution or resolutions providing for the issue of such stock adopted by the board of directors as hereinabove provided.
Section 9. Section 151 of Title 8 is amended by striking out all of subsection (f) and inserting in lieu thereof the following:
(f) If any corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights shall be set forth in full or summarized on the face or back of the certificate which the corporation shall issue to represent such class or series of stock, provided that, except as otherwise provided in section 202 of this title, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate which the corporation shall issue to represent such class or series of stock, a statement that the corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights.
Section 10. Section 153 of Title 8 is amended by striking out all of subsections (a), (b), (c) and (d), and inserting in lieu thereof the following:
(a) Shares of stock with par value may be issued for such consideration, having a value not less than the par value thereof, as determined from time to time by the board of directors, or by the stockholders if the certificate of incorporation so provides.
(b) Shares of stock without par value may be issued for such consideration as it determined from time to time by the board of directors, or by the stockholders if the certificate of incorporation so provides.
(c) Treasury shares may be disposed of by the corporation for such consideration as may be determined from time to time by the board of directors, or by the stockholders if the certificate of incorporation so provides.
(d) If the certificate of incorporation reserves to the stockholders the right to determine the consideration for the issue of any shares, the stockholders shall, unless the certificate requires a greater vote, do so by a vote of a majority of the outstanding stock entitled to vote thereon.
Section 11. Section 165 of Title 8 is amended by striking out all of said section and inserting in lieu thereof the following:
§ 155. Fractions of shares
A corporation may, but shall not be required to, issue fractions of a share. If it does not issue fractions of a share, it shall (1) arrange for the disposition of fractional interests by those entitled thereto (2) pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined, or (3) issue scrip or warrants in registered or bearer form which shall entitle the holder to receive a certificate for a full share upon the surrender of such scrip or warrants aggregating a full share. A certificate for a fractional share shall, but scrip or warrants shall not unless otherwise provided therein, entitle the holder to exercise voting rights, to receive dividends thereon, and to participate in any of the assets of the corporation in the event of liquidation. The board of directors may cause scrip or warrants to be issued subject to the conditions that they shall become void if not exchanged for certificates representing full shares before a specified date, or subject to the conditions that the shares for which scrip or warrants are exchangeable may be sold by the corporation and the proceeds thereof distributed to the holders of scrip or warrants, or subject to any other conditions which the board of directors may impose.
Section 12. Section 212 of Title 8 is amended by striking out subsection (a) and inserting in lieu thereof the following:
(a) Unless otherwise provided in the certificate of incorporation and subject to the provisions of section 213 of this title, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder. If the certificate of incorporation provides for more or less than one vote for any share, on any matter, every reference in this chapter to a majority or other proportion of stock shall refer to such majority or other proportion of the votes of such stock.
Section 13. Section 213 of Title 8 is amended by striking out paragraph (2) of subsection (b), and inserting in lieu thereof paragraphs (2) and (3) as follows:
(2) The record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the board of directors is necessary, shall be the day on which the first written consent is expressed.
(3) The record date for determining stockholders for any other purpose shall be at the close of business on the day on which the board of directors adopts the resolution relating thereto.
Section 14. Section 218 of Title 8 is amended by deleting the last sentence of subsection (c), and the whole of subsection (d), and inserting in lieu thereof the following subsections (d) and (e):
(d) The validity of any such voting trust or other voting agreement, otherwise lawful, shall not be affected during a period of ten years from the date when it was created or last extended by the fact that under its terms it will or may last beyond such ten-year period.
(e) This section shall not be deemed to invalidate any voting or other agreement among stockholders or any irrevocable proxy which is not otherwise illegal.
