Cede & Co. v. Technicolor, Inc.

I.

Nature of Case

Prior Proceedings

Summary of Principal Holdings

This appeal from final judgment of the Court of Chancery encompasses consolidated suits: a first-filed Delaware statutory appraisal proceeding (the “appraisal action”), and a later-filed shareholders’ individual suit for rescissory damages for “fraud” and unfair dealing (the “personal liability action”) brought by plaintiffs, Cinerama, Inc. (“Cinerama”), a New York corporation, and Cede & Co. (“Cede”), the owner of record. The actions stem from a 1982-83 cash-out merger in which Technicolor, Incorporated (“Technicolor”), a Delaware corporation, was acquired by MacAndrews & Forbes Group, Incorporated (“MAF”), a Delaware corporation, through a merger with Macanfor Corporation (“Macanfor”), a wholly-owned subsidiary of MAF. 1 Under the terms of the tender offer and later cash-out merger, each shareholder of Technicolor (excluding MAF and its subsidiaries) was offered $23 cash per share.

Plaintiff Cinerama was at all times the owner of 201,200 shares of the common stock of Technicolor, representing 4.405 percent of the total shares outstanding. Cinerama did not tender its stock in the first leg of the MAF acquisition commencing November 4, 1982; and Cinerama dissented from the second stage merger, which was completed on January 24, 1983. After dissenting, Cinerama, in March 1983, petitioned the Court of Chancery for appraisal of its shares pursuant to 8 Del.C. § 262. In pretrial discovery during the appraisal proceedings, Cinerama obtained testimony leading it to believe that director misconduct had occurred in the sale of the company. In January 1986, Cinerama filed a second suit in the Court of Chancery *350 against Technicolor, seven of the nine members of the Technicolor board at the time of the merger, MAF, Maeanfor and Ronald 0. Perelman (“Perelman”), MAF’s Chairman and controlling shareholder. Cinerama’s personal liability action encompassed claims for fraud, breach of fiduciary duty and unfair dealing, and included a claim for rescissory damages, among other relief. Cinerama also claimed that the merger was void ab initio for lack of unanimous director approval of repeal of a supermajority provision of Technicolor’s charter.

The defendants in the personal liability action moved to dismiss the action, arguing that Cinerama had no standing to pursue such a claim after petitioning for appraisal of its shares. The Chancellor denied the motion but ruled that after discovery was completed, Cinerama would have to elect which cause of action it wished to pursue. Cinerama filed an interlocutory appeal to this Court and we reversed. Cede & Co. v. Technicolor, Inc., Del.Supr., 642 A.2d 1182 (1988) (“Cede I ”). In Cede I this Court found the Chancellor to have committed legal error in requiring plaintiff to make an election of remedies before trial. We held that the plaintiff shareholder was entitled to pursue concurrently, through trial, its appraisal action and its personal liability action. We then remanded the case for trial of the consolidated appraisal and personal liability actions.

Following an extended trial and after further discovery, the Chancellor elected to decide first the appraisal suit. The court did so notwithstanding this Court’s implicit instruction in Cede I. 542 A.2d at 1189, 1191. 2 By unreported decision (the “Appraisal Opinion”) dated October 19, 1990, the Chancellor found the fair value of the dissenting shareholders’ Technicolor stock to be $21.60 per share, as of January 24,1988, the date of the merger. In June 1991, the court, in a second unreported decision (the “Personal Liability Opinion”), 1991 WL 111134, found pervasive and persuasive evidence of the defendant directors’ breach of their fiduciary duties, but concluded that Cinerama had not met its burden of proof. On that ground, the Chancellor entered judgment for the defendants. The court also found no merit in Cinerama’s further claims: that the merger was void ab initio; that Technicolor’s directors had breached their duty of disclosure in their 14D-9 filing and proxy statement; and that MAF and Perelman, on becoming controlling shareholders of Technicolor, breached fiduciary duties owed Cinerama entitling Cinerama to rescissory damages. Cinerama then appealed both decisions.

