Yesterday's post discussed the meaning of the term "officer" under the California General Corporation Law. It may surprise no one that Delaware's statute, 8 Del. Code § 142, is different. Unlike Section 312 of the California Corporations Code, Section 142 does not require that a Delaware corporation have particular titles such as president, treasurer and secretary. Thus, as far as the DGCL is concerned, a corporation may bestow the title of "Le Grand Fromage" on its highest ranking officer.
Perhaps with Emerson in mind ("A foolish consistency is the hobgoblin of little minds . . . ."), Delaware's "deemed consent" statute, 10 Del. Code § 3114 defines the term "officer":
(1) Is or was the president, chief executive officer, chief operating officer, chief financial officer, chief legal officer, controller, treasurer or chief accounting officer of the corporation at any time during the course of conduct alleged in the action or proceeding to be wrongful;
(2) Is or was identified in the corporation’s public filings with the United States Securities and Exchange Commission because such person is or was 1 of the most highly compensated executive officers of the corporation at any time during the course of conduct alleged in the action or proceeding to be wrongful; or
(3) Has, by written agreement with the corporation, consented to be identified as an officer for purposes of this section.
This definition of "officer" is relevant to the Delaware General Corporation Law because Section 145(c), as amended in 2020, specifies that for indemnification with respect to any act or omission occurring after December 31, 2020, references to “officer” for purposes of mandatory indemnification are limited to only persons who at the time of the act or omission are deemed to have consented to service by the delivery of process to the registered agent of the corporation pursuant to Section 3114(b) (treating residents of Delaware as if they were nonresidents).
This definition of "officer" may also be irrelevant as far as personal jurisdiction is concerned if it is determined to be unconstitutional. See Why Is McDonald's Former V.P. Being Judged In Delaware By Delaware Law? and Will Mallory Doom Delaware's Officer Exculpation Statute And Its Corporate Hegemony?
