CHAPTER 145
FORMERLY
HOUSE BILL NO. 160
AN ACT TO AMEND TITLE 8 OF THE DELAWARE CODE RELATING TO THE GENERAL CORPORATION LAW.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE (Two-thirds of all members elected to each house thereof concurring therein):
Section 1. Amend § 141(d), Title 8, Delaware Code, by inserting before the last sentence thereof, the following sentence: "Any such provision conferring greater or lesser voting power shall apply to voting in any committee or subcommittee, unless otherwise provided in the certificate of incorporation or bylaws.".
Section 2. Amend § 203(b)(4), Title 8, Delaware Code, by deleting the words "authorized for quotation on The NASDAQ Stock Market; or (iii)" and adding the word "or" in lieu thereof.
Section 3. Amend § 216(4), Title 8, Delaware Code, by inserting after the words "with respect to that vote on that matter and" the following: ", in all matters other than the election of directors,".
Section 4. Amend § 251(c), Title 8, Delaware Code, by inserting before the period in the fifth sentence thereof the following: ", provided that such certification on the agreement shall not be required if a certificate of merger or consolidation is filed in lieu of filing the agreement".
Section 5. Amend § 251(c)(2), Title 8, Delaware Code, by deleting "certified," therefrom.
Section 6. Amend § 251(f), Title 8, Delaware Code, by inserting before the period in the third sentence thereof the following: ", provided that such certification on the agreement shall not be required if a certificate of merger or consolidation is filed in lieu of filing the agreement".
Section 7. Amend § 251(g), Title 8, Delaware Code, by inserting before the period in the third sentence of the second paragraph thereof the following: ", provided that such certification on the agreement shall not be required if a certificate of merger or consolidation is filed in lieu of filing the agreement".
Section 8. Amend § 255(c), Title 8, Delaware Code, by inserting before the period in the fifth sentence thereof the following: ", provided that such certification on the agreement shall not be required if a certificate of merger or consolidation is filed in lieu of filing the agreement".
Section 9. Amend § 255(d), Title 8, Delaware Code, by inserting after the words "members of a corporation" in the third sentence thereof the following: ", provided that such certification on the agreement shall not be required if a certificate of merger or consolidation is filed in lieu of filing the agreement,".
Section 10. Amend§ 258(b), Title 8, Delaware Code, by inserting after the words "adopted, approved," in the last sentence thereof the following: "certified,".
Section 11. Amend § 262(b)(1), Title 8, Delaware Code, by deleting the words "or designated as a national market system security on an interdealer quotation system by the National Association of Securities Dealers, Inc.".
Section 12. Amend § 262(b)(2)(b), Title 8, Delaware Code, by deleting the words "or designated as a national market system security on an interdealer quotation system by the National Association of Securities Dealers, Inc.".
Section 13. Amend § 262(e), Title 8, Delaware Code, by deleting the text thereof in its entirety and inserting in lieu thereof, the following:
"(e) Within 120 days after the effective date of the merger or consolidation, the surviving or resulting corporation or any stockholder who has complied with subsections (a) and (d) hereof and who is otherwise entitled to appraisal rights, may commence an appraisal proceeding by filing a petition in the Court of Chancery demanding a determination of the value of the stock of all such stockholders. Notwithstanding the foregoing, at any time within 60 days after the effective date of the merger or consolidation, any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party shall have the right to withdraw such stockholder's demand for appraisal and to accept the terms offered upon the merger or consolidation. Within 120 days after the effective date of the merger or consolidation, any stockholder who has complied with the requirements of subsections (a) and (d) hereof, upon written request, shall be entitled to receive from the corporation surviving the merger or resulting from the consolidation a statement setting forth the aggregate number of shares not voted in favor of the merger or consolidation and with respect to which demands for appraisal have been received and the aggregate number of holders of such shares. Such written statement shall be mailed to the stockholder within 10 days after such stockholder's written request for such a statement is received by the surviving or resulting corporation or within 10 days after expiration of the period for delivery of demands for appraisal under subsection (d) hereof, whichever is later. Notwithstanding subsection (a) of this section, a person who is the beneficial owner of shares of such stock held either in a voting trust or by a nominee on behalf of such person may, in such person's own name, file a petition or request from the corporation the statement described in this subsection.".
Section 14. Amend § 262(h), Title 8, Delaware Code, by deleting the text thereof in its entirety and inserting in lieu thereof, the following:
"(h) After the Court determines the stockholders entitled to an appraisal, the appraisal proceeding shall be conducted in accordance with the rules of the Court of Chancery, including any rules specifically governing appraisal proceedings. Through such proceeding the Court shall determine the fair value of the shares exclusive of any element of value arising from the accomplishment or expectation of the merger or consolidation, together with interest, if any, to be paid upon the amount determined to be the fair value. In determining such fair value, the Court shall take into account all relevant factors. Unless the Court in its discretion determines otherwise for good cause shown, interest from the effective date of the merger through the date of payment of the judgment shall be compounded quarterly and shall accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the effective date of the merger and the date of payment of the judgment. Upon application by the surviving or resulting corporation or by any stockholder entitled to participate in the appraisal proceeding, the Court may, in its discretion, proceed to trial upon the appraisal prior to the final determination of the stockholders entitled to an appraisal. Any stockholder whose name appears on the list filed by the surviving or resulting corporation pursuant to subsection (f) of this section and who has submitted such stockholder's certificates of stock to the Register in Chancery, if such is required, may participate fully in all proceedings until it is finally determined that such stockholder is not entitled to appraisal rights under this section.".
Section 15. Amend Section 262(i), Title 8, Delaware Code, by deleting the second sentence thereof.
Section 16. Amend Section 262(k), Title 8, Delaware Code, by adding the following immediately after the words "deems just":
"; provided, however that this provision shall not affect the right of any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party to withdraw such stockholder's demand for appraisal and to accept the terms offered upon the merger or consolidation within 60 days after the effective date of the merger or consolidation, as set forth in subsection (e) of this section".
Section 17. Sections 1 through 10 shall be effective on August 1, 2007, and Sections 11 through 16 shall be effective only with respect to transactions consummated pursuant to agreements entered into after August 1, 2007 (or, in the case of mergers pursuant to Section 253, resolutions of the board of directors adopted after August 1, 2007), and appraisal proceedings arising out of such transactions.