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Addressing the Personal Liability Opinion, we find no merit in Cinerama’s direct claims for rescissory damages. We also find no error in the Chancellor’s use of a materiality standard to define duty of loyalty. We find error in his reliance on a reasonable person analysis, but decline to resolve the loyalty issue on the present record. Neither the parties nor the trial court has addressed the relevance and legal effect of Technicolor’s charter requirement of director unanimity (for sale of the company to be accomplished by less than ninety-five percent share vote on the merger) upon the trial court’s presumed finding of the “material” disloyalty of directors Fred Sullivan and Arthur Ryan. The court has also not addressed the relevance and effect of the interested-director provisions of 8 Del.C. § 144 upon: (1) the business judgment rule’s requirement of director loyalty; (2) Technicolor’s charter requirement; and (3) Cinerama’s claim for rescissory damages, assuming it prevails under an entire fairness standard of review of the merger.

We also conclude that the trial court has erred as a matter of law in reformulating the business judgment rule’s elements for finding director breach of duty of care in the context of an arms-length, third-party transaction lacking evidence of director bad faith or director self-dealing. The Chancellor has erroneously imposed on Cinerama, for purposes of rebutting the rule, a burden of proof of *351 board lack of due care which is unprecedented. We refer to the Chancellor’s holding that a shareholder plaintiff such as Cinerama must prove injury resulting from a found board breach of duty of care, to rebut the business judgment presumption. The court has also erred in ruling that the damages recoverable by a wrongfully eashed-out shareholder such as Cinerama for board breach of fiduciary duty are limited to the difference between the fair value of its Technicolor stock, as determined for statutory appraisal purposes as of the date of the merger, and the cash tender offered. Apart from the unresolved duty of loyalty issues, on the trial court’s presumed findings of board breach of duty of care, we find the business judgment presumption accorded the Technicolor board action of October 29, 1982 to have been rebutted for board lack of due care. Therefore, we reverse and remand the personal liability action with instructions to the trial court to apply the entire fairness standard of review to the merger.

Our determination of the personal liability action renders moot Cinerama’s appeal of the Appraisal Opinion and the issues raised therein. See Cede I.

II. FACTS 3

A. Background

In 1970 Technicolor was a corporation with a long and prominent history in the film/audio-visual industries. Technicolor’s core business for over thirty years had been the processing of film for Hollywood movies through facilities in the United States, England and Italy. In its field, Technicolor was the most prominent of a handful of companies. Notwithstanding Technicolor’s dominance within its field, the company, by the late seventies, decreased in competitiveness. Its major film processing laboratory was, in the words of Morton Kamerman (“Kamer-man”), its Chief Executive Officer and Board Chairman, 4 “totally out of control” and it was taking losses that were “unacceptable.”

In response, Technicolor’s Chief Executive Officer initiated efforts to reduce costs at Technicolor’s film laboratories and to eliminate other inefficiencies. Through Kamer-man’s initiative, in the late seventies Technicolor’s market share and earnings improved. However, by the early eighties, Technicolor’s increase in market share had leveled off and the company’s core business earnings had stagnated. Kamerman concluded that Technicolor’s principal business, theatrical film processing, did not offer sufficient long-term growth for Technicolor, even though it still represented more than fifty percent of Technicolor’s net income.

Kamerman proposed that Technicolor enter the field of rapid processing of consumer film by establishing a network of stores across the country offering one-hour development of film, with quality service at competitive prices. The business, named “One Hour Photo” (“OHP”), would require Technicolor to open approximately one thousand stores over the next five years and to invest about $150 million. In May 1981, Technicolor’s Board of Directors approved Kamerman’s plan. The following month Technicolor announced its ambitious venture with considerable fanfare. On the date of its OHP announcement, Technicolor’s stock had risen to a high of $22.13. 5

*352 The securities market reacted negatively to Technicolor’s announcement. Technicol- or’s stock had dropped by almost $4 a share; and over the next month no Technicolor store had opened. The market had reacted to concern over the size of Technicolor’s investment in the new venture, $150 million, in proportion to the shareholders’ equity, $78 million.

In the months that followed, Technicolor fell behind on its schedule for OHP store openings and the relatively few stores that did open reported operating losses. At a time when Technicolor's film processing business was facing stiff competition and had lost one of its major film production clients to a competitor, OHP came to be viewed as a drain on Technicolor’s resources. Technicol- or’s other major divisions were experiencing mixed if not disappointing results.

