Delaware General Corporation Law – Subchapter IX

Delaware Portal Previous Page Next Page Home Page

 

Corporations

CHAPTER 1. GENERAL CORPORATION LAW

Subchapter IX. Merger, Consolidation or Conversion

§ 251. Merger or consolidation of domestic corporations.

(a) Any 2 or more corporations existing
under the laws of this State may merge into a single corporation, which
may be any 1 of the constituent corporations or may consolidate into a
new corporation formed by the consolidation, pursuant to an agreement
of merger or consolidation, as the case may be, complying and approved
in accordance with this section.

(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 and
declaring its advisability. The agreement shall state: (1) The terms
and conditions of the merger or consolidation; (2) the mode of carrying
the same into effect; (3) in the case of a merger, 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 shall be its certificate of
incorporation; (4) in the case of a consolidation, that the certificate
of incorporation of the resulting corporation shall be as is set forth
in an attachment to the agreement; (5) the manner, if any, 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, or of cancelling some or all of such
shares, and, if any shares of any of the constituent corporations are
not to remain outstanding, to be converted solely into shares or other
securities of the surviving or resulting corporation or to be
cancelled, the cash, property, rights or securities of any other
corporation or entity which the holders of such shares are to receive
in exchange for, or upon conversion of such shares 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 surviving or resulting
corporation; and (6) 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 § 155 of this title.
The agreement so adopted shall be executed and acknowledged in
accordance with § 103 of this title. 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. The term “facts,” as used in the preceding sentence,
includes, but is not limited to, the occurrence of any event, including
a determination or action by any person or body, including the
corporation.

(c) The agreement required by subsection
(b) of this section shall be submitted to the stockholders of each
constituent corporation at an annual or special meeting 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 the stockholder’s address as it
appears on the records of the corporation, at least 20 days prior to
the date of the meeting. The notice shall contain a copy of the
agreement or a brief summary thereof, as the directors shall deem
advisable. 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,
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. If the agreement shall be so adopted and certified by
each constituent corporation, it shall then be filed and shall become
effective, in accordance with § 103 of this title. In lieu of filing
the agreement of merger or consolidation required by this section, the
surviving or resulting corporation may file a certificate of merger or
consolidation, executed in accordance with § 103 of this title, which
states:

(1) The name and state of incorporation of each of the constituent corporations;

(2) That an agreement of merger or
consolidation has been approved, adopted, executed and acknowledged by
each of the constituent corporations in accordance with this section;

(3) The name of the surviving or resulting corporation;

(4) In the case of a merger, 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 shall be its
certificate of incorporation;

(5) In the case of a consolidation, that
the certificate of incorporation of the resulting corporation shall be
as set forth in an attachment to the certificate;

(6) That the executed agreement of
consolidation or merger is on file at an office of the surviving
corporation, stating the address thereof; and

(7) That a copy of the agreement of
consolidation or merger will be furnished by the surviving corporation,
on request and without cost, to any stockholder of any constituent
corporation.

(d) Any agreement of merger or
consolidation may contain a provision that at any time prior to the
time that the agreement (or a certificate in lieu thereof) filed with
the Secretary of State becomes effective in accordance with § 103 of
this title, the agreement may be terminated by the board of directors
of any constituent corporation notwithstanding approval of the
agreement by the stockholders of all or any of the constituent
corporations; in the event the agreement of merger or consolidation is
terminated after the filing of the agreement (or a certificate in lieu
thereof) with the Secretary of State but before the agreement (or a
certificate in lieu thereof) has become effective, a certificate of
termination or merger or consolidation shall be filed in accordance
with § 103 of this title. Any agreement of merger or consolidation may
contain a provision that the boards of directors of the constituent
corporations may amend the agreement at any time prior to the time that
the agreement (or a certificate in lieu thereof) filed with the
Secretary of State becomes effective in accordance with § 103 of this
title, provided that an amendment made subsequent to the adoption of
the agreement by the stockholders of any constituent corporation shall
not (1) alter or change the amount or kind of shares, securities, cash,
property and/or rights to be received in exchange for or on conversion
of all or any of the shares of any class or series thereof of such
constituent corporation, (2) alter or change any term of the
certificate of incorporation of the surviving corporation to be
effected by the merger or consolidation, or (3) alter or change any of
the terms and conditions of the agreement if such alteration or change
would adversely affect the holders of any class or series thereof of
such constituent corporation; in the event the agreement of merger or
consolidation is amended after the filing thereof with the Secretary of
State but before the agreement has become effective, a certificate of
amendment of merger or consolidation shall be filed in accordance with
§ 103 of this title.

(e) In the case of a merger, the
certificate of incorporation of the surviving corporation shall
automatically be amended to the extent, if any, that changes in the
certificate of incorporation are set forth in the agreement of merger.

