Document: Matulich v. Aegis Comm’ns Group, Inc. C.A. No. 2601-CC, Chandler, C. (Del. Ch. May 31, 2007)
The Court dismissed for failure to state a claim, an action to invalidate a short form merger effected pursuant to 8 Del. C. § 253. The plaintiff claimed that the stockholder held less than 90% of the shares entitled to vote on the merger given the corporation had issued a series of preferred stock that had the right to “consent to” a merger but where such series explicitly had no voting rights. The Court held that such preferred stock was not included in the shares entitled to vote upon the merger for the purpose of the 90% requirement 8 Del. C. § 253.