CHAPTER 352
FORMERLY
SENATE BILL NO. 452
AS AMENDED BY SENATE AMENDMENT NOS. 1 AND 2
AN ACT TO AMEND CHAPTER 1, TITLE 8, OF THE DELAWARE CODE TO AMEND THE GENERAL CORPORATION LAW AND CHAPTER 23, TITLE 29 OF THE DELAWARE CODE, TO ESTABLISH A SECRETARY OF STATE SPECIAL OPERATIONS FUND AND FEES FOR REMOTE ACCESS TO ELECTRONIC FILES.
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 subsection (1) of § 102(a), of Subchapter I, Chapter 1, Title 8,
Delaware Code, by adding after "the names of other corporations" the following: "or limited partnerships", adding after "registered as a foreign corporation" the following: or foreign limited partnership", and adding after "laws of this State" the following: "except with the written consent of such other foreign corporation or domestic or foreign limited partnership, executed, acknowledged, and filed with the Secretary of State in accordance with section 103 of this title."
Section 2. Amend § 103, Subchapter I, Chapter 1, Title 8, Delaware Code, by adding new subsections (g) and (h) reading as follows:
"(g) Notwithstanding that any instrument authorized to be filed with the Secretary of State under any provision of this title Is when filed inaccurately, defectively or erroneously executed, sealed or acknowledged, or otherwise defective In any respect, the Secretary of State shall have no liability to any person for the preclearance for filing, the acceptance for filing, or the filing and indexing of such instrument by the Secretary of State.
(h) Any signature on any instrument authorized to be filed with the Secretary of
State under any provision of this title may be a facsimile.".
Section 3. Amend Subchapter VIII, Chapter 1, Title 8, Delaware Code, by deleting § 246
In Its entirety.
Section 4. Amend clause (3) of § 254(c) of Subchapter IX, Chapter I, Title 8, Delaware
Code, by deleting the clause in its entirety and substituting In lieu thereof the following:
"(3) the manner of converting the shares of stock of each stock corporation, the
Interests of members of each non-stock corporation, and the shares, memberships or financial or beneficial Interests In each of the joint-stock associations into shares or other securities of a stock corporation or membership interests of a non-stock corporation surviving or resulting from such merger or consolidation, and, If any shares of any such stock corporation, any membership interests of any such non-stock corporation, or any shares, memberships, or financial or ben,..flcial Interests In any such joint-stock assoclatio.i are not to be converted solely Into shares or other securities of the stock corporation or membership interests of the non-stock corporation surviving or resulting from such merger or consolidation, the cash, property, rights or securities of any other corporation or entity which the holders of shares of any such stock corporation, membership interests of any such non-stock corporation, or shares, memberships or financial or beneficial interests of any such joint-stock association are to receive In exchange for, or upon conversion of such shares, membership interests, or shares, memberships or financial or beneficial interests, and the surrender of any certificates evidencing them, which cash, property, rights or securities of any other corporation or entity may be In addition to or in lieu of shares or other securities of the stock corporation or membership interests of the non-stock corporation surviving or resulting from such merger or consolidation; and".
Section 5. Amend the first sentence of subsection (d) of § 254 of Subchapter IX,
Chapter 1, Title 8, Delaware Code, by adding after "agreement" the following: "required by subsection (c) of this section".
Section 6. Amend subsection (e) of § 254 of Subchapter IX, Chapter 1, Title 8, Delaware
Code, by adding after "251(e)," the following: "251(f),".
Section 7. Amend clause (4) of § 251(b) of Subchapter IX, Chapter 1, Title 8, Delaware
Code, by deleting the clause In Its entirety and substituting In lieu thereof the following:
"(4) the manner of converting the shares of stock of a stock corporation and the interests of the members of a non-stock corporation into shares or other securities of a stock corporation or membership interests of a non-stock corporation surviving or resulting from such merger or consolidation, and, If any shares of any such stock corporation or membership interests of any such non-stock corporation are not to be converted solely Into shares or other securities of the stock corporation or membership interests of the non-stock corporation surviving or resulting from such merger or consolidation, the cash, property, rights or securities of any other corporation or entity which the holders of shares of any such stock corporation or membership interests of any such non-stock corporation are to receive In exchange for, or upon conversion of such shares or membership interests, and the surrender of any certificates evidencing them, which cash, property, rights or securities of any other corporation or entity may be In addition to or In lieu of shares or other securities of any stock corporation or membership interests of any non-stock corporation surviving or resulting from such merger or consolidation;".
Section 8. Amend the first sentence of subsection (c) of § 257 of Subchapter IX,
Chapter 1, Title 8, Delaware Code, by adding after "agreement" the following: "required by subsection (b) of this section".
Section 9. Amend subsection (b) of § 262 of Subchapter IX, Chapter 1, Title 8, Delaware Code, by deleting the word "or" after "257" and substituting therefor the following: "". and by adding after "258" the following: or 263".
Section 10. Amend Subchapter IX, Chapter 1. Title 8, Delaware Code, by adding a new § 263 reading as follows:
"§ 263. Merger or consolidation of domestic corporation and limited partnership.
