In The Ravenswood Investment Company, L.P. v. Winmill, C.A. No. 3730 (Del. Ch. Nov. 27, 2013), the Delaware Court of Chancery declined to grant summary judgment in favor of plaintiff on its claim that a corporation’s issuance of stock options was invalid for failure to obtain approval of the stock option plan by the corporation’s stockholders in a manner that complied with DGCL requirements regarding the dating of stockholder consents.  More specifically, plaintiff argued, based on Section 228(c) of the DGCL and the Chancery Court’s decision in H-M Wexford LLC v. Encorp, Inc., 832 A.2d 129 (Del. Ch. 2003), that the stockholder consent which approved the plan was invalid because it was not individually dated by the stockholder, but rather bore a pre-printed, “as of” date.  Section 228(c) of the DGCL reads: “every written consent shall bear the date of signature of each stockholder … who signs the consent….”  In H-M Wexford v. Encorp, Inc., the Delaware Court of Chancery declined to dismiss a claim that stockholder consents were invalid where multiple stockholders executed consents all containing a pre-printed “as of” date.  The Court’s ruling in H-M Wexford v. Encorp, Inc. appeared to be based on a strict construction of Section 228(c):

The defendants do not dispute that the signers did not individually date their Consents, but instead advance the strange proposition that Section 228(c) does not invalidate written consents not individually dated.… Section 228(c) reads: “Every written consent shall bear .... The word “shall’ is a mandatory term. It denotes that such action must be taken in order to comply with the statute, and thus be valid.

H-M Wexford LLC v. Encorp, 832 A.2d at 152.

In The Ravenswood Investment Company, L.P. v. Winmill, the Court distinguished H-M Wexford on the basis that there was a factual issue in that case whether the consents had actually been signed on their pre-printed “as of” date.  Here, in contrast, there was no genuine dispute that the stockholder consent had been executed on the same date as the pre-printed “as of” date.  Thus, in The Ravenswood Investment Company, L.P. v. Winmill, the Court held that a written consent bearing an “as of” date is not invalid if the “as of” date actually represents the date the stockholder signed the consent, which, according to the Court, is all that is required for technical compliance with Section 228(c).