Section 15. Section 224 of Title 8 is amended by striking out said section and inserting in lieu thereof the following:
§ 224. Form of records
Any records maintained by a corporation in the regular course of its business, including its stock ledger, books of account, and minute books, may be kept on, or be in the form of, punch cards, magnetic tape, photographs, microphotographs, or any other information storage device, provided that the records so kept can be converted into clearly legible written form within a reasonable time. Any corporation shall so convert any records so kept upon the request of any person entitled to inspect the same. Where records are kept in such manner, a clearly legible written form produced from the cards, tapes, photographs, micrographs or other information storage device shall be admissible in evidence and shall be accepted for all other purposes, to the same extent as an original written record of the same information would have been, when said written form accurately portrays the record.
Section 16. Section 228 of Title 8 is amended by striking out said section and inserting in lieu thereof the following:
§ 228. Consent of stockholders in lieu of meeting
Unless otherwise provided in the certificate of incorporation, any action required by this chapter to be taken at any annual or special meeting of stockholders of a corporation, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. In the event that the action which is consented to is such as would have required the filing of a certificate under any other section of this title, if such action had been voted upon by stockholders at a meeting thereof, the certificate filed under such other section shall state, in lieu of any statement required by such section concerning a vote of stockholders, that written consent has been given in accordance with the provisions of this section, and that written notice has been given as provided in this section.
Section 17. Section 229 of Title 8 is amended by striking out said section and inserting in lieu thereof the following:
§ 229. Waiver of notice
Whenever notice is required to be given under any provision of this chapter or of the certificate of incorporation or by-laws, a written waiver thereof, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in any written waiver of notice unless so required by the certificate of incorporation or the by-laws.
Section 18. Section 242 of Title 8 is amended by striking out all of subsections (b) and (c) and inserting in lieu thereof the following:
(b) Whenever an amendment effects any change in the issued shares of the corporation, the aggregate amount of capital represented by all issued shares immediately after the amendment shall not be less than the aggregate amount of capital represented by all issued shares immediately before the amendment and the certificate of amendment shall state that the capital of the corporation will not be reduced under or by reason of the amendment.
Section 19. Section 242 of Title 8 is amended by changing the designation of subsection (d) to subsection (c).
Section 20. Section 242 of Title 8 is amended by striking out the fourth and fifth sentences of paragraph (1) of old subsection (d) and inserting in lieu thereof the following:
At the meeting a vote of the stockholders entitled to vote thereon shall be taken for and against the proposed amendment. If a majority of the outstanding stock entitled to vote thereon, and a majority of the outstanding stock of each class entitled to vote thereon as a class has been voted in favor of the amendment, a certificate setting forth the amendment and certifying that such amendment has been duly adopted in accordance with the provisions of this section shall be executed, acknowledged, filed, and recorded, and shall become effective in accordance with section 103 of this title.
Section 21. Section 242 of Title 8 is amended by striking out all of paragraph (2) of old subsection (d) and inserting in lieu thereof the following:
(2) The holders of the outstanding shares of a class shall be entitled to vote as a class upon a proposed amendment, whether or not entitled to vote thereon by the provisions of the certificate of incorporation, if the amendment would increase or decrease the aggregate number of authorized shares of such class, increase or decrease the par value of the shares of such class, or alter or change the powers, preferences or special rights of the shares of such class so as to affect them adversely. If any proposed amendment would alter or change the powers, preferences, or special rights of one or more series of any class so as to affect them adversely, but shall not so affect the entire class, then only the shares of the series so affected by the amendment shall be considered a separate class for the purposes of this paragraph. The number of authorized shares of any such class or classes of stock may be increased or decreased by the affirmative vote of the holders of a majority of the stock of the corporation entitled to vote, if so provided in the original certificate of incorporation or in any amendment thereto which created such class or classes of stock or in any amendment thereto which was authorized by a resolution or resolutions adopted by the affirmative vote of the holders of a majority of such class or classes of stock.
