THE COURT OF CHANCERY OF THE STATE OF DELAWARE

MICHAEL M. GOLDBERG, M.D.,

 Petitioner,

 v.

CLAUDINE BRUCK, MICHAEL RICE,

and MACROPHAGE THERAPEUTICS, INC.,

 Respondents.

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C.A. No. 2020-1058-JRS

MEMORANDUM OPINION

Date Submitted: March 16, 2021

Date Decided: June 23, 2021

R. Karl Hill, Esquire of Seitz, Van Ogtrop & Green, P.A., Wilmington, Delaware 

and Gregory Zimmer, Esquire of New York, New York, Attorneys for Petitioner.

Richard P. Rollo, Esquire, Sarah A. Clark, Esquire and Angela Lam, Esquire of 

Richards, Layton & Finger, P.A., Wilmington, Delaware; Barry Kazan, Esquire of 

Mintz & Gold LLP, New York, New York; and Faith Charles, Esquire of Thompson 

Hine LLP, New York, New York, Attorneys for Respondents.

SLIGHTS, Vice Chancellor

EFiled: Jun 23 2021 01:32PM EDT 

Transaction ID 66709971

Case No. 2020-1058-JRS
1 

Petitioner, Michael M. Goldberg, M.D., brings this action under Section 225 

of the Delaware General Corporation Law against Respondents, Claudine 

Bruck, M.D., Michael Rice and Macrophage Therapeutics, Inc., to obtain a 

declaration that Bruck and Rice were not properly placed on the Macrophage board 

of directors (the “Board”). According to Dr. Goldberg, the appointment of Bruck 

and Rice to the Board via written consent by Macrophage’s sole shareholder, 

Navidea Biopharmaceuticals, Inc., was not authorized by Macrophage’s Certificate 

of Incorporation and Bylaws. 

Respondents have moved to dismiss the action on the ground that, as a matter 

of clear contract and, therefore, as a matter of law, Bruck and Rice’s appointments 

were duly authorized. After carefully reviewing Macrophage’s governing 

documents, it is clear Bruck and Rice were properly appointed to the Board and 

Dr. Goldberg’s claim to the contrary must be dismissed. 

I. BACKGROUND

I have drawn the facts from well-pled allegations in the Verified Petition (the 

“Petition”) and documents incorporated by reference or integral to that pleading.1

 

1

 Verified Petition (“Pet.”) (D.I. 1); Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 

312, 320 (Del. 2004) (noting that on a motion to dismiss, the Court may consider 

documents that are “incorporated by reference” or “integral” to the complaint). 
2 

For purposes of the motion, I accept as true the Petition’s well-pled factual 

allegations and draw all reasonable inferences in Petitioner’s favor.2

 

A. Parties 

Petitioner, Dr. Goldberg, a resident of New Jersey, is a shareholder of 

Macrophage.3

 At all relevant times, Dr. Goldberg has served as a director on the 

Board.

4

 

Respondent, Macrophage (or the “Company”), a Delaware corporation, was 

founded in 2015 to develop medical therapeutic products.5

 

Respondents, Dr. Claudine Bruck, a resident of Pennsylvania, and Michael 

Rice, a resident of New Jersey, were purportedly appointed to the Board by written 

consent on November 29, 2018.6

 Those appointments are the subject of this dispute. 

B. The Stock Purchase Agreement and Sub-license Agreement

At the time of Macrophage’s formation, Dr. Goldberg and Platinum-Montaur 

Life Sciences, LLC (“Platinum”) entered into a stock purchase agreement 

(the “SPA”) with Macrophage under which Dr. Goldberg and Platinum invested 

2 Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002). 

3

 Pet. ¶ 1. 

4

 Pet. ¶¶ 13–14. 

5

 Pet. ¶¶ 4, 6. 

6 Pet. ¶¶ 2–3, 14. 
3 

$500,000 in Macrophage in exchange for preferred stock.7

 Navidea was not a party 

to this agreement.8

 The SPA, at Section 5.6, provided that Macrophage should be 

managed by a board consisting of three directors—one to be appointed by 

Dr. Goldberg and Platinum and two to be appointed by Navidea.9

 Relevant here, 

Section 9.8 of the SPA eliminated third party beneficiaries: “[t]his Agreement is 

intended for the benefit of the parties hereto and their respective permitted 

successors and assigns and is not for the benefit of, nor may any provision hereof be 

enforced by, any other person.”10

To accomplish Macrophage’s purpose to develop immuno-oncology and 

targeted anti-inflammatory therapies, shortly after its founding, Macrophage

received a sub-license from Navidea to utilize intellectual property owned, 

controlled and licensed to Navidea by the University of California, San Diego 

(the “Licensed IP”).11 The transfer of rights in the Licensed IP was memorialized in 

a sub-license agreement dated March 11, 2015.12 

7

 Pet. ¶ 7. 