(f) Notwithstanding the requirements of
subsection (c) of this section, 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 such constituent corporation, (2) each share of stock
of such constituent corporation outstanding immediately prior to the
effective date of the merger is to be an identical outstanding or
treasury share of the surviving corporation after the effective date of
the merger, and (3) either no shares of common stock of the surviving
corporation and no shares, securities or obligations convertible into
such stock are to be issued or delivered under the plan of merger, or
the authorized unissued shares or the treasury shares of common stock
of the surviving corporation to be issued or delivered under the plan
of merger plus those initially issuable upon conversion of any other
shares, securities or obligations to be issued or delivered under such
plan do not exceed 20% of the shares of common stock of such
constituent corporation outstanding immediately prior to the effective
date of the merger. No vote of stockholders of a constituent
corporation shall be necessary to authorize a merger or consolidation
if no shares of the stock of such corporation shall have been issued
prior to the adoption by the board of directors of the resolution
approving the agreement of merger or consolidation. 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 that the
agreement has been adopted pursuant to this subsection and, (1) if it
has been adopted pursuant to the first sentence of this subsection,
that the conditions specified in that sentence have been satisfied, or
(2) if it has been adopted pursuant to the second sentence of this
subsection, that no shares of stock of such corporation were issued
prior to the adoption by the board of directors of the resolution
approving the agreement of merger or consolidation, 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.
The agreement so adopted and certified shall then be filed and shall
become effective, in accordance with § 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.

(g) Notwithstanding the requirements of
subsection (c) of this section, unless expressly required by its
certificate of incorporation, no vote of stockholders of a constituent
corporation shall be necessary to authorize a merger with or into a
single direct or indirect wholly-owned subsidiary of such constituent
corporation if: (1) such constituent corporation and the direct or
indirect wholly-owned subsidiary of such constituent corporation are
the only constituent entities to the merger; (2) each share or fraction
of a share of the capital stock of the constituent corporation
outstanding immediately prior to the effective time of the merger is
converted in the merger into a share or equal fraction of share of
capital stock of a holding company having the same designations,
rights, powers and preferences, and the qualifications, limitations and
restrictions thereof, as the share of stock of the constituent
corporation being converted in the merger; (3) the holding company and
the constituent corporation are corporations of this State and the
direct or indirect wholly-owned subsidiary that is the other
constituent entity to the merger is a corporation or limited liability
company of this State; (4) the certificate of incorporation and by-laws
of the holding company immediately following the effective time of the
merger contain provisions identical to the certificate of incorporation
and by-laws of the constituent corporation immediately prior to the
effective time of the merger (other than provisions, if any, regarding
the incorporator or incorporators, the corporate name, the registered
office and agent, the initial board of directors and the initial
subscribers for shares and such provisions contained in any amendment
to the certificate of incorporation as were necessary to effect a
change, exchange, reclassification, subdivision, combination or
cancellation of stock, if such change, exchange, reclassification,
subdivision, combination, or cancellation has become effective); (5) as
a result of the merger the constituent corporation or its successor
becomes or remains a direct or indirect wholly-owned subsidiary of the
holding company; (6) the directors of the constituent corporation
become or remain the directors of the holding company upon the
effective time of the merger; (7) the organizational documents of the
surviving entity immediately following the effective time of the merger
contain provisions identical to the certificate of incorporation of the
constituent corporation immediately prior to the effective time of the
merger (other than provisions, if any, regarding the incorporator or
incorporators, the corporate or entity name, the registered office and
agent, the initial board of directors and the initial subscribers for
shares, references to members rather than stockholders or shareholders,
references to interests, units or the like rather than stock or shares,
references to managers, managing members or other members of the
governing body rather than directors and such provisions contained in
any amendment to the certificate of incorporation as were necessary to
effect a change, exchange, reclassification, subdivision, combination
or cancellation of stock, if such change, exchange, reclassification,
subdivision, combination or cancellation has become effective);
provided, however, that (i) if the organizational documents of the
surviving entity do not contain the following provisions, they shall be
amended in the merger to contain provisions requiring that (A) any act
or transaction by or involving the surviving entity, other than the
election or removal of directors or managers, managing members or other
members of the governing body of the surviving entity, that requires
for its adoption under this chapter or its organizational documents the
approval of the stockholders or members of the surviving entity shall,
by specific reference to this subsection, require, in addition, the
approval of the stockholders of the holding company (or any successor
by merger), by the same vote as is required by this chapter and/or by
the organizational documents of the surviving entity; provided,
however, that for purposes of this clause (i)(A), any surviving entity
that is not a corporation shall include in such amendment a requirement
that the approval of the stockholders of the holding company be
obtained for any act or transaction by or involving the surviving
entity, other than the election or removal of directors or managers,
managing members or other members of the governing body of the
surviving entity, which would require the approval of the stockholders
of the surviving entity if the surviving entity were a corporation
subject to this chapter; (B) any amendment of the organizational
documents of a surviving entity that is not a corporation, which
amendment would, if adopted by a corporation subject to this chapter,
be required to be included in the certificate of incorporation of such
corporation, shall, by specific reference to this subsection, require,
in addition, the approval of the stockholders of the holding company
(or any successor by merger), by the same vote as is required by this
chapter and/or by the organizational documents of the surviving entity;
and (C) the business and affairs of a surviving entity that is not a
corporation shall be managed by or under the direction of a board of
directors, board of managers or other governing body consisting of
individuals who are subject to the same fiduciary duties applicable to,
and who are liable for breach of such duties to the same extent as,
directors of a corporation subject to this chapter; and (ii) the
organizational documents of the surviving entity may be amended in the
merger (A) to reduce the number of classes and shares of capital stock
or other equity interests or units that the surviving entity is
authorized to issue and (B) to eliminate any provision authorized by
subsection (d) of § 141 of this title; and (8) the stockholders of the
constituent corporation do not recognize gain or loss for United States
federal income tax purposes as determined by the board of directors of
the constituent corporation. Neither subdivision (g)(7)(i) of this
section nor any provision of a surviving entity’s organizational
documents required by subdivision (g)(7)(i) shall be deemed or
construed to require approval of the stockholders of the holding
company to elect or remove directors or managers, managing members or
other members of the governing body of the surviving entity. The term
“organizational documents”, as used in subdivision (g)(7) and in the
preceding sentence, shall, when used in reference to a corporation,
mean the certificate of incorporation of such corporation, and when
used in reference to a limited liability company, mean the limited
liability company agreement of such limited liability company.