As of August 1982, Technicolor had opened only twenty-one of a planned fifty OHP retad stores; and its Board was anticipating a $5.2 million operating loss for OHP in fiscal 1983. Notwithstanding, Kamerman remained committed to OHP. In the company’s Annual Report, issued September 7, 1982, Kamer-man reported, “We remain optimistic that the One Hour Photo business represents a significant growth opportunity for the Company.” In contrast, for the fiscal year ending June 1982, Technicolor’s September financial statements reported an eighty percent decline of consolidated net income — from $17.073 million in fiscal 1981 to $3.445 million in 1982. Senior management of Technicolor attributed the decline not only to write-offs for losses in Technicolor’s proposed sale of its Gold Key and Audio-Visual divisions, but to profit decline in Technicolor’s core business, film processing. By September 1982, Teehnicolor’s stock had reached a new low of $8.37 after falling by the end of June to $10.37 a share.

B. Prelude to Negotiations

In the late summer of 1982, Perelman of MAF concluded that Technicolor would be an attractive candidate for takeover by MAF. MAF was a small company, roughly half the size of Technicolor; its market capitalization was forty percent that of Technicolor’s, and its revenues were substantially less than Technicolor’s. After several bids for other companies had been thwarted, Perelman targeted Technicolor for takeover. Perelman’s interest in Technicolor was not then known to any of Technicolor’s management.

Perelman was aware of the financial constraints imposed upon MAF by its lender banks. Perelman’s lender banks had gone on record as being opposed to financing a hostile bid. 6 Perelman was also aware that Technicolor’s certificate of incorporation contained a supermajority provision requiring a shareholder vote of ninety-five percent of the outstanding shares for approval of a merger. Advised of this constraint, Perelman, in early September, sought advice from his investment banker on “how to get his foot in Technicolor’s door.” Personal Liability Opinion at 10.

Perelman learned that Michael Tarnopol (“Tarnopol”), a Managing Director at Bear, Stearns & Co. (“Bear Stearns”), had a longstanding business relationship with Fred Sullivan (“Sullivan”), one of Technicolor’s directors. Perelman apparently asked Tarno-pol to seek Sullivan’s assistance in making contact with Technicolor’s management. On September 10,1982, Tarnopol informed Sullivan that Perelman and MAF were interested *353 in Technicolor. 7 Sullivan agreed to meet Perelman for lunch.

Sullivan did not divulge his conversation with Tamopol or his planned meeting with Perelman to any of his fellow Technicolor board members. On the following Monday, September 13, Sullivan instructed his secretary to call his stockbroker and place a purchase order for ten thousand shares of Technicolor stock at the market. 8 At the time, Sullivan owned 21,250 shares of Technicolor.

On September 17, Sullivan met with Tar-nopol and Perelman. Perelman told Sullivan that he was interested in acquiring Technicolor through a one hundred percent stock acquisition. Perelman told Sullivan that he would pay about $15 per share. Sullivan replied that he did not believe Kamerman would be interested in selling Technicolor at that price, but agreed to take the matter up with him. Perelman informed Sullivan that MAF was intent on purchasing up to five percent of Technicolor’s stock in the open market. In fact, MAF had, since September 10, 1982, been purchasing Technicolor stock at market. By September 23, MAF had acquired 186,500 shares of Technicolor, representing approximately 3.7 percent of Technicolor’s outstanding stock. 9

Sullivan did not inform any of his fellow directors of the meeting with Perelman until a week later when, on September 24th, he informed Kamerman of: Tarnopol’s initial call; his September 17 meeting with Perelman; and Perelman’s interest in acquiring Technicolor. Sullivan suggested that Kamer-man meet with Perelman, and Kamerman agreed to do so. Sullivan did not inform Kamerman of Perelmaris intent to acquire Technicolor stock or that he, Sullivan, had recently increased his holdings in Technicol- or stock.

Perelman agreed to meet with Kamerman on October 4th in Los Angeles. Neither Kamerman nor Sullivan informed any of their fellow officers and directors of Technicolor of their scheduled meeting with Perelman or of Perelman’s interest in acquiring Technicolor.

