LEXSEE 488 A.2d 858 ALDEN SMITH and JOHN W. GOSSELIN, Plaintiffs Below, Appellants, v. JEROME W. VAN GORKOM, BRUCE S. CHELBERG, WILLIAM B. JOHNSON, JOSEPH B. LANTERMAN, GRAHAM J. MORGAN, THOMAS P. O'BOYLE, W. ALLEN WALLIS, SIDNEY H. BONSER, WILLIAM D. BROWDER, TRANS UNION CORPORATION, a Delaware corporation, MARMON GROUP, INC., a Delaware corporation, GL CORPORATION, a Delaware corporation, and NEW T. CO., a Delaware corporation, Defendants Below, Appellees No. 255, 1982 Supreme Court of Delaware 488 A.2d 858; 1985 Del. LEXIS 421; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 June 11, 1984, Submitted January 29, 1985, Decided JUDGES: into the defendant New T Company ("New T"), Horsey, Justice (for the majority). a wholly-owned subsidiary of the defendant, Herrmann, C.J., and McNeilly, Moore and Marmon Group, Inc. ("Marmon"). Alternate Christie, JJ., constituting the Court En Banc. relief in the form of damages is sought against McNeilly, Justice, dissenting. Christie, Justice, the defendant members of the Board of dissenting. Directors of Trans Union, [*864] New T, and Jay A. Pritzker and Robert A. Pritzker, owners OPINIONBY: of Marmon. n1 HORSEY n1 The plaintiff, Alden Smith, OPINION: originally sought to enjoin the merger; but, following extensive discovery, the [*863] This appeal from the Court of Trial Court denied the plaintiff's motion Chancery involves a class action brought by for preliminary injunction by unreported shareholders of the defendant Trans Union letter opinion dated February 3, 1981. Corporation ("Trans Union" or "the On February 10, 1981, the proposed Company"), [**2] originally seeking merger was approved by Trans Union's rescission of a cash-out merger of Trans Union stockholders at a special meeting and the Page 2 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 merger became effective on that date. plaintiffs' stockholdings in Trans Union, in Thereafter, John W. Gosselin was accordance with Weinberger v. UOP, Inc., permitted to intervene as an additional Del.Supr., 457 A.2d 701 (1983). n3 plaintiff; and Smith and Gosselin were certified as representing a class consisting of all persons, other than n3 It has been stipulated that defendants, who held shares of Trans plaintiffs sue on behalf of a class Union common stock on all relevant consisting of 10,537 shareholders (out of dates. At the time of the merger, Smith a total of 12,844) and that the class owned 54,000 shares of Trans Union owned 12,734,404 out of 13,357,758 stock, Gosselin owned 23,600 shares, shares of Trans Union outstanding. and members of Gosselin's family owned 20,000 shares. We hold: (1) that the Board's decision, reached September 20, 1980, to approve the [**3] proposed cash-out merger was not the product Following trial, the former Chancellor of an informed business judgment; (2) that the granted judgment for the defendant directors by Board's subsequent efforts to amend the Merger unreported letter opinion dated July 6, 1982. n2 Agreement and take other curative action were Judgment was based on two findings: (1) that ineffectual, both legally and factually; and (3) the Board of Directors had acted in an informed that the Board did not deal with complete manner so as to be entitled to protection of the candor with the stockholders by failing to business judgment rule in approving the cash- disclose all material facts, which they knew or out merger; and (2) that the shareholder vote should have known, before securing the approving the merger should not be set aside stockholders' approval of the merger. because the stockholders had been "fairly I. informed" by the Board of Directors before voting thereon. The plaintiffs appeal. The nature of this case requires a detailed factual statement. The following facts are [**5] essentially uncontradicted: n4 n2 Following trial, and before decision by the Trial Court, the parties stipulated to the dismissal, with n4 More detailed statements of facts, prejudice, of the Messrs. Pritzker as consistent with this factual outline, parties defendant. However, all appear in related portions of this references to defendants hereinafter are Opinion. to the defendant directors of Trans Union, unless otherwise noted. A Trans Union was a publicly-traded, Speaking for the majority of the Court, we diversified holding company, the principal conclude that both rulings of the Court of earnings of which were generated by its railcar Chancery are clearly erroneous. Therefore, we leasing business. During the period here reverse and direct that judgment be entered in involved, the Company had a cash flow of favor of the plaintiffs [**4] and against the hundreds of millions of dollars annually. defendant directors for the fair value of the However, the Company had difficulty in Page 3 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 generating sufficient taxable income to offset among the alternatives. The report emphasized increasingly large investment tax credits that, despite the overall surplus, the operation (ITCs). Accelerated depreciation deductions of the Company would consume all available had decreased available taxable income against equity for the next several years, and which to offset accumulating ITCs. The concluded: "As a result, we have sufficient time Company took these deductions, despite their to fully develop our course of action." effect on usable ITCs, because the rental price B in the railcar leasing market had already impounded the purported tax savings. On August 27, 1980, Van Gorkom met with Senior Management of Trans Union. Van In the late 1970's, together with other Gorkom reported on his lobbying efforts in capital-intensive firms, Trans Union lobbied in Washington and his desire to find a solution to Congress to have ITCs refundable in cash to the tax credit problem more permanent than a firms which could not fully utilize the credit. continued program of acquisitions. Various During [**6] the summer of 1980, defendant alternatives were suggested and discussed Jerome W. Van Gorkom, Trans Union's preliminarily, including the sale of Trans Union Chairman and Chief Executive Officer, [*865] to a company with a large amount of taxable testified and lobbied in Congress for income. refundability of ITCs and against further accelerated depreciation. By the end of Donald Romans, Chief Financial Officer of August, Van Gorkom was convinced that Trans Union, stated that his department had Congress would neither accept the refundability done a "very brief bit of work on the possibility concept nor curtail further accelerated of a leveraged buy-out." This work had been depreciation. prompted by a media article which Romans had seen regarding a leveraged buy-out by Beginning in the late 1960's, and continuing management. The work consisted of a through the 1970's, Trans Union pursued a "preliminary study" of the cash which could be program of acquiring small companies in order generated by the Company [**8] if it to increase available taxable income. In July participated in a leveraged buy-out. As Romans 1980, Trans Union Management prepared the stated, this analysis "was very first and rough annual revision of the Company's Five Year cut at seeing whether a cash flow would Forecast. This report was presented to the support what might be considered a high price Board of Directors at its July, 1980 meeting. for this type of transaction." The report projected an annual income growth of about 20%. The report also concluded that On September 5, at another Senior Trans Union would have about $195 million in Management meeting which Van Gorkom spare cash between 1980 and 1985, "with the attended, Romans again brought up the idea of surplus growing rapidly from 1982 onward." a leveraged buy-out as a "possible strategic The report referred to the ITC situation as a alternative" to the Company's acquisition "nagging problem" and, given that problem, the program. Romans and Bruce S. Chelberg, leasing company "would still appear to be President and Chief Operating Officer of Trans constrained to a tax breakeven." The report Union, had been working on the matter in then listed four alternative uses of the projected preparation for the meeting. According to 1982-1985 equity [**7] surplus: (1) stock Romans: They did not "come up" with a price repurchase; (2) dividend increases; (3) a major for the Company. They merely "ran the acquisition program; and (4) combinations of numbers" at $50 a share and at $60 a share with the above. The sale of Trans Union was not the "rough form" of their cash figures at the Page 4 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 time. Their "figures indicated that $50 would without consulting either his Board or any be very easy to do but $60 would be very members of Senior Management except one: difficult to do under those figures." This work Carl Peterson, Trans Union's Controller. did not purport to establish a fair price for Telling Peterson that he wanted no other person either the Company or 100% of the stock. It on his staff to know what he was doing, but was intended to determine the cash flow needed without telling him why, Van Gorkom directed to service the debt that would "probably" be Peterson to calculate the feasibility of a incurred in a leveraged buy-out, based on leveraged buy-out at an assumed price per "rough calculations" without "any benefit of share of $55. Apart from the Company's experts to identify what [**9] the limits were historic stock market price, n5 and Van to that, and so forth." These computations were Gorkom's long association with Trans Union, not considered extensive and no conclusion the record is devoid of any competent evidence was reached. that $55 represented the per share intrinsic At this meeting, Van Gorkom stated that he value of the Company. would be willing to take $55 per share for his own 75,000 shares. He vetoed the suggestion n5 The common stock of Trans of a leveraged buy-out by Management, Union was traded on the New York however, as involving a potential conflict of Stock Exchange. Over the five year interest for Management. Van Gorkom, a period from 1975 through 1979, Trans certified public accountant and lawyer, had Union's stock had traded within a range been an officer of Trans Union [*866] for 24 of a high of $39 1/2 and a low of $24 1/4. years, its Chief Executive Officer for more than Its high and low range for 1980 through 17 years, and Chairman of its Board for 2 September 19 (the last trading day before years. It is noteworthy in this connection that announcement of the merger) was $38 he was then approaching 65 years of age and 1/4 - $29 1/2. mandatory retirement. For several days following the September 5 [**11] meeting, Van Gorkom pondered the idea of a sale. He had participated in many acquisitions Having thus chosen the $55 figure, based as a manager and director of Trans Union and solely on the availability of a leveraged buy- as a director of other companies. He was out, Van Gorkom multiplied the price per share familiar with acquisition procedures, valuation by the number of shares outstanding to reach a methods, and negotiations; and he privately total value of the Company of $690 million. considered the pros and cons of whether Trans Van Gorkom told Peterson to use this $690 Union should seek a privately or publicly-held million figure and to assume a $200 million purchaser. equity contribution by the buyer. Based on these assumptions, Van Gorkom directed Van Gorkom decided to meet with Jay A. Peterson to determine whether the debt portion Pritzker, a well-known corporate takeover of the purchase price could be paid off in five specialist and a social [**10] acquaintance. years or less if financed by Trans Union's cash However, rather than approaching Pritzker flow as projected in the Five Year Forecast, and simply to determine his interest in acquiring by the sale of certain weaker divisions Trans Union, Van Gorkom assembled a identified in a study done for Trans Union by proposed per share price for sale of the the Boston Consulting Group ("BCG study"). Company and a financing structure by which to Peterson reported that, of the purchase price, accomplish the sale. Van Gorkom did so Page 5 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 approximately $50-80 million would remain Gorkom knew that Pritzker intended to make a outstanding after five years. Van Gorkom was cash-out merger offer at Van Gorkom's disappointed, but decided to meet with Pritzker proposed $55 per share. Pritzker instructed his nevertheless. attorney, a merger and acquisition specialist, to begin drafting merger