Weil, Gotshal & Manges LLP

Talking About Talk: No Talk and Fiduciary Out Provisions In Delaware After Phelps Dodge, Capital Re and IXC

(March 2000, Business & Securities Litigator)


Reprinted from the Corporate Governance Advisor

By Stephen A. Radin

The possibility that a competing bid will emerge before shareholder approval (and possibly regulatory approval) of a merger agreement can be obtained has led many offerors to insist that merger agreements include not just “no shop” provisions that prohibit the target corporation’s board from soliciting interest or new bids after the merger agreement has been entered into, but also “no talk” provisions that do not permit the target corporation’s board to talk to third parties who express an interest in making a higher bid for the corporation.  Offerors similarly seek restrictive “fiduciary out” provisions that limit the board’s right to consider later better offers even if the board’s fiduciary duties otherwise would require consideration of those offers.

The Delaware Court of Chancery’s recent decisions by Chancellor William B. Chandler III in Phelps Dodge Corp. v. Cyprus Amax Minerals Co.,1 Vice Chancellor Leo T. Strine, Jr. in ACE Limited v. Capital Re Corp.,2 and Vice Chancellor Myron T. Steele in In re IXC Communications, Inc. Shareholders Litigation3 provide much needed – but by no means definitive – guidance with respect to no talk and fiduciary out provisions in merger agreements.


The decisions can be reconciled on their facts, but appear to reflect different attitudes toward no talk and fiduciary out provisions among the three members of the Court of Chancery who decided these three cases.  Chancellor Chandler and Vice Chancellor Strine, who decided Phelps Dodge and Capital Re, respectively, appear to view restrictive no talk and fiduciary out provisions as troublesome and permissible only under narrow circumstances.  Vice Chancellor Steele, who decided IXC, appears more willing to accept restrictive no talk and fiduciary out provisions.  Until further word on the subject comes from the Delaware Court of Chancery or the Delaware Supreme Court, corporations and their counsel must structure merger agreements within the framework – be it consistent or inconsistent – set by Phelps Dodge, Capital Re and IXC.

The Delaware Supreme Court Backdrop
No talk and fiduciary out provisions in merger agreements can arise in two very different legal contexts: (1) cases where there is a sale of control and boards thus have a duty under cases such as Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc.4 and Paramount Communications, Inc. v. QVC Network, Inc.5 “to seek the transaction offering the best value reasonably available to the stock holders,”6 and (2) cases where there is no sale of control and thus no duty under cases such as Revlon and QVC.  Numerous cases beginning with QVC hold that there is no change in control where a corporation that is controlled by public shareholders enters into a merger agreement and control of the corporation remains in the hands of public shareholders (but different public shareholders) after the merger.7

Phelps Dodge, Capital Re and IXC all fall into the second category:  stock for stock mergers agreements entered into under circumstances where there is no sale of control and no duty under Revlon and QVC “to seek the transaction offering the best value reasonably available to the stockholders.”8

The Delaware Supreme Court never has addressed no talk or fiduciary out provisions in this context.  Two Delaware Supreme Court decisions – the court’s 1994 decision in QVC and the court’s 1998 decision in Quickturn Design Systems, Inc. v. Shapiro9 – suggest broad limitations upon any agreement by a board that restricts the board’s future ability to exercise its fiduciary duties in the context of a change of control or a potential change in control.


QVC involved a board that had an obligation under Revlon “to seek the transaction offering the best value reasonably available to the stockholders” and that the court found had acted in an uninformed manner.10  The court stated that contractual provisions that restrict negotiations with alternative bidders “may not validly define or limit the directors’ fiduciary duties under Delaware law or prevent . . . directors from carrying out their fiduciary duties under Delaware law.”11  “To the extent such provisions are inconsistent with those duties,” the court continued, “they are invalid and unenforceable.”12  The court added: “To the extent that a contract, or a provision thereof, purports to require a board to act or not act in such a fashion as to limit the exercise of fiduciary duties, it is invalid and unenforceable.”13  


