a. [principle] Corporations may merge into a single surviving corporation (which may be either of the constituent corporations) or consolidate into a new resulting corporation formed by the consolidation, pursuant to an agreement of merger or consolidation (“the agreement”).

b.  [board resolution] The board of each corporation shall adopt a resolution approving the agreement 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, any amendments or changes in the charter of the surviving corporation;
4. in the case of a consolidation, the charter of the resulting corporation;
5. the manner, if any, of converting the shares of each of the constituent corporations into cash, property, and/or shares or other securities of the surviving or resulting (hereinafter generically “surviving”) or any other corporation; and
6. such other details or provisions as are deemed desirable.

The agreement shall be executed by an authorized person; if it is filed, it shall be executed and acknowledged in accordance with § 103. Any of its terms may be conditioned upon facts ascertainable outside of such agreement, provided that the manner in which the condition will operate is clearly and expressly set forth in the agreement.

c-1. [shareholder vote] The executed agreement shall be approved by a majority of the outstanding voting rights of each corporation at an annual or special meeting. Due notice of the time, place and purpose of the meeting shall be given to each holder of stock, whether voting or nonvoting, at the stockholder’s record address, 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.

c-2. [filing; effectiveness] The agreement shall then be filed, and shall become effective, in accordance with § 103. The secretary or assistant secretary of the corporation shall certify stockholder approval [or adoption pursuant to, and satisfaction of the conditions of, subsections (f), (g), or (h)] on the agreement to be filed.

In lieu of certifying and filing the agreement, the surviving corporation may file a certificate of merger or consolidation (“the certificate”), executed in accordance with § 103, which states all of the above and that the executed agreement is on file at an office of the surviving corporation (stating its address) and that a copy will be furnished, on request and without cost, to any stockholder of any constituent corporation.

[In the cases of subsections (f), (g), or (h), such filing constitutes a representation by the person who executes the agreement that the facts stated in the certificate remain true immediately prior to such filing.]

d. The agreement may provide that until it becomes effective in accordance with § 103, it may be terminated by the board of any constituent corporation, or, subject to the conditions listed below, amended by the boards of the constituent corporations; if such termination/amendment occurs after the filing of the agreement/certificate with the Secretary of State, a certificate of termination/amendment shall be filed in accordance with § 103. Such an amendment shall not change (1) the merger consideration to be received by stockholders, (2) the charter of the surviving corporation, or (3) any of the terms and conditions of the agreement if such change would adversely affect the holders of any class or series of stock.

e. [charter amendment] In the case of a merger, the charter of the surviving corporation shall automatically be amended to the extent, if any, that changes in the charter are set forth in the agreement.

f. [≤20% stock issued] In the case of a merger, no vote of the stockholders of the surviving corporation is necessary if the surviving corporation’s charter and outstanding stock remain unaffected and no more than 20% of its common stock outstanding immediately prior to the merger is to be issued (or, in the case of treasury shares, delivered) under the plan of merger. A stockholder vote is also unnecessary if the corporation does not have any stock outstanding.

g. [holding company reorganization] In the case of a merger, no vote of the stockholders of the corporation is necessary to authorize a merger with a direct or indirect wholly-owned Delaware subsidiary (corporation or LLC) if:

5. as a result of the merger the corporation or its successor becomes or remains a direct or indirect wholly-owned subsidiary of a Delaware holding company (as defined below);

1. the corporation and its subsidiary are the only participants in the merger,

2. each share of capital stock of the corporation is converted in the merger into a share of holding company capital stock having the same rights;

4./6. the charter, by-laws, and directors of the holding company will be the same as those of the corporation;

7. the organizational documents (charter or limited liability company agreement, as the case may be) of the surviving entity 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) requires approval by the same vote of the stockholders of the holding company (or any successor by merger) as would have been required of the stockholders of the constituent corporation, if any; [1]

B. if the surviving entity is an LLC, a provision that the LLC be managed by or under the direction of a 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, and

8. the stockholders of the corporation do not recognize gain or loss for US federal income tax purposes as determined by the board of directors of the constituent corporation.

