SB 273

Abstract

Section 1. Section 1 of this Act amends Section 102(b)(7). The amendment to Section 102(b)(7) authorizes a provision in the certificate of incorporation to eliminate or limit monetary liability of certain corporate officers for breach of fiduciary duty, but it precludes such elimination or limitation with respect to claims brought by or in the right of the corporation, and for the same types of claims with respect to which exculpation of directors is not permissible. Section 2. Section 2 of this Act amends Section 103(b)(2) and 103(c)(5). The amendment to Section 103(b)(2) clarifies that the execution of an instrument by a person constitutes an oath or affirmation, under penalties of perjury, that the facts stated therein shall be true at the time such instrument becomes effective. The amendment to Section 103(c)(5) deletes provisions to the extent they do not reflect current practice. Sections 3, 4 and 5. Section 3, 4 and 5 of this Act amend Sections 152, 153, and 157 to make these sections consistent so that similar rules apply for the board of directors to delegate to a person or body the authority to enter into transactions to issue stock under Section 152, sell treasury shares under Section 153, and issue rights or options to acquire stock under Section 157. A board of directors may so delegate this authority by adopting a resolution fixing all of the following: (1) The maximum number of shares of stock, rights, or options that the delegate may issue or sell. (2) A time period during which the issuances or sales may occur. (3) Subject to Section 153, the minimum amount of consideration to be received for the issuances or sales. For the issuance of rights or options, the board resolutions must fix these delegation parameters for both the rights or options to be issued and the shares of stock issuable on exercise thereof. A person or body to whom authority has been delegated to issue stock, rights, or options may not issue or sell to themselves any stock, rights, or options. Amended Sections 152, 153 and 157 permit delegation to a person or body “in addition to the board of directors”, which means in addition to the board of directors and committees that are the equivalent of the board of directors by operation of Section 141(c). Accordingly, the delegation rules set forth in amended Sections 152(b), 153(c), and 157(c) do not apply to delegation by the board of directors to board committees, but a board committee may, if authorized by the board, sub-delegate the committee’s authority to issue or sell stock, rights, or options to a person or body by complying with those Sections. Amended Sections 152, 153 and 157 also clarify when a board resolution providing for the issuance or sale of stock, rights, or options may be made dependent on “facts ascertainable” outside the resolution. Consistent with the pre-amendment Sections 152, 153 and 157, the consideration paid for issuing stock, rights, and options may be set by reference to a formula provided in the board resolution, such as by reference to the trading price of stock on a specific date or an average of trading prices over a time period. In addition, if the board is authorizing the transaction to issue stock, for example, approving a transaction agreement that results in a stock issuance, the consideration received by the corporation and the other terms of the issuance may be made dependent on the provisions in the agreement and on determinations by a person or body, such as an expert who makes determinations that might result in an adjustment to the number of shares issued. However, if the board is delegating to a person or body the authority to enter into a transaction to issue stock, rights, or options, such as authorizing an officer to make stock or option grants to employees or to issue stock in an “at the market offering”, then the delegate cannot make the determinations regarding the three parameters in Sections 152(b) and 157(c). If the terms of a right or option are provided for in the certificate of incorporation, such terms may be made dependent on facts ascertainable outside the certificate in accordance with Section 102(d) instead of Section 157(d). Such “facts ascertainable” provisions included in the amendments to Section 157 replace the more limited form of delegation found in pre-amendment Section 157(c), which requires the board of directors to fix the terms of a right or option, but permits the board of directors to delegate to an officer the authority to determine the recipients of the rights or options and the number of rights or options to be issued to each recipient. A typical delegation under pre-amendment Section 157(c) would likely satisfy the delegation parameters of amended Section 157(c). Amended Section 157 also eliminates the requirement that the terms of a right or option be set forth or incorporated by reference in an instrument, to clarify that rights or options may be issued in book entry or electronic form. Section 6. Section 6 of this Act amends Section 219. The amendments to Section 219 eliminate the requirement to make a stocklist available for inspection during a meeting of stockholders. The amendments also clarify how the 10-day period is calculated for purposes of determining when the corporation must make the stocklist available for inspection by stockholders before the meeting date. Section 7. Section 7 of this Act amends Section 222. Section 222(a) is amended to clarify that a notice of a meeting of stockholders may be given in any manner permitted by Section 232. Section 222(c) is amended to clarify that a “virtual” meeting of stockholders held by means of remote communication may be adjourned in the event of a technical failure to convene or continue the meeting. In such event, notice of when the meeting will reconvene need not be given to stockholders if the electronic network for the meeting, such as the website that stockholders and proxy holders visit to join the meeting, displays the information required by Section 222(c) about when and how the meeting will reconvene or if such information regarding the adjourned meeting is provided for in the notice of meeting. Section 8. Section 8 of this Act amends Section 228(c). The amendment to Section 228(c) clarifies and confirms that a person executing a consent that becomes effective at a future time, including a time determined upon the happening of an event, need not be a stockholder or member at the time such consent is executed if the person is a stockholder or member of record as of the applicable record date for determining stockholders or members entitled to consent to the action. Section 9. Section 9 of this Act modifies Section 262 in several respects. The amendments insert a new Section 262(d)(3) that permits a beneficial owner of stock, as defined in amended Section 262(a), to demand appraisal directly, instead of requiring that the record holder of the stock make the demand on behalf of the beneficial owner. A beneficial owner must comply with the requirements of Section 262(d)(3) to demand appraisal, including its requirement that the beneficial owner who demanded appraisal directly, not the record owner, continuously maintains beneficial ownership of the shares. Conforming changes to the other subsections of Section 262 clarify how a beneficial owner may participate in the appraisal process and an appraisal proceeding. In connection with the amendments to Section 266 set forth in Section 11 of this Act, Section 262 is being amended to provide appraisal rights to stockholders in connection with a conversion of the corporation to a foreign corporation or to any other entity, unless appraisal rights are denied pursuant to the “market out” exception set forth in amended Section 262(b). Section 262(b) is being amended to eliminate appraisal rights in connection with a merger, consolidation or conversion of an entity that has domesticated as a Delaware corporation pursuant to Section 388, if the merger, consolidation or conversion is authorized in accordance with Section 388, as amended pursuant to Section 12 of this Act. The amendments also clarify how Section 262(b) operates in connection with a merger, consolidation or conversion adopted by stockholder consent in lieu of a meeting. Section 262(b) denies appraisal rights in certain instances for holders of classes or series of stock that are listed on a national securities exchange or held by more than 2,000 record holders. Amended Section 262(b) clarifies that appraisal rights are denied for such holders in connection with mergers, consolidations or conversions adopted by stockholder consent to the same extent that appraisal rights are denied to such holders if one those transactions is adopted at a stockholder meeting. Amended Section 262(d) provides that, in lieu of including in a notice of appraisal rights a copy of Section 262 (and a copy of Section 114, if 1 of the constituent corporations or the converting corporation is a nonstock corporation), a corporation may instead include in the notice information directing the persons entitled to appraisal to a publicly available electronic resource to access Section 262 (and Section 114, if applicable). An electronic resource would include the website maintained on behalf of the State of Delaware on which those statutes are posted. Amended Sections 262(j) and (k) clarify how the expenses of a stockholder or beneficial owner who participated in an appraisal proceeding may be charged pro rata against the value of all the shares entitled to an appraisal award, and that an unconditioned dismissal under amended Section 262(k) ends the Court of Chancery’s jurisdiction over a person that has demanded appraisal under Section 262. Unless the Court of Chancery orders otherwise, expenses awarded under Section 262(j) are not charged against a person who properly withdraws such person’s demand for appraisal or is dismissed from the proceedings under Section 262(k) without a reservation of jurisdiction. Amended Section 262(k) also clarifies that a stockholder or beneficial owner may withdraw a demand for appraisal with respect to less than all of the shares for which such person initially demanded appraisal. Section 10. Section 10 of this Act amends Section 265. The amendment to Section 265(h) provides that the approval of a conversion of other entities to a corporation in the manner provided for by the document, instrument, agreement or other writing, as the case may be, governing the internal affairs of the converting entity and the conduct of its business or by applicable law, as appropriate, and the approval of the certificate of incorporation by the same authorization required to approve the conversion, are required to occur prior to the time the certificate of conversion to corporation becomes effective. Section 11. Section 11 of this Act amends Section 266. The amendments to Section 266 change the requirement for stockholder approval of the conversion of a corporation to another entity, from all of the outstanding shares of stock of the corporation to a majority of the outstanding shares of stock entitled to vote on a conversion, and if the corporation is converting to a