Quickturn involved a delayed redemption shareholder rights plan provision that did not permit the redemption of rights for six months following the replacement of a majority of the corporation’s directors.  The court held that this rights plan provision was invalid under Section 141(a) of the Delaware General Corporation Law, which “confers upon any newly elected board of directors full power to manage and direct the business and affairs of a Delaware corporation.”14  The court stated that a delayed redemption provision “prevents a newly elected board of directors from completely discharging its fundamental management duties to the corporation and its stockholders for six months . . . in an area of fundamental importance to the shareholders – negotiating a possible sale of the corporation.”15  According to the court, “no defensive measure can be sustained which would require a new board of directors to breach its fiduciary duty.”16  The court repeated – and added emphasis to the words “or not act” in – its statement in QVC that “[t]o the extent that a contract, or a provision thereof, purports to require a board to act or not act in such a fashion as to limit the exercise of fiduciary duties, it is invalid and unenforceable.”17

In neither QVC nor Quickturn did the Supreme Court address the question whether a board ever can agree – on an informed basis in order to obtain what the board believes is the best offer possible – to accept a merger agreement not providing the board a fiduciary out in the event of a later, better offer.


Phelps Dodge
Chancellor Chandler’s decision in Phelps Dodge was an oral ruling.  The decision involved a stock for stock merger agreement entered into by Cyprus Amax Mineral Company and Asarco Inc.  A no talk provision prevented Cyprus Amax and Asarco from encouraging or learning about any later proposals.  The court’s ruling says nothing about a fiduciary out provision, but the merger agreement included one permitting the board to recommend shareholder disapproval of the merger if the board determined “in good faith, based on advice of outside counsel, that its failure to do so would constitute a breach of its fiduciary duties.”18


The court denied a motion for a preliminary injunction in an action brought by a competing bidder, Phelps Dodge Corporation, due to the absence of irreparable harm but held that “the plaintiffs have demonstrated a reasonable probability of success on the merits of the litigation.”19  The court described no talk provisions as “troubling” because “[a] target can refuse to negotiate” but “the decision not to negotiate . . . must be an informed one” and no talk provisions “prevent a board from meeting its duty to make an informed judgment with respect to even considering whether to negotiate with a third party.”20  The court stated that there was no requirement that Cyprus or Asarco negotiate with Phelps Dodge, but Cyprus and Asarco “should not have completely foreclosed the opportunity to do so, as this is the legal equivalent of willful blindness, a blindness that may constitute a breach of a board’s duty of care; that is, the duty to take care to be informed of all material information reasonably available.”21

At a minimum, Phelps Dodge teachesthat strict no talk provisions, with or without a fiduciary out provision, will be scrutinized closely.
IXC Vice Chancellor Steele’s decision in IXC involved a stock for stock merger agreement entered into by IXC Communications, Inc. with Cincinnati Bell, Inc. (“CBI”), with IXC shareholders receiving CBI stock.  A no talk provision, in the court’s words, “prevent[ed] the parties from entertaining other potential deals.”22  A fiduciary out provision, in the court’s words, “permit[ted] the board of IXC to ultimately oppose the merger, should it see fit.”23  The merger agreement later was amended (apparently in reaction to the Phelps Dodge decision) to permit either party to consider “superior proposals.”24


The merger agreement followed an announcement six months before the agreement was reached that IXC had retained Morgan Stanley Dean Witter to consider possible merger or sale options.  The announcement was intended “to send a message to the ‘universe’ of players in the telecommunications market that IXC was interested in potential partners or acquirors” and “to send a message that parties with enough interest could approach them for possible strategic partnering.”25  The announcement also was intended not to announce a sale or make IXC appear “desperate to sell.”26  In the following months, “IXC had various contacts with interested parties” including “a who’s who of telecommunications players,” but no offer superior to the CBI offer ever was received.27  


The court denied a motion for a preliminary injunction in an action brought by IXC shareholders.  Unlike the court in Phelps Dodge, the court in IXC described “no talk” provisions as “common in merger agreements” and stated that they “do not imply some automatic breach of fiduciary duty.”28

