2009 Bloomberg Finance L.P. All rights reserved. Originally published by Bloomberg Finance L.P in the Vol.

2,
No. 52 edition of the Bloomberg Law Reports Corporate Law. Reprinted with permission. The views expressed
herein are those of the authors and do not represent those of Bloomberg Finance L.P. Bloomberg Law Reportsis
a registered trademark and service mark of Bloomberg Finance L.P.
Recent Developments in Delaware Law


Article contributed by:
Karen L. Valihura, T. Victor Clark, and Michelle L. Green, Skadden, Arps, Slate, Meagher & Flom
LLP

A number of notable developments occurred in Delaware corporate law in 2008. Below, we touch
on a few that may have some practical implications for corporate practitioners in the areas of
disclosure, MAE clauses in merger agreements, shareholder proposed bylaws, and limited
liability company law.

Delaware Disclosure Developments
Delaware courts issued several rulings of interest to practitioners this year addressing the duty of
disclosure sometimes referred to as the duty of candor.

First, in In re Transkaryotic Therapies, Inc.,
1
the Court of Chancery appeared to close the door on
the availability of monetary or equitable relief for a disclosure violation where the merger giving
rise to the disclosures already had closed and there was no evidence of a breach of the duty of
loyalty or good faith by the directors who authorized the disclosures. Specifically, the court held
that:

The solicitation of proxies for the shareholder vote approving the merger of Shire and
Transkaryotic occurred over three years ago. The merger has happened; the
metaphorical merger eggs have been scrambled. An injunctive order requiring
supplemental, corrective disclosures at this stage would be an exercise in futility and
frivolity. Indeed, there are no longer shareholders of Transkaryotic from whom to solicit
proxies. Because a disclosure violation results in irreparable harm and because this
Court can no longer provide the equitable cure for such harm, I grant the Individual
Defendants' motions for summary judgment with respect to the disclosure claims. I hold
that this Court cannot grant monetary or injunctive relief for disclosure violations in
connection with a proxy solicitation in favor of a merger three years after that merger has
been consummated and where there is no evidence of a breach of the duty of loyalty or
good faith by the directors who authorized the disclosures.
2


The court alternatively granted summary judgment in favor of defendants on the disclosure claims
pursuant to the company's exculpatory provision authorized under 8 Del. C. 102(b)(7). The
court explained that "not every breach of the duty of disclosure implicates bad faith or disloyalty,"
and, therefore, because the court had separately dismissed plaintiffs' claims of disloyalty and bad
faith, "any disclosure violation would implicate only the duty of care and would, therefore, not lead
to the imposition of monetary damages."
3


Second, in Wayne County Employees' Retirement Sys. v. Corti,
4
the Court of Chancery reiterated
some key holdings regarding materiality made in earlier opinions; specifically, the court held that
(i) there is no per se rule requiring a fairness opinion to be updated merely because of the
passage of time, and (ii) not every document reviewed by the board is ipso facto material. In this
case, plaintiff sought to enjoin a vote by Activision shareholders on a merger with another video
game company, Vivendi Games, based upon inadequate proxy statement disclosures. The court
denied plaintiffs motion for a preliminary injunction.





2009 Bloomberg Finance L.P. All rights reserved. Originally published by Bloomberg Finance L.P in the Vol. 2,
No. 52 edition of the Bloomberg Law Reports Corporate Law. Reprinted with permission. The views expressed
herein are those of the authors and do not represent those of Bloomberg Finance L.P. Bloomberg Law Reportsis
a registered trademark and service mark of Bloomberg Finance L.P.
Plaintiff's main argument in support of its motion was that Activision had to disclose to its
shareholders internal projections for Vivendi Games that the Activision board received months
after it had approved the merger at a December 1, 2007 meeting. Plaintiff argued that the
projections were material because the board reviewed those projections when it decided at an
April 29, 2008 meeting to stand by its earlier decision, and "Activision shareholders [would] give
great weight to the board's continued recommendation due to the fact that the Allen & Company
fairness opinion is over seven months old." The court rejected this argument.