As used in this subsection only, the term
“holding company” means a corporation which, from its incorporation
until consummation of a merger governed by this subsection, was at all
times a direct or indirect wholly-owned subsidiary of the constituent
corporation and whose capital stock is issued in such merger. From and
after the effective time of a merger adopted by a constituent
corporation by action of its board of directors and without any vote of
stockholders pursuant to this subsection: (i) to the extent the
restrictions of § 203 of this title applied to the constituent
corporation and its stockholders at the effective time of the merger,
such restrictions shall apply to the holding company and its
stockholders immediately after the effective time of the merger as
though it were the constituent corporation, and all shares of stock of
the holding company acquired in the merger shall for purposes of § 203
of this title be deemed to have been acquired at the time that the
shares of stock of the constituent corporation converted in the merger
were acquired, and provided further that any stockholder who
immediately prior to the effective time of the merger was not an
interested stockholder within the meaning of § 203 of this title shall
not solely by reason of the merger become an interested stockholder of
the holding company, (ii) if the corporate name of the holding company
immediately following the effective time of the merger is the same as
the corporate name of the constituent corporation immediately prior to
the effective time of the merger, the shares of capital stock of the
holding company into which the shares of capital stock of the
constituent corporation are converted in the merger shall be
represented by the stock certificates that previously represented
shares of capital stock of the constituent corporation and (iii) to the
extent a stockholder of the constituent corporation immediately prior
to the merger had standing to institute or maintain derivative
litigation on behalf of the constituent corporation, nothing in this
section shall be deemed to limit or extinguish such standing. If an
agreement of merger is adopted by a constituent corporation by action
of its board of directors and without any vote of stockholders pursuant
to this subsection, the secretary or assistant secretary of the
constituent corporation shall certify on the agreement that the
agreement has been adopted pursuant to this subsection and that the
conditions specified in the first sentence of this subsection have been
satisfied, 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. The agreement so adopted and certified
shall then be filed and become effective, in accordance with § 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. (8 Del. C. 1953, § 251;
56 Del. Laws, c. 50; 56 Del. Laws, c. 186, § 16; 57 Del. Laws, c. 148,
§ 22; 57 Del. Laws, c. 421, §§ 8, 9; 58 Del. Laws, c. 235, § 5; 59 Del.
Laws, c. 437, §§ 12-14; 64 Del. Laws, c. 112, §§ 30-33; 66 Del. Laws,
c. 136, §§ 17-23; 67 Del. Laws, c. 376, §§ 11, 12; 68 Del. Laws, c.
337, § 1; 69 Del. Laws, c. 235, § 5; 70 Del. Laws, c. 79, §§ 13-15; 70
Del. Laws, c. 186, § 1; 70 Del. Laws, c. 349, §§ 8, 17; 70 Del. Laws,
c. 186, § 1; 70 Del. Laws, c. 587, §§ 17, 18; 71 Del. Laws, c. 339, §§
43, 44; 72 Del. Laws, c. 123, § 7; 73 Del. Laws, c. 82, §§ 14-20; 74
Del. Laws, c. 84, §§ 10, 11; 75 Del. Laws, c. 30, § 3; 76 Del. Laws, c.
145, §§ 4-7.)