(a) Any 1 or more corporations of this State may merge or consolidate with 1 or more limited partnerships, of this State or of any other state or states of the United States, or of the District of Columbia, unless the laws of such other state or states or the District of Columbia forbid such merger or consolidation. Such corporation or corporations and such 1 or more limited
partnerships may merge with or Into a corporation, which may be any 1 of such corporations, or they may merge with or Into a limited partnership, which may be any 1 of such limited partnerships, or they may consolidate Into a new corporation or limited partnership formed by the consolidation, which shall be a corporation or limited partnership of this State or any other state of the United States, or the District of Columbia, which permits such merger or consolidation, pursuant to an agreement of merger or consolidation, as the case may be, complying and approved In accordance with this section.
(b) Each such corporation and limited partnership shall enter into a written 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 stock of each Such corporation and the partnership interests of each such limited partnership Into shares, partnership interests or other securities of the entity surviving or resulting from such merger or consolidation, and if any shares of any such corporation or any partnership interests of any such limited partnership are not to be converted solely into shares, partnership Interests or other securities of the entity surviving or resulting from such merger or
consolidation, the cash, property, rights or securities of any other corporation or entity which the holders of such shares or partnership Interests are to receive in exchange for, or upon conversion of such shares or partnership interests and the surrender of any certificates evidencing them, which cash, property, rights or securities of any other corporation or entity may be in addition to or in lieu of shares, partnership interests or other securities of the entity surviving or resulting from such merger or
consolidation; and (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 of fractional shares or interests of the surviving or resulting corporation or limited partnership. Any of the terms of the agreement of merger or consolidation may be made dependent upon facts ascertainable outside of such agreement, provided that the manner In which such facts shall operate upon the terms of the agreement is clearly and expressly set forth In the agreement of merger or consolidation.
(a) The agreement required by subsection (b) shall be adopted, aPproved, certified. executed and acknowledged by each of the corporations In the same manner as is provided In § 251 of this title and, In the case of the limited
Partnerships, in accordance with their limited partnership agreements and in accordance with the laws of the state under which they are formed, as the case may be. The agreement shall be flied and recorded and shall become effective for all purposes of the laws of this State when and as provided In § 251 of this title with respect to the merger or consolidation of corporations of this State. In lieu of filing and recording the agreement of merger or consolidation, the surviving or resulting corporation or limited partnership may file a certificate of merger or consolidation, executed in accordance with § 103 of this title, ff the surviving or resulting entity is a corporation, or by a general partner, ff the surviving or resulting entity Is a limited partnership, which states: ()) the name and state of domicile of each of the constituent entitles; (2) that an agreement of merger or consolidation has been approved, adopted, certified, executed and acknowledged by each of the constituent entities In accordance with this subsection; (3) the name of the surviving or resulting corporation or limited partnership; (4) in the case of a Merger In which a corporation is the surviving entity, such amendments or changes In the certificate of incorporation of the surviving corporation as are desired to be effected by the merger, or, If no such amendments or changes are desired, a Statement that the certificate of Incorporation of the surviving corporation she)) be its certificate of incorporation; (5) In the case of a consolidation in which a Corporation is the resulting entity, that the certificate of Incorporation of the resulting corporation shall be as is set forth in an attachment to the certificate; (6) that the executed agreement of consolidation or merger is on file at the principal place of business of the surviving corporation or limited partnership and the address thereof; (7) that a copy of the agreement of consolidation or merger will be furnished by the surviving or resulting entity, on request and without cost, to any stockholder of any constituent corporation or any partner of any constituent limited Partnership; and (8) the agreement, if any, required by subsection (d) of this section.
(d) If the entity surviving or resulting from the merger or consolidation Is
to be governed by the laws of the District of Columbia or any state other than 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 or limited partnership of this State, as well as for enforcement of any obligation of the surviving or resulting corporation or limited partnership arising from the merger or consolidation, including any suit or other proceeding to enforce the right of any stockholders as determined In appraisal proceedings pursuant to the provisions of § 262 of this title, and shall irrevocably appoint the Secretary of State as Its agent to accept service of process In any such suit or other proceedings and shall specify the address to which a copy of such process shall be mailed by the Secretary of State. In the event of such service upon the Secretary of State in accordance with this subsection, the Secretary of State shall forthwith notify such surviving or resulting corporation or limited partnership thereof by letter, certified mail, return receipt requested, directed to such surviving pr resulting corporation or limited partnership at Its address so specified, unless such surviving or resulting corporation or limited partnership shall have designated In writing to the Secretary of State a different address for such purpose, In which case It shall be mailed to the last address so designated. Such letter shall enclose a copy of the process and any other papers served on the Secretary of State pursuant to this subsection. It shall be the duty of the plaintiff In the event of such service to serve process and any other papers In duplicate, to notify the Secretary of State that service Is being effected pursuant to this subsection and to pay the Secretary of State the sum of $25.00 for the use of the State, which sum shall be taxed as part of the costs in the proceeding, If the plaintiff shall prevail therein. The Secretary of State shall maintain an alphabetical record of any such service setting forth the name of the plaintiff and the defendant, the title, docket number and nature of the proceeding In which process has been served upon him, the fact that service has been effected pursuant to this subsection, the return date thereof, and the day and hour service was made. The Secretary of State shall not be required to retain such information longer than five years from his receipt of the service of process.