The court first noted that "the definitive proxy unambiguously discloses that Allen & Company's
fairness opinion concluded the transaction was fair as of December 1, 2007" and held, citing
Lewis v. Leaseway Transportation Corp.,
5
"that there is no 'per se rule that [a fairness opinion]
must be updated after a certain time.' Thus, the fact that the fairness opinion was seven months
old does not by itself render more current internal projections of the acquirer material."
6
The court
next stated that "there [was] no evidence in the record that the Activision board relied on these
Vivendi projections [because] [t]he supplement states only that the board 'reviewed the current
2008 and 2009 estimated financial results,'" and held, citing In re BEA Sys., Inc. Shareholder
Litigation,
7
that "[f]rankly, not every document reviewed by the board is material."
8
Finally, the
court noted that plaintiff admitted in its briefing that the later projections were "generally the same
as those already disclosed," and, therefore, the additional information would not "significantly
alter the total mix of information available," i.e., the projections were not material.
9


Third, in Berger v. Pubco Corp.,
10
the Court of Chancery held that the manner in which a parent
company values a subsidiary in the short-form merger context is material and must be disclosed
to minority shareholders where the subsidiary is not publicly traded and very little information
about the company is publicly available. Specifically, the court held:

In the context of Pubco, an unregistered company that made no public filings and whose
Notice was relatively terse and short on details, the method by which [the parent] set the
merger consideration is a fact that is substantially likely to alter the total mix of
information available to the minority shareholders. Where, as here, a minority
shareholder needs to decide only whether to accept the merger consideration or to seek
appraisal, the question is partially one of trust: can the minority shareholder trust that the
price offered is good enough, or does it likely undervalue the Company so significantly
that appraisal is a worthwhile endeavor? In a situation like Pubco's, where so little
information is available about the Company, such a disclosure would significantly change
the landscape with respect to the decision of whether or not to trust the price offered by
the parent.
11


The court further noted that the parent company need not provide "picayune details about the
process [it] used to set the price"; rather, it simply "should have disclosed in a broad sense what
that process was."
12
The court separately held that the parent company violated the appraisal
statute for failing to include a current version of the statute with the notice, as required by 8 Del.
C. 262.
13


Fourth, in Simonetti Rollover IRA v. Margolis,
14
the Court of Chancery expanded on last year's
line of cases regarding the disclosure of management projections.
15
In this case, a shareholder
sought a preliminary injunction to stop a proposed merger between The TriZetto Group, Inc. and
Apax Partners, L.P. Plaintiff alleged various omissions from the proxy statement to justify its
motion, including the failure to disclose that the financial forecasts used by the banker providing
the fairness opinion were the most conservative of three sets of projections prepared by
management. Citing the recent case law on the subject, the court explained:





2009 Bloomberg Finance L.P. All rights reserved. Originally published by Bloomberg Finance L.P in the Vol. 2,
No. 52 edition of the Bloomberg Law Reports Corporate Law. Reprinted with permission. The views expressed
herein are those of the authors and do not represent those of Bloomberg Finance L.P. Bloomberg Law Reportsis
a registered trademark and service mark of Bloomberg Finance L.P.
A proxy statement should give the stockholders the best estimate of the companys future
cash flows as of the time the board approved the [transaction]. In that regard, Delaware
law places a premium on managements predictions of future performance. Thus, in In re
Netsmart Technologies, Inc., this Court held it a material omission where a proxy
statement did not disclose the actual updated projections that a banker utilized in
assessing a transactions fairness, disclosure of an earlier set of projections was not
required where the disclosed projections were deemed more current and more accurate
by management.
16


Although the court ultimately granted the preliminary injunction on other disclosure grounds, the
court found that the record indicated that the projections used by the banker were management's
best estimates at the time, and, therefore, plaintiff had failed to establish "how disclosing lower-
probability projections would have been considered material by a reasonable stockholder."
17


Delaware Analysis of Material Adverse Condition ("MAC") Clauses &
Intentional Breach of Contract

The Delaware Court of Chancery recently clarified the law concerning (i) material adverse
condition clauses ("MACs") and (ii) intentional breach of contract claims in connection with
merger agreements.

