Delaware legislators amended the Emergency Powers statute to clarify the types of events during which emergency bylaws may be adopted, including, but not limited to, national emergencies, epidemics, and pandemics.
The amendment also removes the requirement that the specific emergency condition be one that prevents a quorum of the board from convening a meeting and permits such emergency bylaws to be adopted by the board of directors or, if a quorum cannot be readily convened for a meeting, by a majority of the directors present.
New language confirms certain specific powers that are available to a board during an emergency:
With respect to a meeting of stockholders, a board (or, if a quorum cannot be readily convened, a majority of the directors present) may take any action that it determines to be practical and necessary to address the circumstances of the emergency condition, including, but not limited to, postponing any such meeting to a later time or date (with the record date for determining the stockholders entitled to notice of, and to vote at, such meeting applying to the postponed meeting) and, in the case of a public corporation, to notify stockholders of any postponement or change of the place of the meeting (or a change to hold the meeting solely by means of remote communication) solely by a document publicly filed by the corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”).
With respect to any dividend that has been declared as to which the record date has not occurred, a board (or, if a quorum cannot be readily convened, a majority of the directors present) may change each of the record date and payment date to a later date or dates (provided the payment date as so changed is not more than 60 days after the record date as so changed); provided, that, in either case, the corporation gives notice of any change to the record date or payment date of a dividend to stockholders as promptly as practicable thereafter (and in any event before the applicable record date), which notice in the case of a public corporation, may be given solely by a document publicly filed under Sections 13, 14 or 15(d) of the Exchange Act.
The emergency power amendments are effective retroactively as of January 1, 2020.
Other 2020 changes to Delaware’s corporate statutes address corporation names, exculpatory clauses, document execution, electronic transmissions and consents, certificates and certifications of the Secretary of State, rights to indemnification, electronic notices to stockholders, holding company reorganizations, public benefit corporations, registered agents and fees.
Delaware also enacted changes to the state’s LLC statutes. Among the provisions of the LLC Act that have been amended are those concerning limited liability company and registered series names, registered agents, document execution, appraisal rights, certificates and certifications of the Secretary of State, certificates of division, certificates of registered series, admission of members, books and records, and foreign limited liability companies.
These and other changes are captured in the Fall 2020 Edition of Delaware Laws Governing Business Entities Annotated. In-depth analysis of the changes, as well as changes to the state’s General Corporation Law and partnership laws, are provided by CSCPublishing’s Senior Legal Advisor Matthew O’Toole and colleagues of the Delaware firm Potter, Anderson & Corroon LLP.
The Fall 2020 Edition of Delaware Laws Governing Business Entities is updated through Chapter 269 of the 150th General Assembly. The Table of Sections Affected lists legislative changes, and Blackline Amendment notes in the statutory content clearly indicate the changes made.
Also included are over 80 new case notes from Delaware state courts and from courts in other jurisdictions applying Delaware business entity law, as well as five new full text cases in Volume 2 focusing on the latest legal developments concerning demand futility, oppressive abuse of discretion,
fiduciary duties, replacement of a partner, and securities. A Table of New Annotations lists added cases, and gray bars in the body of the book indicate where they have been inserted.
A comprehensive resource
CSCPublishing releases Delaware Laws Governing Business Entities—its flagship publication—twice a year to ensure that practitioners are working with the most up-to-date statutory information and have access to the very latest case law. Unique features such as the legislative analysis and special commentary in this Fall edition provide additional resources and valuable insight for legal professionals working with Delaware entities.
A comprehensive fee table in Volume 1 helps businesses calculate annual franchise taxes and other related entity fees, while Volume 2 contains the helpful “Guidelines for Persons Litigating in the Court of Chancery.”
Readers can access 160 fillable forms for incorporation/formation, qualification, mergers, dissolution, and name reservation for all entity types via the LexisNexis Bookstore online download center. A listing of the forms and contact information for Delaware’s Division of Corporations can be found in the book’s appendix.
The Fall 2020 Edition of Delaware Laws Governing Business Entities is available as a two-volume softbound book or as an ebook, compatible with dedicated e-reader devices, computers, tablets and smartphones that use e-reader software or applications. It is also available on the LexisNexis Digital Library.
Other essential resources for Delaware corporate law:
Symonds & O’Toole on Delaware Limited Liability Companies, Second Edition
More Delaware limited liability companies are formed each year than any other Delaware business entity. Symonds & O’Toole on Delaware Limited Liability Companies—referred to in a Delaware Court of Chancery decision as “the leading Delaware LLC treatise”—offers workable solutions for even the most complex transactions and practical insight into case law interpreting the statute, to help practitioners provide the best possible representation and advice to clients looking to make the most of their Delaware LLCs.
Co-author Matthew J. O’Toole is a partner, and co-author Robert L. Symonds, Jr. is a retired partner, at Potter Anderson & Corroon LLP in Wilmington Delaware. Mr. Symonds is one of the original drafters of the Delaware Limited Liability Company Act. Mr. O’Toole is the current chair, and Mr. Symonds is the former chair, of the Delaware State Bar Association committee responsible for proposing amendments to that statute and to Delaware’s limited partnership and general partnership laws.
VOSS ON DELAWARE CONTRACT LAW
Delaware contract law frequently governs the formation, interpretation, and enforcement of high-stakes commercial agreements throughout the United States; it also underpins the nation’s predominant corporation and business entities laws.
Citing more than 2700 authorities spanning more than 100 years, Voss on Delaware Contract Law provides an unprecedented review of that immense body of law.
Transactional attorneys and litigators will benefit from easy access to thousands of thoughtfully selected and organized quotations of cases, statutes, and rules, as well as harder-to-find court orders and transcripts, covering subjects from contract interpretation to contract-related torts, remedies, and comparative law. To further streamline research, this resource contains an innovative “Contract Typology” section, which surveys authorities by type of contract, clause, and phrase, to help identify type-specific considerations and interpretations pertinent to contract drafting and dispute resolution.
“This superb treatise provides an unprecedented compilation of Delaware’s vast contract-related jurisprudence. Practitioners and jurists will benefit from this comprehensive, expert analysis of the fundamental contract principles that have helped to make Delaware the forum of choice for business formations and transactions.” —Randy J. Holland, Retired Justice, Delaware Supreme Court.
To learn more about Delaware Laws Governing Business Entities Annotated, Symonds & O’Toole on Delaware Limited Liability Companies, and Voss on Delaware Contract Law, call 1.800.533.1637 or visit us online at www.lexisnexis.com/csc.