CHAPTER 148 - CORPORATIONS
AN ACT TO AMEND CHAPTER 65 OF THE REVISED CODE OF DELAWARE RELATING TO CORPORATIONS.
Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met (two-thirds of all the members elected to each Branch thereof concurring therein):
Section 1. That Section 2 of said Chapter 65, being Section 1916 of said Revised Code, be, and the same is hereby, amended by striking out said Section and inserting in lieu thereof the following:
1916. Sec. 2. Powers:--Every corporation created under the provisions of this Chapter shall have power:
1. To have succession, by its corporate name, for the time stated in its Certificate of Incorporation, and when no period is limited, it shall be perpetual.
2. To sue and be sued, complain and defend in any court of law or equity.
3. To have a corporate seal, which may be altered at pleasure, and to use the same by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
4. To hold, purchase and convey real and personal estate, and to mortgage or lease any such real and personal estate with its franchises; the power to hold real and personal estate, except in the case of religious corporations, shall include the power to take the same by devise or bequest.
5. To appoint such officers and agents as the business of the corporation shall require and to allow them suitable compensation.
0. To make by-laws not inconsistent with the Constitution or laws of the United States or of this State, fixing and altering the number of its directors for the management of its property, the regulation and government of its affairs and for the certification and transfer of its stock, with penalties for the breach thereof not exceeding twenty dollars.
7. To wind up and dissolve itself, or to be wound up and dissolved in the manner hereinafter mentioned.
8. To conduct business in this State, other States, the District of Columbia, the territories and colonies of the United States and in foreign countries, and have one or more offices out of this State, and to hold, purchase, mortgage and convey real and personal property both within and without this State.
Section 2. That Section 18 of said Chapter 65, being Section 1932 of said Code, be, and the same is hereby, amended by striking out said Section and inserting in lieu thereof the following:
1932. Sec. 18. Fiduciary Stockholders; Voting Power of; Voting Trusts:--Persons holding stock in a fiduciary capacity shall be entitled to vote the shares so held, and persons whose stock is pledged shall be entitled to vote, unless in the transfer by the pledgor on the books of the corporation he shall have expressly empowered the pledgee to vote thereon, in which case only the pledgee, or his proxy may represent said stock and vote thereon.
One or more stockholders may by agreement in writing deposit capital stock of an original issue with or transfer capital stock to any person or persons, or corporation or corporations authorized to act as trustee, for the purpose of vesting in said person or persons, corporation or corporations, who may be designated Voting Trustee or Voting Trustees, the right to vote thereon for any period of time determined by such agreement, not exceeding ten years, upon the terms and conditions stated in such agreement. Such agreement may contain any other lawful provisions not inconsistent with said purpose. After the filing of a copy of such agreement in the principal office of the corporation in the State of Delaware, which copy shall be open to the inspection of any stockholder of the corporation or any beneficiary of the trust under said agreement daily during business hours, certificates of stock shall be issued to the Voting Trustees to represent any stock of an original issue so deposited with them, and any certificates of stock so transferred to the Voting Trustees shall be surrendered and cancelled and new certificates therefor shall be issued to the Voting Trustees, and in the certificates so issued it shall appear that they are issued pursuant to such agreement, and in the entry of such Voting Trustees as owners of such stock in the proper books of the issuing corporation that fact shall also be noted. Said Voting Trustees may vote upon the stock so issued or transferred during the period in such agreement specified; stock standing in the names of such Voting Trustees may be voted either in person or by proxy, and in voting said stock, such Voting Trustees shall incur no responsibility as stockholder, trustee or otherwise, except for their own individual malfeasance. In any case where two or more persons are designated as Voting Trustees, and the right and method of voting any stock standing in their names at any meeting of the corporation are not fixed by the agreement appointing said Trustees, the right to vote said stock and the manner of voting the same at such meeting shall be determined by a majority of said Trustees, or if they be equally divided as to the right and manner of voting the same in any particular case, the vote of said stock in such case shall be divided equally among the Trustees.
At any time within one year prior to the time of expiration of any such voting trust agreement as originally fixed or as extended as herein provided, one or more beneficiaries of the trust under such voting trust agreement may, by agreement in writing and with the written consent of such Voting Trustees, extend the duration of such voting trust agreement for an additional period not exceeding ten years. Said Voting Trustees shall, prior to the time of expiration of any such voting trust agreement, as originally fixed or as previously extended, as the case may be, file in the principal office of the corporation in the State of Delaware a copy of such extension agreement and of their consent thereto, and thereupon the duration of such voting trust agreement shall be extended for the period fixed in such extension agreement; provided, however, that no such extension agreement shall affect the rights or obligations of persons not parties thereto.