§ 252. Merger or consolidation of domestic and foreign corporations; service of process upon surviving or resulting corporation.

(a) Any 1 or more corporations of this
State may merge or consolidate with 1 or more other corporations of any
other state or states of the United States, or of the District of
Columbia if the laws of the 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 1 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 1 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 1 or more
corporations existing under the laws of this State may merge or
consolidate with 1 or more corporations organized under the laws of any
jurisdiction other than 1 of the United States if the laws under which
the other corporation or corporations are organized 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, if any, 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, or of
cancelling some or all of such shares, and, if any shares of any of the
constituent corporations are not to remain outstanding, to be converted
solely into shares or other securities of the surviving or resulting
corporation or to be cancelled, the cash, property, rights or
securities of any other corporation or entity which the holders of such
shares are to receive in exchange for, or upon conversion of, such
shares 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 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 §
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. 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. The term “facts,” as used in the preceding sentence,
includes, but is not limited to, the occurrence of any event, including
a determination or action by any person or body, including the
corporation.

(c) The agreement shall be adopted,
approved, certified, executed and acknowledged by each of the
constituent corporations in accordance with the laws under which it is
formed, and, in the case of a Delaware corporation, in the same manner
as is provided in § 251 of this title. The agreement shall be filed 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 the
agreement of merger or consolidation, the surviving or resulting
corporation may file a certificate of merger or consolidation, executed
in accordance with § 103 of this title, which states:

(1) The name and state or jurisdiction of incorporation of each of the constituent corporations;

(2) That an agreement of merger or
consolidation has been approved, adopted, certified, executed and
acknowledged by each of the constituent corporations in accordance with
this subsection;

(3) The name of the surviving or resulting corporation;

(4) In the case of a merger, 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 shall be its
certificate of incorporation;

(5) In the case of a consolidation, 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 an office of the surviving
corporation and the address thereof;

(7) That a copy of the agreement of
consolidation or merger will be furnished by the surviving corporation,
on request and without cost, to any stockholder of any constituent
corporation;

(8) If the corporation surviving or
resulting from the merger or consolidation is to be a corporation of
this State, the authorized capital stock of each constituent
corporation which is not a corporation of this State; and

(9) The agreement, if any, required by subsection (d) of this section.

(d) If the corporation surviving or
resulting from the merger or consolidation is to be governed by the
laws of the District of Columbia or any state or jurisdiction 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 of this State, as well as for enforcement of
any obligation of the surviving or resulting corporation 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 § 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 thereof by
letter, certified mail, return receipt requested, directed to such
surviving or resulting corporation at its address so specified, unless
such surviving or resulting corporation shall have designated in
writing to the Secretary of State a different address for such purpose,
in which case it shall be mailed to the last address 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 $50 for the use of the State,
which sum shall be taxed as part of the costs in the proceeding, if the
plaintiff shall prevail therein. The Secretary of State shall maintain
an alphabetical record of any such service setting forth the name of
the plaintiff and the defendant, the title, docket number and nature of
the proceeding in which process has been served, the fact that service
has been effected pursuant to this subsection, the return date thereof,
and the day and hour service was made. The Secretary of State shall not
be required to retain such information longer than 5 years from receipt
of the service of process.

(e) Subsection (d) and the second
sentence of subsection (c) of § 251 of this title shall apply to any
merger or consolidation under this section; subsection (e) of § 251 of
this title shall apply to a merger under this section in which the
surviving corporation is a corporation of this State; subsection (f) of
§ 251 of this title shall apply to any merger under this section. (8
Del. C. 1953, § 252; 56 Del. Laws, c. 50; 56 Del. Laws, c. 186, § 17;
57 Del. Laws, c. 148, § 23; 59 Del. Laws, c. 437, §§ 15, 16; 64 Del.
Laws, c. 112, §§ 34, 35; 66 Del. Laws, c. 136, §§ 24, 25; 67 Del. Laws,
c. 190, § 4; 68 Del. Laws, c. 337, § 2; 69 Del. Laws, c. 61, §§ 4-6; 70
Del. Laws, c. 186, § 1; 70 Del. Laws, c. 349, §§ 9, 18; 70 Del. Laws,
c. 587, § 19; 71 Del. Laws, c. 339, § 45; 74 Del. Laws, c. 84, § 12.)

