Delaware Corporate Law Counseling

MEMO (Feb. 11, 2011)

Repose vs. Freedom – Delaware’s Prohibition on Extending the Statute of Limitations by Contract: What Practitioners Should Know

Many complex commercial and corporate agreements contain provisions that purport to allow the parties to make claims arising from breach of the contract well into the future. Notwithstanding the prevalence of such provisions, under many circumstances, to the extent such a provision is deemed to constitute an attempt to lengthen the applicable statute of limitations, it will be unenforceable in Delaware, creating important implications for negotiating and drafting contracts.

Click here to download a Delaware Corporate Law Counseling Group Memo that examines the Delaware rule, whether it should be reconsidered in light of the value that Delaware law places on freedom of contract, and presents alternative approaches to get to the same result.

UPDATE (Sept. 13, 2010)

Proxy Access and Delaware Corporations

Many Public corporations are considering what actions to take in light of the recent stockholder access rules by the SEC (the "Rules").  While there is no single proper response for Delaware corporations, counsel to public companies should keep certain principles of Delaware law in mind when addressing the Rules.  In addition, counsel should focus on several discrete items in reviewing certificates of incorporation and bylaws.  A short list of such principles and items is set forth in this Update.

Click here to download a copy of Morris Nichols' Delaware Corporate Law Counseling Group Update (PDF 754 KB)

Click here to download a copy of BNA’s Corporate Counsel Weekly interview of Rick Alexander highlighting some of the issues to be covered during the Sept. 28, 2010 webinar, “Assessing the Impact of the SEC’s Shareholder Proxy Access Rules” (PDF  45 KB)

MEMO (July 10, 2009)

Delaware Legislature Approves Important Amendments to the Delaware General Corporation Law

The Delaware legislature approved amendments to the Delaware General Corporation Law in a response to ongoing corporate governance concerns but that do not sacrifice the touchstone of Delaware corporate law – private ordering. These amendments touch five primary areas of law: (1) stockholder proxy access; (2) stockholder proxy expense reimbursement; (3) record dates for those entitled to vote at stockholder meetings; (4) director removal by the Court of Chancery; and (5) indemnification and advancement rights.

Click here to read a summary of the amendments that will become effective on August 1, 2009.