Section 3. That Section 22 of said Chapter 65, being Section 1936 of said Code, be amended by striking out said Section and inserting in lieu thereof the following:
1936. Sec. 22. Failure to Pay for Stock; Remedies:--When any stockholder fails to pay any installment or call upon his stock which may have been properly assessed thereon by the directors, at the time when such payment is due, the directors may collect the amount of any such installment or call or any balance thereof remaining unpaid, from the said stockholder by an action at law, or they shall sell at public sale such part of the shares of such delinquent stockholder as will pay all assessments then due from him with interest and all incidental expenses, and shall transfer the shares so sold to the purchaser, who shall be entitled to a certificate therefor. Notice of the time and place of such sale and of the sum due on each share shall be given by advertisement for three weeks successively, once in each week before the sale, in a newspaper of the county in this State where such corporation is established, or has its principal place of business, and such notice shall be mailed by the Treasurer of the corporation to such delinquent stockholder at his last known post office address, at least twenty days before such sale. If no bidder can be had to pay the amount due on the stock, and if the amount is not collected by an action at law, brought within the County where such corporation is established or has its principal place of business, within one year from the date of the bringing of such action at law, the said stock shall be forfeited to the corporation and the amount previously paid in by the delinquent on the stock shall be forfeited to the corporation.
Section 4. That Section 26 of said Chapter 65, being Section 1940 of said Code, be, and the same is hereby, amended by striking out said Section and inserting in lieu thereof the following:
1940. Sec. 26. Certificate of Incorporation; How Amended; When Corporation Has Capital Stock; When Corporation Has No Capital Stock:--Any corporation of this State existing prior to the tenth day of March, 1899, whether created by Special Act, or general law, or any corporation created under the provisions of this Chapter, may, from time to time, when and as desired, amend its Certificate of Incorporation by addition to its corporate powers and purposes, or diminution thereof, or both; or by substitution of other powers and purposes, in whole or in part, for those prescribed by its Certificate of Incorporation; or by increasing or decreasing its authorized capital stock or reclassifying the same, by changing the number, par value, designations, preferences, or relative, participating, optional, or other special rights of the shares, or the qualifications, limitations or restrictions of such rights, or by changing shares with par value into shares without par value, or shares without par value into shares with par value either with or without increasing or decreasing the number of shares; or by changing its corporate title; or by making any other change or alteration in its Certificate of Incorporation that may be desired, and any or all such changes or alterations may be affected by one certificate of amendment; provided that every Certificate of Incorporation as so amended, changed or altered, shall contain only such provisions as it would be lawful and proper to insert in an original Certificate of Incorporation made at the time of making such amendment.
Whenever issued shares having par value are changed into the same or a greater or less number of shares without par value, whether of the same or of a different class or classes of stock, the aggregate amount of the capital of the corporation represented by such shares without par value shall be the same as the aggregate amount of capital represented by the shares so changed; and whenever issued shares without par value are changed into other shares without par value to a greater or less number, whether of the same or of a different class or classes, the amount of capital represented by the new shares in the aggregate shall be the same as the aggregate amount of capital represented by the shares so changed. The certificate of amendment of any Certificate of Incorporation effecting any change in the issued shares of the corporation shall set forth that the capital of the corporation will not be reduced under or by reason of said amendment.
Every such amendment shall be made and effected in manner following, to-wit:
1. If the corporation has a capital stock, its board of directors shall adopt a resolution setting forth the amendment proposed, declaring its advisability, and calling a meeting of the stockholders entitled to vote in respect thereof, for the consideration of such amendment. Said meeting shall be called and held upon such notice as the certificate of incorporation or by-laws of the corporation shall provide, or, in the absence of such provision, upon notice thereof to each stockholder so entitled to vote, either delivered to such stockholder or mailed to him, at his post office address, if known, at least ten days before the date fixed for said meeting, said notice to set forth such amendment in full or a brief summary of the changes to be effected thereby, as the directors shall deem advisable. At said meeting a vote of the stockholders so entitled to vote, by ballot in person or by proxy, shall be taken for and against the proposed amendment, which vote shall be conducted by two Judges appointed for the purpose, either by the directors or by the said meeting. Said Judges shall decide upon the qualifications of voters, and accept their votes, and when the vote is completed, count and ascertain the number of shares voted respectively for and against the amendment, and shall declare whether the persons or bodies corporate holding the majority of the voting stock of said corporation (or of each class of stock entitled to vote thereon when such vote is to be taken by classes) have voted for or against the proposed amendment; and shall make out a certificate accordingly, stating the number of shares of stock, issued and outstanding and entitled to vote thereon, and the number of shares voted for and the number of shares voted against the amendment respectively, and shall subscribe and deliver said certificate to the Secretary of the corporation. If it shall appear by said certificate of the Judges that the persons or bodies corporate holding the majority of the stock of said corporation entitled to vote (or of each class of stock when such vote is to be taken by classes) have 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 made under the seal of the corporation and signed by its President or a Vice-President, and its Secretary or an Assistant Secretary and the President or such Vice-President shall acknowledge the said certificate before an officer authorized by the laws of Delaware to take acknowledgments of deeds; and the said certificate, so executed and acknowledged shall be filed in the office of the Secretary of State, and a copy thereof, certified by said Secretary of State, shall be recorded in the office of the Recorder of the County in which the original Certificate of Incorporation is recorded; or if the corporation shall have been created by special public act of the Legislature, then said certificate shall be recorded in the office of the Recorder of any County where the business of the said corporation may be conducted. And upon so filing and recording the same, the Certificate of Incorporation of said corporation shalt be deemed to be amended accordingly; provided, however, that if any such proposed amendment would alter or change the preferences, special rights or powers given to any one or more classes of stock, by the Certificate of Incorporation, so as to affect such class or classes of stock adversely, or would increase or decrease the amount of the authorized stock of such class or classes of stock, or would increase or decrease the par value thereof, then the holders of the stock of each class of stock so affected by the amendment shall be entitled to vote as a class upon such amendment, whether by the terms of the Certificate of Incorporation such class be entitled to vote or not; and the affirmative vote of a majority in interest of each such class of stock so affected by the amendment shall be necessary to the adoption thereof, in addition to the affirmative vote of a majority of all other stock entitled to vote thereon; and provided, further that the amount of the authorized stock 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.
