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Delaware General Corporation Law: Difference between revisions

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===Case of TransPerfect===
According to Section 226 of the Delaware General Corporation Law (DGCL) the Court of Chancery is permitted to appoint a receiver or custodian for a corporation when its stockholders or directors are divided and the deadlock is injurious to the corporation.<ref name="Findlaw">{{cite web|title=DEL CODE § 226 : Delaware Code - Section 226: APPOINTMENT OF CUSTODIAN OR RECEIVER OF CORPORATION ON DEADLOCK OR FOR OTHER CAUSE|url=http://codes.lp.findlaw.com/decode/8/1/VII/226|website=Findlaw}}</ref> In August 2015, the head of the [[Delaware Court of Chancery|Delaware Chancery]], Chancellor [[André Bouchard (Judge)|Andre Bouchard]] employed 226(a) of the DGCL to order the auction of the shares of a company that was not in financial distress, nor at risk of insolvency, because its co-owners could not get along.<ref name="Gerasimovich_TransPerfect">{{cite news|last1=Gerasimovich|first1=Kenneth|title=Delaware Chancery Court Appoints a Custodian to Sell Deadlocked Company|url=http://www.lexology.com/library/detail.aspx?g=9ed30bca-f677-43f1-ac02-95808beff2e8|agency=Lexology|publisher=Globe Business Media Group|date=15 Dec 2015}}</ref> The forced sale of [[TransPerfect]] is the first time a company that did not meet the criteria for receivership and mandated sale under Delaware law was being forced to dissolve, to award one board member who wanted to exit with a [[control premium]].<ref name="Waltz_1">{{cite news|last1=Waltz|first1=Samuel|title=Giuliani steps into 'business divorce' case in Chancery|url=http://www.delawarebusinesstimes.com/giuliani-steps-business-divorce-case-chancery/|work="The Chancellor appears to want to not merely force the sale of the company, but to award the control premium to one party alone. That is not equitable, and this is an equity court.”|agency=Delaware Business Times|date=26 Apr 2016}}</ref><ref name="Elstein_TP">{{cite news|last1=Elstein|first1=Aaron|title=Court orders feuding biz partners, ex-lovers, to sell their profitable translation firm|url=http://www.crainsnewyork.com/article/20150825/BLOGS02/150829916/court-orders-feuding-biz-partners-ex-lovers-to-sell-their-profitable-translation-firm|agency=Crain's NY|date=25 Aug 2015}}</ref> Former New York Mayor [[Rudolph Giuliani]] has takentook an interest in this case because he viewsviewed it as "contradictory" to the Delaware corporate laws.<ref name="Mordock">{{cite news|last1=Mordock|first1=Jeffrey|title=Giuliani blasts Delaware court for decision in lover's spat|url=http://www.delawareonline.com/story/money/2016/04/22/giuliani-blasts-delaware-court-decision-lovers-spat/83345454/|agency=Delaware New Journal|date=22 Apr 2016}}</ref>
 
Under the law, the Chancery is not obligated or even mandated to make accommodations for any party to sell his or her interest. The only concern for the Delaware court is to make sure that a company is run well and not being harmed. In this regard, the case of TransPerfect can seem at odds with the court's mandate.<ref name="Gerasimovich">{{cite news|last1=Gerasimovich|first1=Kenneth|title=Delaware Chancery Court Appoints a Custodian to Sell Deadlocked Company|url=http://www.gtlaw.com/News-Events/Publications/Alerts/190560/Delaware-Chancery-Court-Appoints-a-Custodian-to-Sell-Deadlocked-Company|agency=GTLaw Newsletter|publisher=Greenberg Traurig, LLP|date=15 Dec 2015}}</ref> The Chancellor decided to mandate the sale of the company because the two directors were locked in a dispute that left them unable to negotiate among themselves.<ref name="Pepper Hamilton">{{cite news|last1=Cline|first1=Joanna|last2=Levine|first2=James|last3=Chuff|first3=Christopher|title=CHANCERY ORDERS SALE OF SOLVENT COMPANY TO RESOLVE BOARD DEADLOCK|url=http://www.pepperlaw.com/publications/chancery-orders-sale-of-solvent-company-to-resolve-board-deadlock-2015-09-03/|agency=Pepper Hamilton LLP|date=3 Sep 2015}}</ref> At issue, however, is that in doing so, the Chancery and the Chancellor appear to be seeking an inequitable share for one of the partners who wanted to exit and asked for an offer to leave, forcing the partner who would prefer to remain and operate the firm to exit as well.<ref name="Bouchard Decision">{{cite journal|title=In re: SHAWE & ELTING LLC|journal=Delaware Court Decision Elting V Shawe|date=13 Aug 2015|volume=The distinct possibility also exists that Shawe would be the most logical purchaser of the business or that a third party would be unwilling to acquire the Company without securing his participation and expertise.|issue=C.A. No. 9700-CB|page=83|url=http://courts.state.de.us/opinions/download.aspx?ID=228080|ref=324}}</ref> The court cited employee affidavits attesting to one party's commitment over the other's.<ref name="Bouchard Decision"/>