Too many unknowns to even begin putting any potential value ranges together in a public forum. We know that there is an ongoing effort to sell substantially all of the assets which hopefully yields a competitive auction process and we know that there is ongoing litigation against the former Board Chairman and his affiliated companies.
One of the defenses proffered by the Defendant is that he didn't breach his “duty of care” but even if he did, he has a contract that specifically indemnifies him from said breach. At present, we cannot know whether the Plaintiff’s arguments are meritorious but assuming arguendo, a breach occurred but the corporate documents indemnify Directors from the “Duty of Care” and this document suffices as the only remaining line of defense. This defense would be rendered nothing more than specious and threadbare and would, in effect, “miss the mark” entirely because it ignores, quite conveniently, the fact that he is also being called to answer for a breach of “Duty of Loyalty”.
Here’s what the Delaware case law says: (credit for this compilation goes to the Quinn Emmanuel lawfirm) see In re Trident Microsystems, Inc., et al 12-10069 (CSS) [Dkt. No. 866 at ¶15]
“…Although Delaware law “permits a waiver of liability for a breach of the common law duty of care that directors owe to a corporation and its stockholders by including a clear and unambiguous provision in the certificate of incorporation, it does not allow for a waiver of the directors’ duty of loyalty.” Schock v. Nash, 732 A.2d 217, 225 n. 21 (Del. 1999) (emphasis added); see also Sutherland v. Sutherland, 2009 Del. Ch. LEXIS 46 (Del. Ch. Mar. 23, 2009) (holding that an exculpatory charter provision that would treat interested directors as disinterested for purposes of approving corporate transactions would be “expressly forbidden by the DGCL [and] would therefore be void as ‘contrary to the laws of this State’ and against public policy”); Sample v. Morgan, 914 A.2d 647, 664 (Del. Ch. 2007) (rejecting directors’ argument that by approving the charter amendment and incentive plan, stockholders ratified any future action by the board, as long as that action was compliant with the literal terms of the contracts, noting that stockholders “can entrust directors with broad legal authority precisely because they know that the authority must be exercised consistently with equitable principles of fiduciary duty”). Cf. Brown v. Calamos, 664 F.3d 123, 126-27 (7th Cir. 2011) (“These disclosures would be ineffectual against a claim of breach of the duty of loyalty because that duty is not dissolved by disclosure (‘we are disloyal — caveat emptor !’)”); Schnell v. Chris-Craft Indus., Inc., 285 A.2d 437, 439 (Del. 1971) (“inequitable action does not become legally permissible simply because it is legally possible”).”
Delaware law is unflinching in the application of very rigorous standards for persons who enter into a fiduciary capacity with respect to companies incorporated in the state. As such, one cannot abrogate their fiduciary duty by simply “papering over” that to which the law has otherwise made them subject.