Section 22. Section 251 of Title 8 is amended by striking out all of subsections (b), (c), and (f) and inserting in lieu thereof the following:
(b) The board of directors of each corporation which desires to merge or consolidate shall adopt a resolution approving an 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) such amendments or changes in the certificate of incorporation of the surviving corporation as are desired to be effected by the merger or consolidation, or, if no such amendments or changes are desired, a statement that the certificate of incorporation of one of the constituent corporations shall be the certificate of incorporation of the surviving or resulting corporation; (4) the manner of converting the shares of each of the constituent corporations into shares or other securities of the corporation surviving or resulting from the merger or consolidation, and, if any shares of any of the constituent corporation are not to be converted solely into shares or other securities of the surviving or resulting corporation, the cash, property, rights or securities of any other corporation which the holders of such shares are to receive in exchange for, or upon conversion of such shares and the surrender of the certificates evidencing them, which cash, property, rights or securities of any other corporation may be in addition to or in lieu of shares or other securities of the surviving or resulting corporation; and (5) 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 or recognition of fractional shares, interests or rights, or for any other arrangement with respect thereto, consistent with the provisions of section 155 of this title. The agreement so adopted shall be executed in accordance with section 103 of this title.
(c) The agreement required by subsection (b) shall be submitted to the stockholders of each constituent corporation at an annual or special meeting thereof for the purpose of acting on the agreement. 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 his address as it appears on the records of the corporation, at least 20 days prior to the date of the meeting. At the meeting the agreement shall be considered and a vote taken for its adoption or rejection. If a majority of the outstanding stock of the corporation entitled to vote thereon shall be voted for the adoption of the agreement, that fact shall be certified on the agreement by the secretary or assistant secretary of the corporation under the seal thereof. If the agreement shall be so adopted and certified by each constituent corporation, it shall then be executed, acknowledged and filed, and shall become effective, in accordance with section 103 of this title. It shall be recorded in the office of the Recorder of the County of this State in which the registered office of each such constituent corporation is located; or if any of the constituent corporations shall have been specially created by a public act of the Legislature, then the agreement shall be recorded in the county where such corporation had its principal place of business in this State.
(f) Notwithstanding the requirements of subsection (c), unless required by its certificate of incorporation, no vote of stockholders of a constituent corporation surviving a merger shall be necessary to authorize a merger if (1) the agreement of merger does not amend in any respect the certificate of incorporation of the surviving corporation, and (2) the authorized unissued shares or the treasury shares of any class of stock of the surviving corporation to be issued or delivered under the plan of merger do not exceed 15 percent of the shares of the surviving corporation of the same class outstanding immediately prior to the effective date of the merger. If an agreement of merger is adopted by the constituent corporation surviving the merger, by action of its board of directors and without any vote of its stockholders pursuant to this subsection, the secretary or assistant secretary of that corporation shall certify on the agreement, under its seal, that the agreement has been adopted pursuant to this subsection and that, as of the date of such certificate, the outstanding shares of the corporation were such as to render this subsection applicable. The agreement so adopted and certified shall then be executed, acknowledged and filed and shall become effective, in accordance with section 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 23. Section 252 of Title 8 is amended by striking out all of subsections (a) and (b) and inserting in lieu thereof the following:
(a) Any one or more corporations of this State may merge or consolidate with one or more other corporations of any other state or states of the United States, or of the District of Columbia if the laws of such other state or states or of the District permit a corporation of such jurisdiction to merge or consolidate with a corporation of another jurisdiction. The constituent corporations may merge into a single corporation, which may be any one of the constituent corporations, or they may consolidate into a new corporation formed by the consolidation, which may be a corporation of the state of incorporation of any one of the constituent corporations, pursuant to an agreement of merger or consolidation, as the case may be, complying and approved in accordance with this section. In addition, any one or more corporations organized under the laws of any jurisdiction other than one of the United States may merge or consolidate with one or more corporations existing under the laws of this State if the surviving or resulting corporation will be a corporation of this State, and if the laws under which the other corporation or corporations are formed permit a corporation of such jurisdiction to merge or consolidate with a corporation of another jurisdiction.
