Delaware Corporation Merger Agreement and Approval Packet

DELAWARE CORPORATION MERGER AGREEMENT AND APPROVAL PACKET

Scope gate. Use only for a negotiated merger of two Delaware domestic stock corporations under 8 Del. C. § 251 in which [MERGER SUB] merges into [TARGET] and Target survives. Do not use for a consolidation, foreign constituent, nonstock or nonprofit corporation, other business entity, short-form parent-subsidiary merger, § 251(g) holding-company reorganization, § 251(h) tender-offer merger, conversion, transfer, domestication, regulated entity, insolvent entity, or contested-control transaction.

Four records remain separate. Keep separate: (1) the negotiated Transaction Agreement; (2) the statutory Agreement of Merger approved under § 251; (3) each board and stockholder approval record; and (4) the filed § 251(c) Certificate of Merger. Signing the commercial agreement does not itself complete the statutory approval or filing process.

Appraisal rights are transaction-specific. Do not state that every stockholder has appraisal rights, that exchange-listed and privately held shares are treated alike, or that a vote against the merger perfects appraisal. Classify eligibility, notice, demand, holding, voting, consideration, and petition requirements under § 262 before any approval materials are sent.

1. TRANSACTION CLASSIFICATION

Before drafting:

☐ Confirm both constituents are active Delaware domestic stock corporations and reconcile their certificates of incorporation, amendments, bylaws, stock ledgers, voting agreements, options, warrants, and board records.

☐ Confirm the exact transaction belongs under § 251(a)-(f), not a specialized route excluded above. If another entity, jurisdiction, tender offer, short-form ownership fact, or holding-company structure appears, stop and use the statute governing that exact transaction.

☐ Inventory securities, liens, debt, contracts, permits, employee plans, litigation, tax accounts, real property, intellectual property, data, and foreign qualifications. Obtain required third-party and governmental consents separately.

☐ Run fiduciary-duty, conflicts, antitrust, securities, tax, labor, benefit-plan, privacy, industry, solvency, and change-of-control review. This packet supplies no conclusion on those bodies of law.

2. NEGOTIATED TRANSACTION AGREEMENT

This Transaction Agreement is made as of [DATE] between [TARGET] ("Target") and [MERGER SUB] ("Merger Sub"). Subject to the attached statutory Agreement of Merger and all required approvals, the parties agree as follows.

2.1 Structure and closing

At the statutory effective time, Merger Sub will merge with and into Target, Merger Sub's separate existence will cease, and Target will survive. Closing will occur at [TIME / PLACE / REMOTE PROCEDURE] after satisfaction or written waiver of the waivable conditions selected in Schedule 5.

The parties will not file the Certificate of Merger until the approval record in Section 4 is complete. The closing team will retain the executed Transaction Agreement, statutory Agreement of Merger, approval records, appraisal notices and demands, accepted filing, and filing receipt.

2.2 Consideration and capitalization

Schedule 2 must state, for every class or series of each constituent, the number of authorized, issued, treasury, and outstanding shares; the treatment of each share; the cash, securities, property, or rights payable; fractional-interest treatment; withholding and exchange mechanics; and the treatment of options, warrants, equity awards, and shares owned by either constituent.

If a parent, guarantor, financing source, or third-party issuer supplies consideration or becomes a party, identify it and obtain separate authority, approval, securities, and governing-law analysis. Its appearance does not expand this packet's two-Delaware-corporation scope.

2.3 Representations and disclosure schedules

Each party makes only the representations selected and completed in the disclosure schedules concerning organization, authority, capitalization, financial statements, liabilities, taxes, litigation, contracts, permits, employees and benefits, intellectual property, data, property, compliance, brokers, and absence of conflicts.

State the knowledge standard, materiality standard, disclosure method, bring-down test, survival period, and remedy for every selected representation. No representation is included merely because its topic appears in this checklist.

2.4 Interim covenants

Until closing, Target will operate under the negotiated ordinary-course covenant in Schedule 4. The schedule must identify consent rights, exceptions, information access, confidentiality, financing cooperation, employee communications, regulatory filings, stockholder materials, and any solicitation or fiduciary-out terms.