A “holding company” is a Delaware 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 corporation and whose capital stock is issued in such merger.

The restrictions of § 203 shall remain unaffected by such holding company merger, i.e., they shall, with respect to timing, interested person status, and so on, apply to the holding company’s stock and stockholders as if they were the corporation’s stock and its stockholders. If the corporate name of the holding company immediately following the effective time of the merger is the name of the corporation immediately prior, the stock certificates that previously represented shares of capital stock of the corporation shall now represent the shares of capital stock of the holding company into which they were converted. To the extent a stockholder of the corporation immediately prior to the merger had standing to institute or maintain derivative litigation on behalf of the corporation, he maintains such standing.

h. [back-end squeeze-out] No vote of stockholders of a constituent corporation (“the target”) that has a class or series of shares listed on a national securities exchange or held of record by more than 2,000 holders immediately prior to the execution of the merger agreement shall be necessary to authorize a merger if:

1. the agreement expressly

a. permits or requires such merger to be effected under this subsection; and

b. provides that the merger, if effected under this subsection, shall be effected as soon as practicable following the consummation of the offer referred to in paragraph (2);

2./4. on the terms provided in the agreement, the other constituent corporation (“the offeror”) Consummates a offer for all of the target’s stock that would be entitled to vote on the merger absent this subsection (the offer may contain minimum tender conditions, be separated by class or series of stock, and exclude Excluded Stock);

3. immediately following the offer’s Consummation, the stock owned by the offeror and its Affiliates, including Rollover Stock and stock irrevocably accepted for purchase pursuant to the offer and Received by the Depository, constitute at least such percentage of each class or series of the target’s stock that, absent this subsection, would be required to adopt the agreement; and

5. the merger consideration for target shares (excluding Excluded Stock) is the same as the offer consideration;

6. As used in this section only, the term:

a. “Affiliate” means (i) any person that owns, directly or indirectly, all of the outstanding stock of the offeror, and (ii) such person’s direct or indirect wholly-owned subsidiaries.

b. “Consummate” means irrevocably accept for purchase or exchange stock tendered pursuant to an offer;

c. “Depository” means an agent appointed to facilitate consummation of the offer;

d. “Excluded Stock” is (i) stock owned at the commencement of the offer by the offeror, the offeror’s Affiliates, the target, or the target’s wholly-owned subsidiaries, and (ii) Rollover Stock.

e. “Person” means any individual, corporation, partnership, limited liability company, unincorporated association or other entity;

f. “Received” means “(a) with respect to certificated shares, physical receipt of a stock certificate accompanied by an executed letter of transmittal, (b) with respect to uncertificated shares held of record by a clearing corporation as nominee, transfer into the depository’s account by means of an agent’s message, and (c) with respect to uncertificated shares held of record by a person other than a clearing corporation as nominee, physical receipt of an executed letter of transmittal by the depository; provided, however, that shares shall cease to be “received” (i) with respect to certificated shares, if the certificate representing such shares was canceled prior to consummation of the offer referred to in paragraph (h)(2) of this section, or (ii) with respect to uncertificated shares, to the extent such uncertificated shares have been reduced or eliminated due to any sale of such shares prior to consummation of the offer referred to in paragraph (h)(2) of this section;” and

g. “Rollover Stock” are target shares subject of a written agreement requiring such shares to be transferred, contributed or delivered to the offeror or any of its Affiliates in exchange for equity interests in the offeror or any of its Affiliates; so long as such shares are in fact so transferred, contributed or delivered prior to the effective time of the merger.

[1] If the surviving entity is not a corporation, the reference to elections concerns those of managing members or other members of the governing body, and any amendment of its organizational documents that would be a charter amendment in a corporation requires holding company stockholder approval according if and to the extent such approval would have been required in the constituent corporation.