Several Delaware General Corporation Law provisions authorize or require that notice or communication be in “writing” or “written.” For example, Section 142(b) presents, “Any officer may additionally resign at any time upon written notice to the corporation.” But what precisely constitutes “written word”?
One may outline a written word via how it’s miles perceived – a note or verbal exchange is in writing if seen (rather than heard). Under this interpretation, the writing’s medium is beside the point. It will be paper, stone pills, or a laptop screen. However, trouble with focusing on visual perception arguably excludes Braille, which visually impaired people “examine” with the aid of touch rather than sight. Moreover, the demand for the written word does no longer expressly deals with how the awareness or communication should be transmitted.
Historically, all writing concerned a few forms of tangible medium. Thus, a requirement that verbal exchange is given in writing was tantamount to requiring some form of physical transmission inclusive of non-public transport or mail. Technology now allows for the transport of documents thru digital transmission, which the recipient can perceive visually. Consequently, some have questioned whether e-mail observation constitutes a written word. In 2000, the Delaware legislature amended Section 141(b) of the DGCL to offer that a director may additionally surrender by “notice given in writing or by digital transmission.” 72 Del. Laws 343 (SB 363). Previously, the statute
had authorized director resignations upon “written word”). Section 232(c) defines “digital transmission” to intend any form of communication not involving the physical transmission of paper that creates a document that can be retained, retrieved, and reviewed with the aid of the recipient and that may be without delay reproduced in paper form via the recipient via an automatic technique. It is doubtful why the Delaware legislature decided to authorize directors; however, no longer officers to surrender using digital transmission.
Delaware is now on the verge of introducing a brand new concept. SB 88 will add a brand new Section 116 to muddy the waters even greater with the aid of imparting that any act or transaction pondered or governed with the aid of the DGCL, the certificates of incorporation or bylaws can be provided in a “file” and that electronic transmission is deemed the equivalent of a “written report.” The statute then confusingly defines a “document” as a tangible medium on which data is inscribed and digital transmission. If a file is
described to consist of electronic transmission, why is it vital to a kingdom that a digital transmission has deemed the equal of a “written report,” and how is a “written report” distinguished from a “document”? Perhaps even greater confusingly, those definitions will not practice to a wide variety of communications below the DGCL, along with “any record expressly referenced as a note (or waiver of the word) utilizing the DGCL, the certificates of incorporation or bylaws.