2. If the corporation has no capital stock, then the board of directors, managers, trustees, or the governing body thereof shall pass a resolution declaring that every such addition, change or alteration is advisable, and if at the next meeting, held not earlier than fifteen days and not later than thirty days from the meeting at which such resolution shall have been passed, two-thirds of the whole number of the said board of directors, managers, trustees, or the governing body, shall vote in favor of such amendment, addition, change or alteration, a certificate thereof shall be signed by the President and Secretary, (or by such officers as may be duly authorized to exercise the duties, respectively, ordinarily exercised by the president and secretary of a corporation), under the corporate seal, acknowledged by said President, (or by such officer as may be duly authorized to exercise the duties ordinarily exercised by a president as aforesaid) before any officer authorized by the laws of this State to take acknowledgment of deeds to be the act and deed and certificate of such corporation, and such certificate acknowledged as aforesaid, together with the assent of two-thirds of the whole number of the members of the said Board of Directors, managers, trustees, or governing body in writing, shall ,be filed in the office of the Secretary of State, and a copy thereof duly certified by the Secretary of State shall be recorded in the office of the Recorder of the County in which the original Certificate of Incorporation is recorded; or, if the corporation shall have been created by a special public Act of the Legislature, then said certificate shall be recorded, as above provided, in the county where said corporation has its principal place of business; and upon so filing and recording the same, the Certificate of Incorporation shall be deemed to be amended accordingly.
Section 5. That Section 39 of said Chapter 65, being Section 1953 of said Code, be, and the same is hereby, amended by striking out said Section and inserting in lieu thereof the following:
1953. Sec. 39. Dissolution; Proceedings For:--If it should be deemed advisable, in the judgment of the Board of Directors, and most for the benefit of any corporation organized under this Chapter, that it should be dissolved, the said board, within ten days after the adoption of a resolution to that effect by a majority of the whole board at any meeting called for that purpose, of which meeting every director shall have received at least three days' notice, shall cause notice of the adoption of such resolution to be mailed to each stockholder residing in the United States, and thereupon cause a like notice to be inserted in a newspaper published in the county wherein the corporation shall have its principal office in the State of Delaware, at least three weeks successively, once a week, next preceding the time appointed for the same, of a meeting of the stockholders having voting power, to be held at the office of the corporation, to take action upon the resolution so adopted by the Board of Directors, which meeting shall be held between the hours of ten o'clock in the forenoon and three o'clock in the afternoon of the day so named, and which meeting may, on the day so appointed, by consent of a majority in interest of the stockholders present in person or by proxy, having voting power, be adjourned from time to time, for not less than eight days at any one time, of which adjourned meeting notice by advertisement in said newspaper shall be given; and if at any such meeting two-thirds in interest of all the stockholders, having voting power, shall consent that a dissolution shall take place and signify their consent in writing, such consent, together with a list of the names and residences of the directors and officers, certified by the President and Secretary and Treasurer, shall be filed in the office of the Secretary of State, who, upon being satisfied by due proof that the requirements aforesaid have been complied with', shall issue a certificate that such consent has been filed, and the Secretary of State shall cause such certificate to be published in one issue in a newspaper published in the county wherein was situated the principal office in the State of Delaware of the dissolved corporation. The Secretary of State shall ascertain the charge for publishing the certificate of dissolution as aforesaid, and collect the amount from the corporation before the certificate of dissolution is issued; and upon the filing in the office of the Secretary of State of an affidavit of the manager or publisher of the said newspaper that said certificate has been published one time, in said newspaper, the corporation shall be dissolved.
Whenever all the stockholders, having voting power, shall consent in writing to a dissolution, no meeting of stockholders shall be necessary, but on filing said consent in the office of the Secretary of State, he shall, as above provided, issue a certificate of dissolution, which shall be published as above provided.
Whenever the Secretary of State issues a certificate of dissolution it shall be recorded in the office of the Recorder of the County in which the principal office of the corporation was maintained.
