Business Corporation Board Committee Creation and Delegation in Delaware
At a glance
| Law and committee scope | 8 Del. C. § 141(c); pre-July 1, 1996 corporations default to (c)(1), later corporations to (c)(2). |
|---|---|
| Creation and approval | Older branch: committee designation by whole-board-majority resolution. Newer branch: board designation under ordinary vote default; older corporation can elect newer rule by whole-board majority (§ 141(b), (c)(1)-(2)). |
| Membership and appointment | One or more corporation directors per committee; board designates (§ 141(c)(1)-(2)). |
| Alternates and changes | Board may name director alternates; bylaws may allow eligible present members unanimously to substitute another director even without quorum (§ 141(c)(1)-(2)). |
| Delegated authority | Board resolution or bylaws define extent of board management powers; certificate/code may assign management elsewhere (§ 141(a), (c)(1)-(2)). |
| Actions reserved elsewhere | Older branch restricts charter changes, specified mergers, major asset/dissolution recommendations, bylaws; dividend, share issuance, short-form merger need express authority. Newer branch bars shareholder-required acts except director election/removal and bylaw changes (§ 141(c)(1)-(2)). |
| Subcommittees | Unless certificate/bylaws/designating resolution vary, committee may create a subcommittee of one or more of its members and delegate any or all powers (§ 141(c)(3)). |
| Procedure and oversight | Committee/subcommittee majority-serving-director quorum with one-third floor; majority-present vote unless documents/resolutions vary. All-member written/electronic consent filed with minutes; remote participation permitted (§ 141(c)(4), (f), (i)). |
Requirements one by one
Creation and the corporation-date branch
Under 8 Del. C. § 141(a)-(c), particularly subsection (c)(1), corporations formed before July 1, 1996 follow the older rule unless a majority of the whole board elects subsection (c)(2) by resolution. Later corporations use subsection (c)(2). Both branches allow committees of one or more directors. The older branch expressly requires a resolution passed by a majority of the whole board to designate a committee; the newer branch says the board may designate, with the ordinary board vote rule in § 141(b) supplying the default.
Delegation and reserved decisions
Under § 141(c)(1)–(2), the board resolution or bylaws set committee authority. The older branch excludes specified charter amendments, merger agreements, substantial-asset sale recommendations, dissolution or revocation recommendations, and bylaw amendments. It requires express authorization in the resolution, bylaws, or certificate for dividends, stock issuance, and a short-form merger certificate, subject to its stock-series terms exception. The newer branch bars actions expressly requiring stockholder approval, other than director election or removal, and bylaw adoption, amendment, or repeal.
Subcommittees and procedure
Unless the certificate, bylaws, or designating board resolution say otherwise, § 141(c)(3) permits a committee to create a subcommittee of one or more committee members and delegate any or all of its authority. Subsection (c)(4) sets a majority of serving directors as the usual committee or subcommittee quorum, with a one-third floor, and a majority-present vote unless an allowed document or resolution requires more. Subsection (f) permits action without a meeting on all members' written or electronic consent and requires filing consents with the minutes; subsection (i) permits remote participation when all participants can hear one another.
What trips people up
Under § 141(c)(1)–(2), the board may name director alternates. Bylaws may let present nondisqualified members unanimously choose another director for an absent or disqualified member even without a quorum. This temporary substitution is separate from permanent appointment. The corporation-date branch remains relevant until an older corporation makes the election specified in subsection (c)(1).
Common questions
Can a one-director committee create a subcommittee?
Yes, unless the certificate, bylaws, or designating resolution provide otherwise. Section 141(c)(3) requires at least one member of the parent committee on the subcommittee and permits delegation of any or all committee authority.
Does an older corporation always keep the older limits?
No. Section 141(c)(1) lets a corporation formed before July 1, 1996 elect the newer rule by a resolution adopted by a majority of the whole board.
Statutes and sources
- 8 Del. C. § 141 — Delaware Code. Accessed 2026-09-27.
Source links
Every statute quoted above, linked, with the date we checked it.
What does Delaware law mean for your facts?
You just read the general rule. Ask your own question and see which parts of current Delaware law apply to your situation, with citations you can check.
Opens in Ezel Pro.
- Starts from the statutes this survey is built on
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace