The recently-intervening shareholders have no problem with this term, but Howington objects, contending that it is not a proper element of a court-ordered settlement of a derivative claim unless he is allowed to opt out (which effectively would kill the deal). The parties have cited no federal or Delaware cases discussing this issue or anything like it. Defendants have cited only a single state court case, a 1963 decision from a New York trial-level court. Levey v. Babb, 39 Misc.2d 648, 241 N.Y.S.2d 642 (1963). Thus the Court writes on a clean, or nearly-clean, slate.

Missouri P. R. R. Reorganization, 290 I.C.C. 477, 624-25 (1954). The fact that the form of the settlement decided upon is somewhat unusual and that it includes some benefits which cannot be evaluated in financial terms does not militate against its acceptance; the parties are permitted great freedom in shaping the form of settlement consideration. Cf.Derdiarian v. Futterman Corp., 38 F.R.D. 178 (S.D.N.Y.1965); Manacher v. Reynolds, 39 Del.Ch. 401, 165 A.2d 741, 747 (Ch.1960); Levey v. Babb, 39 Misc.2d 648, 241 N.Y.S.2d 642 (Sup.Ct.1963).

Saigh ex rel. Anheuser-Busch, Inc. v. Busch, Mo. App., 396 S.W.2d 9, 16; Fletcher, Cyclopedia Corporations, Vol. 13, § 5939; 19 Am. Jur.2d Corporations, § 528, p. 64; James Talcott, Inc. v. McDowell (Fla.App.), 148 So.2d 36. "As the courts have aptly stated, the plaintiff stockholder is merely the 'instigator' to place the corporation's rights and claims before the court, and not the individual rights of numerous stockholders. * * * In a derivative action the corporation is an indispensable party and therefore its rights and best interests are before the court as a party — a situation completely different from the agency bestowed on a plaintiff in a representative action limited to his pleadings. * * *" Levey v. Babb, 39 Misc.2d 648, 241 N.Y.S.2d 642, 653. We hold, therefore, that the derivative action having been properly instituted, the corporation was before the court for all purposes connected with the suit, and the trial court acquired jurisdiction necessary to order a dissolution of the corporation under factual circumstances justifying that action.

Elements to be considered include (1) nature of the claim proposed for settlement, (2) probability of success in event of litigation of the claim, and (3) reasonableness of the business judgment exercised by the board of directors. See System Meat Co. v. Stewart, supra. See, also, Winkelman v. General Motors Corp., 48 F. Supp. 490; Schleiff v. Chesapeake Ohio Ry. Co., 43 F. R. D. 175; Krinsky v. Helfand, 38 Del. Ch. 553, 156 A.2d 90; Levey v. Babb, 39 Misc.2d 648, 241 N.Y.S.2d 642; Note, 54 Harv. L. Rev. 833. The nonparticipation of plaintiff in proceedings on remand may have affected control.

I am satisfied that defendants Oceanic and Darien, for whose benefit this action is brought, are indispensable parties. 13 Fletcher, Corporations, § 5997; Koster v. (American) Lumbermens Mutual Casualty Co., 330 U.S. 518, 67 S. Ct. 828, 91 L.Ed. 1067; Overfield v. Pennroad Corporation, 3 Cir., 146 F.2d 889; Greenberg v. Giannini, 2 Cir., 140 F.2d 550, 152 A.L.R. 966; Busch v. Mary A. Riddle Co., 283 F. 443 (D.C.Del.); Tessari v. Herald, — D.C. — , 207 F. Supp. 432; Levey v. Babb, 39 Misc.2d 648, 241 N.Y.S.2d 642. That this is the general rule does not seem to be disputed by plaintiff. He contends however that the rule should not be applied in the circumstances presented, particularly where, as here, there is a prayer such as that contained in the third cause of action, that is, for distribution of any recovery directly to stockholders.

In conducting this review, courts must carefully scrutinize the settlement and objectively analyze the evidence and circumstances before it, and courts must afford absent stockholders full and adequate notice and an opportunity to be heard on the settlement. (See Levey v Babb, 39 Misc 2d 648, 661 (Sup.Ct., NY County, 1963); Siegal v Merrick, 590 F2d 35, 37 (2d Cir 1978); In re Cendant Corp., Derivative Action Litig. 232 F Supp 2d 327, 332 (DNJ 2002) (quoting In Re Cendant Corp. Litig., 264 F3d 201, 231 (3rd Cir 2001)). Furthermore, the Court should consider whether the settlement was negotiated at arm's length, is free from fraud and collusion, and is in the best interests of the corporation and shareholders.