Presenting a live 90-minute webinar with interactive Q&A Delaware Corporate Law: Analyzing Significant Cases, New Statutes and Impact on Corporate Practice Key Takeaways for Drafting Articles and Bylaws, Board Decision-Making, Mergers and Acquisitions; Proposed Blockchain Amendments THURSDAY, JUNE 1, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Gardner F . Davis, Partner , Foley & Lardner , Jacksonville, FL Ed M. McNally, Partner , Morris James , Wilmington, Del. Michael D. Allen, Director , Richards Layton & Finger , Wilmington, Del. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Michael Allen, Richards Layton & Finger Gardner Davis, Foley & Lardner LLP Ed McNally, Morris James June 1, 2017
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In 2013, the DGCL was amended to eliminate, In 2013, the DGCL was amended to eliminate, subject to certain conditions, the need for a subject to certain conditions, the need for a back-end merger vote following a tender back-end merger vote following a tender offer in two-step merger transaction offer in two-step merger transaction 2016 amendments to Section 251(h) clarify 2016 amendments to Section 251(h) clarify process process 6/1/2017 8
Section 251(h), as originally drafted, Section 251(h), as originally drafted, permitted intermediate-form merger without permitted intermediate-form merger without target stockholder vote if shares listed on a target stockholder vote if shares listed on a national securities exchange or held of record national securities exchange or held of record by more than 2,000 stockholders by more than 2,000 stockholders 2016 amendment clarifies only one class of 2016 amendment clarifies only one class of stock must meet requirement, not all classes stock must meet requirement, not all classes 6/1/2017 9
2016 amendments to Section 251(h) clarify that merger may provide different treatment for different classes of stock 6/1/2017 10
2016 amendments to Section 251(h) clarify 2016 amendments to Section 251(h) clarify that tender offer may be conditioned on that tender offer may be conditioned on minimum number of shares tendered, minimum number of shares tendered, including minimum for each class including minimum for each class 6/1/2017 11
Section 251(h) as originally drafted, required Section 251(h) as originally drafted, required that shares acquired in tender offer, plus that shares acquired in tender offer, plus shares owned by acquiror, equal percentage shares owned by acquiror, equal percentage of each class necessary to adopt the merger of each class necessary to adopt the merger agreement agreement The 2016 amendments permit inclusion of The 2016 amendments permit inclusion of shares held by parent or wholly owned shares held by parent or wholly owned subsidiary of offeror for purpose of satisfying subsidiary of offeror for purpose of satisfying ownership requirement ownership requirement 6/1/2017 12
2016 amendments to Section 251(h) permit 2016 amendments to Section 251(h) permit “roll-over” shares subject to written “roll-over” shares subject to written agreement to be contributed to acquiror or agreement to be contributed to acquiror or acquiror’s affiliate to be included for purpose acquiror’s affiliate to be included for purpose of satisfying ownership requirement of satisfying ownership requirement 6/1/2017 13
2016 amendment to Section 251(h) provides 2016 amendment to Section 251(h) provides any shares held as treasury shares or by any shares held as treasury shares or by target’s subsidiaries or acquiror’s target’s subsidiaries or acquiror’s subsidiaries not required to be converted in subsidiaries not required to be converted in the merger into same consideration paid for the merger into same consideration paid for other target shares in the merger other target shares in the merger 6/1/2017 14
2016 amendments clarify that certificated 2016 amendments clarify that certificated target shares are “received” upon receipt of target shares are “received” upon receipt of stock certificate and transmittal letter, stock certificate and transmittal letter, uncertificated target shares held by nominee uncertificated target shares held by nominee clearing corporation are “received” by transfer clearing corporation are “received” by transfer into the depository’s account by an agent’s into the depository’s account by an agent’s message and other uncertificated shares are message and other uncertificated shares are “received” upon executed letter of transmittal “received” upon executed letter of transmittal by the depository by the depository 6/1/2017 15
Prior to 2016 amendments, Section 111(a) Prior to 2016 amendments, Section 111(a) conferred jurisdiction on Court of Chancery conferred jurisdiction on Court of Chancery for civil actions regarding agreements or for civil actions regarding agreements or instruments regarding sale stock or stock instruments regarding sale stock or stock options options 6/1/2017 16
2016 amendments modify Section 111(a)(2) 2016 amendments modify Section 111(a)(2) to expand jurisdiction of Chancery Court for to expand jurisdiction of Chancery Court for civil actions involving agreements and civil actions involving agreements and instruments where Delaware corporation instruments where Delaware corporation agrees to sell, lease or exchange any of its agrees to sell, lease or exchange any of its property or assets, which by terms of property or assets, which by terms of agreement require stockholder approval agreement require stockholder approval 6/1/2017 17
2016 amendments add a procedure under 2016 amendments add a procedure under Section 311 to restore a corporation’s Section 311 to restore a corporation’s certificate of incorporation after expiration of certificate of incorporation after expiration of a stated term a stated term 6/1/2017 18
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