§ 253. Merger of parent corporation and subsidiary or subsidiaries.

(a) In any case in which at least 90% of
the outstanding shares of each class of the stock of a corporation or
corporations (other than a corporation which has in its certificate of
incorporation the provision required by § 251(g)(7)(i) of this title),
of which class there are outstanding shares that, absent this
subsection, would be entitled to vote on such merger, is owned by
another corporation and 1 of the corporations is a corporation of this
State and the other or others are corporations of this State, or any
other state or states, or the District of Columbia and the laws of the
other state or states, or 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 the other
corporation or corporations into itself and assume all of its or their
obligations, or merge itself, or itself and 1 or more of such other
corporations, into 1 of the other corporations by executing,
acknowledging and filing, in accordance with § 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; 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, or the
cancellation of some or all of such shares. Any of the terms of the
resolution of the board of directors to so merge may be made dependent
upon facts ascertainable outside of such resolution, provided that the
manner in which such facts shall operate upon the terms of the
resolution is clearly and expressly set forth in the resolution. The
term “facts,” as used in the preceding sentence, includes, but is not
limited to, the occurrence of any event, including a determination or
action by any person or body, including the 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 any 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 duly called and held
after 20 days’ notice of the purpose of the meeting mailed to each such
stockholder at the stockholder’s address as it appears on the records
of the corporation if the parent corporation is a corporation of this
State or state that the proposed merger has been adopted, approved,
certified, executed and acknowledged by the parent corporation in
accordance with the laws under which it is organized if the parent
corporation is not a corporation of this State. If the surviving
corporation exists under the laws of the District of Columbia or any
state or jurisdiction other than this State, subsection (d) of § 252 of
this title shall also apply to a merger under this section.

(b) If the surviving corporation is a
Delaware corporation, it may change its corporate name by the inclusion
of a provision to that effect in the resolution of merger adopted by
the directors of the parent corporation and set forth in the
certificate of ownership and merger, and upon the effective date of the
merger, the name of the corporation shall be so changed.

(c) Subsection (d) of § 251 of this title
shall apply to a merger under this section, and subsection (e) of § 251
of this title shall apply to a merger under this section in which the
surviving corporation is the subsidiary corporation and is a
corporation of this State. References to “agreement of merger” in
subsections (d) and (e) of § 251 of this title shall mean for purposes
of this subsection the resolution of merger adopted by the board of
directors of the parent corporation. Any merger which effects any
changes other than those authorized by this section or made applicable
by this subsection shall be accomplished under § 251 or § 252 of this
title. Section 262 of this title shall not apply to any merger effected
under this section, except as provided in subsection (d) of this
section.

(d) In the event all of the stock of a
subsidiary Delaware corporation party to a merger effected under this
section is not owned by the parent corporation immediately prior to the
merger, the stockholders of the subsidiary Delaware corporation party
to the merger shall have appraisal rights as set forth in § 262 of this
title.

(e) A merger may be effected under this
section although 1 or more of the corporations parties to the merger is
a corporation organized under the laws of a jurisdiction other than 1
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. (8 Del. C. 1953, § 253; 56 Del. Laws, c. 50;
56 Del. Laws, c. 186, § 18; 57 Del. Laws, c. 148, § 24; 59 Del. Laws,
c. 106, §§ 10, 11; 60 Del. Laws, c. 371, § 2; 63 Del. Laws, c. 25, §
13; 64 Del. Laws, c. 112, §§ 36, 37; 66 Del. Laws, c. 136, § 26; 69
Del. Laws, c. 61, §§ 7, 8; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c.
299, § 1; 70 Del. Laws, c. 349, § 10; 70 Del. Laws, c. 587, § 20; 72
Del. Laws, c. 123, § 8; 74 Del. Laws, c. 84, § 13.)

§ 254. Merger or consolidation of domestic corporation and joint-stock or other association.

(a) The term “joint-stock association” as
used in this section, includes any association of the kind commonly
known as a joint-stock association or joint-stock company and any
unincorporated association, trust or enterprise having members or
having outstanding shares of stock or other evidences of financial or
beneficial interest therein, whether formed by agreement or under
statutory authority or otherwise, but does not include a corporation,
partnership or limited liability company. The term “stockholder” as
used in this section, includes every member of such joint-stock
association or holder of a share of stock or other evidence of
financial or beneficial interest therein.

(b) Any 1 or more corporations of this
State may merge or consolidate with 1 or more joint-stock associations,
except a joint-stock association formed under the laws of a state which
forbids such merger or consolidation. Such corporation or corporations
and such 1 or more joint-stock associations may merge into a single
corporation, or joint-stock association, which may be any one of such
corporations or joint-stock associations, or they may consolidate into
a new corporation or joint-stock association of this State, pursuant to
an agreement of merger or consolidation, as the case may be, complying
and approved in accordance with this section. The surviving or
resulting entity may be organized for profit or not organized for
profit, and if the surviving or resulting entity is a corporation, it
may be a stock corporation or a nonstock corporation.