Prior to the October 4th meeting, Perelman again contacted Sullivan and requested to meet with him at Perelman’s offices. The parties met, purportedly for Sullivan to assist Perelman in preparing for his coming meeting with Kamerman. 10

On October 4, Kamerman and Perelman met for the first time at Technicolor’s offices in Los Angeles. Sullivan was the only other director or officer of Technicolor present.. In the course of the meeting, Perelman informed Kamerman that MAF would be willing to pay $20 per share to acquire Technicolor. Kamerman reacted negatively to the figure of $20, and countered that he would not consider the sale of the company or submitting the matter to his board at a price below $25 a share. Other subjects discussed apparently included: the effect an MAF acquisition of Technicolor would have on Kam-erman’s employment contract with Technicol- or; whether Kamerman and Sullivan would continue as directors of Technicolor; the importance to Perelman of obtaining from Kamerman and Guy M. Bjorkman (“Bjork-man”), Technicolor’s two largest stockholders, binding options to purchase their and *354 their spouses’ stock holdings and their exercise of stock options; the income tax consequences of Kamerman’s exercise of his options; and whether Sullivan would receive a finder’s fee.

Kamerman also met with two of his senior officers, Technicolor’s General Counsel, John Oliphant (“Oliphant”), and its Treasurer, Wayne Powitzky (“Powitzky”), for advice on: the tax consequences to Kamerman of a possible sale of Technicolor and of his Technicol- or holdings; a sale’s impact on his employment contract; the possibility of his joining MAF’s board; and the effect a sale would have on his Technicolor stock option rights.

Kamerman also talked with Bjorkman and George Lewis (“Lewis”), two of Technicolor’s directors. Lewis was Kamerman’s tax attorney and Bjorkman was Technicolor’s largest stockholder 11 and Chairman of Technicolor’s Executive Committee. As Perelman wanted Kamerman and Bjorkman to grant him an option to purchase their shares prior to any tender offer, Kamerman sought Lewis’ advice on the income tax consequences to Kam-erman of sale of his option shares to Perelman in 1982 rather than in 1983. 12

Kamerman did not inform Technicolor’s President and Chief Operating Officer, Arthur Ryan (“Ryan”), also a director of Technicolor, of his meeting with Perelman. Kam-erman and Ryan had a strained personal relationship. However, Martin Davis (“Davis”), a senior executive at Gulf & Western, had informed Ryan of Sullivan’s New York meeting with Perelman and Kamer-man’s apparent willingness to consider a sale of Technicolor to Perelman. Davis was a mutual friend of Perelman and Ryan, Ryan and Davis also discussed the possibility of Ryan’s future employment at Technicolor.

On October 12, Perelman met with Kamer-man in Los Angeles for a second time. MAF’s Chief Financial Officer and Powitzky also attended the meeting. The meeting’s principal purposes were: (1) to allow MAF’s Chief Financial Officer to review Technicolor financial data; and (2) to give Perelman a tour of Technicolor’s Los Angeles facilities. Other subjects included: Perelman’s request for commitments from Technicolor’s senior management (other than Ryan) to remain after the merger; an offer to Kamerman and Sullivan of seats on MAF’s board of directors after the acquisition was completed; and the mechanics of structuring the merger. Price was apparently not discussed. By the end of this meeting, Kamerman and Perelman had reached substantial agreement on all matters discussed except price and financing. Kam-erman, without consulting with any of his fellow officers or directors, then retained Goldman Sachs (“Goldman”) as Technicolor’s investment banker and Meredith M. Brown (“Brown”), a senior partner at the New York law firm of Debevoise & Plimpton, as its outside legal counsel.

Two days after his second meeting in Los Angeles, Kamerman told Jonathan Isham (“Isham”), a fellow director and a member of Technicolor’s Executive Committee, to stand ready to attend a special meeting of the board of Technicolor, which might be called within the next several weeks. Isham, retired, was a frequent traveler.

Kamerman and Perelman continued to confer after their second Los Angeles meeting on key issues. Kamerman’s concerns were: (1) MAF’s ability to obtain necessary financing; (2) Perelman’s commitment to go through with the acquisition; and (3) whether Technicolor could “opt out.” Kamerman and Bjorkman also wanted assurances from Perelman that whatever price they received for their shares would be the highest price paid by MAF for any shares of Technicolor purchased by MAF during the course of the merger.

Perelman’s objective was a series of agreements that would give Technicolor no “out.” Through individual stock purchase agreements with Kamerman and Bjorkman and their spouses, MAF would acquire eleven percent of Technicolor’s outstanding stock. MAF, through an option from Technicolor, *355 would have the right to purchase another eighteen percent of Technicolor’s authorized but unissued stock, exercisable by MAF if another bidder emerged and topped MAF’s price. With such agreements in place and MAF’s 4.8 percent present holdings of Technicolor, MAF would control about thirty-four percent of Technicolor’s outstanding stock. Taking this evidence into account, along with Technicolor’s supermajority charter provision, requiring a shareholder vote of ninety-five percent of the outstanding shares for approval of a merger, the Chancellor found a probable “lock-up” by MAF of Technicolor. Personal Liability Opinion at 49.

