An M&A Lawyer's Guide to the DGCL Amendments
The recently approved amendments to the General Corporation Law of the State of Delaware (the "DGCL") have garnered significant public interest. Much of that interest has focused on certain amendments relating to proxy access and proxy expense reimbursement. Although those particular amendments have received much of the attention, M&A counsel should be mindful of the impact of two other amendments on the negotiation of M&A transactions. One amendment addresses the problem of "empty voting" and permits a board of directors of a Delaware corporation to provide separate record dates for determining stockholders entitled to notice of and to vote at stockholder meetings, including meetings convened to vote on the approval and adoption of a merger agreement. Another amendment implicates the negotiation of indemnification and advancement rights of a target corporation’s former officers and directors by expressly providing that pre-existing indemnification and advancement rights provided in a corporation’s governing documents cannot be impaired by later amendments to those documents.