8 Id. 

9

 Resp’ts’ Opening Br. in Supp. of Mot. to Dismiss the Verified Pet. (“OB”) (D.I. 12), 

Ex. C (“SPA”) § 5.6. 

10 SPA § 9.8. 

11 Pet. ¶ 6. 

12 Id. 
4 

C. The Disputed Appointments

Prior to November 29, 2018, Dr. Goldberg and non-party, Mark Greene, were 

the only two directors on the Board.

13 On November 29, 2018, Navidea issued a 

notice of written consent purporting to remove all of Macrophage’s directors, except 

for Dr. Goldberg, and appoint Bruck and Rice as new directors (“Navidea’s Written 

Consent”).

14 

D. Relevant Certificate of Incorporation and Bylaw Provisions

Not surprisingly, Macrophage’s Certificate of Incorporation (“COI”) and 

Bylaws address the procedures by which a director may be appointed to or removed 

from the Board.15 Both parties point to provisions within these governing documents 

to support their competing positions regarding the validity of the Bruck and Rice 

appointments. 

Dr. Goldberg relies on the following provisions, as excerpted: 

13 Pet. ¶ 13. 

14 Pet. ¶ 14. Dr. Goldberg “does not challenge the removal of Mark I. Greene or any other 

director from the Macrophage Board through [Navidea’s] Written Consent.” Answering 

Br. in Opp’n to Resp’ts’ Mot. to Dismiss the Verified Pet. (“AB”) (D.I. 15) at 7. 

15 OB, Ex. A (“Bylaws”), Ex. B (“COI”). 
5 

Article Six of the COI (regarding the form of votes): 

Unless and except to the extent that the Bylaws of the Corporation [] 

shall so require, the election of directors of the Corporation need not be 

by written ballot.16

Article II, Section 12 of the Bylaws (regarding notice for Board 

nominations): 

Nominations for election to the Board of Directors must be made by the 

Board of Directors or by any stockholder of any outstanding class of 

capital stock of the corporation entitled to vote for the election of 

directors. Nominations, other than those made by the Board of 

Directors of the corporation, must be preceded by notification in writing 

in fact received by the Secretary of the corporation not less than sixty 

days before any meeting of stockholders at which the election of 

directors is held. Such notification shall contain the written consent of 

each proposed nominee to serve as a director if so elected.17

Article III, Section 2 of the Bylaws (regarding the election of directors at 

the annual meeting of stockholders): 

[T]he directors shall be elected at the annual meeting of the 

stockholders by a plurality vote of the shares represented in person or 

by proxy and each director elected shall hold office until his successor 

is elected unless he shall resign, become disabled or otherwise be 

removed.18

16 COI Art. Six. 

17 Bylaws Art. II, § 12. 

18 Bylaws Art. III, § 2. 
6 

Article III, Section 3 of the Bylaws (regarding Board vacancies): 

Unless otherwise provided in the Certificate of Incorporation, 

vacancies and newly created directorships resulting from any increase 

in the authorized number of directors may be filled by a majority of the 

directors then in office, though less than a quorum, or by a sole 

remaining director. The directors so chosen shall serve until the next 

annual election and until their successors are duly elected, unless sooner 

displaced.19

 Article III, Section 16 of the Bylaws (regarding the removal of 

directors): 

Unless otherwise restricted by the Certificate of Incorporation, these 

Bylaws or applicable law, any director or the entire Board of Directors 

may be removed, without cause, by the holders of a majority of shares 

entitled to vote at an election of directors.20 

For their part, Respondents rely upon the following provisions in support of 

their position that Bruck and Rice were duly appointed to the Board as a matter of 

law:

Article Four, Section 4.2(a) of the COI (regarding the voting rights of 

common stockholders): 

Subject to such voting rights of any other class or series of securities as 

may be granted from time to time pursuant to this certificate of 

incorporation, any amendment thereto, or the provisions of the laws of 

the State of Delaware governing corporations, voting rights shall be 

vested exclusively in the holders of Common Stock. Each holder of 

19 Bylaws Art. III, § 3. 

20 Bylaws Art. III, § 16. 
7 

Common Stock shall have one vote in respect of each share of such 

stock held.21

Article II, Section 11 of the Bylaws (regarding actions by written consent 

of the common stockholder(s)): 