(b) All the constituent corporations shall enter into an 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 each of the constituent corporations into shares or other securities of the corporation surviving or resulting from the merger or consolidation and, if any shares of any of the constituent corporations are not to be converted solely into shares or other securities of the surviving or resulting corporation, the cash, property, rights, or securities of any other corporation which the holders of such shares are to receive in exchange for, or upon conversion of, such shares and the surrender of the certificates evidencing them, which cash, property, rights, or securities of any other corporation may be in addition to or in lieu of the shares or other securities of the surviving or resulting corporation; (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 or recognition of fractional shares of the surviving or resulting corporation or of any other corporation the securities of which are to be received in the merger or consolidation, or for some other arrangement with respect thereto consistent with the provisions of section 155 of this title; and (5) such other provisions or facts as shall be required to be set forth in certificates of incorporation by the laws of the state which are stated in the agreement to be the laws that shall govern the surviving or resulting corporation and that can be stated in the case of a merger or consolidation.
Section 24. Section 253 of Title 8 is amended by striking out all of subsections (a) and (c) and inserting in lieu thereof the following:
(a) In any case in which at least 90 percent of the outstanding shares of each class of the stock of a corporation or corporations is owned by another corporation and one of such corporations is a corporation of this State and the others or others are corporations of this State or of any other state or states or of the District of Columbia and the laws of such other state or states or of the District permit a corporation of such jurisdiction to merge with a corporation of another jurisdiction, the corporation having such stock ownership may either merge such other corporation or corporations into itself and assume all of its or their obligations, or merge itself, or itself and one or more of such other corporations, into one of such other corporations by executing, acknowledging and filing, in accordance with section 103 of this title, a certificate of such ownership and merger setting forth a copy of the resolution of its board of directors to so merge and the date of the adoption thereof; provided, however, that in case the parent corporation shall not own all the outstanding stock of all the subsidiary corporations, parties to a merger as aforesaid, the resolution of the board of directors of the parent corporation shall state the terms and conditions of the merger, including the securities, cash, property, or rights to be issued, paid, delivered or granted by the surviving corporation upon surrender of each share of the subsidiary corporation or corporations not owned by the parent corporation. If the parent corporation be not the surviving corporation, the resolution shall include provision for the pro rata issuance of stock of the surviving corporation to the holders of the stock of the parent corporation on surrender of the certificates therefor, and the certificate of ownership and merger shall state that the proposed merger has been approved by a majority of the outstanding stock of the parent corporation entitled to vote thereon at a meeting thereof duly called and held after 20 days notice of the purpose of the meeting mailed to each such stockholder at his address as it appears on the records of the corporation. A certified copy of the certificate shall be recorded in the office of the Recorder of the County in this State in which the registered office of each constituent corporation which is a corporation of this State is located. If the surviving corporation exists under the laws of the District of Columbia or any state other than this State, the provisions of section 252(d) of this title shall also apply to a merger under this section.
(c) A merger may be effected under this section although one or more of the corporations parties to the merger is a corporation organized under the laws of a jurisdiction other than one of the United States; provided that the laws of such jurisdiction permit a corporation of such jurisdiction to merge with a corporation of another jurisdiction; and provided further that the surviving or resulting corporation shall be a corporation of this State.
Section 25. Section 256 of Title 8 is amended by striking out in subsection (a) the words "such merger or consolidation", as the same appear in the first and last sentences of said subsection, and insert in lieu thereof the words:
"a corporation of such jurisdiction to merge with a corporation of another jurisdiction."
Section 26. Section 258 of Title 8 is amended by striking out in subsection (a) the words "such merger or consolidation", as the same appear in the first sentence of said subsection, and insert in lieu thereof the words:
"a corporation of such jurisdiction to merge with a corporation of another jurisdiction."