In Hexion Specialty Chemicals, Inc. v. Huntsman Corp.,
18
Hexion Specialty Chemicals, Inc.
("Hexion") agreed to purchase Huntsman Corp. ("Huntsman") in a cash transaction.
19
The
agreement required Hexion to "use its reasonable best efforts" to obtain financing.
20
In the event
Hexion was unable to obtain financing, and in the absence of a material adverse event ("MAE"),
Hexion would be liable to Huntsman for its failure to close.
21
The agreement expressly provided
that damages would be capped at $325 million.
22
In the case of a "knowing and intentional
breach," however, damages would be uncapped.
23


Several months after executing the agreement, Huntsman reported poor financial results.
24

Hexion obtained an insolvency opinion and announced the results in a press release, thereby
alerting all potential lenders to Hexion's concerns about the combined entity's solvency.
25
Hexion
then filed suit in the Delaware Court of Chancery, seeking a declaration that Huntsman had
suffered an MAE, thus excusing Hexion's obligation to close.
26
In the alternative, Hexion sought a
declaration that liability for Hexion's failure to close was limited to the $325 million termination fee
specified in the agreement.
27


MAE Clauses. The court began its analysis by confirming that the party seeking to excuse its
performance under a contract (usually the buyer) bears the burden of proving that an MAE (also
known as a material adverse condition ("MAC")) has occurred, absent express language in the
agreement to the contrary.
28
Next, the court addressed the methodology by which an MAE would
be determined. The court rejected Hexion's assertion that the projections Huntsman provided to
Hexion pre-signing should be compared with Huntsman's post-signing results.
29
The court
explained that, where an agreement expressly disclaims any warranty of financial projections, a
target's failure to meet its projections is not an MAE.
30
Whether an MAE had occurred, the court
held, required a comparison of post-signing financial results with prior-year equivalents "through
the lens of changes in EBITDA."
31
EBITDA, the court reasoned, is a better gauge than earnings
per share, which is a "function of capital structure," not the "operational results of the business."
32

In addition to comparing actual post-signing performance with past results, a change in the
target's expected future operating performance may be considered.
33
Based on this analysis, and
in light of the macroeconomic challenges facing the relevant industry, the court found no MAE
had occurred, and, therefore, Hexion was not excused from performing under the merger
agreement.
34





2009 Bloomberg Finance L.P. All rights reserved. Originally published by Bloomberg Finance L.P in the Vol. 2,
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herein are those of the authors and do not represent those of Bloomberg Finance L.P. Bloomberg Law Reportsis
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Intentional Breach. Having found no MAE, the court considered whether Hexion's actions
constituted an intentional breach, in which case damages would be uncapped. The court first
determined that an intentional breach is "a breach that is a direct consequence of a deliberate act
undertaken by the breaching party, rather than one which results indirectly, or as a result of the
breaching party's negligence or unforeseeable misadventure."
35
The court then applied the
"deliberate act" standard, and concluded that the "overwhelming evidence" was that Hexion had
"knowingly and intentionally breached its covenants and obligations under the merger
agreement."
36
Specifically, Hexion, without first approaching Huntsman about its concern for
potential insolvency, obtained an insolvency opinion and filed suit in Delaware, thereby exposing
to the public (and potential lenders) its solvency concerns.
37
The court concluded that this course
of conduct breached Hexion's obligation under the merger agreement to use its reasonable best
efforts to obtain financing.
38
Therefore, monetary damages "which were proximately caused by
[the] knowing and intentional breach will be uncapped . . . ."
39


Corporate Bylaw Provisions
There were also several noteworthy cases concerning shareholder proposed bylaws.
First, in CA, Inc. v. AFSCME Employees Pension Plan,
40
the Delaware Supreme Court clarified
the limitations of shareholder-adopted bylaws in light of section 141(a) of the Delaware General
Corporation Law ("DGCL"), which empowers the board of directors to manage the "business and
affairs of every corporation."
41
AFSCME (a CA, Inc. stockholder), proposed a bylaw amendment
that would require CA, Inc., a Delaware corporation, "to reimburse a stockholder or group of
stockholders . . . for reasonable expenses . . . incurred in connection with nominating one or more
candidates . . . [where] fewer than 50% of the directors to be elected is contested . . . ."
42
CA, Inc.
intended to exclude the proposed amendment from its proxy materials and sought a "no-action"
letter from the United States Securities and Exchange Commission on the grounds that the
proposed amendment violated Delaware corporate law.
43

The SEC certified the questions of law to the Delaware Supreme Court, in the first case heard
pursuant to the 2007 amendment to Art. IV, Sec. 11(8) of the Delaware Constitution.
44