The no talk provision here did not trouble the court for two reasons.  First, the provision “emerged late in the process,” after “the IXC board met its duty of care by informing itself over the nearly six months lasting from the February 5 public announcement to the late July approval of the IXC-CBI merger.”29  Second, the provision later was retracted and a fiduciary out provision permitted the board “to hear any proposals it sees fit” and “would have allowed the board to entertain any proposal superior to CBI’s.”30  The court accordingly held that the board’s determination to enter into a merger agreement with CBI was protected by the business judgment rule presumption that a board acts “with care, loyalty, and in ‘good faith,’” and that the court therefore was “obligated to defer to the board’s substantive business judgment and allow the shareholders to pass ultimate judgment on their actions” when the shareholders voted on the merger agreement.31  


At a minimum, IXC holds that no talk provisions that are entered into following a market test (though not necessarily a Revlon market test) and that permit a board to consider new proposals as the board “sees fit” are enforceable.  The court in IXC did not cite or discuss the Phelps Dodge, which at the time of the IXC decision was one month old.  The court also did not cite the Capital Re decision, which at the time of the IXC decision was two days old.

Capital Re
Vice Chancellor Strine’s decision in Capital Re involved a stock for stock merger agreement entered into by Capital Re Corporation with ACE Limited.  Two noteworthy facts distinguished the facts in this case from the facts in most other cases.  First, ACE owned 12.3 percent of Capital Re’s stock.  Second, ACE had voting agreements with shareholders holding an additional 33.5 percent of Capital Re’s shares that obligated votes in favor of the merger.  As a result, ACE controlled nearly 46 percent of the vote and thus “the Capital Re board knew when it executed the Merger Agreement that unless it terminated the Merger Agreement, ACE would have, as a virtual certainty, the votes to consummate the merger even if a materially more valuable transaction became available.”32


The merger agreement included a no talk provision that prohibited Capital Re from “participating in discussions or negotiations with or even providing information to a third party.”33  A fiduciary out provision permitted Capital Re’s board to consider other offers if the board concluded “in good faith . . . based on the written advice of its outside legal counsel, that participating in such negotiations or discussions or furnishing such information is required in order to prevent the Board of Directors of the Company from breaching its fiduciary duties to its stockholders.”34

Before entering into the merger agreement, the board had “not explored the marketplace with confidence.”35  Between the announcement of the merger agreement and a vote on the merger by Capital Re’s shareholders, the market value of the ACE stock offered as merger consideration dropped from $17 per share to less than $10 per share, and XL Capital Ltd. made a higher and all cash offer.36  Capital Re’s counsel advised the board in writing that discussions with XL Capital would be “consistent with” their fiduciary duties, but this written advice did not say, as required by the literal terms of the merger agreement, that discussions with XL Capital were “required” in order to fulfill the board’s fiduciary duties.37  Capital Re’s board nevertheless determined that “it was duty-bound to enter discussions with XL Capital” and, in accordance with the merger agreement, sent ACE a written notice stating that it intended to terminate Capital Re’s merger agreement with ACE unless ACE increased the merger consideration within five business days.38


The court denied a motion for a temporary restraining order enjoining Capital Re from terminating the merger agreement in an action brought by ACE on the ground that “ACE is unlikely to be able to convince a court on final hearing that Capital Re breached a valid contractual provision by entering into discussions with XL Capital.”39


The court began by finding that “the probable better interpretation of the contract” is that the no talk and fiduciary out provision required the board to “‘base’ its judgment on the ‘written advice’ of outside counsel” but that “the ultimate ‘good faith’ judgment about whether the board’s fiduciary duties required it to enter discussions with XL Capital” belonged to the board itself.40  The court reasoned that “it seems likely that in the end a fact-finder will conclude that the board had a good faith basis for determining that it must talk with XL Capital and not simply let the Capital Re stockholders ride the merger barrel over the financial falls.”41