documents. There was Van Gorkom arranged a meeting with no further discussion of the $55 price. Pritzker at the latter's home on Saturday, However, the number of shares of Trans September 13, 1980. Van Gorkom prefaced his Union's treasury stock to be offered to Pritzker presentation by stating to Pritzker: "Now as far was negotiated down to one million shares; the as you are concerned, I can, I think, show how price was set at $38 -- 75 cents above the per you can pay a substantial premium over the share price at the close of the market on present stock price and [**12] pay off most of September 19. At this point, Pritzker insisted the loan in the first five years. *** If you could that the Trans Union Board act on his merger pay $55 for this Company, here is a way in which I think it can be financed." proposal within the next three days, stating to Van Gorkom: "We have to have a decision by Van Gorkom then reviewed with Pritzker no later than Sunday [evening, September 21] his calculations based upon his proposed price before the opening of the English stock of $55 per share. Although Pritzker mentioned exchange on Monday morning." Pritzker's $50 as a more attractive figure, no other price lawyer was then instructed to draft the merger was mentioned. However, Van Gorkom stated documents, to be reviewed by Van Gorkom's that to be sure that $55 was the best price lawyer, "sometimes with discussion and obtainable, Trans Union should be free to sometimes not, in the haste to get it finished." accept any better offer. Pritzker demurred, [**14] stating that his organization would serve as a On Friday, September 19, Van Gorkom, "stalking horse" for an "auction contest" only if Chelberg, and Pritzker consulted with Trans Trans Union would permit Pritzker to buy Union's lead bank regarding the financing of 1,750,000 shares of Trans Union stock at Pritzker's purchase of Trans Union. The bank market price which Pritzker could then sell to indicated that it could form a syndicate of any higher bidder. After further discussion on banks that would finance the transaction. On this point, Pritzker told Van Gorkom that he the same day, Van Gorkom retained James would give him a more definite reaction soon. Brennan, Esquire, to advise Trans Union on the [*867] On Monday, September 15, legal aspects of the merger. Van Gorkom did Pritzker advised Van Gorkom that he was not consult with William Browder, a Vice- interested in the $55 cash-out merger proposal President and director of Trans Union and and requested more information on Trans former head of its legal department, or with Union. Van Gorkom agreed to meet privately William Moore, then the head of Trans Union's with Pritzker, accompanied by Peterson, legal staff. Chelberg, and Michael Carpenter, Trans On Friday, September 19, Van Gorkom Union's consultant from the Boston Consulting called a special meeting of the Trans Union [**13] Group. The meetings took place on Board for noon the following day. He also September 16 and 17. Van Gorkom was called a meeting of the Company's Senior "astounded that events were moving with such Management to convene at 11:00 a.m., prior to amazing rapidity." the meeting of the Board. No one, except On Thursday, September 18, Van Gorkom Chelberg and Peterson, was told the purpose of met again with Pritzker. At that time, Van the meetings. Van Gorkom did not invite Trans Page 6 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 Union's investment banker, Salomon Brothers [**16] or its Chicago-based partner, to attend. Ten directors served on the Trans Union Of those present at the Senior Management Board, five inside (defendants Bonser, O'Boyle, meeting on September 20, only Chelberg and Browder, Chelberg, and Van Gorkom) and five Peterson had prior knowledge of Pritzker's outside (defendants Wallis, Johnson, offer. Van Gorkom disclosed the offer and Lanterman, Morgan and Reneker). All described its [**15] terms, but he furnished no directors were present at the meeting, except copies of the proposed Merger Agreement. O'Boyle who was ill. Of the outside directors, Romans announced that his department had four were corporate chief executive officers done a second study which showed that, for a and one was the former Dean of the University leveraged buy-out, the price range for Trans of Chicago Business School. None was an Union stock was between $55 and $65 per investment banker or trained financial analyst. share. Van Gorkom neither saw the study nor All members of the Board were well informed asked Romans to make it available for the about the Company and its operations as a Board meeting. going concern. They were familiar with the current financial condition of the Company, as Senior Management's reaction to the well as operating and earnings projections Pritzker proposal was completely negative. No reported in the recent Five Year Forecast. The member of Management, except Chelberg and Board generally received regular and detailed Peterson, supported the proposal. Romans reports and was kept abreast of the accumulated objected to the price as being too low; n6 he investment tax credit and accelerated was critical of the timing and suggested that depreciation problem. consideration should be given to the adverse tax consequences of an all-cash deal for low- Van Gorkom began the Special Meeting of basis shareholders; and he took the position that the Board with a twenty-minute oral the agreement to sell Pritzker one million presentation. Copies of the proposed Merger newly-issued shares at market price would Agreement were delivered too late for study inhibit other offers, as would the prohibitions before or during the meeting. n7 He reviewed against soliciting bids and furnishing inside the Company's ITC and depreciation problems information [*868] to other bidders. Romans and the efforts theretofore made to solve [**17] argued that the Pritzker proposal was a "lock them. He discussed his initial meeting with up" and amounted to "an agreed merger as Pritzker and his motivation in arranging that opposed to an offer." Nevertheless, Van meeting. Van Gorkom did not disclose to the Gorkom proceeded to the Board meeting as Board, however, the methodology by which he scheduled without further delay. alone had arrived at the $55 figure, or the fact that he first proposed the $55 price in his negotiations with Pritzker. n6 Van Gorkom asked Romans to express his opinion as to the $55 price. Romans stated that he "thought the price n7 The record is not clear as to the was too low in relation to what he could terms of the Merger Agreement. The derive for the company in a cash sale, Agreement, as originally presented to the particularly one which enabled us to Board on September 20, was never realize the values of certain subsidiaries produced by defendants despite demands and independent entities." by the plaintiffs. Nor is it clear that the directors were given an opportunity to Page 7 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 study the Merger Agreement before Attorney Brennan advised the members of voting on it. All that can be said is that the Board that they might be sued if they failed Brennan had the Agreement before him to accept the offer and that a fairness opinion during the meeting. was not required as a matter of law. Romans attended the meeting as chief financial officer of the Company. He told the Van Gorkom outlined the terms of the Board that he had not been involved in the Pritzker offer as follows: Pritzker would pay negotiations with Pritzker and knew nothing $55 in cash for all outstanding shares of Trans about the merger proposal until [*869] the Union stock upon completion of which Trans morning of the meeting; that his studies did not Union would be merged into New T Company, indicate either a fair price for the stock or a a subsidiary wholly-owned by Pritzker and valuation of the Company; that he did not see formed to implement the merger; for a period his role as directly addressing the fairness of 90 days, Trans [**18] Union could receive, issue; and that he and his people "were trying but could not actively solicit, competing offers; to search for ways to justify a price in the offer had to be acted on by the next connection with such a [leveraged buy-out] evening, Sunday, September 21; Trans Union transaction, rather than to say what the shares could only furnish to competing bidders are worth." Romans testified: published information, and not proprietary information; the offer was subject to Pritzker I told the Board that the study ran the obtaining the necessary financing by October numbers at 50 and 60, and then the subsequent 10, 1980; if the financing contingency were study at 55 and 65, and that was not the same met or waived by Pritzker, Trans Union was thing as saying that I have a valuation of the required to sell to Pritzker one million newly- company at X dollars. But it was a way -- a issued shares of Trans Union at $38 per share. first step towards reaching that conclusion. Van Gorkom took the position that putting Trans Union "up for auction" through a 90-day Romans told the Board that, in his opinion, $55 market test would validate a decision by the was "in the range of a fair price," but "at the Board that $55 was a fair price. He told the beginning of the range." Board that the "free market will have an Chelberg, [**20] Trans Union's President, opportunity to judge whether $55 is a fair supported Van Gorkom's presentation and price." Van Gorkom framed the decision before representations. He testified that he the Board not as whether $55 per share was the "participated to make sure that the Board highest price that could be obtained, but as members collectively were clear on the details whether the $55 price was a fair price that the of the agreement or offer from Pritzker;" that stockholders should be given the opportunity to he "participated in the discussion with Mr. accept or reject. n8 Brennan, inquiring of him about the necessity for valuation opinions in spite of the way in which this particular offer was couched;" and n8 In Van Gorkom's words: The "real that he was otherwise actively involved in decision" is whether to "let the supporting the positions being taken by Van stockholders decide it" which is "all you Gorkom before the Board about "the necessity are being asked to decide today." to act immediately on this offer," and about "the adequacy of the $55 and the question of [**19] how that would be tested." Page 8 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 The Board meeting of September 20 lasted the agreement prior to its signing and delivery about two hours. Based solely upon Van to Pritzker. Gorkom's oral presentation, Chelberg's ***On Monday, September 22, the supporting representations, Romans' oral Company issued a press release announcing statement, Brennan's legal advice, and their that Trans Union had entered into a "definitive" knowledge of the market history of the Merger Agreement with an affiliate of the Company's stock, n9 the directors approved the Marmon Group, Inc., a Pritzker holding proposed Merger Agreement. However, the company. Within 10 days of the public Board later claimed to have attached two announcement, dissent among Senior conditions to its acceptance: (1) that Trans Management over the merger had become Union reserved the right to accept any better widespread. Faced with threatened offer that was made during the market test resignations of key officers, Van Gorkom met period; and (2) that [**21] Trans Union could with Pritzker who agreed to several share its proprietary information with any other modifications of the Agreement. Pritzker was potential bidders. While the Board now claims willing to do so provided that Van Gorkom to have reserved the right to accept any better could persuade the dissidents to remain on the offer received after the announcement of the Company payroll for at least six months after Pritzker agreement (even though the minutes of consummation of the merger. the meeting do not reflect this), it is undisputed that the Board did not reserve the right to Van Gorkom reconvened the Board on actively solicit alternate offers. October 8 and secured the directors' approval of the proposed amendments -- sight unseen. The Board also authorized the employment of n9 The Trial Court stated the Salomon Brothers, its investment [*870] premium relationship of the $55 price to banker, to solicit other offers for Trans Union the market history of the Company's during the proposed "market test" period. stock as follows: The next day, October 9, Trans Union issued a press