Founder Separation Board Consent Review Checklist

Confirm the consent is signed by every director then in office. The board may act without a meeting only if all directors consent, so a missing signature invalidates the action rather than weakening it A.1. Watch the sequencing trap: if the founder's resignation takes effect on a later date, the founder is still a director then in office until that time, so the consent must either be adopted on or after the resignation's effective date or include the founder as a signatory. “consent thereto in writing, or by electronic transmission”

Confirm the consent provides for filing with the minutes of the board's proceedings. The statute directs that the executed consent be filed with the minutes in the same form as the minutes are maintained A.2 — a consent that never reaches the minute book undermines the evidentiary value the instrument exists to create. “After an action is taken, the consent or consents relating thereto shall be filed with the minutes of the proceedings of the board of directors, or the committee thereof, in the same paper or electronic form as the minutes are maintained.”

Confirm the consent recites and accepts the founder's written resignation, including its explicit effective date. A resignation is effective on delivery unless it names a later date B.1, and the effective date is load-bearing: it starts the contractual repurchase-option window in the founder's RSPA, so a consent that accepts an undated or oral resignation leaves the actual termination date — and the repurchase window it anchors — a triable question. “A resignation is effective when the resignation is delivered unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events.”

Where the founder held officer titles the resignation does not cleanly end, check that the consent expressly removes the founder from those offices and terminates residual signing, banking, and transaction authority. Officer removal is left to the bylaws or a board resolution — the DGCL does not itself impose a with-or-without-cause standard on officer removal (that phrase is the § 141(k) rule for directors) — so the consent should cite the bylaws alongside § 142(b) B.2. “Any officer may resign at any time upon written notice to the corporation.”

Confirm the consent does not purport to remove a non-resigning director. Director removal is a stockholder power — the single most common founder misconception in this area B.3 — so a contested departure needs a stockholder written consent under § 228, not a board resolution. A board consent that recites the removal of a director who has not resigned documents an act the board had no power to take. “Any director or the entire board of directors may be removed, with or without cause, by the holders of a majority of the shares then entitled to vote at an election of directors”

Check that the consent addresses the seat the founder vacated by exactly one of three mutually exclusive paths: reduce the authorized board size, fill the vacancy, or expressly leave the seat open pending a later appointment or the next election (common where the seat is designated by a class of stock or a voting agreement). A vacancy may be filled by a majority of the directors then in office, even less than a quorum B.4, and the parallel rule fills a vacated office as the bylaws provide B.5. If the certificate of incorporation fixes the number of directors, reducing the board requires a charter amendment — a stockholder act — rather than a bare board resolution. “Any vacancy occurring in any office of the corporation by death, resignation, removal or otherwise, shall be filled as the bylaws provide.”

Confirm the consent authorizes the company's exercise of its repurchase right, identifies the governing RSPA and the shares covered, and directs the officers to deliver the election notice and close within the RSPA's exercise window. The DGCL supplies the corporation's power to acquire its own shares C.1; the window and price are private ordering in the RSPA. Check that the authorization's scope matches the transaction actually closed: the default resolution covers only unvested shares at the RSPA price, so a negotiated buyback of vested shares or at a premium needs its own tailored authorization.

Confirm the consent states the board's election on the disposition of the repurchased shares — retired and restored to authorized-but-unissued status (with any related capital reduction under §§ 243–244), or held as treasury shares. Repurchased shares are not automatically retired C.2, and retirement is a board act under § 243(a), so the election belongs in the consent itself rather than in an officer-level ledger instruction. “any of its shares theretofore purchased or redeemed out of surplus and which have not been, or are not required by the certificate of incorporation to be, retired”