In the alternative, the court acknowledged that the merger agreement could be interpreted in accordance with ACE’s contentions that ACE “specifically bargained for the language requiring the Capital Re board to ‘base’ its judgment on the ‘written advice’ of outside counsel so as to lock up the merger as tightly as legally permissible.”42  The court also acknowledged that it could find that Capital Re’s counsel “did not have a sufficient good faith belief that discussions with XL Capital were legally mandated to issue a written opinion to that effect . . . might ultimately be proven correct.”43

The court concluded in its alternative ruling, however, that “even it ACE is correct about what the Merger Agreement means,” ACE still was “unlikely to prevail on the merits” because ACE’s interpretation of the contract was unenforceable for public policy reasons.44  The court explained that one of the “circumstances in which the high priority our society places on the enforcement of contracts between private parties gives way to even more important concerns . . . is when the trustee or agent of certain parties enters into a contract that contains provisions that exceed thetrustee’s or agent’s authority.”45  The court continued:  “[T]he Delaware law of mergers and acquisitions has given primacy to the interests of stockholders in being free to maximize the value from their ownership of their stock without improper compulsion from executory contracts entered into by boards – that is from contracts that essentially disable the board and the stockholders from doing anything other than accepting the contract even if another much more valuable opportunity comes along.”46


The court then offered the following additional thoughts concerning no talk provisions that are accompanied by restrictive fiduciary out provisions of the type ACE contended it had bargained for and received.  According to the court, “[i]t is one thing” – and “perfectly understandable, if not necessary, if good faith business transactions are to be encouraged” – “for a board of directors to agree not to play footsie with other potential bidders or to stir up an auction.”47  By contrast, “[i]t is quite another thing for a board of directors to contractually agree that it will not consider another offer in a context where its refusal to do so guarantees that the original transaction will be consummated, however more valuable than the original transaction and however less valuable the original transaction has become . . . unless a lawyer is willing to sign an opinion indicating that . . . his client board is ‘required’ to consider that offer.”48  A provision of this type, the court stated, “involves an abdication by the board of its duty to determine what its own fiduciary obligations require at precisely that time in the life of the company in which the board’s own business judgment is most important.”49  According to the court, “[a] ban on considering such a proposal, even one with an exception where legal counsel opines in writing that such consideration is ‘required,’ comes close to self-disablement by the board.”50  


The court then analyzed the issue under two potential standards of judicial review:  business judgment rule principles and the enhanced scrutiny Delaware courts accord to defensive measures under Unocal Corp. v. Mesa Petroleum Co.,51 pursuant to which directors must show that they had “reasonable grounds for believing that a danger to corporate policy and effectiveness existed,” and that the defensive measure decided upon was “reasonable in relation to the threat posed.”52  “Examined under either doctrinal rubric,” the court concluded, the fiduciary out provision “as construed by ACE is of quite dubious validity.”53


Under business judgment rule principles, the court stated, the board’s “bedrock duties of care and loyalty” in a context “where the board is making a critical decision affecting stockholder ownership and voting rights” make it “especially important” that the board “negotiate with care and retain sufficient flexibility to ensure that the stockholders are not unfairly coerced into accepting a less than optimal exchange for their shares.”54  The court then quoted the Phelps Dodge court’s statement that no talk provisions without a fiduciary out provision are “troubling” because they “prevent a board from meeting its duty to make an informed judgment with respect to even considering whether to negotiate with a third party.”55

Under Unocal, the court continued, enhanced scrutiny may be required of stock for stock merger agreement provisions that are “designed to prevent another bidder, through a tender offer or rival stock-for-stock bid, from preventing the consummation of a transaction.”56  In the view of the court in Capital Re, if a merger agreement precludes board consideration of alternative favorable offers, then the board’s approval of the merger agreement is “as formidable a barrier to another offer as a non-redeemable poison pill.”57  Accordingly, “it might therefore be possible to construct a plausible argument that a no-escape Merger Agreement that locks up the necessary votes constitutes an unreasonable preclusive and coercive defensive obstacle within the meaning of Unocal.”58

At a minimum, Capital Re holds that where there has been no market canvass and the shareholder vote on the merger agreement is foreordained, a no talk provision without a fiduciary out provision – or with a fiduciary out provision requiring a lawyer to sign an opinion stating that the board is required to consider that offer – is unenforceable.

