A fair process usually results in a fair price. Therefore, the proponents of an interested transaction will continue to be incentivized to put a fair dealing process in place that promotes judicial confidence in the entire fairness of the transaction price. Accordingly, we have no doubt that the effective use of a properly functioning special committee of independent directors and the informed conditional approval of a majority of minority stockholders will continue to be integral parts of the best practices that are used to establish a fair dealing process.
Delaware has long adhered to the principle that the controlling shareholders have the burden of proving an interested transaction was entirely fair. However, in order to encourage the use of procedural devices that foster fair pricing, such as special committees and minority stockholder approval conditions, this Court has provided transactional proponents with what has been described as a “modest procedural benefit – the shifting of the burden of persuasion on the ultimate issue of entire fairness to the plaintiffs – if the transaction proponents proved, in a factually intensive way, that the procedural devices had, in fact, operated with integrity.”In a non-fraudulent transaction, “price may be the preponderant consideration outweighing other features of the merger.”51 Evidence of fair dealing has significant probative value to demonstrate the fairness of the price obtained. The paramount consideration, however, is whether the price was a fair one.