In further one-on-one private meetings and negotiations between Kamerman and Perelman, they agreed that, if the deal closed, Sullivan should receive a “finder’s fee” of $150,000 for his role in introducing the parties. The amount of the fee had been suggested by Bear Stearns and was originally to have been paid by Bear Stearns. 13 Kamerman and Perelman also negotiated a post-merger employment contract for Kam-erman as Chief Executive Officer of Technicolor, a contract which the court found to be significantly different from Kamerman’s existing contract. 14

On October 18 Brown and a project team from Goldman flew to Los Angeles to meet with Kamerman and senior management of Technicolor. The team consisted of a Goldman vice president, John Golden, and two junior associates. Kamerman briefed the Goldman team on his negotiations with Perelman and provided them with background information on Technicolor. Kamerman instructed the team that he wanted a report back in three days giving a preliminary view on whether Perelman’s offering price of $20 per share was worth pursuing and a fairness opinion based on a price range of $20-22 per share. Kamerman also made it clear to the Goldman team that their contacts with Technicolor were to be limited to three officers of the company — Kamerman, Oliphant and Powitzky — and no one else without Kamer-man’s approval. 15

Kamerman also barred the Goldman team from meeting with any of the operating heads of the Technicolor divisions and from visiting any of the Technicolor facilities. Defendants admit that until the October 29 special board meeting of Technicolor, Goldman representatives had not had access to any of Technicolor’s senior officers or directors except Kamerman, Oliphant and Powitzky.

Following the meeting, Brown discussed with Kamerman the advisability of Technicol- or’s issuing a press release reporting MAF’s negotiations to acquire the company. The parties vigorously dispute the details of the discussions. Brown testified that, before the meeting, he had drafted a proposed press release, noting the pros and cons of issuing one at that time. Brown stated that he favored release but Kamerman did not; and no press release was issued. The court found that Brown had advised that a release was not required because negotiations were not sufficiently “mature.”

Back in New York, Goldman put together a valuation package; and three days later, on October 21, Goldman told Kamerman by telephone that a price of $20-$22 was worth pursuing. However, Goldman also suggested that Kamerman consider other possible purchasers for Technicolor. Goldman prepared an LBO model which included both an analy *356 sis of Technicolor’s value and MAF’s financial condition. 16

Goldman performed no other financial study concerning Technicolor’s sale to MAF, except a fairness opinion for presentation at Technicolor’s board meeting of October 29. Goldman also revised its October 21 LBO analysis for presentation to the board on October 29.

On October 27, six days after Kamerman’s receipt of Goldman Sachs’ fairness opinion, he and Perelman reached an agreement on price by telephone. 17 Perelman initially offered $22.50 per share for Technicolor’s stock. Kamerman, responding that he could not take that bid to the board, countered with a figure of $23 per share and stated that he would recommend its acceptance to the board. Perelman agreed to $23.

That evening Kamerman instructed Technicolor’s general counsel, Oliphant, to prepare a notice for the calling of a special meeting of the Board of Directors of Technicolor for New York City at 10:00 a.m., two days later, Friday, October 29. Technicolor requested the New York Stock Exchange to halt trading in its stock. The notice of special meeting did not disclose the meeting’s purpose and only a few of the directors received notice of the meeting before Thursday, the 28th.

All nine directors of Technicolor attended the meeting. Three of the directors — Lewis, Isham and Bjorkman — as previously noted, had only limited knowledge of the proposed sale of the company. Bjorkman’s and Lewis’ knowledge of the terms of the transaction was limited to what Kamerman had told them individually in advance of the meeting. Three other directors of Technicolor, Charles S. Simone (“Simone”), William R. Frye (“Frye”) (who had formerly headed Technicolor’s Consumer Processing Division), and Richard M. Blanco (“Blanco”) (who was also Chief Executive Officer of Technicolor’s Government Services Division), were told nothing of Technicolor’s sale prior to the meeting.