2.5 Conditions

Closing conditions are limited to those selected in Schedule 5, including statutory approvals, required third-party and governmental consents, absence of a prohibitory order, accuracy of specified representations under the chosen standard, covenant performance, and closing deliveries.

Only the party protected by a contractual condition may waive it. No contractual waiver replaces a required board action, stockholder approval, appraisal notice, demand procedure, or Secretary of State filing.

2.6 Termination, amendment, and remedies

Schedule 6 must address mutual termination, outside date, uncured material breach, failed approval, prohibitory order, any superior-proposal route, termination fee, expenses, survival, and consequences.

The statutory Agreement of Merger may authorize termination before effectiveness by a constituent board under § 251(d). Any post-stockholder-approval amendment must be tested against § 251(d)'s restrictions on changes to consideration, the surviving certificate of incorporation, and terms adversely affecting a class or series. If a filed agreement or certificate has a future effective time, file any required certificate of termination or amendment before that time.

Section 261 permits a qualifying § 251 agreement to state contractual penalties or consequences for specified pre-effective breaches or failure to consummate and to appoint one or more stockholder representatives on stated terms. Include either feature only after Delaware counsel defines the persons bound, authority, remedy, amendment limits, enforcement procedure, and interaction with fiduciary and nonwaivable law.

2.7 Risk allocation

If post-closing recourse is intended, Schedule 7 must identify the responsible persons, covered claims, survival periods, baskets, caps, escrow or insurance, claim procedure, third-party-claim control, exclusive-remedy language, and fraud and nonwaivable-law treatment. No indemnity or liability cap applies by default.

2.8 Governing law and forum

Delaware law governs this agreement. Subject to mandatory jurisdiction and venue, the parties select the Delaware Court of Chancery for claims within its jurisdiction and another Delaware state court with subject-matter jurisdiction for other claims. Arbitration is excluded. Any jury waiver applies only to the fullest extent enforceable after Delaware counsel reviews the claims and selected forum.

3. EXHIBIT A — STATUTORY AGREEMENT OF MERGER

Each constituent board must approve and declare advisable this Agreement of Merger. Complete every item required by § 251(b) before stockholder submission.

AGREEMENT OF MERGER

1. Constituents and survivor. The constituent corporations are [TARGET] and [MERGER SUB], each a Delaware domestic stock corporation. Merger Sub will merge with and into Target, and Target will survive.

2. Terms and mode. The merger will occur on the terms and by the mode stated in this Agreement of Merger and the Transaction Agreement dated [DATE]. If a conflict concerns a matter required by § 251(b), this statutory agreement controls for the merger record unless Delaware counsel documents another lawful treatment.

3. Surviving certificate of incorporation. At effectiveness, Target's certificate of incorporation will: ☐ remain its existing certificate; or ☐ be amended or amended and restated exactly as stated in Attachment A.

4. Share treatment. Each issued and outstanding share of each constituent will remain outstanding, convert, exchange, or cancel exactly as follows:

5. Certificates, book entries, and fractional interests. [State surrender, exchange, lost-certificate, uncertificated-share, withholding, and fractional-interest procedures.]

6. Additional provisions. [Insert only reviewed statutory provisions. Identify any outside fact on which a term depends and state clearly how that fact operates on the agreement.]

7. Termination and amendment before effectiveness. Before effectiveness, this agreement may be terminated or amended only as follows: [EXACT BOARD AUTHORITY, PROCEDURE, LIMITS, AND CONSEQUENCES]. Any action after stockholder adoption remains subject to § 251(d).

8. Effective time. The merger will become effective: ☐ when the filed agreement or Certificate of Merger is filed under § 103; or ☐ at [DATE AND TIME], not later than the ninetieth day after filing.

9. Execution. Each constituent executes this Agreement of Merger through an authorized person. If the agreement itself will be filed instead of a certificate in lieu, execute and acknowledge it under § 103.