release announcing: (1) that *** the merger price offered to the Pritzker had obtained "the financing stockholders of Trans Union represented commitments [**23] necessary to a premium of 62% over the average of consummate" the merger with Trans Union; (2) the high and low prices at which Trans that Pritzker had acquired one million shares of Union stock had traded in 1980, a Trans Union common stock at $38 per share; premium of 48% over the last closing (3) that Trans Union was now permitted to price, and a premium of 39% over the actively seek other offers and had retained highest price at which the stock of Trans Salomon Brothers for that purpose; and (4) that Union had traded any time during the if a more favorable offer were not received prior six years. before February 1, 1981, Trans Union's shareholders would thereafter meet to vote on the Pritzker proposal. The Merger Agreement was executed by Van Gorkom during the evening of September It was not until the following day, October 20 at a formal social event that he hosted for 10, that the actual amendments to the Merger the opening of the [**22] Chicago Lyric Agreement were prepared by Pritzker and Opera. Neither he nor any other director read delivered to Van Gorkom for execution. As will be seen, the amendments were Page 9 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 considerably at variance with Van Gorkom's ***On February 10, the stockholders of representations of the amendments to the Board Trans Union approved the Pritzker merger on October 8; and the amendments placed proposal. Of the outstanding shares, 69.9% serious constraints on Trans Union's ability to were voted in favor of the merger; 7.25% were negotiate a better deal and withdraw from the voted against the merger; and 22.85% were not Pritzker agreement. Nevertheless, Van voted. Gorkom proceeded to execute what became the II. October 10 amendments to the Merger Agreement without conferring further with the … Board members and apparently without [HN2] Under Delaware law, the business comprehending the actual implications of the judgment rule is the offspring of the amendments. fundamental principle, codified in 8 Del.C. § ***Salomon Brothers' efforts over a three- 141 (a), that the business and affairs of a month period from October 21 [**24] to Delaware corporation are managed by or under January 21 produced only one serious suitor for its board of directors. n11 Pogostin v. Rice, Trans Union -- General Electric Credit Del. Supr., 480 A.2d 619, 624 (1984); Aronson Corporation ("GE Credit"), a subsidiary of the v. Lewis, Del.Supr., 473 A.2d 805, 811 (1984); General Electric Company. However, GE Zapata Corp. v. Maldonado, Del. Supr., 430 Credit was unwilling to make an offer for Trans A.2d 779, 782 (1981). In carrying out their Union unless Trans Union first rescinded its managerial roles, directors are charged with an Merger Agreement with Pritzker. When unyielding fiduciary duty to the corporation Pritzker refused, GE Credit terminated further [**30] and its shareholders. Loft, Inc. v. Guth, discussions with Trans Union in early January. Del. Ch., 23 Del. Ch. 138, 2 A.2d 225 (1938), aff'd, Del. Supr., 23 Del. Ch. 255, 5 A.2d 503 In the meantime, in early December, the (1939). The business judgment rule exists to investment firm of Kohlberg, Kravis, Roberts protect and promote the full and free exercise & Co. ("KKR"), the only other concern to of the managerial power granted to Delaware make a firm offer for Trans Union, withdrew its directors. [HN3] Zapata Corp. v. Maldonado, offer under circumstances hereinafter detailed. supra at 782. The rule itself "is a presumption On December 19, this litigation was that in making a business decision, the directors commenced and, within four weeks, the of a corporation acted on an informed basis, in plaintiffs had deposed eight of the ten directors good faith and in the honest belief that the of Trans Union, including Van Gorkom, action taken was in the best interests of the Chelberg and Romans, its Chief Financial company." Aronson, supra at 812. Thus, the Officer. On January 21, Management's Proxy party attacking a board decision as uninformed Statement for the February 10 shareholder must rebut the presumption that its business meeting was mailed to Trans Union's judgment was an informed one. Id. stockholders. On January 26, Trans Union's Board met and, after a lengthy meeting, voted to proceed with the Pritzker merger. The Board n11 [HN4] 8 Del.C. § 141 provides, also approved for mailing, "on or about January in pertinent part: 27," a Supplement to its Proxy Statement. The (a) The business and affairs of every Supplement purportedly [**25] set forth all corporation organized under this chapter information relevant to the Pritzker Merger shall be managed by or under the Agreement, which had not been divulged in the direction of a board of directors, except first Proxy Statement. Page 10 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 as may be otherwise provided in this preparation for a decision derives from the chapter or in its certificate of fiduciary capacity in which he serves the incorporation. If any such provision is corporation and its stockholders. Lutz v. Boas, made in the certificate of incorporation, Del. Ch., 39 Del. Ch. 585, 171 A.2d 381 the powers and duties conferred or (1961). See Weinberger v. UOP, Inc., supra; imposed upon the board of directors by Guth v. Loft, supra. Since a director is vested this chapter shall be exercised or with the responsibility for the management of performed to such extent and by such the affairs of the corporation, he must execute person or persons as shall be provided in that duty with the recognition that he acts on the certificate of incorporation. behalf of others. Such obligation does not tolerate faithlessness or self-dealing. But fulfillment of the fiduciary function requires [**31] more than the mere absence of bad faith or [HN5] The determination of whether a fraud. Representation of the financial interests business judgment is an informed one turns on of others imposes on a director an affirmative whether the directors have informed themselves duty to protect those interests and to proceed "prior to making a business decision, of all with a critical eye in assessing information of material information reasonably available to the type and under the circumstances present them." Id. n12 here. See Lutz v. Boas, supra; Guth v. Loft, supra at 510. Compare Donovan v. Cunningham, 5th Cir., 716 F.2d 1455, 1467 n12 See Kaplan v. Centex (1983); Doyle v. Union Insurance Company, Corporation, Del. Ch., 284 A.2d 119, Neb. Supr., 202 Neb. 599, 277 N.W.2d 36 124 (1971), where the Court stated: (1979); Continental Securities Co. v. Belmont, N.Y. App., 206 N.Y. 7, 99 N.E. 138, [**33] Application of the [business judgment] 141 (1912). rule of necessity depends upon a showing Thus, [HN7] a director's duty to exercise an that informed directors did in fact make a informed business judgment is in [*873] the business judgment authorizing the nature of a duty of care, as distinguished from a transaction under review. And, as the duty of loyalty. Here, there were no allegations plaintiff argues, the difficulty here is that of fraud, bad faith, or self-dealing, or proof the evidence does not show that this was thereof. Hence, it is presumed that the done. There were director-committee- directors reached their business judgment in officer references to the realignment but good faith, Allaun v. Consolidated Oil Co., Del. none of these singly or cumulative Ch., 16 Del. Ch. 318, 147 A. 257 (1929), and showed that the director judgment was considerations of motive are irrelevant to the brought to bear with specificity on the issue before us. transactions. The standard of care applicable to a director's duty of care has also been recently [HN6] Under the business judgment rule restated by this Court. In Aronson, supra, we there is no protection for directors who have stated: made "an unintelligent or unadvised judgment." Mitchell v. Highland-Western Glass, Del. Ch., 19 Del. Ch. [**32] 326, 167 A. 831, 833 While the Delaware cases use a variety of (1933). A director's duty to inform himself in terms to describe the applicable standard of care, our analysis satisfies us that [HN8] under Page 11 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 the business judgment rule director liability is determining whether their decision to accept predicated upon concepts of gross negligence. the Pritzker proposal was an informed one. (footnote omitted) Thus, the defendants contend that what the directors did and learned subsequent to 473 A.2d at 812. September 20 and through January 26, 1981, was properly taken into account by the Trial We again confirm that view. We think the Court in determining whether the Board's concept of gross negligence is also the proper judgment was an informed one. We disagree standard for determining whether a business with this post hoc approach. judgment reached by a board of directors was an informed one. n13 The issue of whether the directors [**36] reached an informed decision to "sell" the Company on September 20, 1980 must be n13 Compare Mitchell v. Highland- determined only upon the basis of the Western Glass, supra, where the Court information then reasonably available to the posed the question as whether the board directors and relevant to their decision to accept acted "so far without information that the Pritzker merger proposal. This is not to say they can be said to have passed an that the directors were precluded from altering unintelligent and unadvised judgment." their original plan of action, had they done so 167 A. at 833. Compare also Gimbel v. in an informed manner. What we do say is that Signal Companies, Inc., 316 A.2d 599, the question of whether the directors reached an aff'd per curiam Del.Supr., 316 A.2d 619 informed business judgment in agreeing to sell (1974), where the Chancellor, after the Company, pursuant to the terms of the expressly reiterating the Highland- September 20 Agreement presents, in reality, Western Glass standard, framed the two questions: (A) whether the directors question, "Or to put the question in its reached an informed business judgment on legal context, did the Signal directors act September 20, 1980; and (B) if they did not, without the bounds of reason and whether the directors' actions taken subsequent recklessly in approving the price offer of to September 20 were adequate to cure any Burmah?" Id. infirmity in their action taken on September 20. We first consider the directors' September 20 … action in terms of their reaching an informed business judgment. III. A The defendants argue that the determination of whether their decision to accept $55 per On the record before us, we must conclude share for Trans Union represented an informed that the Board of Directors did not reach an business judgment requires consideration, not informed business judgment on September 20, only of that which they knew and learned on 1980 in voting to "sell" the Company for $55 September 20, but also of that which they per share pursuant to the Pritzker cash-out subsequently learned and did over the merger [**37] proposal. Our reasons, in following four-month [*874] period before the summary, are as follows: shareholders met to vote on the proposal in The directors (1) did not adequately inform February, 1981. The defendants thereby seek themselves as to Van Gorkom's role in forcing to reduce the significance of their action on the "sale" of the Company and in establishing September 20 and to widen the time frame for the per share purchase price; (2) were Page 12 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 uninformed as to the intrinsic value of the been liberally construed to include reports of Company; and (3) given these circumstances, at informal personal investigations by corporate a minimum, were grossly negligent in officers, Cheff v. Mathes, Del. Supr., 41 Del. approving the "sale" of the Company upon two Ch. 494, 199 A.2d 548, 556 (1964). However, hours' consideration, without prior notice, and there is no evidence that any [**39] "report," without the exigency of a crisis or emergency. as defined under § 141 (e), concerning the Pritzker proposal, was presented to the Board As has been noted, the Board based its on September 20. n16 Van Gorkom's oral September 20 decision to approve the cash-out presentation of his understanding of the terms merger primarily on Van Gorkom's of the proposed Merger Agreement, which he representations. None of the directors, other had