Ryan, though also President and Chief Operating Officer, knew little except what he had learned indirectly from Davis of Gulf & Western. 18 Prior to the meeting, all Kamer-man had told Ryan was a cryptic remark made October 27 when Kamerman stated, “Something is going on. I’m having negotiations with somebody....”

The Technicolor board convened on October 29 to consider MAF’s proposal. Kamer-man told the board of Bear Stearns’ contact on behalf of MAF and then outlined the history of his negotiations with Perelman. Kamerman stated that he had received an offer from Perelman of $20 a share, that he had countered with $25 and that he, on October 27, had agreed to a sale price of $23 per share. Kamerman counseled the board that $23 was “good” because it was ten times “core” earnings of between $2.30 and $2.50 a share. Kamerman recommended that MAF’s $23 per share offer be accepted in view of the present market value of Technicolor’s shares. He stated that they should assume a loss of $1 per share on the One Hour Photo business. He believed that Technicolor’s depressed share price rendered the company vulnerable for a takeover. Kamerman stated that accepting $23 a share was “advisable rather than shooting dice” on the prospects of Technicolor’s One Hour Photo venture.

Kamerman then explained the basic structure of the transaction: a tender offer by MAF at $23 per share for all the outstanding shares of common stock of Technicolor and a second-step merger with the remaining outstanding shares converted into $23 per share, with Technicolor becoming a wholly owned *357 subsidiary of MAF. Kamerman described MAF’s proposed option to purchase up to 844,000 unissued shares of the company’s common stock and MAF’s proposed stock purchase agreement with Kamerman and Bjorkman and their wives.

Kamerman also outlined the terms of his proposed employment contract with MAF and stated that Technicolor would pay Sullivan a finder’s fee of $150,000. He explained that he and Sullivan therefore had a financial interest in the proposed transaction.

Kamerman then turned the meeting over to Technicolor’s outside counsel, Brown. Brown did not know that Sullivan, Bjorkman, Lewis and Isham had limited knowledge of the proposed sale and that Blanco, Simone and Frye had no substantial prior knowledge of the sale. Brown explained the structure of the proposed transaction, summarized the terms of the proposed merger, and reviewed the key documents involved. 19 Brown advised the board that it was not obligated to accept Perelman’s offer, or any offer for that matter, or obligated to “shop” the company.

Goldman then made an oral presentation, based on a 78-page “board book,” 20 and explained Technicolor’s financial projections, stock price and ownership data. It presented its LBO analysis and concluded with an oral opinion that a price of $23 was fair, subject to further due diligence. 21

After these briefings several directors suggested pushing Perelman for more money but were advised that Perelman would go no higher. One director, Simone, suggested that Kamerman solicit other offers. Board consensus appeared to be that “a bird in the hand was better than a bigger one in the bush,” and it ultimately rejected Simone’s suggestion.

According to the minutes of the meeting, and the trial court so found, the board unanimously approved the Agreement and Plan of Merger with MAF and recommended to the stockholders of Technicolor the acceptance of the offer of $23 per share. The board also unanimously recommended repeal of the su-permajority provision of the Certificate of Incorporation. The board approved the Stock Option Agreement, Sullivan’s finder’s fee and Kamerman’s new employment contract. 22

Immediately following the meeting, Technicolor issued a press release announcing the terms and conditions of the acquisition.

C. The Merger

In November 1982, Technicolor filed a 14D-9 and a 13D with the Securities and Exchange Commission in which the board recommended that the shareholders tender their shares to MAF and MAF commenced an all-cash tender offer of $23 per share to the shareholders of Technicolor. By December 3, 1982, MAF had acquired 3,754,181 shares, or 82.19 percent, of Technicolor; the tender offer was closed on November 30, 1982. 23

In December 1982, the board of Technicol- or notified its stockholders of a special shareholders meeting on January 24, 1983, and distributed proxy statements. Attached to the proxy statement was Goldman’s written fairness opinion dated November 19, 1982. *358 At the January 24,1983 shareholder meeting, 89 percent of the shareholders voted to repeal the super-majority amendment and in favor of the proposed merger. MAF and Technicolor completed the merger and the Technicolor directors resigned from office.

III. APPLICATION OF THE BUSINESS JUDGMENT RULE

The pivotal question in this case is whether the Technicolor board’s decision of October 29 to approve the plan of merger with MAF was protected by the business judgment rule or should be subject to judicial review for its entire fairness.

