Statutory Reform · FIGURE 3

Section 8 of 12

Delaware safe-harbor flowchart

DGCL § 144(b)–(d) · disjunctive for ordinary, conjunctive for going-private

Long-form source as of 2026-06-02

Figure 3

DE SB 21 controller-conflict safe harbor.

Two tracks under 8 Del. C. § 144(b)–(d) — the test is disjunctive for ordinary deals, conjunctive for going-private.

Controller transaction § 144(b): controller has a material financial interest Is the transaction a going-private deal? NO Ordinary YES Going-private Any route suffices — § 144(b)(1) OR (b)(2) OR fairness (b)(3) COMMITTEE ROUTE ≥ 2 disinterested directors + uncoerced approval after informed deliberation OR STOCKHOLDER ROUTE Majority of votes cast by disinterested stockholders fully informed & uncoerced Business-judgment review Both approvals required — § 144(c)(1); fairness route preserved by (c)(2) COMMITTEE ≥ 2 disinterested directors + independent financial & legal advisors of own choosing AND STOCKHOLDER VOTE Majority of votes cast by disinterested stockholders fully informed & uncoerced (non-waivable) Statutory safe-harbor protection SAFE-HARBOR PRECLUSION · § 144(b)-(c); § 144(a)(6) carve-outs If the statutory conditions are satisfied, § 144(b) or § 144(c) precludes equitable relief or damages for the covered claim. § 144(a)(6) preserves authorization/compliance challenges, injunctive review of defensive devices, and aiding-and-abetting claims. RETROACTIVITY Applies to acts before, on, or after Mar. 25, 2025, except civil actions filed before Feb. 17, 2025 (and certain claims accruing pre-cutoff filed within one year). Constitutional challenges (Article IV § 10; Article I § 9 vested-rights) rejected on certified question in Rutledge v. Clearway.

Source: 8 Del. C. § 144, as amended by SB 21 (85 Del. Laws ch. 6, Mar. 25, 2025); upheld in Rutledge v. Clearway Energy Group LLC, No. 248, 2025 (Del. Feb. 27, 2026).

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