not seen, and Romans' brief oral statement than Van Gorkom and Chelberg, had any prior of his preliminary study regarding the knowledge that the purpose of the meeting was feasibility of a leveraged buy-out of Trans to propose a cash-out merger of Trans Union. No members of Senior Management were Union do not qualify as § 141 (e) "reports" for these reasons: The former lacked substance present, other than Chelberg, Romans and because Van Gorkom was basically uninformed Peterson; and the latter two had only learned of as to the essential provisions of the very the proposed sale an hour earlier. Both general document about which he was talking. counsel Moore and former general counsel Romans' statement was irrelevant to the issues Browder attended the meeting, but were before the Board since it did not purport to be a equally uninformed as to the purpose of the valuation study. [HN12] At a minimum for a meeting and the documents to be acted upon. report to enjoy the status conferred by § 141 Without any documents before them (e), it must be pertinent to the subject matter concerning the proposed [**38] transaction, upon which a board is called to act, and the members of the Board were required to rely otherwise be entitled to good faith, not blind, entirely upon Van Gorkom's 20-minute oral reliance. Considering all of the surrounding presentation of the proposal. No written circumstances -- hastily calling the meeting summary of the terms of the merger was without prior notice of its subject matter, the presented; the directors were given no proposed sale of the Company without any documentation to support the adequacy of $55 prior consideration of the issue or necessity price per share for sale of the Company; and therefor, the urgent time constraints imposed by the Board had before it nothing more than Van Pritzker, and the total absence [**40] of any Gorkom's statement of his understanding of the documentation whatsoever -- the directors were substance of an agreement which he admittedly duty bound to make reasonable inquiry of Van had never read, nor which any member of the Gorkom and Romans, and if they had done so, Board had ever seen. the inadequacy of that upon which they now [HN11] Under 8 Del.C. § 141 (e), n15 claim to have relied would have been apparent. "directors are fully protected in relying in [*875] good faith on reports made by officers." n15 [HN13] Section 141 (e) provides Michelson v. Duncan, Del. Ch., 386 A.2d 1144, in pertinent part: 1156 (1978); aff'd in part and rev'd in part on other grounds, Del. Supr., 407 A.2d 211 A member of the board of directors ... (1979). See also Graham v. Allis-Chalmers shall, in the performance of his duties, be Mfg. Co., Del.Supr., 41 Del. Ch. 78, 188 A.2d fully protected in relying in good faith 125, 130 (1963); Prince v. Bensinger, Del. Ch., upon the books of accounts or reports 244 A.2d 89, 94 (1968). The term "report" has made to the corporation by any of its Page 13 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 officers, or by an independent certified became informed by virtue of their public accountant, or by an appraiser "review" of the Agreement on October 8 selected with reasonable care by the and January 26. board of directors ..., or in relying in good faith upon other records of the corporation. (1) [HN14] A substantial premium may provide one reason to recommend a merger, but n16 In support of the defendants' in the absence of other sound [**42] valuation argument that their judgment as to the information, the fact of a premium alone does adequacy of $55 per share was an not provide an adequate basis upon which to informed one, the directors rely on the assess the fairness of an offering price. Here, BCG study and the Five Year Forecast. the judgment reached as to the adequacy of the However, no one even referred to either premium was based on a comparison between of these studies at the September 20 the historically depressed Trans Union market meeting; and it is conceded that these price and the amount of the Pritzker offer. materials do not represent valuation Using market price as a basis for concluding studies. Hence, these documents do not that the premium adequately reflected the true constitute evidence as to whether the value [*876] of the Company was a clearly directors reached an informed judgment faulty, indeed fallacious, premise, as the on September 20 that $55 per share was a defendants' own evidence demonstrates. fair value for sale of the Company. The record is clear that before September 20, Van Gorkom and other members of Trans [**41] Union's Board knew that the market had The defendants rely on the following consistently undervalued the worth of Trans factors to sustain the Trial Court's finding that Union's stock, despite steady increases in the the Board's decision was an informed one: (1) Company's operating income in the seven years the magnitude of the premium or spread preceding the merger. The Board related this between the $55 Pritzker offering price and occurrence in large part to Trans Union's Trans Union's current market price of $38 per inability to use its ITCs as previously noted. share; (2) the amendment of the Agreement as Van Gorkom testified that he did not believe submitted on September 20 to permit the Board the market price accurately reflected Trans to accept any better offer during the "market Union's true worth; and several of the directors test" period; (3) the collective experience and testified that, as a general rule, most chief expertise of the Board's "inside" and "outside" executives think that the market undervalues directors; n17 and (4) their reliance on their companies' stock. [**43] Yet, on Brennan's legal advice that the directors might September 20, Trans Union's Board apparently be sued if they rejected the Pritzker proposal. believed that the market stock price accurately We discuss each of these grounds seriatim: reflected the value of the Company for the purpose of determining the adequacy of the premium for its sale. n17 We reserve for discussion under In the Proxy Statement, however, the Part III hereof, the defendants' contention directors reversed their position. There, they that their judgment, reached on stated that, although the earnings prospects for September 20, if not then informed Trans Union were "excellent," they found no Page 14 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 basis for believing that this would be reflected Despite the foregoing facts and in future stock prices. With regard to past circumstances, there was no call by the Board, trading, the Board stated that the prices at either on September 20 or thereafter, for any which the Company's common stock had traded [**45] valuation study or documentation of the in recent years did not reflect the "inherent" $55 price per share as a measure of the fair value of the Company. But having referred to value of the Company in a cash-out context. It the "inherent" value of Trans Union, the is undisputed that the major asset of Trans directors ascribed no number to it. Moreover, Union was its cash flow. Yet, at no time did nowhere did they disclose that they had no the Board call for a valuation study taking into basis on which to fix "inherent" worth beyond account that highly significant element of the an impressionistic reaction to the premium over Company's assets. market and an unsubstantiated belief that the We do not imply that an outside valuation value of the assets was "significantly greater" study is essential to support an informed than book value. By their own admission they business judgment; nor do we state that fairness could not rely on the stock price as an accurate opinions by independent investment bankers measure of value. Yet, also by their own are required as a matter of law. Often insiders admission, the Board members assumed that familiar with the business of a going concern Trans Union's market price was adequate are in a better position than are outsiders to [**44] to serve as a basis upon which to assess gather relevant information; and under the adequacy of the premium for purposes of appropriate circumstances, such directors may the September 20 meeting. be fully protected in relying in good faith upon The parties do not dispute that a publicly- the valuation reports of their management. traded stock price is solely a measure of the [*877] See 8 Del.C. § 141 (e). See also Cheff value of a minority position and, thus, market v. Mathes, supra. price represents only the value of a single Here, the record establishes that the Board share. Nevertheless, on September 20, the did not request its Chief Financial Officer, Board assessed the adequacy of the premium Romans, to make any valuation study or review over market, offered by Pritzker, solely by of the proposal to determine the adequacy of comparing it with Trans Union's current and $55 per share for sale of the Company. On the historical stock price. (See supra note 5 at p. record before us: The Board rested on Romans' 866.) elicited [**46] response that the $55 figure Indeed, as of September 20, the Board had was within a "fair price range" within the no other information on which to base a context of a leveraged buy-out. No director determination of the intrinsic value of Trans sought any further information from Romans. Union as a going concern. As of September 20, No director asked him why he put $55 at the the Board had made no evaluation of the bottom of his range. No director asked Romans Company designed to value the entire for any details as to his study, the reason why it enterprise, nor had the Board ever previously had been undertaken or its depth. No director considered selling the Company or consenting asked to see the study; and no director asked to a buy-out merger. Thus, the adequacy of a Romans whether Trans Union's finance premium is indeterminate unless it is assessed department could do a fairness study within the in terms of other competent and sound remaining 36-hour n18 period available under valuation information that reflects the value of the Pritzker offer. the particular business. Page 15 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 n18 Romans' department study was Controller Peterson in creating a feasible not made available to the Board until structure for a leveraged buy-out by a circulation of Trans Union's prospective purchaser; that Van Gorkom Supplementary Proxy Statement and the had not sought advice, information or Board's meeting of January 26, 1981, on assistance from either inside or outside the eve of the shareholder meeting; and, Trans Union directors as to the value of as has been noted, the study has never the Company as an entity or the fair price been produced for inclusion in the record per share for 100% of its stock; that Van in this case. Gorkom had not consulted with the Company's investment bankers or other financial analysts; that Van Gorkom had Had the Board, or any member, made an not consulted with or confided in any inquiry of Romans, he presumably would have officer or director of the Company except responded as he testified: that his calculations Chelberg; and that Van Gorkom had were rough and preliminary; and, [**47] that deliberately chosen to ignore the advice the study was not designed to determine the fair and opinion of the members of his Senior value of the Company, but rather to assess the Management group regarding the feasibility of a leveraged buy-out financed by adequacy of the $55 price. the Company's projected cash flow, making certain assumptions as to the purchaser's borrowing needs. Romans would have [**48] presumably also informed the Board of his We do not say that the Board of Directors view, and the widespread view of Senior was not entitled to give some credence to Van Management, that the timing of the offer was Gorkom's representation that $55 was an wrong and the offer inadequate. adequate or fair price. Under § 141 (e), the directors were entitled to rely upon their The record also establishes that the Board chairman's opinion of value and adequacy, accepted without scrutiny Van Gorkom's provided that such opinion was reached on a representation as to the fairness of the $55 price sound basis. Here, the issue is whether the per share for sale of the Company -- a subject directors informed themselves as to all that the Board had never previously considered. information that was reasonably available to The Board thereby failed to discover that Van them. Had they done so, they would have Gorkom had suggested the $55 price to Pritzker learned of the source and derivation