partnership with one or more general partners, such conversion also requires the approval of each stockholder who will become a general partner of such partnership. The amendments require that a certificate of conversion to be filed with the Secretary of State must contain the agreement of the converting corporation to be served with process in the State of Delaware for any action for enforcement of any obligation of the converted entity arising from the conversion as well as in appraisal proceedings pursuant to Section 262. The amendments also provide that, for any corporation incorporated prior to August 1, 2022, any provision contained in its certificate of incorporation or in a voting trust agreement or other written agreement between or among the corporation and one or more stockholders that restricts, conditions or prohibits consummation of a merger or consolidation is also deemed to apply to a conversion, unless the certificate of incorporation or such agreement expressly provides otherwise. Sections 12, 13 and 14. Section 12 of this Act deletes former Section 275(f) and adds new Section 275(f) and Section 275(g). Amended Section 275(f) applies to any corporation that has included in its certificate of incorporation a provision limiting the duration of its existence to a specified date in accordance with Section 102(b)(5) and adds a requirement that such corporation file a certificate of dissolution within 90 days before such specified date. Section 275(g) addresses the effective time of the dissolution of corporations. Section 13 of this Act makes similar amendments to Section 276 relating to a nonstock corporation that has included in its certificate of incorporation a provision limiting the duration of its existence to a specified date. Section 14 of this Act amends Section 312(b) by deleting unnecessary language. Section 15. Section 15 of this Act amends Section 388. The amendments to Section 388 permit a non-United States entity to adopt a plan of domestication setting forth the terms and conditions of the domestication, including the manner of exchanging or converting the equity interests of the non-United States entity to be domesticated and any other details or provisions deemed desirable. A plan of domestication also may set forth corporate action to be taken by the domesticated corporation in connection with the domestication, each of which must be approved in accordance with the requirements of all applicable non-United States law prior to effectiveness of the domestication. Once so approved, any such corporate action that is within the power of a Delaware corporation under this chapter set forth in the plan of domestication shall be deemed authorized, adopted and approved, as applicable, by the domesticated corporation and its board of directors, stockholders or members, as applicable, and will not require any further action of the board of directors, stockholders or members of the domesticated corporation under this title. The amendments provide that the terms of a plan of domestication may be made dependent upon facts ascertainable outside of such plan if the manner in which such facts operate upon the terms of the plan is clearly and expressly set forth in such plan. The amendments further provide that a certificate of domestication shall certify that, prior to the time the certificate of domestication becomes effective, the domestication shall be approved in accordance with the document, instrument, agreement or other writing, as the case may be, governing the internal affairs of the non-United States entity and the conduct of its business or by applicable non-United States law. Sections 16, 17, 18, 19 and 20. Section 16 of this Act amends Section 502(a)(3) to clarify that the principal place of business address included in the annual franchise tax report shall not be the address of the registered office in this State unless the corporation maintains its principal place of business in this State and serves as its own registered agent. Section 17 of this Act amends Section 503 to make changes regarding the large corporate filer status and the effectiveness of any re-designation thereof. Section 17 also amends Section 503(i) to delete language relating to generally accepted accounting principles because the relevant figures are those reported to the United States on the relevant tax forms as specified in Section 503(i). Sections 18, 19 and 20 of this Act delete various provisions to the extent they do not reflect current practice. Sections 21 and 23. Section 21 provides that the effective date of Sections 1 through 8, Section 10, Sections 12 through 14, and Sections 16 through 20 is August 1, 2022. Section 23 provides that Section 11 is effective only with respect corporations converting pursuant to resolutions of the board of directors approving such conversion that are adopted on or after August 1, 2022. Sections 22 and 24. Pursuant to Section 22, Section 9 shall be effective only with respect to mergers, consolidations or conversions adopted or entered into, as applicable, on or after August 1, 2022, as determined by the provisions of Section 22. Regarding domesticated corporations, Sections 22 and 24 provide that Sections 9 and 15, respectively, are effective only for such corporations with respect to which a plan of domestication is entered into on or after August 1, 2022, or, if no plan of domestication is entered into in connection with the domestication, any such corporations with respect to which the approvals required by Section 388(h), as amended by this Act, are obtained on or after August 1, 2022.