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During the 19th century, transactions between the corporation and its directors were commonplace. Such transactions often worked to the advantage of the interested director at the expense of the stockholder. The pernicious effect of such transactions caused legislatures to strictly regulate relationships between corporations and their directors. Through the early 20th century, transactions between a corporation and a director were considered void. Over the years, policy with respect to interested director transactions has loosened, but such transactions are still, rightly, looked at with suspicion.
Such transactions are no longer void per se. Section 144 provides for a statutory safe harbor for interested director transactions. Interested director transactions that comply with the requirements of Section 144 will not be considered void or voidable.
Compliance with the requirements of Section 144 provides a board with a safe harbor only against attacks for voidability. Interested director transactions are still subject to attack for potential violations of the duty of loyalty. So, while the challenged transaction might not be void, it could still be unfair and boards may be required to defend the transaction for violations of the duty of loyalty.
The procedures for insulating interested director transactions from attack for purposes of Section 144 provide a partial roadmap for the related doctrine of stockholder ratification. Interested director transactions that comply with the requirements of stockholder ratification doctrine will not be subject to attack for potential violations of the duty of loyalty and will receive the benefit of the business judgment presumption.EDIT PLAYLIST INFORMATION DELETE PLAYLIST
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|1||Show/Hide More||DGCL Sec. 144 - Interested director transactions|
|2||Show/Hide More||Benihana of Tokyo Inc. v. Benihana Inc.|
Section 144(a)(1) provides that when a board member's interest is disclosed to or is known by disinterested directors and a majority of the disinterested directors approve the challenged transaction, the board's decision to enter into the transaction will receive the benefit of the §144 safe harbor protection from challenges for voidness and voidability.
Benihana raises a couple of important issues. First, does the disclosure of the director's interest need to be accomplished formally? Or, is it sufficient that the director's interest be common knowledge to the disinterested directors? Second, to the extent a majority of disinterested directors approve the transaction does such an approval provide the interested director and the transaction any additional protection beyond merely protection against the transaction being deemed void or voidable? If a transaction is approved by a majority of disinterested directors who are fully informed about the transaction should that transaction get the protection of the business judgment presumption?
|3||Show/Hide More||Fliegler v. Lawrence|
Section 144 provides alternate methods to insulate interested director transactions from attack for voidness. In addition to seeking the approval of a majority of the disinterested directors, a board can seek the approval of the stockholders. Notice that the statute requires only that the challenged transaction is approved by a majority of the stockholders in order to gain the protection of the statutory safe harbor and not necessarily a majority of disinterested stockholders.
Remember the protections of §144 extend only to the question of void or voidability of an interested director transaction and not further. One can see how there would be many situations where one might not want stockholder approval of an interested director transaction to do much more than simply rescue a transaction from voidness. Where a controlling stockholder approves a transaction with itself (as a director) we may be okay with that transaction not being void, but we might still want the interested director/stockholder to be required to prove the transaction is nevertheless entirely fair to the corporation.
The court in the following case, Fliegler, recognizes this problem and makes it clear that for directors who are seeking the additional protection of the business judgment presumption, they would have to do more than just comply with §144(a)(2). For those directors, they will have to take the additonal step of complying with the requirements of common law stockholder ratification doctrine and seek informed approval of a majority of disinterested stockholders.
Brian JM Quinn
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