Phelps Dodge, Capital Re and IXC Read Together
Read together, the Phelps Dodge, Capital Re and IXC decisions suggest that a no talk provision, while potentially troublesome, is not impermissible as a matter of law if it is accompanied by a meaningful fiduciary out provision.  The debate in coming months will center around the required breadth of the fiduciary out provision.


At one end of the spectrum, a fiduciary out provision can permit a board that has entered into a merger agreement to act as it believes appropriate after receiving any later expression of interest and determine whether that expression of interest warrants talking or negotiation (and providing access to nonpublic information) and possibly an agreement upon a new merger agreement with the later bidder.  At the other end of the spectrum, a fiduciary out provision can permit a board that has entered into a merger agreement to talk or negotiate with (and provide access to nonpublic information to) a later bidder only if the later bidder has made a written and clearly and convincingly superior offer, and only after giving the board’s original merger partner notice of the offer and an opportunity to top the superior offer.  Any number of permutations in between are possible.


Another potentially important variable is whether the fiduciary out provision permits the board itself to terminate the original merger agreement in the event of a later better offer or requires the board to allow shareholders to vote on the original merger agreement in accordance with the terms of that agreement (with shareholders being told about any subsequent merger agreement proposal).  The court in Capital Re noted that a shareholder vote in Capital Re was meaningless because the result of the vote would be a virtual certainty due to ACE’s control over nearly 46 percent of the vote, and distinguished the result in The Kontrabecki Group, Inc. v. Triad Park, LLC59 on this ground.  The court in Triad Park granted a temporary restraining order (1) enjoining termination by the board of Triad Park, LLC of a merger agreement entered into by Triad with The Kontrabecki Group despite the Triad board’s receipt of what it believed to be a superior proposal (the court stated that Kontrabecki had alleged a colorable claim that the new proposal did not constitute a superior proposal) and (2) requiring a shareholder vote on the merger agreement after shareholders were informed concerning the new proposal.60  These two cases suggest that courts thus may be more willing to uphold restrictive no talk and fiduciary out provisions where shareholders have the ultimate authority to decide whether to approve the merger agreement and the shareholders’ vote is not locked up at the time the merger agreement is signed.

The Target’s Perspective
From the target’s perspective, a board generally should seek no talk and fiduciary out provisions that are as unrestrictive as possible in order to keep as many options open as possible.  The exception to this rule may be where the board believes – and has a reasonable basis to believe – that it has secured a “showstopper” or “out of the ballpark” bid and that the offeror will not enter into a merger agreement without the protection of restrictive no talk and fiduciary out provisions.  Under these circumstances, a court might well accept restrictive no talk and fiduciary out provisions.  


The court in Capital Re acknowledged that there are “limited circumstances in which a board could prudently place itself in the position of not being able to entertain and considera superior proposal to a transaction dependent on a stockholder vote” and offered the following example:  “where a board has actively canvassed the market, negotiated with various bidders in a competitive environment, and believes that the necessity to close a transaction requires that the sales contest end.”61

The court in Capital Re, however, also suggested that a board decision “designed to prevent another bidder, through a tender offer or rival stock-for-stock bid, from preventing the consummation of a transaction” would be subject to enhanced judicial scrutiny under Unocal rather than deference under the business judgment rule.62  The court in Capital Re did not address the Delaware Supreme Court’s statement in 1995 in Unitrin v. American General Corp.63 that board responses to offers to merge are governed by the business judgment rule because “a statutory prerequisite . . . to a merger transaction is approval by the Board before any stockholder action.”64  The court in ICX, unlike the court in Capital Re, held that Unocal was not applicable because merger agreement provisions are not “defensive mechanisms instituted to respond to a perceived threat to a potential acquiror.”65