The court determined that, pursuant to 109(b) of the DGCL, the bylaw was a proper subject for
shareholder action because it was procedural in nature, specifically, the "process for electing
directors - a subject in which shareholders of Delaware corporations have a legitimate and
protected interest."
45
Moreover, "a bylaw that requires the expenditure of corporate funds does
not, for that reason alone, become automatically deprived of its process-related character."
46

Although within the scope of 109(b), however, the court ruled that the bylaw violated 141(a)
because, by mandating reimbursement in circumstances that the board's proper application of
fiduciary principles could preclude, the bylaw impermissibly restricted the managerial and
fiduciary duties of the board.
47
As the court noted, "the shareholders' statutory power to adopt,
amend or repeal bylaws is not coextensive with the board's concurrent power and is limited by
the board's management prerogatives under Section 141(a).
48

Second, in JANA Master Fund, Ltd. v. CNET Networks, Inc.,
49
J ANA Master Fund, Ltd. (J ANA),
a CNET Networks, Inc. (CNET) shareholder, sought to "replace the two current directors [up for
relection], expand the size of the board from eight to thirteen, and nominate five individuals to fill
the newly created positions."
50
CNET argued that its bylaw that prohibited a shareholder holding
stock for less than one year from nominating candidates for director or to transact business at
annual meetings barred J ANA from soliciting proxies in favor of its nominees and proposals.
51

J ANA contended that, by the bylaws express terms, it was only applicable to nominations and




2009 Bloomberg Finance L.P. All rights reserved. Originally published by Bloomberg Finance L.P in the Vol. 2,
No. 52 edition of the Bloomberg Law Reports Corporate Law. Reprinted with permission. The views expressed
herein are those of the authors and do not represent those of Bloomberg Finance L.P. Bloomberg Law Reportsis
a registered trademark and service mark of Bloomberg Finance L.P.
proposals a shareholder wished to have included in CNETs proxy materials.
52
J ANA petitioned
the Court of Chancery for a declaration that the bylaw did not apply because J ANA intended to
finance its own proxy materials.
53
Chancellor Chandler, analyzing the bylaw in accordance with
contract interpretation principles, adopted J ANAs interpretation and held that the bylaw applied
only to stockholder proposals that are sought to be included in the companys proxy materials
pursuant to Rule 14a-8 under the Securities and Exchange Act of 1934.
54
Thus, the bylaw did not
prevent stockholder proposals made by independent proxy solicitation or on the floor at an annual
meeting.
55

Third, in Levitt Corporation v. Office Depot, Inc.,
56
the Court of Chancery held that a shareholder
did not need to provide advance notice of its proposed director nominees because the proxy
materials issued by the company had already notified shareholders that the annual meeting
would involve the business of electing directors."
57
Because Office Depots advance notice bylaw
did not explicitly require advance notice of shareholder nominees to the board of directors, the
companys notice that an item of business for the Annual Meeting is to elect twelve (12)
members of the Board of Directors," provided sufficient notice "that the business of electing and
nominating directors" would take place at the annual meeting.
58

Delaware LLC Developments
There were also several rulings of interest to practitioners this year regarding Delaware limited
liability companies.
First, in TravelCenters of America, LLC v. Brog,
59
the Court of Chancery, in ruling on a motion in
limine, explained that LLCs are entities governed strictly by the language of their operating
agreements not by ideas of good corporate governance. The case involved the narrow question
of whether defendants, members of a Delaware LLC, had complied with the advance notice
provision of the operating agreement when submitting the names of their nominees. In explaining
why expert testimony on the issue was unnecessary at trial, the court held:
There is no issue of fact as to whether that bylaw is consistent with notions of good
corporate governance.
. . . Delaware does not impose a legal requirement on LLCs to draft their bylaws to be
consistent with some abstract notion of 'good corporate governance.' On the contrary,
limited liability companies are creatures of contract, 'designed to afford the maximum
amount of freedom of contract, private ordering and flexibility to the parties involved.'
60

Chancellor Chandler reiterated his holding from the bench the next day during his post-trial ruling:
"I tried to signal to everyone very clearly that limited liability companies are creatures of contract.
They are entities governed strictly by the language set forth in their LLC agreements."
61