[TARGET]

By: [________________________] Name/title: [________________________]

[MERGER SUB]

By: [________________________] Name/title: [________________________]

4. APPROVAL RECORD

4.1 Board approval under § 251(b)

Record each board's resolution approving the Agreement of Merger and declaring it advisable.

☐ Reconcile the board-approved agreement to the version submitted to stockholders and the final filed certificate.

☐ Document conflicts, recusals, special committees, fairness or valuation work, and fiduciary-process advice separately. No approval threshold resolves those issues by itself.

4.2 Choose one stockholder route for each constituent

Route A — meeting under § 251(c)

For each constituent, give every holder of stock, voting or nonvoting, due notice of the time, place, and purpose of the meeting at least 20 days before the meeting. Include a copy or brief summary of the Agreement of Merger.

The ordinary statutory threshold is a majority of the outstanding stock entitled to vote on the agreement. Calculate any class or series vote and any higher certificate-of-incorporation requirement separately. Do not use the survivor no-vote exception unless counsel documents every condition in § 251(f).

Route B — written consent under § 228

Use only if the certificate of incorporation does not prohibit stockholder action by consent. Obtain written or electronic consents setting forth the action from holders with at least the minimum votes that would be needed at a meeting where all voting shares were present and voted. Deliver sufficient consents to the corporation within 60 days after the first delivery and retain delivery and record-date evidence.

If the action is taken by less than unanimous consent, promptly notify the nonconsenting stockholders who would have been entitled to meeting notice under § 228(e). Coordinate that notice with the separate appraisal notice required by § 262(d)(2); one does not silently replace the other.

4.3 Survivor no-vote exception

Do not omit Target's stockholder vote merely because Target survives. Attach a § 251(f) memorandum confirming all applicable conditions, including:

☐ Target's certificate of incorporation is not amended in any respect by the agreement.

☐ Every Target share outstanding immediately before effectiveness remains an identical outstanding or treasury share after effectiveness.

☐ No common stock or common-convertible securities or obligations are issued, or the statute's 20% issuance ceiling is satisfied using the required calculation.

If Target uses this exception, record the required secretary or assistant-secretary certification if the Agreement of Merger itself is filed. The § 251(c) certificate-in-lieu route does not eliminate the need to establish the underlying facts.

5. DELAWARE APPRAISAL WORKFLOW

Classify rights separately for every constituent, class or series, and holder group. Under § 262(a), an eligible claimant must satisfy the applicable demand procedure, hold the shares on the demand date and continuously through effectiveness, and neither vote in favor nor consent in writing to the merger.

5.1 Eligibility and market-out analysis

Section 262(b) generally makes appraisal available in a § 251 merger, but it contains transaction-specific exceptions. Analyze whether shares or depositary receipts were exchange-listed or held of record by more than 2,000 holders on the applicable record date, whether the consideration exception restores rights, whether Target used § 251(f), and whether the certificate of incorporation grants additional rights under § 262(c).

5.2 Meeting-route notice and demand

For a merger submitted at a meeting, give each record-date stockholder notice of available appraisal rights not less than 20 days before the meeting. Include a copy of § 262 or direct holders to a free, publicly available electronic resource containing it.

An electing holder must deliver a separate written demand before the vote. A proxy or vote against the merger is not a demand. Within 10 days after effectiveness, the survivor must notify each compliant holder who did not vote for or consent to the merger, and each qualifying beneficial owner who demanded under § 262(d)(3), of the effective date.

5.3 Consent-route notice and demand

If the merger was approved under § 228, either a constituent before effectiveness or the survivor within 10 days after effectiveness must give the § 262(d)(2) appraisal notice to each entitled holder. The holder generally has 20 days after that notice to deliver a written demand. Apply the statute's separate effective-date and second-notice rules to the exact timing used.

5.4 Post-effective calendar

Track record and beneficial ownership separately. A beneficial owner demanding in its own name must satisfy § 262(d)(3)'s continuous-ownership, record-holder identification, documentary-evidence, truth-statement, and notice-address requirements.