The Offeror’s Perspective
From the offeror’s perspective, an offeror willing to accept less restrictive no talk and fiduciary out provisions following Phelps Dodge, Capital Re and IXC should in return extract the maximum termination or break-up fee possible.  These fees – which have been upheld by the Delaware courts where they have been in the 1 to 5 percent range – reimburse the prospective buyer for expenditures in pursuing the transaction and for lost opportunities and provide the offeror a “leg up” over later bidders in the amount of the break-up fee.66  


An offeror considering how aggressively to push for restrictive no talk and fiduciary out provisions needs to balance its desire to lock up the transaction with its desire not to risk loss of any break-up fee in the event that no talk and fiduciary out provisions are so restrictive that litigation results and a court invalidates the merger agreement, including the break-up fee provision, in its entirety.  Other than the possibility of losing its break-up fee, there is little for the offeror to lose by pushing for restrictive no talk and fiduciary out provisions.  If another offeror is willing to make a higher bid than the original merger partner, then the original merger partner will lose the bidding contest – unless restrictive no talk and fiduciary out provisions enable the offeror to preclude the board’s consideration of any later and better bid.  If those provisions are invalidated by a court, the offeror will have lost nothing (except possibly its break-up fee) that it would not have lost if the no talk and fiduciary out provisions had not been included in the merger agreement at all.


Conclusion
The Court of Chancery’s decisions in Phelps Dodge, Capital Re and IXC are by no means the final word on no talk and fiduciary out provisions in Delaware – either in the Court of Chancery or in the Supreme Court.  Until any further word comes, however, merger agreements containing no talk and fiduciary out provisions must be drafted within the parameters set by Phelps Dodge, Capital Re and IXC.  Corporate counsel should assume that no talk and fiduciary out provisions will be examined closely by the courts, and corporate counsel should assess their clients’ needs with respect to no talk and fiduciary out provisions in merger agreements accordingly.


Footnotes
1.        1999 Del. Ch. LEXIS 202, 1999 WL 1054255 (Del. Ch. Sept. 27, 1999).
2.        1999 Del. Ch. LEXIS 201, 1999 WL 1261372 (Del. Ch. Oct. 25, 1999).
3.        1999 Del. Ch. LEXIS 210, 1999 WL 1009174 (Del. Ch. Oct. 27, 1999).
4.        506 A.2d 173 (Del. 1986).
5.        637 A.2d 34 (Del. 1994).
6.        Id. at 43.
7.        Id. at 46-48.
8.        Id. at 43.
9.        721 A.2d 1281, 1292 (Del. 1998).
10.        637 A.2d at 43, 48-50.
11.        Id. at 48.
12.        Id.
13.        Id. at 51.
14.        721 A.2d at 1292.
15.        Id. at 1291-92.
16.        Id. at 1292.
17.        Id. at 1292 (quoting 637 A.2d at 51; emphasis added in Quickturn).
18.        The Clause At Issue, in Corporate Control Alert, Oct. 1999, at 10.
19.        1999 Del. Ch. LEXIS 202, at *2, 1999 WL 1054255, at *1.
20.        1999 Del. Ch. LEXIS 202, at *3-4, 1999 WL 1054255, at *1.
21.        1999 Del. Ch. LEXIS 202, at *4-5, 1999 WL 1054255, at *2.
22.        1999 Del. Ch. LEXIS 210, at *7, 1999 WL 1009174, at *2.
23.        Id.
24.        1999 Del. Ch. LEXIS 210, at *9, 1999 WL 1009174, at *3.
25.        1999 Del. Ch. LEXIS 210, at *4, 1999 WL 1009174, at *1.
26.        Id.
27.        Id.
28.        1999 Del. Ch. LEXIS 210, at *17, 1999 WL 1009174, at *6.

