SB 88

Abstract

Section 1. Section 1 of this Act amends Section 108(b) to clarify that notice of an initial organization meeting may be given in writing or by electronic transmission. The amendments also eliminate the express requirement that a waiver of that notice be signed, to clarify that notice may be waived in any manner permitted by Section 229. Section 108(c) is being amended to clarify that a consent of incorporator may become effective in the future in the same manner that a consent of directors may become effective in the future under Section 141(f). Section 2. Section 2 of this Act amends Title 8 to insert a new Section 116. New Section 116(a) establishes non-exclusive, safe harbor methods to reduce certain acts or transactions to a written or electronic document and to sign and deliver a document manually or electronically. The terminology in Section 116(a) is based on analogous provisions in Section 232, the Delaware Uniform Electronic Transactions Act (“UETA”) and the Model Business Corporation Act, with modifications. Section 116(a) permits corporate transactions (such as entering into agreements of merger not filed with the Secretary of State, voting agreements among stockholders and statutory voting trusts) to be documented, signed and delivered through “Docusign” and similar electronic means. The Section 116(a) safe harbor provisions apply solely for purposes of determining whether an act or transaction has been documented, and whether a document has been signed and delivered, in accordance with the DGCL and a corporation’s certificate of incorporation and bylaws. Section 116(a) does not preempt any statute of frauds or other law that might require actions be documented, or that documents be signed and delivered, in a specified manner. Section 116(a) clarifies how its provisions operate in connection with a transaction conducted pursuant to UETA. To the extent UETA does not apply to a transaction (under Section 12A-103 of UETA) because the transaction is governed by the DGCL, the parties to the transaction can satisfy the DGCL by complying with Section 116(a). Section 116(b) addresses certain actions and documents that are not governed by Section 116(a). There is no presumption that these excluded items are prohibited from being effected by electronic or other means, but Section 116 may not be relied on as a basis for documenting an act or transaction, or signing or delivering a document, if the exclusions set forth in Section 116(b) apply. Many of these excluded items are governed by separate provisions that facilitate the use of electronic media, including documents filed with the Secretary of State (governed by Section 103(h)), documents comprising part of the stock ledger (governed by Section 119), notices (governed by Section 232, in the case of stockholder meetings), waivers of notice (governed by Section 229) and actions taken by directors, stockholders or incorporators (governed by Sections 141(f), 228(d) and 108(c), respectively). Section 116(b) permits certificate of incorporation and bylaw provisions that restrict the use of Section 116(a), but those restrictions must be expressly stated. A provision merely specifying that an act or transaction will be documented in writing, or that a document will be signed or delivered manually, will not prohibit the application of Section 116(a). Section 116(c) addresses the interaction between the provisions of the DGCL and the Electronic Signatures in Global and National Commerce Act (the “E-Sign Act”). Section 116(c) evidences an intent to allow the DGCL to govern the documentation of actions, and the signature and delivery of documents, to the fullest extent the DGCL is not preempted by the E-Sign Act. Section 3. Section 3 of this Act amends Section 136(a) to permit a registered agent of a Delaware corporation, including a corporation which has become void pursuant to Section 510 of this title, to resign by filing a certificate of resignation. It further adds the requirement to include the last known information for a communications contact for the affected corporation, as last provided to the registered agent pursuant to Section 132(d) of Title 8. The communications contact information will not be deemed public, and falls within the exception set forth in Section 10002(l)(6) of Title 29 to the definition of “public record” for purposes of the Freedom of Information Act (29 Del. C. §§ 10001 et. seq.). This section clarifies that the Secretary of State shall provide the form to be used for certificates to be filed under Section 136(a). Section 4. Section 4 of this Act amends Section 141(f) to clarify that action by unanimous consent of directors may be treated as taken before the consents relating to the action are filed in a minute book. Section 5. Section 5 of this Act amends Section 160(d). As a result of the clarifying amendment to Section 160(d), a notice of redemption may be given in the form, and delivered in the manner, permitted by amended Section 232. Section 6. Section 6 of this Act amends Section 163. As a result of the clarifying amendments to Section 163, a notice requiring payment on partly paid shares of capital stock may be given in the form, and delivered in the manner, permitted by amended Section 232. Section 7. Section 7 of this Act amends Sections 212(c) and 212(d) to conform to Section 116, to use the term “document” consistently in each of those sections and to clarify that a proxy may be documented, executed and delivered in accordance with Section 116(a). The amendments to Sections 212(c) and 212(d) also eliminate references to proxies given by telegram and cablegram because those methods of granting proxies are included in the definition of electronic transmission. Section 8. Section 8 of this Act amends Section 222(a) and Section 222(b) to delete the requirement that a corporation must give stockholders a notice of meeting in writing, in order to conform these provisions to amended Section 232, which allows a notice of meeting to be given in writing or by electronic mail. The amendments to Section 222(b) delete the provisions on how a notice of meeting is delivered to stockholders because delivery is addressed by amended Section 232. Section 9. Section 9 of this Act amends Section 228(d) to expand the methods of delivery of consents given by electronic transmission. The amendments to Section 228(d) also eliminate redundant terms, including eliminating references to consents given by telegram or cablegram because those methods of giving consents are already included in the