Principal Rulings Below/Issues on Appeal

Duty of Loyalty

Addressing first the rule’s requirement of director duty of loyalty, the Chancellor found that “the Board as a whole” had not breached its collective duty of loyalty, notwithstanding the court’s finding that at least one director, Sullivan, if not a second director, Ryan, had breached his duty of loyalty. 24 The court also found that all the directors had presumably breached their duty of care. The Chancellor found the evidence sufficient to conclude that Director Sullivan had been disloyal because of his interest in the transaction. The court also questioned whether Director Ryan was also disloyal due to a conflict of interest. Notwithstanding, the Chancellor ruled that Cinerama had failed to rebut the business judgment rule’s presumption of loyalty accorded the Technicolor board’s decision of October 29. The court held that the shareholder, to rebut the rule, was required to prove that the disloyal director either dominated the board or in some way tainted the presumed independence of the remaining board members voting to approve the challenged transaction. Thus, it was Cinerama’s burden to establish that any director’s self-interest was individually, or collectively, so “material” as to persuade a trier of fact that the independence of the board “as a whole” had been compromised. Applying this test, the court found that Cinerama had not rebutted the business judgment rule’s presumption of director independence. 25

Duty of Care

Turning to the duty of care element of the rule, the court ruled that it was not sufficient for Cinerama to prove that the defendant directors had collectively, as a board, breached their duty of care. Cinerama was required to prove that it had suffered a monetary loss from such breach and to quantify that loss. The court expressed “grave doubts” that the Technicolor board “as a whole” had met that duty in approving the terms of the merger/sale of the company. The court, in effect, read into the business judgment presumption of due care the legal maxim that proof of negligence without proof of injury is not actionable. The court also reasoned that a judicial finding of director good faith and loyalty in a third-party, arms-length transaction should minimize the consequences of a board’s found failure to exercise due care in a sale of a company. The Chancellor’s rationale for subordinating the due care element of the business judgment rule, as applied to an arms-length, third-party transaction, was a belief that the rule, unless modified, would lead to draconian results. The Chancellor left no doubt that he was referring to this Court’s decision in Smith v. Van Gorkom, Del.Supr., 488 A.2d 858 (1985). He stated, “In all, plaintiff contends that this case presents a compelling case for another administration of the discipline applied by the Delaware Supreme *359 Court in Smith v. Van Gorkom, Del.Supr., 488 A.2d 858 (1985).” Personal Liability Opinion at 3.

Issues on Appeal

This ease raises at least three fundamental issues implicating the precepts and elements of the Delaware business judgment rule. Those issues are: (1) whether the Chancellor’s formation and application of the duty of loyalty standard as applied to a claim of director self-interest or lack of independence is correct as a matter of law; (2) whether, assuming the Chancellor’s formulation is correct as a matter of law, it supports the Chancellor’s finding of no breach of the duty of loyalty in this case; and (3) whether a plaintiff should be required to establish injury from a proven claim of board lack of due care to rebut the rule for breach of the duty of care.

Parties’ Contentions

Cinerama asserts that the Chancellor has committed fundamental errors of law in his formulation and application of the business judgment rule’s requirements of director duty of loyalty and duty of care. Cinerama first contends that the Chancellor has placed upon a shareholder plaintiff burdens of proof for breach of duty of loyalty 26 and duty of care that are foreign to equity and to Delaware law. 27 Cinerama further contends that, even under the court’s restatement of the duty of loyalty element of the rule, the court has clearly erred in finding that there is insufficient record evidence that a majority of the directors had breached their duty of loyalty to rebut the business judgment rule. Cinerama appeals several other adverse rulings of the Chancellor, while abandoning one claim below. Cinerama abandons its claim that the directors acted in bad faith. Except as to Director Sullivan, the court found no persuasive evidence of bad faith and concluded that the directors had acted in good faith in approving the merger transaction and related agreements. Personal Liability Opinion at 36-37. We address the remaining adverse rulings, referred to in section I supra, and appealed by Cinerama, in section VI infra.

Defendants concede the novelty of the Chancellor’s reformulation of the rule’s duty of care elements for rebutting a business judgment standard of judicial review to require a shareholder plaintiff to establish harm or loss. 28 Defendants also concede the *360 lack of any Delaware corporate law precedent for applying tort principles of liability to a fiduciary duty of care analysis. However, defendants assert that the Chancellor’s requirement of proof of injury for a breach of the duty of care to be actionable, though novel, is “sound.”