(e) Sections 251(d), 251(e), 251(f), 259 through 261 and 328 of this title
shall, insofar as they are applicable, apply to mergers or consolidations between corporations and limited partnerships.".
Section 11. Amend subsection (1) of §312(d) of Subchapter XII, Chapter 1, Title 8,
Delaware Code, by adding after "of this section" the following: ", and the date of filing
of its original certificate of incorporation with the Secretary of State".
Section 12. Amend subsection (c) of § 371 of Subchapter XV, Chapter 1, Title 8,
Delaware Code, by adding after the names of other corporations" the following: or
limited partnerships", by adding after "registered as a foreign corporation" the
following: or foreign limited partnership", and by adding after such other corporation"
the following: or limited partnership".
Section 13. Amend subsection (4) of §391(a) of Subchapter XVII, Chapter I, Title 8,
Delaware Code, by adding to the end thereof the following: The foregoing tax shall be in
addition to any tax or fee required under any other law of this State to be paid by any constituent entity that is not a corporation in connection with the filing of the certificate of merger or consolidation."
Section 14. Amend § 391, Subchapter XVII, Chapter 1, Title 8, Delaware Code, by adding a new subsection (I) reading as follows:
"(1) A domestic corporation or a foreign corporation registered to do business in this State that files with the Secretary of State any Instrument or certificate, and In connection therewith, neglects, refuses or falls to pay any fee or tax under chapter 1 or chapter 6 of this title shall, after written demand therefor by the Secretary of State by mail addressed to such domestic corporation or foreign corporation In care of Its registered agent in this State, cease to be In good standing as a domestic corporation or registered as a foreign corporation in this State on the 90th day following the date of mailing of such demand, unless such fee or tax and, if applicable, the fee provided for In subsection (g) are paid In full prior to the 90th day following the date of mailing of such demand. A domestic corporation that has ceased to be In good standing or a foreign corporation that has ceased to be registered by reason of the neglect, refusal or failure to pay any such fee or tax shall be restored to and have the status of a domestic corporation In good standing or a foreign corporation that Is registered In this State upon the payment of the fee or tax which such domestic corporation or foreign corporation neglected, refused or failed to pay together with the fee provided for In subsection (g), If applicable. The Secretary of State shall not accept for filing any Instrument authorized to be filed with the Secretary of State under any provision of this title In respect of any domestic corporation that is not In good standing or any foreign corporation that has ceased to be registered by reason of the neglect, refusal or failure to pay any such fee or tax, and shall not Issue any certificate of good standing with respect to such domestic corporation or foreign corporation, unless and until such domestic corporation or foreign corporation shall have been restored to and have the status of a domestic corporation In good standing or a foreign corporation duly registered In this State.".
Section 15. Amend subsection (a) of §2311, Chapter 23, Title 29 of the Delaware Code by adding after "Title 8" the following: "and §2318 of Title 29".
Section 16. Amend subsection (b) of §2311, Chapter 23, Title 29 of the Delaware Code by deleting the word "seven" immediately before the word "appropriated".
Section 17. Amend §2311, Chapter 23, Title 29 of the Delaware Code by adding new
subsections (f) and (g) to read as follows:
"(f) There Is hereby created, within the office of the Secretary of State, a
special fund to be designated as the Secretary of State Special Operations Fund. Funds deposited In said Special Operations Fund shall be used to maintain and improve the capability to perform the operations, functions, and duties of the Secretary of State, Including but not limited to maintaining and improving the statewide communications network maintained by the Secretary of State, creating, maintaining and improving electronic files, creating, maintaining and improving the ability to provide remote access to electronic files maintained by the Secretary of State, and funding appropriated positions relating to such activities.
(g) All fees which are by law payable to the Secretary of State pursuant to 29
Del. C. §2318 shall be deposited in the State Treasury to the credit of said Secretary of State Special Operations Fund. No other fees or taxes collected by the Secretary of State shall be deposited in said fund".
Section 18. Amend Chapter 23, Title 29 of the Delaware Code by adding a new §2318 to read as follows:
"§23I8 Remote access to electronic flies
(a) The Secretary of State may, in his discretion, permit persons remote access to electronic files maintained by the Secretary of State, and may from time to time make, amend, alter and rescind rules and regulations governing remote access to such electronic files.
(b) The Secretary of State shall establish, and may from time to time amend or alter, a schedule of fees and charges payable to the Secretary of State by, and shall collect such fees and charges for the use of the State from, persons permitted remote access to electronic files, such schedule not to exceed $10 for each fee or charge."
Section 19. Except for Section 10, which shall become effective December 1, 1988, this
bill shall become effective upon enactment.
Approved July 12, 1988.