of the $55 and, most crucially, that Van Gorkom had price and could not reasonably have relied arrived at the $55 figure based on calculations thereupon in good faith. designed solely to determine the feasibility of a leveraged buy-out. n19 No questions were None of the directors, Management or raised either as to the tax implications of a outside, were investment bankers or financial cash-out merger or how the price for the one analysts. Yet the Board did not consider million share option granted Pritzker was recessing the meeting until a later hour that day calculated. (or requesting an extension of Pritzker's Sunday evening deadline) to give it time to elicit more information as to the sufficiency of the offer, n19 As of September 20 the directors either from [*878] inside Management (in did not know: that Van Gorkom had particular Romans) or from Trans Union's own arrived at the $55 figure alone, and investment banker, Salomon Brothers, whose subjectively, as the figure to be used by Chicago specialist in merger and acquisitions Page 16 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 was known to the Board and familiar with Indeed, the record compels the conclusion that Trans Union's affairs. the directors had no rational basis for expecting that a market test was attainable, given the Thus, the record compels the conclusion terms of the Agreement as executed during the that [**49] on September 20 the Board evening of September 20. We rely upon the lacked valuation information adequate to following facts which are essentially reach an informed business judgment as to uncontradicted: the fairness of $55 per share for sale of the Company. n20 The Merger Agreement, specifically identified as that originally presented to the Board on September 20, has never been n20 For a far more careful and produced by the defendants, notwithstanding reasoned approach taken by another the plaintiffs' several demands for production board of directors faced with the before as well as during trial. No acceptable pressures of a hostile tender offer, see explanation of this failure to produce Pogostin v. Rice, supra at 623-627. documents has been given to either the Trial Court or this Court. Significantly, [**51] neither the defendants nor their counsel have (2) made the affirmative representation that this This brings us to the post-September 20 critical document has been produced. Thus, the "market test" upon which the defendants Court is deprived of the best evidence on which ultimately rely to confirm the reasonableness of to judge the merits of the defendants' position their September 20 decision to accept the as to the care and attention which they gave to Pritzker proposal. In this connection, the the terms of the Agreement on September 20. directors present a two-part argument: (a) that Van Gorkom states that the Agreement as by making a "market test" of Pritzker's $55 per submitted incorporated the ingredients for a share offer a condition of their September 20 market test by authorizing Trans Union to decision to accept his offer, they cannot be receive competing offers over the next 90-day found to have acted impulsively or in an period. However, he concedes that the uninformed manner on September 20; and (b) Agreement barred Trans Union from actively that the adequacy of the $17 premium for sale soliciting such offers and from furnishing to of the Company was conclusively established interested parties any information about the over the following 90 to 120 days by the most Company other than that already in the public reliable evidence available -- the marketplace. domain. Whether the original Agreement of [**50] Thus, the defendants impliedly contend September 20 went so far as to authorize Trans that the "market test" eliminated the need for Union to receive competitive proposals is the Board to perform any other form of fairness arguable. The defendants' unexplained failure test either on September 20, or thereafter. to produce and identify the original Merger Again, the facts of record do not support the Agreement permits the logical inference that defendants' argument. There is no evidence: the instrument would not support their (a) that the Merger Agreement was effectively assertions in this regard. Wilmington Trust Co. amended to give the Board freedom to put v. General Motors Corp., Del. Supr., 29 Del. Trans Union up for auction sale to the highest Ch. 572, 51 A.2d 584, 593 (1947); II Wigmore bidder; or (b) that a public auction was in fact on Evidence § 291 (3d ed. [**52] 1940). It is permitted to occur. The minutes of the Board a well established principle that [HN15] the meeting make no reference to any of this. production of weak evidence when strong is, or Page 17 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 should have been, available can lead only to the GL acknowledges that Trans Union directors conclusion that the strong would have been may have a competing fiduciary obligation to adverse. Interstate Circuit v. United States, the shareholders under certain circumstances. 306 U.S. 208, 226, [*879] 59 S. Ct. 467, 83 L. Ed. 610 (1939); Deberry v. State, Del.Supr., Clearly, this language on its face cannot be 457 A.2d 744, 754 (1983). Van Gorkom, construed as incorporating either of the two conceding that he never read the Agreement, "conditions" described above: either the right to stated that he was relying upon his accept a better offer or the right to distribute understanding that, under corporate law, proprietary information to third parties. [**54] directors always have an inherent right, as well The logical witness for the defendants to call to as a fiduciary duty, to accept a better offer confirm their construction of this clause of the notwithstanding an existing contractual Agreement would have been Trans Union's commitment by the Board. (See the discussion outside attorney, James Brennan. The infra, part III B (3) at p. 55.) defendants' failure, without explanation, to call this witness again permits the logical inference The defendant directors assert that they that his testimony would not have been helpful "insisted" upon including two amendments to to them. The further fact that the directors the Agreement, thereby permitting a market adjourned, rather than recessed, the meeting test: (1) to give Trans Union the right to accept without incorporating in the Agreement these a better offer; and (2) to reserve to Trans Union important "conditions" further weakens the the right to distribute proprietary information defendants' position. As has been noted, on the Company to alternative bidders. Yet, nothing in the Board's Minutes supports these the defendants concede that they did not seek to claims. No reference to either of the so-called amend the Agreement to permit Trans Union to "conditions" or of Trans Union's reserved right solicit competing offers. to test the market appears in any notes of the Several of Trans Union's outside directors Board meeting or in the Board Resolution [**53] resolutely maintained that the accepting the Pritzker offer or in the Minutes of Agreement as submitted was approved on the the meeting itself. That evening, in the midst understanding that, "if we got a better deal, we of a formal party which he hosted for the had a right to take it." Director Johnson so opening of the Chicago Lyric Opera, Van testified; but he then added, "And if they didn't Gorkom executed the Merger Agreement put that in the agreement, then the management without he or any other member of the Board did not carry out the conclusion of the Board. having read the instruments. And I just don't know whether they did or not." The defendants attempt to downplay the The only clause in the Agreement as finally significance of the prohibition against Trans executed to which the defendants can point as Union's actively soliciting competing offers by "keeping the door open" is the following [**55] arguing that the directors "understood underlined statement found in subparagraph (a) that the entire financial community would of section 2.03 of the Merger Agreement as know that Trans Union was for sale upon the executed: announcement of the Pritzker offer, and anyone desiring to make a better offer was free to do The Board of Directors shall recommend to the so." Yet, the press release issued on September stockholders of Trans Union that they approve 22, with the authorization of the Board, stated and adopt the Merger Agreement ('the that Trans Union had entered into "definitive stockholders' approval') and to use its best agreements" with the Pritzkers; and the press efforts to obtain the requisite votes therefor. release did not even disclose Trans Union's Page 18 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 limited right to receive and accept higher subsidiary's oil and gas interests. The Court offers. Accompanying this press release was a [**57] found those factors denoting further public announcement that Pritzker had competence to be outweighed by evidence of been granted an option to purchase at any time gross negligence; that management in effect one million shares of [*880] Trans Union's sprang the deal on the board by negotiating the capital stock at 75 cents above the then-current asset sale without informing the board; that the price per share. buyer intended to "force a quick decision" by the board; that the board meeting was called on Thus, notwithstanding what several of the only one-and-a-half days' notice; that its outside directors later claimed to have outside directors were not notified of the "thought" occurred at the meeting, the record meeting's purpose; that during a meeting compels the conclusion that Trans Union's spanning "a couple of hours" a sale of assets Board had no rational basis to conclude on worth $480 million was approved; and that the September 20 or in the days immediately following, that the Board's acceptance of Board failed to obtain a current appraisal of its oil and gas interests. The analogy of Signal to Pritzker's offer was conditioned on (1) a the case at bar is significant. "market test" of the offer; and (2) the Board's right to withdraw from the Pritzker Agreement and accept any higher [**56] offer received n21 Trans Union's five "inside" before the shareholder meeting. directors had backgrounds in law and (3) accounting, 116 years of collective employment by the Company and 68 The directors' unfounded reliance on both years of combined experience on its the premium and the market test as the basis for Board. Trans Union's five "outside" accepting the Pritzker proposal undermines the directors included four chief executives defendants' remaining contention that the of major corporations and an economist Board's collective experience and who was a former dean of a major school sophistication was a sufficient basis for finding of business and chancellor of a that it reached its September 20 decision with university. The "outside" directors had informed, reasonable deliberation. n21 78 years of combined experience as chief Compare Gimbel v. Signal Companies, Inc., executive officers of major corporations Del. Ch., 316 A.2d 599 (1974), aff'd per and 50 years of cumulative experience as curiam, Del. Supr., 316 A.2d 619 (1974). directors of Trans Union. Thus, There, the Court of Chancery preliminarily defendants argue that the Board was enjoined a board's sale of stock of its wholly- eminently qualified to reach an informed owned subsidiary for an alleged grossly judgment on the proposed "sale" of Trans inadequate price. It did so based on a finding Union notwithstanding their lack of any that the business judgment rule had been advance notice of the proposal, the pierced for failure of management to give its shortness of their deliberation, and their board "the opportunity to make a reasonable determination not to consult with their and reasoned decision." 