Whenever it shall be desired to dissolve any corporation not for profit and having no capital stock, organized under this Chapter, the board of managers or other controlling body, however named, having in charge the administration of the business or affairs of such corporation, shall exercise, assume and fulfill all of the functions, rights, privileges and duties, looking toward, involved in or concerned with the dissolution of such corporation, which are hereinabove in like cases imposed or conferred upon the Board of Directors of a corporation having capital stock in and upon its dissolution; and the members of such corporation not for profit and having no capital stock entitled by its by-laws, or by its conditions of membership or otherwise, to vote for the election of members of its board of managers or other controlling or managing body, or upon any of the affairs or concerns of such corporation, shall exercise, assume and fulfill all of the functions, rights, privileges and duties looking toward, involved in or concerned with the dissolution of such corporation, which are hereinabove, in like case, imposed or conferred upon the stockholders of a corporation having capital stock, in and upon its dissolution. In all other respects, the method and proceedings for the dissolution of a corporation not for profit or having no capital stock shall conform, so near as may be to the method and proceedings hereinabove prescribed for the dissolution of corporations having capital stock, and in the dissolution of any corporation not for profit and having no capital stock the certificate to be filed in the office of the Secretary of State may be executed by the President and Secretary and Treasurer, as required in the case of other corporations organized under this Chapter, (or by such officers as are duly authorized to exercise the duties, respectively, ordinarily exercised by a president, secretary and treasurer of a corporation).
No corporation shall be dissolved under the provisions of this Section until all franchise taxes due to or assessable by the State have been paid by said corporation.
Section 6. That Section 59 of said Chapter 65, being Section 1973 of said Code, be amended by striking out said Section and inserting in lieu thereof the following:
1973. Sec. 59. Consolidation or Merger; Proceedings For:--Any two or more corporations organized under the provisions of this Chapter, or existing under the laws of this State, for the purpose of carrying on any kind of business, may consolidate or merge into a single corporation which may be any one of said constituent corporations or a new corporation to be formed by means of such consolidation or merger as shall be specified in the agreement hereinafter required; the directors, or a majority of them, of such corporations as desire to consolidate or merge, may enter into an agreement signed by them and under the corporate seals of the respective corporations, prescribing the terms and conditions of consolidation or merger, the mode of carrying the same into effect, and stating such other facts required or permitted by the provisions of this Chapter to be set out in Certificates of Incorporation, as can be stated in the case of a consolidation or merger, stated in such altered form as the circumstances of the case require, as well as the manner of converting the shares of each of the constituent corporations into shares of the consolidated corporation, with such other details and provisions as are deemed necessary.
Said agreement shall be submitted to the stockholders of each constituent corporation, at a meeting thereof, called separately for the purpose of taking the same into consideration; of the time, place and object of which meeting due notice shall be given by publication at least once a week for four successive weeks in one or more newspapers published in the county wherein each such corporation either has its principal office or conducts its business, and a copy of such notice shall be mailed to the last known post office address of each stockholder of each such corporation at least twenty days prior to the date of such meeting, and at said meeting said agreement shall be considered and a vote by ballot, in person or by proxy, taken for the adoption or rejection of the same, each share entitling the holder thereof to one vote; and if the votes of stockholders of each such corporation representing two-thirds of the total number of shares of its capital stock shall be for the adoption of the said agreement, then that fact shall be certified on said agreement by the Secretary of each such corporation, under the seal thereof; and the agreement so adopted and certified shall be signed by the President and Secretary of each of such corporations under the corporate seals thereof and acknowledged by the President of each such corporations before any officer authorized by the laws of this State to take acknowledgments of deeds to be the respective act, deed and agreement of each of said corporations, and the agreement so certified and acknowledged shall be filed in the office of the Secretary of State, and shall thence be taken and deemed to be the agreement' and act of consolidation or merger of the said corporations; and a copy of said agreement and act of consolidation or merger, duly certified by the Secretary of State under the seal of his office, shall also be recorded in the offices of the Recorders of the Counties of this State in which the respective corporations so consolidating or merging shall have their original Certificates of Incorporation recorded, or if any of the corporations shall have been specially created by a public Act of the Legislature, then said agreement shall be recorded in the County where such corporation shall have had its principal place of business, and such record, or a certified copy thereof, shall be evidence of the agreement and act of consolidation or merger of said corporations, and of the observance and performance of all acts and conditions necessary to have been observed and performed precedent to such consolidation or merger.