Second, in Olson v. Halvorsen, C.A. No. 1884-VCL, 2008 WL 4661831 (Del. Ch. Oct. 22, 2008),
the Court of Chancery held that the statute of frauds applies to limited liability company
agreements. Specifically, the court held that:
[I]f an LLC agreement contains a provision or multiple provisions which cannot possibly
be performed within one year, such provision or provisions are unenforceable. The basis
for this decision is in line with the policy for the enactment of the statute of frauds to
protect defendants against unfounded or fraudulent claims that would require
performance over an extended period of time. However, in keeping with the legislature's
expressed intent 'to give maximum effect . . . to the enforceability of limited liability




2009 Bloomberg Finance L.P. All rights reserved. Originally published by Bloomberg Finance L.P in the Vol. 2,
No. 52 edition of the Bloomberg Law Reports Corporate Law. Reprinted with permission. The views expressed
herein are those of the authors and do not represent those of Bloomberg Finance L.P. Bloomberg Law Reportsis
a registered trademark and service mark of Bloomberg Finance L.P.
companies,' provisions of an oral LLC operating agreement that could possibly be
performed within one year will not fall within the statute of frauds and will remain
enforceable.
62

The court pointed out that the "Delaware LLC statute expressly allows oral operating
agreements," but noted that "[f]ew oral LLC operating agreements are likely to contain any term
or provision that cannot possibly be performed within one year" [and, therefore,] "the statute of
frauds will not limit the enforcement of any such agreement."
63

Third, in Wood v. Baum,
64
the Delaware Supreme Court confirmed that Delaware LLCs can limit
or eliminate directors' fiduciary duties in their operating agreements. In Wood, the court found
pre-suit demand was not futile where the LLC's operating agreement exculpated directors from
personal liability for all claims except fraud or illegal conduct, and the allegations were not
pleaded with the requisite particularity sufficient to support such claims. Specifically, the court
held that in evaluating whether the board was disabled from considering a demand because of a
risk of personal liability:
[I]t must be kept in mind that the exculpation provision contained in [the LLC's] Operating
Agreement exempts [the LLC's] directors from all liability except in case of 'fraudulent or
illegal conduct.' Section 18-1101(e) of the Delaware Limited Liability Company Act
(LLCA) allows a limited liability company, such as MME, to 'provide for the limitation or
elimination of any and all liabilities for breach of duties (including fiduciary duties) of a
[director],' except that the LLC 'may not limit or eliminate liability for any act or omission
that constitutes a bad faith violation of the implied contractual covenant of good faith and
fair dealing.' Therefore, under the Operating Agreement and the LLCA, the [LLC]
directors' exposure to liability is limited to claims of 'fraudulent or illegal conduct,' or 'bad
faith violation[s] of the implied contractual covenant of good faith and fair dealing.'
65


That holding is even more notable because the LLC at issue was publicly traded. Ultimately, the
court affirmed the Court of Chancery's dismissal of the lawsuit, explaining that "[w]here directors
are contractually or otherwise exculpated from liability for certain conduct, 'then a serious
threat of liability may only be found to exist if the plaintiff pleads a non-exculpated claim against
the directors based on particularized facts.'"
66
The court held plaintiff failed to meet this
heightened pleading standard.
67


2008 Amendments to the DGCL

Section 219

Section 219, which addresses the corporation's obligation to provide a complete list of
stockholders entitled to vote at a meeting, was amended.

Section 219(a) was amended to replace the word "inspected" with the word "examined" in order
to remove any suggestion that there is an intentional distinction between the right to inspect and
the right to examine the list of eligible voting stockholders at a meeting.

Section 219(b) was amended to eliminate the standard of "willful neglect" and places the burden
of proof on the corporation to prove that a stockholder should not have access to the list because
the examination sought is for a purpose not germane to the meeting. Further, under the prior
version of the statute, if directors willfully neglected or refused to provide access to a list at any
meeting for the election of directors, the only remedy provided was that such directors would be
ineligible for election to any office at such meeting. The new amendment permits the Court of




2009 Bloomberg Finance L.P. All rights reserved. Originally published by Bloomberg Finance L.P in the Vol. 2,
No. 52 edition of the Bloomberg Law Reports Corporate Law. Reprinted with permission. The views expressed
herein are those of the authors and do not represent those of Bloomberg Finance L.P. Bloomberg Law Reportsis
a registered trademark and service mark of Bloomberg Finance L.P.
Chancery to fashion appropriate relief which may include, without limitation, postponing the
meeting or voiding the results of the meeting.