Unless otherwise provided for in the Certificate of Incorporation . . . 

any action which may be taken at any annual or special meeting of such 

stockholders, may be taken without a meeting, without prior notice and 

without a vote, if a consent or consents in writing, setting forth the 

action so taken, shall be signed by the holders of outstanding stock 

having not less than the minimum number of votes that would be 

necessary to take such action at a meeting . . . . 22

Dr. Goldberg interprets the COI and Bylaws as requiring that, until the 

occurrence of an annual meeting, only current Board members may remove or 

appoint directors to the Board. With this construction of the constitutive documents 

in mind, Dr. Goldberg argues that since he was the only duly appointed director as 

of November 29, 2018, only he had the power to fill vacancies on the Board until 

the next properly noticed annual meeting of the Company. He also argues that 

Navidea’s failure to give sixty-day notice prior to Bruck and Rice’s appointments to 

the Board violated the Bylaw’s Article II, Section 12 notice requirement. 

In response, Respondents cite Article Four, Section 4.2(a) of the COI and 

Article II, Section 11 of the Bylaws, which, when read together, authorized Navidea, 

21 COI Art. Four, § 4.2(a). 

22 Bylaws Art. II, § 11. 
8 

as the sole common stockholder, to act by written consent to appoint two directors 

to the Board at any time and without notice.23 According to Respondents, this 

construction is the only reasonable construction of Macrophage’s governing 

documents and, therefore, the Court may reject Dr. Goldberg’s requested 

Section 225 declaration as a matter of law. 

E. Procedural History

On February 20, 2019, Macrophage filed a separate action against 

Dr. Goldberg in this Court, alleging breach of fiduciary duty and conversion and 

seeking a declaration that Dr. Goldberg’s decision to transfer substantially all of 

Macrophage’s assets to a newly formed entity that he controlled, 

M1M2 Therapeutics, Inc., without Board or stockholder authorization violated 

Section 271 of the Delaware General Corporate Law (the “Plenary Action”).24 

The Court held trial in the Plenary Action in December 2020, and issued its posttrial decision finding in favor of Macrophage earlier today. Two weeks after the 

conclusion of trial, Dr. Goldberg filed this action seeking a declaration that Bruck 

and Rice were never duly appointed to the Board.25 Respondents promptly filed a 

motion to dismiss on January 11, 2021, and this Court held a hearing on the motion 

23 COI Art. Four, § 4.2(a); Bylaws Art. II, § 11. 

24 Macrophage v. Goldberg, 2019 WL 1406147 (Del. Ch. Mar. 22, 2019) (COMPLAINT).

25 D.I. 1. 
9 

immediately following post-trial oral argument in the Plenary Action, on March 16, 

2021.26 

II. ANALYSIS

The standard for deciding a motion to dismiss under Court of Chancery 

Rule 12(b)(6) is well-settled:

(i) all well-pleaded factual allegations are accepted as true; (ii) even 

vague allegations are “well-pleaded” if they give the opposing party 

notice of the claim; (iii) the Court must draw all reasonable inferences 

in favor of the non-moving party; and (iv) dismissal is inappropriate 

unless the plaintiff would not be entitled to recover under any 

reasonably conceivable set of circumstances susceptible of proof.27

“The [charter and] Bylaws [of a corporation] constitute part of a binding 

broader contract among the directors, officers and stockholders formed within the 

statutory framework of the Delaware General Corporation Law.”28 “Because 

corporate charters and bylaws are contracts, our rules of contract interpretation 

apply.”29 On a motion to dismiss a breach of contract claim, “a trial court cannot 

choose between two differing reasonable interpretations of ambiguous 

26 D.I. 7; D.I. 24. 

27 Savor, 812 A.2d at 896–97 (citation omitted). 

28 BlackRock Credit Allocation Income Tr. v. Saba Cap. Master Fund, Ltd., 224 A.3d 964, 

977 (Del. 2020) (internal quotations omitted) (citation omitted). 