Any one or more corporations organized under the provisions of this Chapter, or existing under the laws of this State, may consolidate or merge with one or more other corporations organized under the laws of any other State or States of the United States of America, if the laws under which said other corporation or corporations are formed shall permit such consolidation or merger. The constituent corporations may merge into a single corporation, which may be any one of said constituent corporations, or they may consolidate to form a new corporation, which may be a corporation of the State of incorporation of any one of said constituent corporations as shall be specified in the agreement hereinafter required. All the constituent corporations shall enter into an agreement in writing which shall prescribe the terms and conditions of the consolidation or merger, the mode of carrying the same into effect, the manner of converting the shares of each of said constituent corporations into shares of the corporation resulting from or surviving such consolidation or merger and such other details and provisions as shall be deemed necessary or proper. There shall also be set. forth in said agreement such other facts as shall then be required to be set forth in certificates of incorporation by the Laws of the State, which are stated in said agreement to be the laws that shall govern said resulting or surviving corporation and that can be stated in the case of a consolidation or merger. Said agreement shall be authorized, adopted, approved, signed and acknowledged by each of said constituent corporations in accordance with the laws under which it is formed and, in the case of a Delaware corporation, in the manner provided in the two immediately preceding paragraphs. The agreement so authorized, adopted, approved, signed and acknowledged shall be filed in the office of the Secretary of State and said agreement shall thenceforth be taken and deemed to be the agreement and act of consolidation or merger of said constituent corporations for all purposes of the laws of this State. A copy of said agreement, duly certified by the Secretary of State under the seal of his office shall also be recorded as provided in this Section with respect to the consolidation or merger of corporations of this State.
If the corporation resulting or surviving such consolidation or merger is to be governed by the Laws of any State other than the laws of this State, it shall agree that it may be served with process in this State in any proceeding for enforcement of any obligation of any constituent corporation of this State, including any amount fixed by appraisers pursuant to the provisions of Section 61 of this Chapter, and shall irrevocably appoint the Secretary of State as its agent to accept service of process in an action for the enforcement of payment of any such obligation or any amount fixed by appraisers as aforesaid and shall specify the address to which a copy of such process shall be mailed by the Secretary of State. Service of such process shall be made by personally delivering to and leaving with the Secretary of State duplicate copies of such process. The Secretary of State shall forthwith send by registered mail one of such copies to such resulting or surviving corporation at its address so specified, unless such resulting or surviving corporation shall thereafter 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 so designated.
Section 7. That Section 60 of said Chapter 65, being Section 1974, of said Code, be amended by striking out said Section and inserting in lieu thereof the following:
1974. Sec. 60. Consolidation or Merger; Status of Old and New Corporations:--When an agreement shall have been signed, acknowledged, filed and recorded, as in the preceding Section is required, for all purposes of the laws of this State the separate existence of all the constituent corporations, parties to said agreement, or of all such constituent corporations except the one into which the other or others of such constituent corporations have been merged, as the case may be, shall cease and the constituent corporations shall become a new corporation, or be merged into one of such corporations, as the case may be, in accordance with the provisions of said agreement possessing all the rights, privileges, powers and franchises as well of a public as of a private nature, and being subject to all the restrictions, disabilities and duties of each of such corporations so consolidated or merged, and all and singular, the rights, privileges, powers and franchises of each of said corporations, and all property, real, personal and mixed, and all debts due to any of said constituent corporations on whatever account, as well for stock subscriptions as all other things in action or belonging to each of such corporations shall be vested in the corporation resulting from or surviving such consolidation or merger; and all property, rights, privileges, powers and franchises, and all and every other interest shall be thereafter as effectually the property of the resulting or surviving corporation as they were of the several and respective constituent corporations, and the title to any real estate, whether vested by deed or otherwise, under the laws of this State, vested in any of such constituent corporations, shall not revert or be in any way impaired by reason of this Chapter; provided, however, that all rights of creditors and all liens upon any property of any of said constituent corporations shall be preserved unimpaired, and all debts, liabilities and duties of the respective constituent corporations shall thenceforth attach to said resulting or surviving corporation, and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred or contracted by it.
Section 8. That Section 61 of said Chapter 65, being Section 1975 of said Code, be amended by striking out said Section and inserting in lieu thereof the following:
1975. Sec. 61. Consolidation or Merger; Payment for Stock of Dissatisfied Stockholder:--If any stockholder in any corporation of this State consolidating or merging as aforesaid, who objected thereto in writing, shall within twenty days after the date on which the agreement of consolidation or merger has been filed and recorded, as aforesaid, demand in writing from the corporation resulting from or surviving such consolidation or merger, payment of his stock, such resulting or surviving corporation shall, within three months thereafter, pay to him the value of his stock at said date, exclusive of any element of value arising from the expectation or accomplishment of such consolidation or merger. If within thirty days after the date of such written demand the corporation and such stockholder fail to come to an agreement as to such value of such stock, such stockholder may demand an appraisal of his stock by, three disinterested persons, one of whom shall be designated by the stockholder, one by the directors of the resulting or surviving corporation and the other by the two designated as aforesaid and may serve written notice on such corporation designating therein one appraiser and requiring the corporation to designate a second appraiser within thirty days from the date of service of such notice. If within thirty days from the date of service of such notice the corporation shall have failed to designate a second appraiser or if the two appraisers first designated shall fail to designate a third appraiser within thirty days from the designation of the second appraiser, such stockholder may apply to the Chancellor to designate a second and a third appraiser, or a third appraiser, as the case may be. The decision of the appraisers as to such value of such stock shall be final and binding upon the corporation and such stockholder. In case the value of such stock as so fixed by the appraisers is not paid to such stockholder within sixty days from the date of such decision and of notice thereof given to the corporation, the decision of the appraisers shall be evidence of the amount due from the corporation, and such amount may be collected as other 'debts are by law collectible from the resulting or surviving corporation. Upon receipt of payment in full of the value of such stock, such stockholder shall transfer his stock to the said resulting or surviving corporation, to be disposed of by the directors thereof, or to be retained for the benefit of the remaining stockholders.
