COMMENT

Source: Model Act, § 8.23. This replaces provisions formerly found in § 14-2-148.

Subsection (a) reverses the common law rule that invalidates waivers of notice by directors after the date and time of the meeting. In modern practice notice is often a technical requirement and waivers should be freely permitted. This was the practice under former law, § 14-2-148. The Model Act language in subsection (a) was altered to delete the requirement that the waiver be filed with the minutes of the corporation, and to replace it with a "delivery" requirement. Like the change in Section14-2-821, this is intended to be clarifying. The director waiving notice is not under a duty to file the waiver with the minutes or corporate records, but only to deliver it for inclusion in such records. The filing of the waiver with the minutes is not a condition precedent to its validity or effectiveness. The keeping of proper records is governed by Section14-2-1601.

Subsection (b) recognizes that the function of notice is to inform directors of a meeting. If a director actually appears at the meeting he has probably had notice of it and generally should not be able to raise a technical objection that he was not given notice.

In cases where actual prejudice occurs because of the lack of notice, as may be indicated by the absence of one or more other directors, the director must call attention to the defect at the outset of the meeting or promptly upon his arrival. That director, or a director who did not receive notice and was not present at the meeting, may then attack the validity of the action taken for want of notice. If a director properly objects to the meeting being held, he is not presumed to have assented to actions taken thereafter, but he waives his objection if he thereafter votes for or assents to action taken at the meeting. See Section 14-2-824(d).

Note to 2004 Amendment The 2004 amendments permit a director to waive, by electronic transmission, any notice required by this Chapter, the articles of incorporation, or bylaws.

Cross-References Action without meeting, see § 14-2-821. Meetings of board of directors, see § 14-2-820. "Notice" defined, see § 14-2-141. Notice of meeting, see § 14-2-822.

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