316 A.2d at 615. The investment banker or to obtain a fairness Court there reached this result notwithstanding opinion. the board's sophistication and experience; the company's need of immediate cash; and the board's need to act promptly due to the impact [**58] of an energy crisis on the value of the (4) underlying assets being sold -- all of its Page 19 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 Part of the defense is based on a claim that officers, certain experts and books and the directors relied on legal advice rendered at records of the company. the September 20 meeting by James Brennan, Esquire, who was present at Van Gorkom's request. Unfortunately, Brennan did not appear ***We conclude that Trans Union's and testify at trial even though his firm Board was grossly negligent in that it failed participated in the defense of this action. There to act with informed reasonable deliberation is no contemporaneous evidence of the advice in agreeing to the Pritzker merger proposal given by Brennan on September 20, only the on September 20; and we further conclude later deposition and trial testimony of certain that the Trial Court erred as a matter of law directors as to their recollections or in failing [**60] to address that question understanding of what was said at the meeting. before determining whether the directors' Since counsel did not testify, and the advice later conduct was sufficient to cure its initial attributed to Brennan is hearsay received by the error. Trial Court over the plaintiffs' objections, we A second claim is that counsel advised the consider it only in the context of the directors' Board it would be subject to lawsuits if it present claims. In fairness to counsel, we make rejected the $55 per share offer. It is, of course, no findings that the advice attributed to him a fact of corporate life that today when faced was in fact given. We focus solely on the with difficult or sensitive issues, directors often efficacy of the [*881] defendants' claims, are subject to suit, irrespective of the decisions made months and years later, in an effort to they make. However, counsel's mere extricate themselves from liability. acknowledgement of this circumstance cannot Several defendants testified that Brennan be rationally translated into a justification for a advised them that Delaware law did not require board permitting itself to be stampeded into a a fairness opinion or an outside valuation of the patently unadvised act. While suit might result Company before the Board could act on the from the rejection of a merger or tender offer, Pritzker [**59] proposal. If given, the advice Delaware law makes clear that a board acting was correct. However, that did not end the within the ambit of the business judgment rule matter. Unless the directors had before them faces no ultimate liability. Pogostin v. Rice, adequate information regarding the intrinsic supra. Thus, we cannot conclude that the mere value of the Company, upon which a proper threat of litigation, acknowledged by counsel, exercise of business judgment could be made, constitutes either legal advice or any valid basis mere advice of this type is meaningless; and, upon which to pursue an uninformed course. given this record of the defendants' failures, it Since we conclude that Brennan's purported constitutes no defense here. n22 advice is of no consequence to the defense of this case, it is unnecessary for us to invoke the adverse inferences which may be attributable n22 Nonetheless, we are satisfied that [**61] to one failing to appear at trial and in an appropriate factual context a proper testify. exercise of business judgment may include, as one of its aspects, reasonable … reliance upon the advice of counsel. This IV. is wholly outside the statutory protections of 8 Del.C. § 141 (e) Whether the directors of Trans Union involving reliance upon reports of should be treated as one or individually in terms of invoking the protection of the business Page 20 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 judgment rule and the applicability of 8 Del.C. independent Board of Directors. There were no § 141 (c) are questions which were not allegations and no proof of fraud, bad faith, or originally addressed by the parties in their self-dealing by the directors .... briefing of this case. This resulted in a supplemental briefing and a second rehearing The business judgment rule, which was en banc on two basic questions: (a) whether properly applied by the Chancellor, allows one or more of the directors were deprived of directors wide discretion in the matter of the protection of the business judgment rule by valuation and affords room for honest evidence of an absence of good faith; and (b) differences of opinion. [**86] In order to whether one or more of the outside directors prevail, plaintiffs had the heavy burden of were [*889] entitled to invoke the protection proving that the merger price was so grossly of 8 Del.C. § 141 (e) by evidence of a inadequate as to display itself as a badge of reasonable, good faith reliance on "reports," fraud. That is a burden which plaintiffs have including legal advice, rendered the Board by not met. certain inside directors and the Board's special counsel, Brennan. However, plaintiffs have not claimed, nor did the Trial Court decide, that $55 was a grossly The parties' response, including inadequate price per share for sale of the reargument, has led the majority of the Company. That being so, the presumption that Court to conclude: (1) that since all of the a board's judgment as to adequacy of price defendant directors, outside as well as inside, represents an honest exercise of business take a unified position, we are required to judgment (absent proof that the sale price was treat all of the directors as one as to whether grossly inadequate) is irrelevant to the they are entitled [**85] to the protection of threshold question of whether an informed the business judgment rule; and (2) that judgment was reached. Compare Sinclair Oil considerations of good faith, including the Corp. v. Levien, Del. Supr., 280 A.2d 717 presumption that the directors acted in good (1971); Kelly v. Bell, Del. Supr., 266 A.2d 878, faith, are irrelevant in determining the 879 (1970); Cole v. National Cash Credit threshold issue of whether the directors as a Association, Del. Ch., 18 Del. Ch. 47, 156 A. Board exercised an informed business 183 (1931); Allaun v. Consolidated Oil Co., judgment. For the same reason, we must reject defense counsel's ad hominem argument for supra; Allen Chemical & Dye Corp. v. Steel & Tube Co. of America, Del. Ch., 14 Del. Ch. 1, affirmance: that reversal may result in a multi- 120 A. 486 (1923). million dollar class award against the defendants for having made an allegedly V. uninformed business judgment in a transaction The defendants ultimately rely on the not involving any personal gain, self-dealing or stockholder vote of February 10 for claim of bad faith. exoneration. The defendants contend that the In their brief, the defendants similarly stockholders' "overwhelming" vote approving mistake the business judgment rule's the Pritzker Merger Agreement had [**87] the application to this case by erroneously invoking legal effect of curing any failure of the Board to presumptions of good faith and "wide reach an informed business judgment in its discretion": approval of the merger. The parties tacitly agree that [HN16] a This is a case in which plaintiff challenged the discovered failure of the Board to reach an exercise of business judgment by an informed business judgment in approving the Page 21 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 merger constitutes a voidable, rather than a to approve the merger. Thus, the defendants void, act. Hence, the merger can be sustained, argue that when the Trial Court speaks of notwithstanding the infirmity of the Board's finding the Company's shareholders to have action, if its approval by majority vote of the been "fairly informed" by Management's proxy shareholders is found to have been based on an materials, [**89] the Court is speaking in informed electorate. Cf. Michelson v. Duncan, terms of "complete candor" as required under Del. Supr., 407 A.2d 211 (1979), aff'g in part Lynch v. Vickers Energy Corp., Del. Supr., 383 and rev'g in part, Del. Ch., 386 A.2d 1144 A.2d 278 (1978). (1978). The disagreement between the parties The settled rule in Delaware is that arises over: (1) the Board's burden of disclosing [HN17] "where a majority of fully informed to the shareholders all relevant and material stockholders ratify action of even interested information; and (2) the sufficiency of the directors, an attack on the ratified evidence as to whether the Board satisfied that transaction normally must fail." Gerlach v. burden. Gillam, Del. Ch., 37 Del. Ch. 244, 139 A.2d On this issue the Trial Court summarily 591, 593 (1958). The question of whether concluded "that the stockholders of Trans shareholders have been fully informed such Union were fairly informed as to the pending that their vote can be said to ratify director merger. ..." The Court provided no [*890] action, "turns on the fairness and completeness supportive reasoning nor did the Court make of the proxy materials submitted by the any reference to the evidence of record. management to the ... shareholders." Michelson v. Duncan, supra at 220. As this Court stated in The plaintiffs contend that the Court Gottlieb v. Heyden Chemical Corp., Del. Supr., committed error by applying an erroneous 33 Del. Ch. 177, 91 A.2d 57, 59 (1952): [**88] disclosure standard of "adequacy" rather than "completeness" in determining the sufficiency of the Company's merger proxy The entire atmosphere is freshened and a new materials. The plaintiffs also argue that the set of rules invoked where a formal approval Board's proxy statements, both its original has been given by a majority of independent, statement dated January 19 and its fully informed stockholders. ... supplemental statement dated January 26, were incomplete in various material respects. In Lynch v. Vickers Energy Corp., supra, this Finally, the plaintiffs assert that Management's Court held that [HN18] corporate directors owe supplemental statement (mailed "on or about" to their stockholders a fiduciary duty to January 27) was untimely either as a matter of disclose all facts germane to the transaction at law under 8 Del.C. § 251 (c), or untimely as a issue in an atmosphere of complete [**90] matter of equity and the requirements of candor. We defined "germane" in the tender complete candor and fair disclosure. offer context as all "information such as a reasonable stockholder would consider The defendants deny that the Court important in deciding whether to sell or retain committed legal or equitable error. On the stock." Id. at 281. Accord Weinberger v. UOP, question of the Board's burden of disclosure, Inc., supra; Michelson v. Duncan, supra; the defendants state that there was no dispute at Schreiber v. Pennzoil Corp., Del. Ch., 419 A.2d trial over the standard of disclosure required of 952 (1980). In reality, "germane" means the Board; but the defendants concede that the Board was required to disclose "all germane material facts. facts" which a reasonable shareholder would Applying this standard to the record before have considered important in deciding whether us, we find that Trans Union's stockholders Page 22 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 were not fully informed of all facts material to the Company." What the Board failed to their vote on the Pritzker Merger and that the disclose to its stockholders was that the [**92] Trial Court's ruling to the contrary is clearly Board had not made any study of the intrinsic erroneous. We list the material deficiencies in or inherent worth of the Company; nor had the the proxy materials: Board even discussed the inherent value of the Company prior to approving the merger on (1) The fact that the Board had no September 20, or at either of the subsequent reasonably adequate information indicative of meetings on October 8 or January 26. Neither the intrinsic value of the Company, other than a in its Original Proxy Statement nor in its concededly depressed market price, was Supplemental Proxy did the Board disclose that without question material to the shareholders it had no information before it, beyond the voting on the merger. See Weinberger, supra at premium-over-market and the price/earnings 709 (insiders' report that cash-out merger price ratio, on which to determine the fair value of up to $24 was good investment held material); Michelson, supra at 224 (alleged terms and the Company as a whole. intent of stock option plan held not germane); (2) We find false and misleading the Schreiber, supra at 959 (management fee of Board's characterization of the Romans report $650,000 held germane). [**91] in the Supplemental Proxy Statement. The Supplemental Proxy stated: Accordingly, the Board's lack of valuation information should have been disclosed. Instead, the directors cloaked the absence of At the September 20, 1980 meeting of the such information in both the Proxy Statement Board of Directors of Trans Union, Mr. and the Supplemental [*891] Proxy Romans indicated that while he could not say Statement. Through