Collecting Director Signatures Before Joining the Board

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It is not unusual to collect signature pages in connection with corporate transactions prior to the transaction and then release them at the time of the transaction.  However, Delaware law provides that when a person executes a written consent before actually joining the Board (even if that consent is executed for convenience purposes only to be delivered after he joins the Board) the consent is invalid.

Under Delaware law any action required or permitted to be taken at any meeting of the board of directors may be taken without a meeting if all members of the board consent in writing. In AGR Halifax Fund, Inc. v. Fiscina the Delaware Chancery Court stated that only the lawful board of directors is empowered to take action and that individuals who have not yet been elected to a corporation’s board of directors cannot act as directors.  The court concluded that actions taken by individuals who are not members of the board of directors are a nullity.  This is true even if these individuals are subsequently appointed as members of the board of directors. Therefore, there seems to be a distinction between directors signing pages in advance of a corporate action and individuals who are not directors signing pages in advance of an action.

This issue often arises in M&A transactions where the target board is replaced in connection with the transaction and written consents of the new board may be collected before the transaction for convenience purposes.  A practical solution is for the new directors to expressly deliver their signatures to be held in escrow until their appointment to the new board is official and for the new directors to approve the action by email sent after their appointment to the new board is official in accordance with Section 141(f) of the Delaware General Corporation Law.