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An Introduction to the Law of Corporations: Cases and Materials, Fall 2017

DGCL Sec. 144

Headnote

The following provision of the statute provides a safe harbor for interested director transactions. If the requirements of the safe harbor are complied with then an interested director transaction will not be void or voidable because of the participation of the director. It may still, however, be subject to attack as a violation of the duty of loyalty and the interested director may be required to prove the entire fairness of the transaction. 

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TITLE 8

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Corporations

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CHAPTER 1. GENERAL CORPORATION LAW

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(a) No contract or transaction between a corporation and 1 or more of its directors or officers, or between a corporation and any other corporation, partnership, association, or other organization in which 1 or more of its directors or officers, are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board or committee which authorizes the contract or transaction, or solely because any such director's or officer's votes are counted for such purpose, if:

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(1) The material facts as to the director's or officer's relationship or interest and as to the contract or transaction are disclosed or are known to the board of directors or the committee, and the board or committee in good faith authorizes the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or

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(2) The material facts as to the director's or officer's relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders; or

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(3) The contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified, by the board of directors, a committee or the stockholders.

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(b) Common or interested directors may be counted in determining the presence of a quorum at a meeting of the board of directors or of a committee which authorizes the contract or transaction.

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8 Del. C. 1953, § 144; 56 Del. Laws, c. 5056 Del. Laws, c. 186, § 557 Del. Laws, c. 148, § 771 Del. Laws, c. 339, §§ 15-1777 Del. Laws, c. 253, §§ 13, 14.;