2023 Amendments to the Delaware General Corporation Law and Alternative Entity Statutes

Introduction

The State of Delaware has long been recognized as a leading jurisdiction for the incorporation of businesses, not only in the United States but globally. One of the reasons for this prominence is the state's commitment to regularly updating and refining its legal framework, ensuring it remains contemporary and attractive to businesses. The 2023 amendments to the Delaware General Corporation Law (DGCL) and the Alternative Entity Statutes are a testament to this commitment.

Below, we delve into the most notable changes introduced this year, and the implications for corporations and alternative entities incorporated under Delaware law.

Key Amendments to the DGCL

1. Clarification on Ratification of Defective Corporate Acts:

   • The amendment further elucidates the procedures for ratifying defective corporate acts. There's now clearer guidance on how to handle situations where there are no validly elected directors due to a previous defect.

2. Modification of Provisions for Emergency Bylaws:

   • The 2023 amendments expand the scope under which emergency bylaws can be adopted. Previously limited to nuclear attacks or catastrophes, it now extends to any emergency, including pandemics, as deemed appropriate by the board of directors.

3. Enhanced Electronic Communications:

   • Recognizing the increasing reliance on digital communications, the new amendments provide more flexible provisions for electronic notices and documentation, ensuring smoother operations in an increasingly digital age.

Highlights from the Amendments to the Alternative Entity Statutes

1. Enhanced Flexibility in Operating Agreements for LLCs and LPs:

   • The amendments offer more freedom for drafting provisions in the operating agreements, particularly in areas concerning the fiduciary duties and obligations of the members and partners.

2. Clarification on the Assignment of Limited Partnership Interests:

   • The new provisions provide a more detailed framework on the assignment of interests in a limited partnership, ensuring transparency and avoiding potential legal pitfalls.

3. Electronic Signatures and Records:

   • Echoing the DGCL's move toward embracing technology, the Alternative Entity Statutes now permit the use of electronic signatures, and the storage and delivery of records through electronic means, offering more convenience and efficiency.

Implications for Businesses

The 2023 amendments reinforce Delaware's stance as a business-friendly jurisdiction. For corporations, the clarified procedures for ratification and broader scope for emergency bylaws reduce the potential for legal challenges and operational disruptions. Meanwhile, the acknowledgment and integration of electronic communication methods reflect the state's understanding of the evolving nature of business in the 21st century.

Alternative entities, such as LLCs and LPs, will particularly benefit from the enhanced flexibility in drafting operating agreements, allowing them to tailor their operational and governance structures to better suit their unique requirements.

Conclusion

The 2023 amendments to the DGCL and Alternative Entity Statutes continue Delaware's tradition of refining its corporate and business laws in response to evolving needs. Businesses incorporated in Delaware, or those considering doing so, should familiarize themselves with these changes to harness the benefits and ensure compliance. It's always advisable for entities to consult legal professionals to understand the intricacies of these amendments and how they might impact their specific circumstances.