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The duty of loyalty is governed by state law. See also duty of care. Under Section 102(b)(7) of the Delaware General Corporation Law, Delaware corporations cannot eliminate or limit the personal liability of directors for breaches of the duty of loyalty, even though they can do so for breaches of the duty of care.
A classic example of a breach of the duty of loyalty is where a director profits at the corporation's expense, meaning that a director acts in furtherance of his or her own personal financial interests, separate business interests, or a family member's business.
2d 75, 84 (Del. 1992) (explaining that the duty of candor ?represents nothing more than the well-recognized proposition that directors of Delaware corporations are under a fiduciary duty to disclose fully and fairly all material information within the board's control when it seeks shareholder action?) (emphasis added).
The duty of loyalty mandates that a director act in good faith and with a reasonable belief that what she does is in the corporation's best interests. A director must refrain from self-dealing and place the interests of the corporation and its stockholders ahead of her own.
?In essence, the duty of care consists of an obligation to act on an informed basis; the duty of loyalty requires the board and its directors to maintain, in good faith, the corporation's and its shareholders' best interests over anyone else's interests.? Shoen v.
However, the corporate opportunity waiver allows corporate fiduciaries to invest in such opportunities without the obligation of disclosing them to the corporation or obtaining its approval.
Breach of the Duty of Loyalty. Breach of the duty of loyalty can occur in a variety of ways. Generally, however, any breach of the duty of loyalty will occur when the director acts in a manner that benefits himself or others at the expense of the company or its shareholders.
Under Delaware law, stockholder approval is required (i) for any amendment to the corporation's certificate of incorporation to increase the authorized capital and (ii) for the issuance of stock in a direct merger transaction where the number of shares exceeds 20% of the corporation's shares outstanding prior to the ...