Drafting Employment Agreements in M&A: A Lesson in Delaware’s Officer-Consent Statute

The topic of personal jurisdiction is often a faint 1st year law school memory to the transactional lawyer. A recent Delaware case instructs why it should not be.

In Altigen Communications, Inc. v. Day, decided on August 21, 2026, Delaware Vice Chancellor Laster dismissed an acquirer’s suit against the founder on procedural grounds, namely for lack of personal jurisdiction.

Altigen Communications, Inc. (“Altigen”) purchased the assets of Intermountain Technology Group, LLC (“ZAACT”) in 2022 via an asset purchase agreement (“APA”) for a combination of upfront cash, cash payments in years 2 and 3, and company stock. Ryan Day was the CEO of ZAACT and lived in Utah. Between signing and closing, Day learned that three of ZAACT’s largest customers were going to reduce and terminate their business, which he did not disclose to Altigen. After becoming Chief Strategy Officer of Altigen as part of the acquisition, he continued to not disclose this, did not meet in weekly sessions with the CEO of Altigen, and skipped company board meetings. The following year, the customers left and revenue that year fell by $1.4MM while profit fell from $850K to a loss of $340K.

Unsurprisingly, Altigen refused to pay the year 2 and year 3 cash payments and stock. Day and ZAACT sued Altigen in 2024 in Utah for breach of the APA, and Altigen countersued but failed to amend their complaint to sue Day for breach of fiduciary duty. The deadline to amend the Utah pleading passed, and Altigen filed approximately 4 months later in Delaware for Day’s breach of fiduciary duty.

To claim Delaware as the jurisdiction, Altigen argued for Delaware’s Officer-Consent statute for Day’s role as Chief Strategy Officer. The court said:

“Under the Officer-Consent Statute, a person who serves a Delaware corporation in specified roles consents to service of process through the corporation’s registered agent or, if none, the Delaware Secretary of State.”

These roles are president, chief executive officer, chief operating officer, chief financial officer, chief legal officer, controller, treasurer or chief accounting officer.

“The Officer Definition is plainly narrower than whoever has an officer title. When drafting the Roles Clause, the General Assembly selected three whole-company or operational roles, four finance roles, and one legal role… The General Assembly could have extended the Officer-Consent Statute to all formal DGCL officers. We have the statute we have.”

For now, therefore, to avail of Delaware courts, an acquiring company should state in all employment agreements that the officer (of any role) would be treated under and consents to 10 Del. C. § 3114(b)(3) as an officer under the Officer-Consent Statute. For a double suspenders approach, there should be a mandatory forum selection clause for Delaware as well. Altigen did neither of these things.

Jerome Fogel is a founding partner of Fogel & Potamianos LLP, a firm recognized by Chambers & Partners’ California Spotlight Guide for excellence in corporate law. A partner in the Corporate Practice Group and Chair of the Sports & Entertainment Group, he is known as an innovator and dealmaker in the legal community. He serves as a general counsel to privately held companies with a specialty in mergers and acquisitions. 

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