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The defendants argued that because there was no question that the consents had been delivered within the 60-day period, the question of how the consents were dated was of no significance. It noted that under section 228(c), in order for a consent to be valid, a consent has to bear the date of signature of each shareholder.
The court also noted that whereas in this case it might be possible to determine, by examining extraneous factors, whether the consents had been delivered within the 60-day limit, that would not always be the case, so the date requirement must be strictly enforced.
The 60-day period specified in section 228(c) for delivering a sufficient number of shareholder consents to take the corporate action in question runs from the date of the “earliest dated consent” delivered to the corporation. (Click here for a copy of this case.) I was informed of this case in 2004 by Joy Moxon, now in-house with The Timken Company.
If the earliest dated consent bears an , 832 A.2d 129 (Del. Joy was used to seeing consents with one date at the bottom.
But if they sign counterpart copies, you could make do with the one date at the bottom, with a blank day, or day and month, or day and month and year, that each signatory could fill in by hand.
I don’t pretend to be an expert in Delaware law, so I’d be pleased if any Delaware attorneys passing through would offer their thoughts on this.
But section 228(c) doesn’t in fact require that each shareholder date its signature.
Instead, as noted above, it says that a consent must “bear the date of signature of each stockholder or member who signs the consent.” As a matter of semantics, you should be able to satisfy that requirement by having one date on the consent, as long as it’s the date when all shareholders signed.
But I don’t know if Delaware practitioners have changed how they date consents to take into account the suggestion in the date) wouldn’t satisfy section 228(c).
Note that if shareholders sign a consent on different dates and two or more of them sign the same piece of paper, you’d need to include a separate date for each signature line.
The court refused to dismiss the plaintiff’s claim.