In Blue Chip Capital Fund II v. Tubergen, read opinion here , a minority preferred stockholder survived a motion to dismiss involving a claim that the board violated the company’s certificate of incorporation when, after the sale of substantially all of the company’s assets, "it distributed an inflated amount of the proceeds to the holders of a class of preferred stock which included the company’s controller". The Chancery Court found that the contract claims could allow a full recovery, so there was no need to pursue the secondary fiduciary claims. The Court also addressed the less than frequently opined upon attributes of Section 281 of the DGCL.
Specifically, Section 281(b)(i) of the DGCL prescribes a statutory scheme for distributing assets of a dissolved corporation that has not elected to comply the the procedures of Sections 280 and 281(a). The statutory framework, in sum, allows one to follow a procedure to address claims from potential creditors, for example, by following a non-judicial method of setting aside estimated reserves or alternatively, seeking a judicial blessing of adequacy, for example, when the assets remaining of a dissolved corporation may not cover all contingent liabilities. At this early stage, the Court could not conclude under Secdtion 281(b)(i) that the provision for creditor claims satisfied the contractual rights of the preferred stockholders.
The Court also observed the Section 281(b)(i) is designed to protect the interests of creditors and says nothing about the rights and interests of preferred stockholders (citations to footnotes omitted here). In the case of In Re Delta Holdings, Inc., 2004 Del Ch. LEXIS 104 at *36, the Chancery Court held that Section 281(b)(i) of the DGCL did not require a company to set aside an amount to cover all potential contingent claims.