Do not promise a valuation, interest award, cost allocation, or litigation result. The Court of Chancery determines entitlement and fair value under § 262, and exchange-listed appraisal proceedings are subject to the subsection (g) de minimis thresholds.

6. CERTIFICATE OF MERGER, FILING, AND EFFECT

6.1 Certificate in lieu of filing the full agreement

The survivor may file the full adopted Agreement of Merger or a Certificate of Merger in lieu under § 251(c). The certificate must state:

☐ each constituent's exact name and state of incorporation;

☐ that each constituent approved, adopted, executed, and acknowledged the Agreement of Merger under § 251;

☐ the survivor's exact name;

☐ the exact surviving-certificate amendments or changes, or that the survivor's certificate remains its certificate;

☐ the office address where the executed Agreement of Merger is on file; and

☐ that the survivor will furnish a copy of the agreement, on request and without cost, to any stockholder of a constituent.

Execute the certificate through an authorized officer of the surviving corporation under § 103 and the current Division form. A signature under § 103(b)(2) is an affirmation or acknowledgment under penalties of perjury that the instrument is the signer's or corporation's act and deed and that its facts will be true when effective.

6.2 Current Division form and filing conditions

Use the Division of Corporations form Certificate of Merger of a Delaware Corporation into a Delaware Corporation as a filing guide, not as a substitute for transaction-specific drafting. As verified 2026-07-30, its instructions list a $259 filing fee, plus $9 for each page after the first, possible additional county charges when multiple counties are involved, and optional certified-copy and expedited-service fees.

Before filing, confirm that the disappearing Delaware corporation has filed applicable annual franchise-tax reports and paid taxes due through the effective date, as the current official instructions require. Recheck the live form, fee schedule, cover memo, tax status, delivery method, and turnaround immediately before submission.

6.3 Effectiveness and statutory effect

Under § 103(d), the filing is ordinarily effective at its filing date and time. A stated delayed effective time may not be later than the ninetieth day after filing. If a future-effective filing is terminated or its effective time is amended, file the required certificate before the original future effective time.

When the merger becomes effective, § 259 provides that Merger Sub ceases separately; its rights, property, debts, liabilities, and duties vest in or attach to Target as the survivor; and creditor rights and existing liens are preserved as stated in the statute. Under § 261(b), a pending civil, criminal, or administrative proceeding may continue as though the merger had not occurred or permit substitution of the survivor.

7. CLOSING RECORD

☐ Executed Transaction Agreement and completed Schedules 2-7

☐ Board-approved statutory Agreement of Merger

☐ Board resolutions, conflicts record, and stockholder vote or § 228 consent record

☐ § 251(f) survivor no-vote memorandum, if used

☐ Appraisal eligibility analysis, notices, demands, ownership evidence, and litigation calendar

☐ Executed Certificate of Merger and filing cover memo

☐ Accepted filing, stamped copy, receipt, and effective-time evidence

☐ Consideration exchange and withholding ledger

☐ Tax, payroll, permits, licenses, title, contracts, accounts, benefits, insurance, foreign-registration, and records-retention workplan

SOURCES AND REFERENCES

• Delaware Code — Title 8, Chapter 1, Subchapter IX (§§ 251, 259, 261, and 262)
• Delaware Code — 8 Del. C. § 103
• Delaware Code — 8 Del. C. § 228
• Delaware Division of Corporations — merger forms by surviving entity type
• Delaware Division of Corporations — domestic-corporation Certificate of Merger form and instructions
• 85 Del. Laws ch. 48 (2025 SB 95) — current § 103 amendment and effective date
• 84 Del. Laws ch. 309 (2024 SB 313) — current § 261 and effective date
• 84 Del. Laws ch. 98 (2023 SB 114) — current §§ 228 and 262 amendments

Delaware merger, approval, appraisal, filing, fee, effectiveness, and successor-effect rules verified against current official sources on 2026-07-30. Recheck the live Division form, fees, tax status, and transaction-specific amendments immediately before use.