Section 27. Section 262 of Title 8 is amended by striking out the first two sentences of subsection (b) and inserting in lieu thereof the following:
The corporation surviving or resulting from any merger or consolidation shall within 10 days after the effective date of the merger or consolidation, notify each stockholder of any corporation of this State so merging or consolidating who objected thereto in writing and whose shares either were not entitled to vote or were not voted in favor of the merger or consolidation, and who filed such written objection with the corporation before the taking of the vote on the merger or consolidation, that the merger or consolidation has become effective. Such notice shall likewise be given to each stockholder whose corporation approved the merger or consolidation pursuant to section 228 of this title without a meeting of its stockholders and who either did not, or had no right to, consent in writing to such merger or consolidation.
Section 28. Section 262 of Title 8 is amended by striking out in subsection (c) the word "objecting" as the same appears in two places in said subsection.
Section 29. Section 262 of Title 8 is amended by striking out all of subsection (k) and inserting in lieu thereof the following:
(k) This section shall not apply to the shares of any class or series of a class of stock, which, at the record date fixed to determine the stockholders entitled to receive notice of and to vote at the meeting of stockholders at which the agreement of merger or consolidation is to be acted on, were either (1) registered on a national securities exchange, or (2) held of record by not less than 2,000 stockholders, unless the certificate of incorporation of the corporation issuing such stock shall otherwise provide; nor shall this section apply to any of the shares of stock of the constituent corporation surviving a merger if the merger did not require for its approval the vote of the stockholders of the surviving corporation, as provided in subsection (f) of section 251 of this title. This subsection shall not be applicable to the holders of a class or series of a class of stock of a constituent corporation if under the terms of a merger or consolidation pursuant to section 251 or 252 of this title such holders are required to accept for such stock anything except (a) stock or stock and cash in lieu of fractional shares of the corporation surviving, or resulting from such merger or consolidation, or (b) stock or stock and cash in lieu of fractional shares of any other corporation, which at the record date fixed to determine the stockholders entitled to receive notice of and to vote at the meeting of stockholders at which the agreement of merger or consolidation is to be acted on, were either (1) registered on a national securities exchange or (2) held of record by not less than 2,000 stockholders, or (c) a combination of stock or stock and cash in lieu of fractional shares as set forth in (a) and (b) of this subsection.
Section 30. Section 271 of Title 8 is amended by striking out all of subsection (a) and inserting in lieu thereof the following:
(a) Every corporation may at any meeting of its board of directors sell, lease, or exchange all or substantially all of its property and assets, including its good will and its corporate franchises, upon such terms and conditions and for such consideration, which may consist in whole or in part of money or other property, including shares of stock in, and/or other securities of, any other corporation or corporations, as its board of directors deems expedient and for the best interests of the corporation, when and as authorized by a resolution adopted by a majority of the outstanding stock of the corporation entitled to vote thereon at a meeting thereof duly called upon at least 20 days notice. The notice of the meeting shall state that such a resolution will be considered.
Section 31. Section 275 of Title 8 is amended by striking out all of subsections (a) and (b) and inserting in lieu thereof the following:
(a) If it should be deemed advisable in the judgment of the board of directors of any corporation that it should be dissolved, the board, after the adoption of a resolution to that effect by a majority of the whole board at any meeting called for that purpose, shall cause notice to be mailed to each stockholder entitled to vote thereon of the adoption of the resolution and of a meeting of stockholders to take action upon the resolution.
(b) At the meeting a vote shall be taken for and against the proposed dissolution. If a majority of the outstanding stock of the corporation entitled to vote thereon shall vote for the proposed dissolution, a certificate stating that the dissolution has been authorized in accordance with the provisions of this section and setting forth the names and residences of the directors and officers shall be executed, acknowledged and filed in accordance with section 103 of this title. The Secretary of State, upon being satisfied that the requirements of this section have been complied with, shall issue his certificate that the certificate has been filed, and thereupon, the corporation shall be dissolved and the certificate of the Secretary of State shall be recorded in the office of the Recorder in the county in which the corporation maintained its registered office in this State.