29.        Id.
30.        Id.
31.        1999 Del. Ch. LEXIS 210, at *13, 1999 WL 1009174, at *4.
32.        1999 Del. Ch. LEXIS 201, at *4, 1999 WL 1261372, at *2.
33.        1999 Del. Ch. LEXIS 201, at *7, 1999 WL 1261372, at *3.
34.        1999 Del. Ch. LEXIS 201, at *7-8, 1999 WL 1261372, at *3.
35.        1999 Del. Ch. LEXIS 201, at *36, 1999 WL 1261372, at *11.
36.        1999 Del. Ch. LEXIS 201, at *3, 9-10, 1999 WL 1261372, at *1, 3.
37.        1999 Del. Ch. LEXIS 201, at *5, 1999 WL 1261372, at *2.
38.        1999 Del. Ch. LEXIS 201, at *12, 1999 WL 1261372, at *4.
39.        1999 Del. Ch. LEXIS 201, at *46, 1999 WL 1261372, at *14.
40.        1999 Del. Ch. LEXIS 201, at *23, 1999 WL 1261372, at *8.
41.        1999 Del. Ch. LEXIS 201, at *24, 1999 WL 1261372, at *8.
42.        1999 Del. Ch. LEXIS 201, at *25, 1999 WL 1261372, at *8.
43.        Id.
44.        1999 Del. Ch. LEXIS 201, at *32, 1999 WL 1261372, at *10.
45.        1999 Del. Ch. LEXIS 201, at *26, 1999 WL 1261372, at *8.
46.        1999 Del. Ch. LEXIS 201, at *28, 1999 WL 1261372, at *9.
47.        1999 Del. Ch. LEXIS 201, at *33, 1999 WL 1261372, at *11.
48.        Id.
49.        1999 Del. Ch. LEXIS 201, at *35, 1999 WL 1261372, at *11.

50.        1999 Del. Ch. LEXIS 201, at *36, 1999 WL 1261372, at *11.
51.        493 A.2d 946 (Del. 1985).
52.        Id. at 955.
53.        1999 Del. Ch. LEXIS 201, at *43, 1999 WL 1261372, at *13.
54.        1999 Del. Ch. LEXIS 201, at *41-42, 1999 WL 1261372, at *13.
55.        1999 Del. Ch. LEXIS 201, at *42, 1999 WL 1261372, at *13 (quoting Phelps Dodge, 1999 Del. Ch. LEXIS 202, at *4, 1999 WL 1054255, at *1-2).
56.        1999 Del. Ch. LEXIS 201, at *39-40, 1999 WL 1261372, at *12.
57.        1999 Del. Ch. LEXIS 201, at *40, 1999 WL 1261372, at *12.
58.        1999 Del. Ch. LEXIS 201, at *40-41, 1999 WL 1261372, at *12.
59.        1998 Del. Ch. LEXIS 246 (Del. Ch. Mar. 18, 1998).
60.        1999 Del. Ch. LEXIS 201, at *48 n.55, 1999 WL 1261372, at *14 n.55; Kontrabecki, 1998 Del. Ch. LEXIS 246,at *1-3.
61.        1999 Del. Ch. LEXIS 201, at *36, 1999 WL 1261372, at *11.
62.        1999 Del. Ch. LEXIS 201, at *39-40, 1999 WL 1261372, at *12.
63.        651 A.2d 1361 (Del. 1995).
64.        Id. at 1375 n.16 (citing Del. Gen. Corp. Law § 251(b)).
65.        1999 Del. Ch. LEXIS 210, at *29, 1999 WL 1009174, at *10.
66.        See, e.g., Brazen v. Bell Atl. Co., 695 A.2d 43, 49 & n.17 (Del. 1997); Goodwin v. Live Entertainment, Inc., 1999 Del. Ch. LEXIS 5, at *69, 1999 WL 64265, at *23 (Del Ch. Jan. 22, 1999), aff’d, 741 A.2d 16 (unpublished opinion, text available at 1999 Del. LEXIS 238 and 1999 WL 624128 (Del. July 23, 1999
); Matador Capital Management Corp. v. BRC Holdings, Inc., 729 A.2d 280, 291 n.15 (Del. Ch. 1998); Kysor Indus. Corp. v. Margaux, Inc., 674 A.2d 889, 897 (Del. Super. 1996).
   
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