(c) Each such corporation and joint-stock
association 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, if any, of converting the shares of stock of
each stock corporation, the interest of members of each nonstock
corporation, and the shares, membership 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 nonstock
corporation or into shares, memberships or financial or beneficial
interests of the joint-stock association surviving or resulting from
such merger or consolidation, or of cancelling some or all of such
shares, memberships or financial or beneficial interests, and, if any
shares of any such stock corporation, any membership interests of any
such nonstock corporation or any shares, memberships or financial or
beneficial interests in any such joint-stock association are not to
remain outstanding, to be converted solely into shares or other
securities of the stock corporation or membership interests of the
nonstock corporation or into shares, memberships or financial or
beneficial interests of the joint-stock association surviving or
resulting from such merger or consolidation or to be cancelled, 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 nonstock 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 nonstock corporation
or shares, memberships or financial or beneficial interests of the
joint-stock association 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 where the surviving or resulting entity is a
corporation. There shall also be set forth in the agreement such other
matters or provisions as shall then be required to be set forth in
certificates of incorporation or documents required to establish and
maintain a joint-stock association by the laws of this State and that
can be stated in the case of such merger or consolidation. 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. The term “facts,” as used in the preceding sentence,
includes, but is not limited to, the occurrence of any event, including
a determination or action by any person or body, including the
corporation.

(d) The agreement required by subsection
(c) of this section shall be adopted, approved, certified, executed and
acknowledged by each of the stock or nonstock corporations in the same
manner as is provided in § 251 or § 255 of this title, respectively,
and in the case of the joint-stock associations in accordance with
their articles of association or other instrument containing the
provisions by which they are organized or regulated or in accordance
with the laws of the state under which they are formed, as the case may
be. Where the surviving or resulting entity is a corporation, the
agreement shall be filed 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 the agreement of merger or consolidation, where the
surviving or resulting entity is a corporation it may file a
certificate of merger or consolidation, executed in accordance with §
103 of this title, which states:

(1) The name and state of domicile of each of the constituent entities;

(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;

(4) In the case of a merger, 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 shall be its
certificate of incorporation;

(5) In the case of a consolidation, 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 an office of the surviving
corporation and the address thereof; and

(7) That a copy of the agreement of
consolidation or merger will be furnished by the surviving corporation,
on request and without cost, to any stockholder of any constituent
entity.

Where the surviving or resulting entity is
a joint-stock association, the agreement shall be filed and shall be
effective for all purposes when filed in accordance with the laws
regulating the creation of joint-stock associations.

(e) Sections 251(d), 251(e), 251(f),
252(d), 259 through 262 and 328 of this title shall, insofar as they
are applicable, apply to mergers or consolidations between corporations
and joint-stock associations; the word “corporation” where applicable,
as used in those sections, being deemed to include joint-stock
associations as defined herein. The second sentence of § 251(c) of this
title shall be applicable to any merger or consolidation under this
section. Where the surviving or resulting entity is a corporation, the
personal liability, if any, of any stockholder of a joint-stock
association existing at the time of such merger or consolidation shall
not thereby be extinguished, shall remain personal to such stockholder
and shall not become the liability of any subsequent transferee of any
share of stock in such surviving or resulting corporation or of any
other stockholder of such surviving or resulting corporation.

(f) Nothing in this section shall be
deemed to authorize the merger of a charitable nonstock corporation or
charitable joint-stock association into a stock corporation or
joint-stock association if the charitable status of such nonstock
corporation or joint-stock association would be thereby lost or
impaired, but a stock corporation or joint-stock association may be
merged into a charitable nonstock corporation or charitable joint-stock
association which shall continue as the surviving corporation or
joint-stock association. (8 Del. C. 1953, § 254; 56 Del. Laws, c. 50;
57 Del. Laws, c. 421, § 10; 59 Del. Laws, c. 437, §§ 17, 18; 64 Del.
Laws, c. 112, § 38; 66 Del. Laws, c. 136, §§ 27, 28; 66 Del. Laws, c.
352, §§ 4-6; 67 Del. Laws, c. 376, §§ 13-17; 69 Del. Laws, c. 61, § 9;
70 Del. Laws, c. 349, §§ 11, 19; 70 Del. Laws, c. 587, § 21; 71 Del.
Laws, c. 120, § 14; 71 Del. Laws, c. 339, § 46; 74 Del. Laws, c. 84, §
14.)