Section 32. Section 275 of Title 8 is amended by adding a new subsection (c) as follows:
(c) Whenever all the stockholders entitled to vote on a dissolution shall consent in writing, either in person or by duly authorized attorney, to a dissolution, no meeting of directors or stockholders shall be necessary, but on filing the consent in the office of the Secretary of State, he, upon being satisfied that the requirements of this section have been complied with, shall issue his certificate that the consent to dissolution has been filed, and thereupon the corporation shall be dissolved and the certificate of the Secretary of State shall be recorded in the office of the Recorder in the county in which the corporation maintained its registered office in this State. In the event that the consent is signed by an attorney, the original power of attorney or a photocopy thereof shall be attached to and filed with the consent. The consent filed with the Secretary of State shall have attached to it the affidavit of the Secretary or some other officer of the corporation stating that the consent has been signed by or on behalf of all the stockholders entitled to vote on a dissolution; in addition there shall be attached to the consent a certification by the secretary or some other officer of the corporation setting forth the names and residences of the directors and officers of the corporation.
Section 33. Section 311 of Title 8 is amended by striking out paragraphs (2), (3), and (4) of subsection (a) and inserting in lieu thereof the following:
(2) Notice of the special meeting of stockholders shall be given in accordance with section 222 of this title to each stockholder whose shares were entitled to vote upon a proposed dissolution before the corporation was dissolved.
(3) At the meeting a vote of the stockholders shall be taken on a resolution to revoke the dissolution. If a majority of the stock of the corporation which was outstanding and entitled to vote upon a dissolution at the time of its dissolution shall be voted for the resolution, a certificate of revocation of dissolution shall be executed and acknowledged in accordance with section 103 of this title, which shall state:
(i) the name of the corporation;
(ii) the names and respective addresses of its officers;
(iii) the names and respective addresses of its directors:
(iv) that a majority of the stock of the corporation which was outstanding and entitled to vote upon a dissolution at the time of its dissolution have voted in favor of a resolution to revoke the dissolution; or, if it be the fact, that, in lieu of a meeting and vote of stockholders, the stockholders have given their written consent to the revocation in accordance with section 228 of this title.
Section 34. Section 344 of Title 8 is amended by striking out of the last sentence the phrase "section 242" and inserting in lieu thereof the phrase "section 241 or 242".
Section 35. Section 371 of Title 8 is amended by striking out subsection (c) and inserting in lieu thereof the following:
(c) The certificate of the Secretary of State, under his seal of office, of the filing of the charter, shall be delivered to the registered agent upon the payment to the Secretary of State of the usual fees for making certified copies, and the certificate shall be prima facie evidence of the right of the corporation to do business in this State; provided that the Secretary of State shall not issue such certificate unless the name of the corporation is such as to distinguish it upon the records of the office of the Secretary of State from the names of other corporations organized under the laws of this State or reserved or registered as a foreign corporation under the laws of this State except with the written consent of such other corporation, executed, acknowledged, and filed with the Secretary of State in accordance with section 103 of this title.
Section 36. Section 379 of Title 8 is amended by striking out subsection (a) and inserting in lieu thereof the following:
(a) No foreign corporation shall, within the limits of this State, by any implication or construction, be deemed to possess the power of discounting bills, notes or other evidence of debt, of receiving deposits, of buying and selling bills of exchange, or of issuing bills, notes or other evidences of debt upon loan for circulation as money, anything in its charter or articles of incorporation to the contrary thereof notwithstanding.
Section 37. Section 214 of Title 8 is amended by striking out all of said section and inserting in lieu thereof the following:
§ 214. Cumulative voting
The certificate of incorporation of any corporation may provide that at all elections of directors of the corporation, each holder of stock or of any class or classes or of a series or series thereof shall be entitled to as many votes as shall equal the number of votes which (except for such provision as to cumulative voting) he would be entitled to cast for the election of directors with respect to his shares of stock multiplied by the number of directors to be elected by him, and that he may cast all of such votes for a single director or may distribute them among the number to be voted for, or for any two or more of them as he may see fit.
Section 38. This Act shall become effective on July 15, 1969.
Approved June 23, 1969.