29 Hill Int’l, Inc. v. Opportunity P’rs L.P., 119 A.3d 30, 38 (Del. 2015). 
10 

documents.”30 Rather, “[d]ismissal [of a claim grounded in contract], pursuant to 

Rule 12(b)(6), is proper only if the defendants’ interpretation is the only reasonable 

construction as a matter of law.”31

As noted, Respondents argue that Navidea’s Written Consent was authorized 

by Article II, Section 11 of the Bylaws (the “Written Consent Bylaw”), which grants 

stockholders the right to take “any action which may be taken at any annual or 

special meeting . . . without a meeting, without prior notice and without a vote” so 

long as there exists a written consent “setting forth the actions so taken, . . . signed 

by the holders of outstanding stock having not less than the minimum number of 

votes that would be necessary . . . to take such action at a meeting.”32 Dr. Goldberg

does not dispute that Navidea was authorized under the Bylaws to act by written 

consent in certain circumstances, and for good reason.

33 At the time Navidea’s 

Written Consent was delivered, Navidea was the sole common stockholder of 

30 Vanderbilt Income & Growth Assocs., L.L.C. v. Arvida/JMB Managers, Inc., 691 A.2d 

609, 613 (Del. 1996). 

31 Coyne v. Fusion Healthworks, LLC, 2019 WL 1952990, at *5 (Del. Ch. Apr. 30, 2019)

(citation omitted); VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 615 

(Del. 2003) (same).

32 Bylaws Art. II, § 11. 

33 AB at 20. 
11 

Macrophage.34 Dr. Goldberg also does not dispute that the requirements of 8 Del. C. 

§ 228 were followed, or that under Delaware law, “[s]tockholders may, unless the 

certificate of incorporation otherwise provides, act by written consent to elect 

directors.”35 And he does not argue that Navidea’s Written Consent was defective 

as to form.36 

Dr. Goldberg’s only argument that the appointments of Bruck and Rice were 

unauthorized rests on the fact that Navidea improperly initiated the written consent 

process to fill vacancies on the Board prior to the annual meeting of stockholders.37 

First, Dr. Goldberg notes that Article III, Section 3 of the Bylaws provides that 

vacancies on the Board may be filled by a sole remaining director and argues this 

means that only he, as the sole director, could fill Board vacancies prior to the annual 

34 AB at 1 (“Macrophage’s motion to dismiss this proceeding is the latest installment in an 

ongoing series of actions by Macrophage’s 100% common stockholder, non-party Navidea 

Biopharmaceuticals, Inc. . . .”). 

35 8 Del. C. § 211(b); AB at 21–24 (discussing only Respondents’ failure to follow the 

letter of the Bylaws, without any mention of specific DGCL provisions); see also MM Cos., 

Inc. v. Liquid Audio, Inc., 813 A.2d 1118, 1126 (Del. 2003) (“The stockholders’ power is 

the right to vote on specific matters, in particular, in an election of directors.”). 

36 AB at 21–24 (failing to engage with or even mention the Written Consent Bylaw). 

37 AB at 20 (“No amount of legalese in the Stockholder Written Consent can overcome the 

fact that Navidea did not comply with the rules governing the appointment of interim 

directors to replace retired or removed directors or the election of permanent directors 

nominated by stockholders.”). 
12 

meeting.

38 But, as Respondents correctly observe, the permissive language of 

Article III, Section 3 provides that the sole remaining director may fill Board 

vacancies; it does not prohibit the common stockholders from exercising their right 

to fill vacancies as well, including by written consent. 

Dr. Goldberg then moves to Article III, Section 2 of the Bylaws, which 

provides that “directors shall be elected at the annual meeting of the stockholders by 

a plurality vote of the shares represented.”39 That provision, however, must be read 

in context with others in the Bylaws governing Board appointments. For instance, 

the Written Consent Bylaw itself perfectly tracks the language in 8 Del. C. § 228(a), 

which permits stockholders to act by written consent on any issue that would 

otherwise be taken up at an annual meeting or special meeting.40 As confirmed by 

our law and the Bylaw provision upon which Dr. Goldberg relies, one such issue is 