§ 255. Merger or consolidation of domestic nonstock corporations.

(a) Any 2 or more nonstock corporations
of this State, whether or not organized for profit, may merge into a
single corporation, which may be any 1 of the constituent corporations,
or they may consolidate into a new nonstock corporation, whether or not
organized for profit, formed by the consolidation, pursuant to an
agreement of merger or consolidation, as the case may be, complying and
approved in accordance with this section.

(b) The governing body 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
other provisions or facts required or permitted by this chapter to be
stated in a certificate of incorporation for nonstock corporations as
can be stated in the case of a merger or consolidation, stated in such
altered form as the circumstances of the case require; (4) the manner,
if any, of converting the memberships of each of the constituent
corporations into memberships of the corporation surviving or resulting
from the merger or consolidation, or of cancelling some or all of such
membership interests; and (5) such other details or provisions as are
deemed desirable. 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. The term “facts,” as
used in the preceding sentence, includes, but is not limited to, the
occurrence of any event, including a determination or action by any
person or body, including the corporation.

(c) The agreement shall be submitted to
the members of each constituent corporation who have the right to vote
for the election of the members of the governing body of their
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 member of each such corporation who
has the right to vote for the election of the members of the governing
body of the corporation, at the member’s address as it appears on the
records of the corporation, at least 20 days prior to the date of the
meeting. The notice shall contain a copy of the agreement or a brief
summary thereof, as the governing body shall deem advisable. At the
meeting the agreement shall be considered and a vote by ballot, in
person or by proxy, taken for the adoption or rejection of the
agreement. If a majority of the voting power of members of each such
corporation who have the voting power above mentioned shall be for the
adoption of the agreement, then that fact shall be certified on the
agreement by the officer of each such corporation performing the duties
ordinarily performed by the secretary or assistant secretary of a
corporation, 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. The agreement so adopted and certified
shall be executed, acknowledged and filed, and shall become effective,
in accordance with § 103 of this title. The provisions set forth in the
last sentence of subsection (c) of § 251 shall apply to a merger under
this section, and the reference therein to “stockholder” shall be
deemed to include “member” hereunder.

(d) If, under the certificate of
incorporation of any 1 or more of the constituent corporations, there
shall be no members who have the right to vote for the election of the
members of the governing body of the corporation other than the members
of that body themselves, the agreement duly entered into as provided in
subsection (b) of this section shall be submitted to the members of the
governing body of such corporation or corporations, at a meeting
thereof. Notice of the meeting shall be mailed to the members of the
governing body in the same manner as is provided in the case of a
meeting of the members of a corporation. If at the meeting two thirds
of the total number of members of the governing body shall vote by
ballot, in person, for the adoption of the agreement, that fact shall
be certified on the agreement in the same manner as is provided in the
case of the adoption of the agreement by the vote of the members of a
corporation, 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, and thereafter the same procedure shall
be followed to consummate the merger or consolidation.

(e) Subsection (e) of § 251 shall apply to a merger under this section.

(f) Nothing in this section shall be
deemed to authorize the merger of a charitable nonstock corporation
into a nonstock corporation if such charitable nonstock corporation
would thereby have its charitable status lost or impaired; but a
nonstock corporation may be merged into a charitable nonstock
corporation which shall continue as the surviving corporation. (8 Del.
C. 1953, § 255; 56 Del. Laws, c. 50; 56 Del. Laws, c. 186, § 19; 58
Del. Laws, c. 235, § 6; 59 Del. Laws, c. 437, §§ 19, 20; 64 Del. Laws,
c. 112, §§ 39-41; 66 Del. Laws, c. 136, § 29; 70 Del. Laws, c. 349, §
12; 70 Del. Laws, c. 186, § 1; 70 Del. Laws, c. 587, § 22; 72 Del.
Laws, c. 123, § 9; 74 Del. Laws, c. 84, § 15; 76 Del. Laws, c. 145, §§
8, 9.)

§ 256. Merger or
consolidation of domestic and foreign nonstock corporations; service of
process upon surviving or resulting corporation.

(a) Any 1 or more nonstock corporations
of this State may merge or consolidate with 1 or more other nonstock
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 with
a corporation of another jurisdiction. The constituent corporations may
merge into a single corporation, which may be any 1 of the constituent
corporations, or they may consolidate into a new nonstock corporation
formed by the consolidation, which may be a corporation of the state of
incorporation of any 1 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 1 or more
nonstock corporations organized under the laws of any jurisdiction
other than 1 of the United States may merge or consolidate with 1 or
more nonstock corporations 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 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, if any, of converting the memberships of each of the
constituent corporations into memberships of the corporation surviving
or resulting from such merger or consolidation or of cancelling some or
all of such memberships; (4) such other details and provisions as shall
be deemed desirable; and (5) such other provisions or facts as shall
then be required to be stated in a certificate 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. 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. The term “facts,” as used in the preceding sentence,
includes, but is not limited to, the occurrence of any event, including
a determination or action by any person or body, including the
corporation.