Section 9. That Section 62 of said Chapter 65, being Section 1976 of said Code, be amended by striking out said Section and inserting in lieu thereof the following:
1976. Sec. 62. Consolidation or Merger; Pending Actions Saved:--Any action or proceeding pending by or against any of the corporations consolidated or merged may be prosecuted to judgment, as if such consolidation or merger had not taken place or the corporation resulting from or surviving such consolidation or merger may be substituted in its place.
Section 10. That Section 63 of said Chapter 65, being Section 1977 of said Code, be amended by striking out said Section and inserting in lieu thereof the following:
1977. Sec. 63. Liability of Corporations and Rights of Others Unimpaired by Sale, Increase or Decrease of Capital Stock, or by Consolidation or Merger:--The liability of corporations created under this Chapter, or existing under the laws of this State, or the stockholders or officers thereof, or the rights or remedies of the creditors thereof, or of persons doing or transacting business with such corporation, shall not in any way be lessened or impaired by the sale thereof, or by the increase or decrease in the capital stock of any such corporation, or by the consolidation or merger of two or more corporations or by any change or amendment in the Articles of Incorporation.
Section 11. That Section 64 of said Chapter 65, being Section 1978 of said Code, be amended by striking out said Section and inserting in lieu thereof the following:
1978. Sec. 64. Powers of Corporation Resulting From or Surviving Consolidation or Merger:--When two or more corporations are consolidated or merged, the corporation resulting from or surviving such consolidation or merger shall have power and authority to issue bonds or other obligations, negotiable or otherwise, and with or without coupons or interest certificates thereto attached, to an amount sufficient with its capital stock to provide for all the payments it will be required to make, or obligations it will be required to assume, in order to effect such consolidation or merger; to secure the payment of which bonds and obligations it shall be lawful to mortgage its corporate franchise, rights, privileges and property, real, personal and mixed; and may issue certificates of its capital stock to the stockholders of such constituent corporations in exchange or payment for the original shares, in such amount as shall be necessary in accordance with the terms of agreement of consolidation or merger in order to effect such consolidation or merger in the manner and on the terms specified in such agreement.
Section 12. That Section 69 of said Chapter 65, being Section 1983 of said Code, be amended by striking out said Section and inserting in lieu thereof the following:
1983. Sec. 69. Lost or Destroyed Stock Certificates; Issuance of New:--Every corporation organized under this Chapter may issue a new certificate of stock in the place of any certificate theretofore issued by it, alleged to have been lost or destroyed, and the directors may, in their discretion, require the owner of the lost or destroyed certificate, or his legal representatives, to give the corporation a bond sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged loss of any such certificate or the issuance of such new certificate; a new certificate may be issued without requiring any bond when, in the judgment of the directors it is proper so to do; when any such corporation shall have refused to issue a new certificate of stock in place of one theretofore issued by it, or by any corporation of which it is the lawful successor, alleged to have been lost or destroyed, the owner of the lost or destroyed certificate or his legal representatives, may apply to the Superior Court of the State of Delaware in and for the County in which the principal office of the corporation is located for an order requiring the corporation to show cause why it should not issue a new certificate of stock in place of the one so lost or destroyed; such application shall be by petition duly verified, in which shall be stated the name of the corporation, the number and date of the certificate, if known or ascertainable by the petitioner, the number of shares of stock named therein and to whom issued, and a statement of the circumstances attending such loss or destruction; thereupon said Court shall make an order requiring the corporation to show cause at a time and place therein mentioned, why it should not issue a new certificate of stock in place of the one described in the petition; a copy of the petition or order shall be served upon the President or other head officer of the corporation, or on the Cashier, Secretary, Treasurer or any director thereof personally or left at the principal office or place of business of the corporation in this State at least five days before the time designated in the order.
