Section 228(a) of the Delaware General Corporation Law provides that shareholders can take action without a meeting, prior notice, or vote if shareholders owning a majority (or other numerical requirement) of shares execute written consents "setting forth the action so taken." It is common practice for such shareholder consents to simply attach and incorporate exhibits (such as an amendment to the company's certificate of incorporation) and provide in the text of the consent that the corporation's officers are permitted to execute the document attached as an exhibit. The Delaware Court of Chancery recently reminded practitioners that in order for a shareholder's written consent to be effective, the shareholder must have actually been provided with a copy of the exhibit. In this case, the corporation provided shareholders with copies of exhibit documents subsequent to its receipt of the shareholders' signed consents. According to the Court, "[w]hen a consent specifically refers to exhibits and incorporates their terms, the plain language of Section 228(a) requires a stockholder have the exhibits to execute a valid consent." Accordingly, the Court rejected the corporation's motion to dismiss and allowed the plaintiff-shareholder to move forward with its claim that the consent was invalid because the shareholder was not provided with a copy of the exhibit to the consent prior to its execution.
Carsanaro v. Bloodhound Technologies, Inc., --- A.3d ----, No. 7301-VCL, 2013 WL 1104901 at **14-15 (Del. Ch. Mar. 15, 2013)