(a) Unless otherwise provided in the certificate of incorporation or bylaws:
(1) Vacancies and newly created directorships resulting from any increase in the authorized number of directors elected by all of the stockholders having the right to vote as a single class may be filled by a majority of the directors then in office, although less than a quorum, or by a sole remaining director;
(2) Whenever the holders of any class or classes of stock or series thereof are entitled to elect 1 or more directors by the certificate of incorporation, vacancies and newly created directorships of such class or classes or series may be filled by a majority of the directors elected by such class or classes or series thereof then in office, or by a sole remaining director so elected.
If at any time, by reason of death or resignation or other cause, a corporation should have no directors in office, then any officer or any stockholder or an executor, administrator, trustee or guardian of a stockholder, or other fiduciary entrusted with like responsibility for the person or estate of a stockholder, may call a special meeting of stockholders in accordance with the certificate of incorporation or the bylaws, or may apply to the Court of Chancery for a decree summarily ordering an election as provided in § 211 or § 215 of this title.
(b) In the case of a corporation the directors of which are divided into classes, any directors chosen under subsection (a) of this section shall hold office until the next election of the class for which such directors shall have been chosen, and until their successors shall be elected and qualified.
(c) If, at the time of filling any vacancy or any newly created directorship, the directors then in office shall constitute less than a majority of the whole board (as constituted immediately prior to any such increase), the Court of Chancery may, upon application of any stockholder or stockholders holding at least 10 percent of the voting stock at the time outstanding having the right to vote for such directors, summarily order an election to be held to fill any such vacancies or newly created directorships, or to replace the directors chosen by the directors then in office as aforesaid, which election shall be governed by § 211 or § 215 of this title as far as applicable.
(d) Unless otherwise provided in the certificate of incorporation or bylaws, when 1 or more directors shall resign from the board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have power to fill such vacancy or vacancies, the vote thereon to take effect when such resignation or resignations shall become effective, and each director so chosen shall hold office as provided in this section in the filling of other vacancies.
8 Del. C. 1953,
§
223;
56 Del. Laws, c. 50;
63 Del. Laws, c. 25,
§
10;
73 Del. Laws, c. 298,
§
8;
77 Del. Laws, c. 253,
§§
24, 25;
Notes of Decisions
Cited in
21
cases (
4 in the last 5 years), 1957–2026 · leading case:
Dillon v. Berg, 326 F. Supp. 1214 (D. Del. 1971).
Dillon v. Berg, 326 F. Supp. 1214 (D. Del. 1971).
· cites it 4× “432, 434-435 (1932) the Delaware Court of Chancery considered a predecessor statute of 8 Del.C. § 223, Rev.Code 1915, § 1944, as amended by 35 Del.”
Dillon v. Scotten, Dillon Co., 335 F. Supp. 566 (D. Del. 1971).
· cites it 3× “Therefore, plaintiffs contend that Summers could not have been considered a director “then in office” under § 223 of the Delaware Corporation Law, 8 Del.C. § 223, during any of the dates mentioned above.”
Vernon Hill, II v. Cohen, 40 F.4th 101 (3rd Cir. 2022).
“Pennsylvania courts have not addressed whether the phrase “though less than a quorum” overrides the general quorum requirement even when a quorum is possible, but Delaware courts have provided helpful guidance in applying their substantively identical statute, 8 Del. C. §…”
Prickett v. Am. Steel & Pump Corp., 253 A.2d 86 (Del. Ch. 1969).
· cites it 2× “Plaintiff contends that under 8 Del.C. § 223 (c) the offices of the three directors chosen on October 18, 1968 by the two directors then in office are up for election at the meeting.”
Wier v. Howard Hughes Med. Inst., 407 A.2d 1051 (Del. Ch. 1979).
“2d 409 (1972), and 8 Del.C. Section 223. Finally, as to Mr. Hughes’ powers to name a successor Trustee or Trustees, the method of such appointments, his power to appoint and remove members of the Executive Committee as well as to amend the Institute’s charter and by-laws it is…”
Schroder v. Scotten, Dillon Co., 299 A.2d 431 (Del. Ch. 1972).
“8 Del.C. § 223(d) provides: “Unless otherwise provided in the certificate of incorporation or by-laws, when one or more directors shall resign from the board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have…”
Burr v. Burr Corp., 291 A.2d 409 (Del. Ch. 1972).
“It is safe to assume that the draftors of these by-laws were aware of the Delaware law which drew the distinction between a vacancy and a newly-created directorship.”
Campbell v. Loew's, Inc., 134 A.2d 852 (Del. Ch. 1957).
“8 Del.C. § 223. Obviously, the amendment to include new directors is not worded so as to make the statute exclusive.”
Grossman v. Liberty Leasing Co., Inc., 295 A.2d 749 (Del. Ch. 1972).
· cites it 2× “On the contrary, the very language used authorizes the Court to- hear and determine the validity of any election of any “officer of any corporation;” and it is well known that directors commonly elect corporate officers.”
Tomlinson v. Loew's Inc., 134 A.2d 518 (Del. Ch. 1957).
· cites it 7× “8 Del.C. § 223, provides, inter alia, that vacancies on the board "may be filled by a majority of the directors then in office, though less than a quorum, unless it is otherwise provided in the certificate of incorporation or the by-laws".”
Prickett v. Am. Steel & Pump Corp., 251 A.2d 576 (Del. Ch. 1969).
“But shortly before argument on the motion for summary judgment plaintiff abandoned that proposal and, instead, sought to allege a cause of action under 8 Del.C. § 223(c). Those allegations are to the effect that three of ASP’s five directors were elected on October 18, 1968 by…”
— 8 Del. C. § 223(a) — 6 cases
Dillon v. Berg, 326 F. Supp. 1214 (D. Del. 1971).
“432, 434-435 (1932) the Delaware Court of Chancery considered a predecessor statute of 8 Del.C. § 223, Rev.Code 1915, § 1944, as amended by 35 Del.”
— 8 Del. C. § 223(a)(1) — 5 cases
Vernon Hill, II v. Cohen, 40 F.4th 101 (3rd Cir. 2022).
“Pennsylvania courts have not addressed whether the phrase “though less than a quorum” overrides the general quorum requirement even when a quorum is possible, but Delaware courts have provided helpful guidance in applying their substantively identical statute, 8 Del. C. §…”
— 8 Del. C. § 223(c) — 1 case
Prickett v. Am. Steel & Pump Corp., 251 A.2d 576 (Del. Ch. 1969).
“But shortly before argument on the motion for summary judgment plaintiff abandoned that proposal and, instead, sought to allege a cause of action under 8 Del.C. § 223(c). Those allegations are to the effect that three of ASP’s five directors were elected on October 18, 1968 by…”
— 8 Del. C. § 223(d) — 1 case
Schroder v. Scotten, Dillon Co., 299 A.2d 431 (Del. Ch. 1972).
“8 Del.C. § 223(d) provides: “Unless otherwise provided in the certificate of incorporation or by-laws, when one or more directors shall resign from the board, effective at a future date, a majority of the directors then in office, including those who have so resigned, shall have…”
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