Proposing Amendments To Your Charter: Considerations After Delaware’s Officer Exculpation Amendments, and Other Recent DE Statutory Amendments - 11/14/22

This program was a discussion focusing on a recent enabling amendment to the Delaware General Corporation Law that applies to all public and private Delaware-incorporated companies regarding the extent to which covered corporate officers may or should be exculpated from personal liability, as well as cover other recent Delaware statutory amendments.  Leading Delaware corporate law experts advocated for this enabling amendment in an article published last year entitled “Optimizing the World’s Leading Corporate Law: A 20-Year Retrospective and Look Ahead.”   Questions that will be explored in the discussion include:

• ·what legal developments have occurred in recent years to prompt this legislative change,
•  what companies and boards should consider doing now,
•  whether or not publicly traded companies and their boards should take action to reduce the discrepancies between director and officer exculpation from liability by proposing amendments to the charter as permitted under the new law, and what information they should consider in making their decision,how this development may impact the upcoming proxy season,
• what kind of engagement with or disclosure to stockholders may be appropriate or helpful if proposing Charter amendments,
•  what may be the implications for possibly reduced D&O insurance costs,
•  what kinds of remedies will continue to be available to boards and stockholders for problematic officer conduct and
• whether or not the proposed limits to officer exculpation effectively advance and balance the best interests of corporations and their stakeholders (including stockholders).

 In addition to the foregoing, there was also a discussion of other recent Delaware statutory amendments of interest to attendees.  The participants were:

• Sabastian V. Niles, Partner, Wachtell, Lipton, Rosen & Katz, Moderator
• Lawrence A. Hamermesh, Executive Director, Institute for Law & Economics, University of Pennsylvania Law School; Professor Emeritus, Widener University Delaware Law School
• Theodore N. Mirvis, Partner, Wachtell, Lipton, Rosen & Katz
• Patricia O. Vella, Partner, Morris, Nichols, Arsht & Tunnell LLP
• Justin P. Klein, Director, John L. Weinberg Center for Corporate Governance, Welcome