Section 13. That Section 70 of said Chapter 65, being Section 1984 of said Code, be amended by striking out said Section and inserting in lieu thereof the following:
1984. Sec. 70. New Certificates; Judicial Proceedings:--At the time and place specified in the order, and on proof of service thereof, the Court shall proceed to hear the proofs and allegations in behalf of the parties in interest, relative to the subject matter of inquiry, and if upon such hearing the Court shall be satisfied that the petitioner is the lawful owner of the number of shares of capital stock, or any part thereof, described in the petition, and that the certificate therefor has been lost or destroyed, and no sufficient cause has been shown why a new certificate should not be issued in place thereof, it shall make an order requiring the corporation, within such time as shall be therein designated, to issue and deliver to the petitioner a new certificate for the number of shares of the capital stock of the corporation, which shall be specified in the order as owned by the petitioner, and the certificate for which shall have been lost or destroyed; in making such order the Court shall direct that, prior to the issuance and delivery to the petitioner of such new certificate, the petitioner give the corporation a bond in such form and with such security as to the Court shalt appear sufficient to indemnify the corporation against any claim that may be made against it on account of the alleged loss of any such certificate or the issuance of such new certificate; obedience to said order may be enforced by the Court by attachment against the officers of the corporation, on proof of their refusal to comply with the same. No corporation which has issued a certificate pursuant to an order of the Court entered hereunder shall be liable in an amount in excess of the amount specified in such bond.
Section 14. That Section 79 of said Chapter 65, being Section 1993 of said Code, be, and the same is hereby, amended by striking out said Section and inserting in lieu thereof the following:
1993. Sec. 79. Change of Location of Principal Office; Change of Resident Agent:--(1) The Board of Directors of any corporation organized under the laws of this State may change the location of the principal office of such corporation within this State to any other place within this State by resolution adopted at a regular or special meeting of such Board; by like resolution, the resident agent of such corporation may be changed to any other person or corporation. In either such case, such resolution shall be as detailed in its statement as is provided in Paragraph 2, Section 1919, being Section 5 of this Chapter. Upon the adoption of a resolution as aforesaid, a copy thereof shall be filed in the office of the Secretary of State signed by the President and Secretary of such corporation, and sealed with its corporate seal; and a certified copy recorded in the office of the Recorder in and for the County in which said new office may be located; for filing the said certificate, the Secretary of State shall charge a fee of five dollars.
(2) The location of the office of any resident agent of corporations in any City or Town of this State may be transferred from one address to another in the same City or Town, or from any City or Town in this State to any other City or Town in this State, upon making and executing by such resident agent of a certificate, duly acknowledged before an officer authorized by the laws of this State to take acknowledgments of deeds, setting forth the names of all the corporations represented by such resident agent, and the address at which such resident agent has maintained the principal office for each of such corporations, and further certifying to the new address to which such resident agency will be transferred on a given day, and at which new address such resident agent will thereafter maintain the principal office for each of the corporations recited in said certificate. Upon the filing of such certificate, in duplicate, in the office of the Secretary of State, the said Secretary shall furnish a certified copy of the same under his hand and seal of office, and said certified copy shall be recorded in the office of the Recorder of Deeds of the County where the principal office of said corporation is located in this State, in a book kept for that purpose and thereafter, or until further change of address, as authorized by law, the principal office in this State of each of the corporations recited in said certificate shall be located at the new address of the resident agent thereof as given in the certificate. The fees to be charged by the Secretary of State for the use of the State for the filing of said certificates shall be Fifty Dollars, plus the same fees for receiving, filing, indexing, copying and certifying the same as is charged in the case of filing a charter.
(3) The resident agent of one or more corporations, organized and operating under the laws of this State, may make and file with the Secretary of State his or its certificate, in duplicate, resigning the said office of resident agent, and appointing another person or corporation as such resident agent, in his or its stead, and stating further the address of such substituted agent, in accordance with the requirements of Paragraph 2, Section 1919, being Section 5, of this Chapter. There shall be attached to such certificate statements, each signed by the President, or a Vice-President, of the corporations for which such agent was appointed, and sealed with the corporate seal thereof, ratifying and approving such change of resident agent, and shall be duly acknowledged before an officer authorized by the laws of this State to take acknowledgments of deeds, and shall be executed in duplicate. Upon the filing of such duplicate certificate in the office of the Secretary of State, the substituted resident agent shall thereupon become the resident agent of such corporations as have ratified and approved such substitution as aforesaid, and the Secretary of State shall then issue his certificate, that the substituted resident agent has become the resident agent of the said corporations so ratifying and approving such change of resident agent, and setting out the names of such corporations, which certificate of the Secretary of State shall be recorded in the office of the Recorder of Deeds, in and for the County in which the Certificate of Incorporation is recorded, and the Recorder shall forthwith make a note of the change of resident agent on the margin of the record of the certificates of incorporation of those corporations which have ratified and approved such change. For filing such duplicate certificates of change of resident agent the Secretary of State shall charge a fee of Fifty Dollars and a further fee of Two Dollars for each corporation whose resident agent is changed by such certificate.