artful drafting, noticeably that $55,00 per share was an unfair price, he absent at the September 20 meeting, both had prepared a preliminary report which documents create the impression that the Board reflected that the value of the Company was in knew the intrinsic worth of the Company. In the range of $55.00 to $65.00 per share. particular, the Original Proxy Statement contained the following: Nowhere does the Board disclose that Romans stated to the Board that his calculations were made in a "search for ways to justify a price in although the Board of Directors regards the connection with" a leveraged buy-out intrinsic value of the Company's assets to be transaction, "rather than to say what [**93] the significantly greater than their book value ..., shares are worth," and that he stated to the systematic liquidation of such a large and Board that his conclusion thus arrived at "was complex entity as Trans Union is simply not not the same thing as saying that I have a regarded as a feasible method of realizing its valuation of the Company at X dollars." Such inherent value. Therefore, a business information would have been material to a combination such as the merger would seem to reasonable shareholder because it tended to be the only practicable way in which the invalidate the fairness of the merger price of stockholders could realize the value of the $55. Furthermore, defendants again failed to Company. disclose the absence of valuation information, but still made repeated reference to the The Proxy stated further that "in the view of the Board of Directors ..., the prices at which the "substantial premium." Company's common stock has traded in recent (3) We find misleading the Board's years have not reflected the inherent value of references to the "substantial" premium offered. Page 23 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 The Board gave as their primary reason in Board on January 26; much was information support of the merger the "substantial known or reasonably available before January premium" shareholders would receive. But the 21 but not revealed in the Original Proxy Board did not disclose its failure to assess the Statement. Yet, the stockholders were not premium offered in terms of other relevant informed of these facts. Included in the "new" valuation techniques, thereby rendering matter first disclosed in the Supplemental questionable its determination as to the Proxy Statement were the following: substantiality of the premium over an (a) The fact that prior to September 20, admittedly depressed stock market price. 1980, no Board member or member of Senior (4) We find the Board's recital in the Management, except Chelberg and Peterson, Supplemental Proxy of certain events preceding knew that Van Gorkom had discussed a the September 20 meeting to be incomplete and possible merger with Pritzker; misleading. It is beyond dispute that a (b) The fact that the sale price of $55 per reasonable stockholder would have considered share had been suggested initially to Pritzker by material the fact that Van Gorkom not only Van Gorkom; [**94] suggested the $55 price to Pritzker, but also that he chose the figure because it made (c) The fact that the Board had not sought feasible a leveraged buy-out. The directors an independent fairness opinion; disclosed that Van Gorkom suggested the $55 (d) The fact that Romans and several price to Pritzker. But the Board misled the members of Senior Management had indicated shareholders when they described the basis of concern at the September 20 Senior Van Gorkom's suggestion as follows: Management meeting that the $55 per share price was inadequate and had stated that a Such suggestion was based, at least in part, on higher price should and could be obtained; and Mr. Van Gorkom's belief that loans could be (e) The fact that Romans had advised the obtained from institutional lenders (together Board at its meeting on September 20 that he with about a $200 million [*892] equity and his department had prepared a study which contribution) which would justify the payment indicated that the Company had a value in the of such price, ... range of $55 to $65 per share, and that he could not advise the Board that the [**96] $55 per Although by January 26, the directors knew the share offer which Pritzker made was unfair. basis of the $55 figure, they did not disclose that Van Gorkom chose the $55 price because ***The parties differ over whether the that figure would enable Pritzker to both notice requirements of 8 Del.C. § 251 (c) apply finance the purchase of Trans Union through a to the mailing date of supplemental proxy leveraged buy-out and, within five years, material or that of the original proxy material. substantially repay the loan out of the cash flow n33 The Trial Court summarily disposed of the generated by the Company's operations. notice issue, stating it was "satisfied that the proxy material furnished to Trans Union (5) The Board's Supplemental Proxy stockholders ... fairly presented the question to Statement, mailed on or after January 27, added be voted on at the February 10, 1981 meeting." significant new matter, material to the proposal to be voted on February 10, which was not contained in the Original Proxy Statement. n33 The pertinent provisions of 8 Some of this new matter was information Del.C. § 251 (c) provide: which had only been [**95] disclosed to the Page 24 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 (c) The agreement required by Since we have concluded that subsection (b) shall be submitted to the Management's Supplemental Proxy Statement stockholders of each constituent does not meet the Delaware disclosure standard corporation at an annual or special of "complete candor" under Lynch v. Vickers, meeting thereof for the purpose of acting supra, it is unnecessary for us to address the on the agreement. Due notice of the plaintiffs' legal argument as to the proper time, place and purpose of the meeting construction of § 251 (c). However, we do shall be mailed to each holder of stock, find it advisable to express the view that, in an whether voting or non-voting, of the appropriate case, an otherwise candid proxy corporation at his address as it appears on statement may be so untimely as to defeat its the records of the corporation, at least 20 purpose of meeting the needs of a fully days prior to the date of the meeting. ... informed electorate. In this case, the Board's ultimate disclosure as contained in the Supplemental Proxy The defendants [**97] argue that the notice Statement related either to information readily provisions of § 251 (c) must be construed as accessible to all of the directors if they had requiring only that stockholders receive notice asked the right questions, or was information of the time, place, and purpose of a meeting to already at their disposal. In short, the consider a merger at least 20 days prior to such information disclosed by the Supplemental meeting; and since the Original Proxy Proxy Statement was information which the Statement was disseminated more than 20 days defendant directors knew or should have before the meeting, the defendants urge known at the time the first Proxy Statement affirmance of the Trial Court's ruling as correct was issued. The defendants simply failed in as a matter of statutory construction. their original duty of knowing, sharing, and Apparently, the question has not been disclosing information [**99] that was addressed by either the Court of Chancery or material and reasonably available for their this Court; and authority in other jurisdictions discovery. They compounded that failure by is limited. See Electronic Specialty Co. v. Int'l their continued lack of candor in the Controls Corp., 2d Cir., 409 F.2d 937, 944 Supplemental Proxy Statement. While we need (1969) (holding that a tender offeror's not decide the issue here, we are satisfied that, September 16, 1968 correction of a previous in an appropriate case, a completely candid but misstatement, combined with an offer of withdrawal running for eight days until belated disclosure of information long known or readily available to a board could raise September 24, 1968, was sufficient to cure past serious issues of inequitable conduct. [HN19] violations and eliminate any need for Schnell v. Chris-Craft Industries, Inc., Del. rescission); Nicholson File Co. v. H.K. Porter Supr., 285 A.2d 437, 439 (1971). Co., D.R.I., 341 F. Supp. 508, 513-14 (1972), aff'd, 1st Cir., 482 F.2d 421 (1973) [*893] The burden must fall on defendants who (permitting correction of a material claim ratification based on shareholder vote to misstatement by a mailing to stockholders establish that the shareholder approval resulted within seven days of a tender offer withdrawal from a fully informed electorate. On the record date). Both Electronic [**98] and Nicholson before us, it is clear that the Board failed to are federal security cases not arising under 8 meet that burden. Weinberger v. UOP, Inc., Del.C. § 251 (c) and they are otherwise supra at 703; Michelson v. Dunan, supra. distinguishable from this case on their facts. ***For the foregoing reasons, we conclude that the director defendants breached their Page 25 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 fiduciary duty of candor by their failure to [*894] [**101] opinion great emphasis is make true and correct disclosures of all directed only to the negative, with nothing information they had, or should have had, more than lip service granted the positive material to the transaction submitted for aspects of this case. In my opinion Chancellor stockholder approval. Marvel (retired) should have been affirmed. The Chancellor's opinion was the product of VI. well reasoned conclusions, based upon a sound To summarize: we hold that the directors deductive process, clearly supported by the of Trans Union breached their fiduciary evidence and entitled to deference in this duty to their [**100] stockholders (1) by appeal. Because of my diametrical opposition their failure to inform themselves of all to all evidentiary conclusions of the majority, I information reasonably available to them respectfully dissent. and relevant to their decision to recommend It would serve no useful purpose, the Pritzker merger; and (2) by their failure particularly at this late date, for me to dissent at to disclose all material information such as a great length. I restrain myself from doing so, reasonable stockholder would consider but feel compelled to at least point out what I important in deciding whether to approve consider to be the most glaring deficiencies in the Pritzker offer. the majority opinion. The majority has spoken We hold, therefore, that the Trial Court and has effectively said that Trans Union's committed reversible error in applying the Directors have been the victims of a "fast business judgment rule in favor of the director shuffle" by Van Gorkom and Pritzker. That is defendants in this case. the beginning of the majority's comedy of On remand, the Court of Chancery shall errors. The first and most important error made conduct an evidentiary hearing to determine is the majority's assessment of the directors' the fair value of the shares represented by knowledge of the affairs of Trans Union and the plaintiffs' class, based on the intrinsic their combined ability to act in this situation value of Trans Union on September 20, 1980. under the protection of the business judgment Such valuation shall be made in accordance rule. with Weinberger v. UOP, Inc., supra at 712- Trans [**102] Union's Board of Directors 715. Thereafter, an award of damages may be consisted of ten men, five of whom were entered to the extent that the fair value of Trans "inside" directors and five of whom were Union exceeds $55 per share. "outside" directors. The "inside" directors were ***REVERSED and REMANDED for Van Gorkom, Chelberg, Bonser, William B. proceedings consistent herewith. Browder, Senior Vice-President-Law, and Thomas P. O'Boyle, Senior Vice-President- Administration. At the time the merger was DISSENTBY: proposed the inside five directors had McNEILLY; CHRISTIE collectively been employed by the Company for 116 years and had 68 years of combined DISSENT: experience as directors. The "outside" directors were A. W. Wallis, William B. Johnson, Joseph McNeilly, Justice, dissenting: B. Lanterman, Graham J. Morgan and Robert The majority opinion reads like an W. Reneker. With the exception of Wallis, advocate's closing address to a hostile jury. these were all chief executive officers of And I say that not lightly. Throughout