Defendants assert that the Chancellor’s reformulation of the duty of loyalty element of the rule to require a director’s interest to be “material” to be disabling is not new law, but simply different terminology. Defendants urge affirmance of all other issues appealed. By cross-appeal, defendants assert that the Chancellor’s factual findings of the directors’ breach of their duty of care are clearly erroneous. As stated above, and explained below, we find reversible error with respect to both director duty of loyalty and duty of care. Defendants’ cross-appeal is without merit.

Standard and Scope of Review

The principal issues raised involve the formulation and application of the duty of loyalty and duty of care standard of the business judgment rule. The formulation of the duty of loyalty and duty of care involves questions of law which are, of course, subject to de novo review by this Court. Kahn v. Household Acquisition Corp., Del.Supr., 591 A.2d 166, 175-76 (1991); Waggoner v. Laster, Del.Supr., 581 A.2d 1127, 1132 (1990); Fiduciary Trust Co. v. Fiduciary Trust Co., Del. Supr., 445 A.2d 927, 930 (1982). Assuming a correct formulation of the rule’s elements, the trial court’s findings upon application of the duty of loyalty or duty of care, being “fact dominated,” are, on appeal, entitled to substantial deference unless clearly erroneous or not the product of a logical and deductive reasoning process. Citron v. Fairchild Camera & Instrument Corp., Del.Supr., 569 A.2d 53, 64 (1989); see also Levitt v. Bouvier, Del.Supr., 287 A.2d 671, 673 (1972).

Underlying Precepts and Elements of the Delaware Business Judgment Rule

Our starting point is the fundamental principle of Delaware law that the business and affairs of a corporation are managed by or under the direction of its board of directors. 8 Del.C. § 141(a). In exercising these powers, directors are charged with an unyielding fiduciary duty to protect the interests of the corporation and to act in the best interests of its shareholders. Guth v. Loft, Inc., Del.Supr., 5 A.2d 503, 510 (1939); Aronson v. Lewis, Del.Supr., 473 A.2d 805, 811 (1984); Van Gorkom, 488 A.2d at 872; Mills Acquisition Co. v. Macmillan, Inc., Del.Supr., 559 A.2d 1261, 1280 (1988).

The business judgment rule is an extension of these basic principles. The rule operates to preclude a court from imposing itself unreasonably on the business and affairs of a corporation. See Mills, 559 A.2d at 1279; Unocal Corp. v. Mesa Petroleum Co., Del.Supr., 493 A.2d 946, 954 (1985); Sinclair Oil Corp. v. Levien, Del.Supr., 280 A.2d 717, 720 (1971); A.C. Acquisitions Corp. v. Anderson, Clayton & Co., Del.Ch., 519 A.2d 103, 111 (1986). The rule, though formulated many years ago, was most recently restated by this Court as follows:

The rule operates as both a procedural guide for litigants and a substantive rule of law. As a rule of evidence, it creates a “presumption that in making a business decision, the directors of a corporation acted on an informed basis [i.e., with due care], in good faith and in the honest belief that the action taken was in the best interest of the company.” Aronson v. Lewis, Del.Supr., 473 A.2d 805, 812 (1984). The presumption initially attaches to a director-approved transaction within a board’s conferred or apparent authority in the absence of any evidence of “fraud, bad faith, or self-dealing in the usual sense of personal profit or betterment.” Grobow v. Perot, Del.Supr., 539 A.2d 180, 187 (1988). See Allaun v. Consolidated Oil Co., Del. Ch., [16 Del.Ch. 318] 147 A. 257, 261 (1929).

Citron, 569 A.2d at 64 (applying the rule to a third-party sale of a company free of self-dealing); see also Unocal, 493 A.2d at 954.

*361 The rule posits a powerful presumption in favor of actions taken by the directors in that a decision made by a loyal and informed board will not be overturned by the courts unless it cannot be “attributed to any rational business purpose.” Sinclair Oil Corp., 280 A.2d at 720; see also Unocal, 493 A.2d at 954. Thus, a shareholder plaintiff challenging a board decision has the burden at the outset to rebut the rule’s presumption. Aronson, 473 A.2d at 812; Van Gorkom, 488 A.2d at 872; Citron, 569 A.2d at 64. To rebut the rule, a shareholder plaintiff assumes the burden of providing evidence that direc