(4) The resident agent of one or more corporations, organized and existing under the laws of this State, may make and file with the Secretary of State his or its certificate, in duplicate, resigning the said office of resident agent without appointing any person or corporation as such resident agent in his or its stead; providing that such resignation shall not become effective until thirty days after such certificate is so filed. There shall be attached to such certificate, in duplicate, an affidavit of such resident agent, if an individual, or of the president or secretary thereof, if a corporation, that at least thirty days prior to the date of the filing of said certificate, due notice was sent by registered mail to the corporation for which such resident agent was acting, at the principal office thereof outside the State, if known to such resident agent or, if not, to the last known address of the attorney or other individual at whose request such resident agent was appointed for such corporation, of the resignation of such resident agent; and for filing such certificate of resignation the Secretary of State shall charge a fee of Two Dollars and Fifty Cents for each corporation whose resident agent has resigned by such certificate, and upon the filing of such certificate with the Secretary of State, the Secretary of State shall then notify the Recorder of Deeds in and for the county in which the Certificate of Incorporation of such corporation is recorded of the resignation of its resident agent as set forth in such certificate and the said Recorder of Deeds shall forthwith make a note of the resignation of such resident agent on the margin of the record of the Certificate of Incorporation of such corporation, for which the said Recorder of Deeds shall receive the fee of Fifty Cents for each such notation, to be paid to him by the Secretary of State out of the above mentioned fee payable to the Secretary of State. After receipt of such notice of the resignation of its resident agent, it shall be the duty of the corporation for which such resident agent was acting to obtain and designate a new resident agent to take the place of the resident agent so resigning in the same manner as is .provided in paragraph (1) of this section for change of resident agent, and if such corporation shall fail to obtain and designate a new resident agent as aforesaid prior to the said expiration of said period of thirty days after the filing by the resident agent of said certificate of resignation, such facts shall be duly certified by the Secretary of State to the Attorney General of the State of Delaware, and it shall thereupon be the duty of the Attorney General to forthwith commence proceedings in Quo Warranto against such corporation in a court of competent jurisdiction and such court, upon competent proof of said state of facts and upon appropriate steps taken in such proceedings in Quo Warranto, shall decree the charter of such corporation forfeited. After the resignation of such resident agent shall have become effective as above provided and in the event no new resident agent shall have been obtained and designated in the time and manner aforesaid, service of legal process against the corporation for which said resigned resident agent had been acting shall thereafter be upon the Secretary of State in accordance with the requirements of Paragraph 1962, Section 48 of the Revised Code of Delaware.
Section 15. That Section 188 of said Chapter 65, being Section 2101a of said Code, be, and the same is hereby amended by striking out said Section and inserting in lieu thereof the following:
2101a. Sec. 188. Foreign Corporations Doing Business in This State:--No corporation created by the laws of any other State, or the laws of the United States, shall do any business in this State, through or by branch offices, agents or representatives located in this State, until it shall have filed in the office of the Secretary of State of this State a certified copy of its charter and the name or names of its authorized agent or agents in this State, together with a sworn statement of the assets and liabilities of such corporation, and shall have paid to the Secretary of State, for the use of the State, Ten Dollars; and every foreign corporation admitted to do business in this State which shall amend its charter from time to time or shall be a party to a merger or consolidation permitted by the laws of the State under which it is organized, shall, within thirty days after the time such amendment or merger or consolidation becomes effective, file with the Secretary of State of this State a copy of such amendment or a copy of the articles of merger or consolidation, duly certified by the proper officer of the State by which such corporation shall have been incorporated or under the laws of which such merger or consolidation was effected; provided, however, that no corporation created by the laws of any other State, or the laws of the United States, shall be deemed to be doing business in this State (nor shall such corporation be required to comply with the provisions of this Section) under the following conditions, or any of them:
(a) If it is in the mail order or a similar business, merely receiving orders by mail or otherwise in pursuance of letters, circulars, catalogs, or other forms of advertising, or solicitation, accepting such orders outside this State, and filling them with goods shipped into this State from without same;
(b) If it employs salesmen, either resident or traveling, to solicit orders in this State, either by display of samples or otherwise (whether or not maintaining sales offices in this State, all orders being subject to approval at the offices of the corporation without this State, and all goods applicable to such orders being shipped in pursuance thereof from without this State to the vendee or to the seller or his agent for delivery to the vendee; provided, that any samples kept within this State are for display or advertising purposes only, and no sales, repairs, or replacements are made from stock on hand in this State;
(c) If it sells, by contract consummated outside this State, and agrees, by such contract, to deliver into from without this State, machinery, plants, or equipment, the construction, erection or installation of which within this State requires the supervision of technical engineers or skilled employees performing services not generally available, and as a part of the contract of sale agrees to furnish such services, and such services only, to the vendee at the time of construction, erection or installation;
(d) If its business operations within this State, although not falling within the terms of paragraphs (a), (b), and (c) above, or any of them, are nevertheless wholly interstate in character.
The certificate of the Secretary of State, under his seal of office, of the filing of such charter shall be delivered to such agent or agents upon the payment to said Secretary of State of the usual fees for making certified copies, and the said Certificate shall be prima facie evidence of the right of such corporation to do business in this State; provided, however, this Section shall not apply to insurance companies doing business in this State.
Section 16. Nothing contained in Sections 12 or 13 hereof, amending Sections 69 and 70 of said Chapter, shall be deemed to affect in any way the rights of any person upon or with respect to any bonds taken in conformity with said Sections 69 and 70 as they existed prior to the amendment of said Sections.
Approved April 18, 1935.