definition of an electronic transmission. Section 10. Section 10 of this Act amends Section 230(c). Amended Section 230(c) provides that if a corporation has an electronic mail address for a stockholder or member, and notice by electronic mail is permitted by Section 232, then the corporation is not relieved of the obligation to send that stockholder or member notices pursuant to the returned mail exception to notice provided in Section 230(b). Section 11. Section 11 of this Act amends Section 232. New Section 232(a) addresses the default means of giving notices to stockholders. As amended, notices may be given to stockholders by mail (in the same manner as permitted by the provisions formerly included in Section 222(b)), courier or electronic mail. Section 232(a) applies to any notice that is required to be given under chapter 1 of Title 8, or under the certificate of incorporation or bylaws. Accordingly, no provision of the certificate of incorporation or bylaws (including any provision requiring notice to be in writing or mailed) may prohibit the corporation from giving notice in the form, or delivering notice in the manner, permitted by Section 232(a). The amendments enabling notice by electronic mail to stockholders apply solely for purposes of chapter 1 of Title 8, the certificate of incorporation and the bylaws, and do not affect, limit or eliminate or override the application of any other law, rule or regulation applicable to a corporation or by which such corporation or its securities may be bound (including any obligations of a corporation prescribed by Regulation 14A or Regulation 14C promulgated under the Securities Exchange Act of 1934). Section 232(b) (formerly designated as Section 232(a)) is being amended to provide that a stockholder need not specifically consent to receiving notices by electronic mail because new Section 232(a) governs notice given by electronic mail. Section 232(d) (formerly designated as Section 232(c)) includes new definitions for electronic mail and electronic mail address, which are based on similar terms defined in the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003, (codified at 15 U.S.C. §§ 7701 et seq.). The CAN-SPAM Act established requirements for the distribution of commercial electronic mail messages. Section 232(e) (which is similar to provisions that formerly appeared in Section 232(a)) prohibit notice from being given by electronic transmission after the corporation becomes aware that two consecutive notices were not successfully delivered by such transmission. Section 232(f) includes provisions (similar to the provisions formerly in Section 222(b) and Section 232(b)) for transmittal affidavits that serve as prima facie evidence that notice has been given to stockholders. Section 232(g) (formerly designated as Section 232(e)) identifies certain types of notices that must continue to be given in the manner specified by those provisions addressed in Section 232(g). Section 12. Sections 12 through 14 and Sections 16, 17 and 19 of this Act amend Sections 251, 253, 255, 266, 275 and 390, respectively. Sections 251(b) and 255(b) are being amended to permit any authorized person to execute an agreement of merger or consolidation, except that any agreement filed with the Secretary of State must be executed by a person, and in the manner, authorized by Section 103. As a result of clarifying amendments to Sections 251(c), 253(a), 255(c), 266(b), 275(a) and 390(b), the notices of stockholder meeting contemplated by those sections may be given in the form, and delivered in the manner, permitted by amended Section 232. Section 13. Section 15 of this Act amends Section 262. Section 262(d) is being amended to clarify its notice provisions and conform those provisions to amended Section 232(a). As a result of these clarifying amendments, a corporation may deliver a notice of appraisal rights by courier or electronic mail, instead of delivering the notice by mail. Section 262(d) is also being amended to permit the delivery of demands for appraisal by electronic transmission, but only if the corporation expressly designates, in the notice of appraisal rights given by the corporation, an information processing system for receipt of electronic delivery of demands. Among other things, this amendment permits a corporation to designate an electronic mail address for purposes of receiving a stockholder demand for appraisal. Section 262(e) is being amended to clarify that a request for a statement of the number of shares and holders entitled to appraisal may be given by electronic transmission. Amended Section 262(e) also clarifies that such statement need not be mailed and instead may be given by the corporation in any manner permitted by amended Section 232(a). The amendments to Section 262 shall be effective with respect to agreements of merger or consolidation consummated pursuant to an agreement entered into on or after August 1, 2019. Section 14. Section 18 of this Act amends Section 313(a) to provide that Section 313 applies to an exempt corporation whose certificate of incorporation or charter has become forfeited pursuant to Section 136(b) for failure to obtain a registered agent. Section 15. Section 20 of this Act amends Section 391(a)(11) to provide for the fee payable to the Delaware Secretary of State for any certificate issued via the Secretary of State’s online services, and Section 391(a)(16) to increase the fee payable to the Delaware Secretary of State for a written report of a record search. Section 16. Section 21 of this Act amends Section 503(h) to reflect fee increases to the alternative minimum amount of annual franchise tax payable by a regulated investment company for each $1,000,000, or fraction thereof in excess of $1,000,000, of the company’s average gross assets during the taxable year, and increases the maximum annual franchise tax payable by a regulated investment company. Section 17. Sections 22 through 24 of this Act relate to the effectiveness of the amendments to Title 8. Section 22 of this Act provides that Sections 1 through 14 and Sections 16 through 20 of this Act are effective on August 1, 2019. Section 23 of this Act provides that Section 15 of this Act (relating to the amendments to Section 262) are effective only with respect to a merger or consolidation consummated pursuant to an agreement entered into on or after August 1, 2019. Section 24 of this Act provides that Section 21 of this Act (relating to the amendments to Section 503(h)) are effective for the tax year beginning on January 1, 2019.