Section 225(b)

Section 225(b) allows the Court of Chancery to review matters not relating to the election of
directors or officers, such as the validity of certain votes cast at a stockholder meeting. Section
225(b) was amended to include the corporation itself as a permissible applicant in an action
brought under that subsection. Prior to this amendment, only a stockholder could make such an
application.

The 2008 amendments became effective J une 26, 2008.

Ms. Valihura is a litigation partner and Mr. Clark and Ms. Green are litigation associates at
Skadden, Arps, Slate, Meagher & Flom LLP's Wilmington, Delaware office. The views expressed
herein are solely those of the authors and not of their firm.







1
954 A.2d 346 (Del. Ch. 2008).
2
Id. at 362.
3
Id. at 362-63.
4
954 A.2d 319 (Del. Ch. 2008).
5
C.A. No. 8720, 1990 WL 67383, at *7 (Del. Ch. May 16, 1990) ("If there were such a rule, I
doubt it would include documents, such as those before me, that are only six months old.").
6
Id. at 332.
7
C.A. No. 3298-VCL (Del. Ch. Mar. 26, 2008) (Tr. of Oral Argument and Order) at 100:15-21
("[T]he fact that something is included in materials that are presented to a board of directors does
not, ipso facto, make that something material. Otherwise every book that's given to the board and
every presentation made to the board would have to be part of the proxy material that follows the
board's approval of a transaction. That certainly is not the law.").
8
Id.
9
Id. at 333.
10
C.A. No. 3414-CC, 2008 WL 2224107, (Del. Ch. May 30, 2008).
11
Id. at *3.
12
Id.
13
Id.
14
C.A. No. 3694-VCN , 2008 WL 5048692 (Del. Ch. J une 27, 2008).
15
See KAREN L. VALIHURA, BRIAN G. LENHARD AND RONALD N. BROWN III, RECENT
DEVELOPMENTS IN DELAWARE LAW, BLOOMBERG LAW REPORTS, Vol. 1, No. 35,
December 31, 2007 at 1-5.
16
Simonetti, 2008 WL 5048692, at *10 (quotations omitted).
17
Id.
18
C.A. No. 3841-VCL, 2008 WL 4457544 (Del. Ch. Sept. 29, 2008).
19
Id. at *1.
20
Id.
21
Id.
22
Id.




2009 Bloomberg Finance L.P. All rights reserved. Originally published by Bloomberg Finance L.P in the Vol. 2,
No. 52 edition of the Bloomberg Law Reports Corporate Law. Reprinted with permission. The views expressed
herein are those of the authors and do not represent those of Bloomberg Finance L.P. Bloomberg Law Reportsis
a registered trademark and service mark of Bloomberg Finance L.P.
23
Id.
24
Id. at *5.
25
Id.
26
Id. at *3.
27
Id.
28
Id. at *15-16.
29
Id. at *17-19.
30
Id.
31
Id. at *16.
32
Id.
33
Id. at *18-19.
34
Id.
35
Id. at *21.
36
Id. at *28.
37
Id. at *24, 27.
38
Id.
39
Id. at 28.
40
953 A.2d 227 (Del. 2008).
41
8 DEL. C. 141(a) (2008).
42
Id. at *230.
43
Id.
44
Id. at 229 n.1 (citing 76 Del. Laws 2007, ch. 37 sec. 1, effective May 3, 2007).
45
Id. at 237.
46
Id. at 236.
47
Id. at 238.
48
Id. at 232.
49
954 A.2d 335 (Del. Ch. 2008).
50
Id. at 337.
51
Id. at 338.
52
Id.
53
Id.
54
Id. at 339. See also 17 C.F.R. 240.14a-8 (2008).
55
JANA, 954 A.2d at 342.
56
C.A. No., 3622-VCN, 2008 WL 1724244 (Del. Ch. Apr. 14, 2008).
57
Id. at *6.
58
Id. at *6-*7 (quotations omitted) (emphasis added).
59
C.A. No. 3516-CC, 2008 WL 1746987 (Del. Ch. Apr. 3, 2008).
60
Id. at *1.
61
TravelCenters of America, LLC v. Brog, C.A. No. 3516-CC at 3 (Del. Ch. Apr. 4, 2008).
62
Id. at *3.
63
Id.
64
953 A.2d 136 (Del. 2008).
65
Id. at 141.
66
Id.
67
Id. at 144.