(c) The agreement shall be adopted,
approved, certified, executed and acknowledged by each of the
constituent corporations in accordance with the laws under which it is
formed and, in the case of a Delaware corporation, in the same manner
as is provided in § 255 of this title. The agreement shall be filed and
shall become effective for all purposes of the laws of this State when
and as provided in § 255 of this title with respect to the merger of
nonstock corporations of this State. Insofar as they may be applicable,
the provisions set forth in the last sentence of subsection (c) of §
252 of this title shall apply to a merger under this section, and the
reference therein to “stockholder” shall be deemed to include “member”
hereunder.

(d) If the corporation surviving or
resulting from the merger or consolidation is to be governed by the
laws of 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 of this State, as well as
for enforcement of any obligation of the surviving or resulting
corporation arising from the merger or consolidation and shall
irrevocably appoint the Secretary of State as its agent to accept
service of process in any 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 thereof by
letter, certified mail, return receipt requested, directed to such
corporation at its address so specified, unless such surviving or
resulting corporation shall have designated in writing to the Secretary
of State a different address for such purpose, in which case it shall
be mailed to the last address so designated. Such letter shall enclose
a copy of the process and any other papers served upon the Secretary of
State. 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 made pursuant to this
subsection, and to pay the Secretary of State the sum of $50 for the
use of the State, which sum shall be taxed as a 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 defendant, the title, docket number
and nature of the proceeding in which process has been served upon the
Secretary of State, the fact that service has been effected pursuant to
this subsection, the return date thereof, and the day and hour when the service was made. The Secretary of State shall not be required to
retain such information for a period longer than 5 years from receipt
of the service of process.

(e) Subsection (e) of § 251 of this title
shall apply to a merger under this section if the corporation surviving
the merger is a corporation of this State. (8 Del. C. 1953, § 256; 56
Del. Laws, c. 50; 56 Del. Laws, c. 186, § 20; 57 Del. Laws, c. 148, §
25; 59 Del. Laws, c. 437, §§ 21, 22; 64 Del. Laws, c. 112, §§ 42, 43;
67 Del. Laws, c. 190, § 5; 67 Del. Laws, c. 376, § 18; 70 Del. Laws, c.
349, § 13; 70 Del. Laws, c. 587, § 23; 71 Del. Laws, c. 339, § 47; 74
Del. Laws, c. 84, § 16.)

§ 257. Merger or consolidation of domestic stock and nonstock corporations.

(a) Any 1 or more nonstock corporations
of this State, whether or not organized for profit, may merge or
consolidate with 1 or more stock corporations of this State, whether or
not organized for profit. The constituent corporations may merge into a
single corporation, which may be any 1 of the constituent corporations,
or they may consolidate into a new corporation formed by the
consolidation, pursuant to an agreement of merger or consolidation, as
the case may be, complying and approved in accordance with this
section. The surviving constituent corporation or the new corporation
may be organized for profit or not organized for profit and may be a
stock corporation or a nonstock corporation.

(b) The board of directors of each stock
corporation which desires to merge or consolidate and the governing
body of each nonstock 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 other provisions or facts required or permitted by
this chapter to be stated in a certificate of incorporation as can be
stated in the case of a merger or consolidation, stated in such altered
form as the circumstances of the case require; (4) the manner, if any,
of converting the shares of stock of a stock corporation and the
interests of the members of a nonstock corporation into shares or other
securities of a stock corporation or membership interests of a nonstock
corporation surviving or resulting from such merger or consolidation or
of cancelling some or all of such shares or interests, and, if any
shares of any such stock corporation or membership interests of any
such nonstock corporation are not to remain outstanding, to be
converted solely into shares or other securities of the stock
corporation or membership interests of the nonstock corporation
surviving or resulting from such merger or consolidation or to be
cancelled, 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 nonstock 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 nonstock corporation surviving or resulting from such merger or
consolidation; and (5) such other details or provisions as are deemed
desirable. In such merger or consolidation the interests of members of
a constituent nonstock corporation may be treated in various ways so as
to convert such interests into interests of value, other than shares of
stock, in the surviving or resulting stock corporation or into shares
of stock in the surviving or resulting stock corporation, voting or
nonvoting, or into creditor interests or any other interests of value
equivalent to their membership interests in their nonstock corporation.
The voting rights of members of a constituent nonstock corporation need
not be considered an element of value in measuri

Close Menu
×
×

Basket