the Chicago based corporations that were at least as Page 26 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 large as Trans Union. The five "outside" Directors of this caliber are not ordinarily directors had 78 years of combined experience taken in by a "fast shuffle". I submit they were as chief executive officers, and 53 years not taken into this multi-million dollar cumulative service as Trans Union directors. corporate transaction without being fully informed and aware of the state of the art as it The inside directors wear their badge of pertained to the entire corporate panoroma of expertise in the corporate affairs of Trans Trans Union. True, even [*895] directors Union on their sleeves. But what about the such as these, with their business acumen, outsiders? Dr. Wallis is or was an economist interest and expertise, can go astray. I do not and math statistician, a professor of economics believe that to be the case here. These men at Yale University, dean of the graduate school knew Trans Union like the back of their hands of business at the University of [**103] and were more than well qualified to make on Chicago, and Chancellor of the University of the spot informed business judgments Rochester. Dr. Wallis had been on the Board of Trans Union since 1962. He also was on the concerning the affairs of Trans Union including a 100% sale of the corporation. Lest we forget, Board of Bausch & Lomb, Kodak, the corporate world of then and now operates Metropolitan Life Insurance Company, on what is so aptly referred to as "the fast Standard Oil and others. track". These men were at the time an integral William B. Johnson is a University of part of that world, all professional business Pennsylvania law graduate, President of men, not intellectual figureheads. Railway Express until 1966, Chairman and The majority of this Court holds that the Chief Executive of I.C. Industries Holding Board's decision, reached on September 20, Company, and member of Trans Union's Board 1980, to approve the merger was not the since 1968. product of an informed business judgment, that Joseph Lanterman, a Certified Public the Board's subsequent efforts to amend the Accountant, is or was President and Chief Merger Agreement and take other curative Executive of American Steel, on the Board of action were legally and factually [**105] International Harvester, Peoples Energy, ineffectual, and that the Board did not deal with Illinois Bell Telephone, Harris Bank and Trust complete candor with the stockholders by Company, Kemper Insurance Company and a failing to disclose all material facts, which they director of Trans Union for four years. knew or should have known, before securing Graham Morgan is a chemist, was the stockholders' approval of the merger. I Chairman and Chief Executive Officer of U.S. disagree. Gypsum, and in the 17 and 18 years prior to the At the time of the September 20, 1980 Trans Union transaction had been involved in meeting the Board was acutely aware of Trans 31 or 32 corporate takeovers. Union and its prospects. The problems created Robert Reneker attended University of by accumulated investment tax credits and Chicago and Harvard Business Schools. He accelerated depreciation were discussed was President and Chief Executive of Swift and repeatedly at Board meetings, and all of the Company, director of Trans Union since 1971, directors understood the problem thoroughly. and member of the Boards of seven other Moreover, at the July, 1980 Board meeting the corporations including U.S. Gypsum and the directors had reviewed Trans Union's newly Chicago [**104] Tribune. prepared five-year forecast, and at the August, 1980 meeting Van Gorkom presented the results of a comprehensive study of Trans Page 27 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 Union made by The Boston Consulting Group. provided that Trans Union might unilaterally This study was prepared over an 18 month terminate the proposed merger with the Pritzker period and consisted of a detailed analysis of company in the event that prior to February 10, all Trans Union subsidiaries, including 1981 there existed a definitive agreement competitiveness, profitability, cash throw-off, [**108] with a third party for a merger, cash consumption, technical competence and consolidation, sale of assets, or purchase or future prospects for contribution to Trans exchange of Trans Union stock which was Union's combined net income. more favorable for the stockholders of Trans At the September 20 meeting Van Gorkom Union than the Pritzker offer and which was reviewed all aspects of the proposed transaction conditioned upon receipt of stockholder and repeated [**106] the explanation of the approval and the absence of an injunction Pritzker offer he had earlier given to senior against its consummation. management. Having heard Van Gorkom's Following the October 8 board meeting of explanation of the Pritzker's offer, and Trans Union, the investment banking firm of Brennan's explanation of the merger documents Salomon Brothers was retained by the the directors discussed the matter. Out of this corporation to search for better offers than that discussion arose an insistence on the part of the of the Pritzkers, Salomon Brothers being directors that two modifications to the offer be charged with the responsibility of doing made. First, they required that any potential "whatever possible to see if there is a superior competing bidder be given access to the same bid in the marketplace over a bid that is on the information concerning Trans Union that had table for Trans Union". In undertaking such been provided to the Pritzkers. Second, the project, it was agreed that Salomon Brothers merger documents were to be modified to would be paid the amount of $500,000 to cover reflect the fact that the directors could accept a its expenses as well as a fee equal to 3/8ths of better offer and would not be required to 1% of the aggregate fair market value of the recommend the Pritzker offer if a better offer consideration to be received by the company in was made. the case of a merger or the like, which meant that in the event Salomon Brothers should find … the evidence is clear that the intention a buyer willing to pay a price of $56.00 a share underlying that language was to make specific instead of $55.00, such firm would receive a the right that the directors assumed they had, fee of roughly $2,650,000 plus disbursements. that is, to accept any offer that they thought was better, and not to recommend the Pritzker As the first step in [**109] proceeding to offer in the face of a better one. At the carry out its commitment, Salomon Brothers conclusion of the meeting, the proposed merger had a brochure prepared, which set forth Trans was approved. Union's financial history, described the company's business in detail and set forth At a subsequent meeting on October 8, Trans Union's operating and financial 1981 the directors, with the consent of the projections. Salomon Brothers also prepared a Pritzkers, amended the Merger Agreement so list of over 150 companies which it believed as to establish the right of Trans Union to might be suitable merger partners, and while solicit as well as to receive higher bids, [*896] four of such companies, namely, General although the Pritzkers insisted that their merger Electric, Borg-Warner, Bendix, and Genstar, proposal be presented to the stockholders at the Ltd. showed some interest in such a merger, same time that the proposal of any third party none made a firm proposal to Trans Union and was presented. A second amendment, which only General Electric showed a sustained became effective on October 10, 1981, further Page 28 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 interest. n1 As matters transpired, no firm offer in which the merger would be voted. On which bettered the Pritzker offer of $55 per January 26, 1981 the directors held their share was ever made. regular meeting. At this meeting the Board discussed the instant merger as well as all events, including this litigation, surrounding it. n1 Shortly after the announcement of At the conclusion of the meeting the Board the proposed merger in September senior unanimously voted to recommend to the members of Trans Union's management stockholders that they approve the merger. got in touch with KKR to discuss their Additionally, the directors reviewed and possible participation in a leverage approved a Supplemental Proxy Statement buyout scheme. On December 2, 1980 which, among other things, advised the KKR through Henry Kravis actually stockholders of what had occurred at the instant made a bid of $60.00 per share for Trans meeting and of the fact that General Electric Union stock on December 2, 1980 but had decided not to make an offer. On February the offer was withdrawn three hours after 10, 1981 [*897] the stockholders of Trans it was made because of complications Union met pursuant to notice and voted arising out of negotiations with the overwhelmingly in favor of the Pritzker Reichman family, extremely wealthy merger, 89% of the votes cast being in favor of Canadians and a change of attitude it. toward the leveraged buyout scheme, by Jack Kruzenga, the member of senior I have no quarrel with the majority's management of Trans Union who most analysis of the business judgment rule. It is likely would have been President and the application of that rule to these facts which is wrong. An overview of the entire Chief Operating Officer of the new record, rather than the limited view of bits and company. Kruzenga was the President pieces which the majority has exploded like and Chief Operating Officer of the seven popcorn, convinces me [**111] that the subsidiaries of Trans Union which directors made an informed business judgment constituted the backbone of Trans Union which was buttressed by their test of the as shown through exhaustive studies and market. analysis of Trans Union's intrinsic value on the market place by the respected At the time of the September 20 meeting investment banking firm of Morgan the 10 members of Trans Union's Board of Stanley. It is interesting to note that at Directors were highly qualified and well no time during the market test period did informed about the affairs and prospects of any of the 150 corporations contacted by Trans Union. These directors were acutely Salomon Brothers complain of the time aware of the historical problems facing Trans frame or availability of corporate records Union which were caused by the tax laws. in order to make an independent They had discussed these problems ad judgment of market value of 100% of nauseam. In fact, within two months of the Trans Union. September 20 meeting the board had reviewed and discussed an outside study of the company done by The Boston Consulting Group and an [**110] internal five year fore-cast prepared by On January 21, 1981 a proxy statement was management. At the September 20 meeting sent to the shareholders of Trans Union Van Gorkom presented the Pritzker offer, and advising them of a February 10, 1981 meeting the board then heard from James Brennan, the Page 29 488 A.2d 858, *; 1985 Del. LEXIS 421, **; 46 A.L.R.4th 821; Fed. Sec. L. Rep. (CCH) P91,921 company's counsel in this matter, who I respectfully dissent. discussed the legal documents. Following this, Considering the standard and scope of our the Board directed that certain changes be made review under Levitt v. Bouvier, Del. Supr., 287 in the merger documents. These changes made A.2d 671, 673 (1972), I believe that the record it clear that the Board was free to accept a taken as a whole supports a conclusion that the better offer than Pritzker's if one was made. actions of the defendants are protected by the The above facts reveal that the Board did business judgment rule. Aronson v. Lewis, Del. not act in a grossly negligent manner in Supr., 473 A.2d 805, 812 (1984); Pogostin v. informing themselves of the relevant and Rice, Del. Supr., 480 A.2d 619, 627 (1984). I available facts [**112] before passing on the also am satisfied that the record supports a merger. To the contrary, this record reveals conclusion that the defendants acted with the that the directors acted with the utmost care complete candor required by Lynch v. Vickers in informing themselves of the relevant and Energy Corp., Del. Supr., 383 A.2d 278 (1978). available facts before passing on the merger. Under the circumstances I would affirm the CHRISTIE, Justice, dissenting: judgment of the Court of Chancery.
Pages to are hidden for
"LEXSEE 488 A"Please download to view full document