38 Bylaws Art. III, § 3. 

39 Bylaws Art. III, § 2. 

40 Compare Written Consent Bylaw (“Unless otherwise provided in the Certificate of 

Incorporation, any action required [by this chapter] to be taken at any annual or special 

meeting of stockholders of a corporation, or any action which may be taken at any annual 

or special meeting of such stockholders, may be taken without a meeting, without prior 

notice and without a vote, if a consent or consents, setting forth the action so taken, shall 

be signed by the holders of outstanding stock having not less than the minimum number of 

votes that would be necessary to authorize or take such action at a meeting at which all 

shares entitled to vote thereon were present and voted and shall be delivered to the 

corporation [in the manner required by this section].”), with 8 Del. C. § 228(a) (same). 
13 

the appointment of directors.41 Section 228(a) has no timing constraints; it “permits 

immediate action.”42 

One potential statutory roadblock to the effectiveness of Navidea’s Written 

Consent is 8 Del. C. § 211(b), which permits stockholders to act by majority written 

consent only in certain circumstances.43 But, notably absent in Section 211(b) is any

restriction on actions by written consent when stockholders act through unanimous 

consent, as Navidea did here. Thus, under Delaware law and Macrophage’s 

governing documents, since directors are to be elected at Macrophage’s annual 

meeting, they may be appointed at any time by unanimous written consent in lieu of 

that meeting. 

41 Bylaws Art. III, § 2; Hoschett v. TSI Int’l Software, Ltd., 683 A.2d 43, 44 (Del. Ch. 1996) 

(recognizing in principle Section 228’s application to the election of directors); Jimenez v. 

Palacios, 2019 WL 3526479, at *20 (Del. Ch. Aug. 2, 2019), as revised (Aug. 12, 2019), 

aff’d, 237 A.3d 68 (Del. 2020) (same). 

42 Brown v. Kellar, 2018 WL 6721263, at *9 (Del. Ch. Dec. 21, 2018); see also Edward P. 

Welch, et al., 2 Folk on the Delaware General Corporation Law § 228.03 (6th ed.) 

(“Section 228 authorizes immediate stockholder action without a meeting[.]”); Cirillo 

Fam. Tr. v. Moezinia, 2018 WL 3388398, at *7 (Del. Ch. July 11, 2018), aff’d, 220 A.3d 

912 (Del. 2019) (“[Section 228] bestows stockholders with the power to take swift and 

wide-ranging action.”). 

43 8 Del. C. § 211(b) (“Stockholders may, unless the certificate of incorporation otherwise 

provides, act by written consent to elect directors; provided, however, that, if such consent 

is less than unanimous, such action by written consent may be in lieu of holding an annual 

meeting only if all of the directorships to which directors could be elected at an annual 

meeting held at the effective time of such action are vacant and are filled by such action.”). 
14 

Finally, Dr. Goldberg cites Article II, Section 12 of the Bylaws, which 

provides that “[n]ominations, other than those made by the Board of Directors of the 

corporation, must be preceded by” written notice within sixty days “before any 

meeting of stockholders at which the election of directors is held.”44 The plain 

language of this provision makes clear, however, that the prescribed notice is only 

required in instances where a meeting of stockholders occurs. This is entirely 

consistent with the Written Consent Bylaw, which confirms that, when stockholder 

written consents are utilized to carry out corporate actions, no prior notice is 

required.45 Thus, in the context of Navidea’s Written Consent, Navidea was not 

required to provide sixty days’ notice prior to the appointment of Bruck and Rice 

because they were not appointed at a “meeting of stockholders.” 

The only reasonable interpretation of Macrophage’s constitutive documents, 

when read collectively, is that Bruck and Rice were properly appointed to the Board

by Navidea’s Written Consent, which was authorized by the Written Consent Bylaw 

and not otherwise prohibited by any other provision of the COI, Bylaws or DGCL.

46 

44 Bylaws Art. II, § 12. 

45 Bylaws Art. II, § 11. 

46 The parties spilled much ink discussing the applicability of Section 5.6 of the SPA to 

Navidea’s Written Consent. While this provision provides Dr. Goldberg and Platinum the 

right to appoint one director to the Board, and Navidea the right to appoint two, 

Dr. Goldberg argues that because Navidea was not a party to the SPA and because the SPA 

prevented third-party beneficiaries, Section 5.6 gave Navidea no rights. This entire 

discussion is moot given that the appointment of Navidea’s two directors was consistent 
15 

III. CONCLUSION 

Based on the foregoing, the motion to dismiss must be GRANTED. 

IT IS SO ORDERED.

with Macrophage’s governing documents. Whether Section 5.6 of the SPA granted 

Navidea the right to appoint one, two or ten directors would not change the fact that 

Navidea, as sole common stockholder, could appoint directors by written consent, and this 

right is not limited in the COI or Bylaws, including by number of Board seats. That is 

precisely what Navidea did here. In any event, to the extent the SPA restricted Navidea’s 

rights as the 100% common stockholder of Macrophage by limiting its designated Board 

seats to two, Navidea’s Written Consent was entirely consistent with that limitation.