MEMORANDUM OPINION

STRINE, Vice Chancellor

This case involves a fight over the control of the board of a company — NuWeb Solutions, Inc. ("NuWeb") that distributes pornography over the Internet. The plaintiffs Andrew Chandler, Bernard Marcus, Linda Marcus, Irving Marcus, and NuWeb — seek a declaration that two NuWeb board members are no longer corporate officers, that two of the plaintiffs are rightful board members, and that certain shares of preferred stock purportedly issued to defendants Continuum D, Inc., Hanover Capital, Inc., and Wireless Acquisition Partners, LLC are invalid. Two of the defendants — NuWeb directors Michael Ciccoricco and Anthony Ottaviano contest the plaintiffs' claims and argue that they remain rightful NuWeb officers.

Before the court now are several motions.

First, certain of the defendants — Robert L. Frome, Michael Wainstein, Continuum D, and Hanover Capital — contend that as nonresidents they are not subject to the personal jurisdiction of this Delaware court for purposes of the plaintiffs' claim seeking invalidation of the preferred stock issuance. Relatedly, defendants Frome, Wainstein, Ciccoricco, Ottaviano, and Wireless Acquisition Partners, argue that unless indispensable parties Continuum D and Hanover are before the court, then the plaintiffs' claim that the preferred stock issued to those entities was invalid cannot be heard by this court.

In this opinion, I conclude that Frome, Wainstein, Continuum D, and Hanover are properly subject to the personal jurisdiction of this court. Each of these defendants can be deemed responsible for an important act in Delaware necessary to the accomplishment of an alleged conspiracy to place a large block of NuWeb's voting power in the hands of Frome and Wainstein. As a result, the conspiracy theory of jurisdiction works in concert with 10 Del. C. § 3104(c)(1) to provide a statutory basis for personal jurisdiction.

Furthermore, the defendants have sought to avail themselves of the benefits of this State's laws and have sufficient contacts with Delaware to render the exercise of jurisdiction over them constitutionally permissible. Because Continuum D and Hanover are properly before the court, the remaining defendants' indispensable party motion — which is dependent on Continuum D and Hanover not being before the court — necessarily fails.

The defendants have also moved for partial summary judgment pursuant to Court of Chancery Rule 56. In July 2002, plaintiffs Chandler and Bernard Marcus executed a written consent purporting to represent a majority of the NuWeb shares to expand the then-three-person board to add Linda Marcus and Irving Marcus. This consent, if effective, tilted board control from Ottaviano and Ciccoricco to Marcus. The new board then took action to remove Ottaviano and Ciccoricco as officers.

The defendants allege that Bernard Marcus violated a voting agreement that the defendants contend required him to vote only for a three-person board composed of himself, Ottaviano, and Ciccoricco. There is extrinsic evidence that is favorable to the defendants' position. But Delaware law disfavors the disenfranchisement of shares and reads restrictions on voting narrowly.

After reviewing the record, I harbor doubt that the voting agreement can only be read in the manner the defendants advance. By its plain terms, the agreement did not bar Marcus from voting to increase the size of the board and to elect new members of his preference. Moreover, the agreement still has residual meaning when read as the plaintiffs wish. Because there is a triable question about the proper interpretation of the agreement, I deny summary judgment so as to permit me to determine the meaning of the agreement after hearing all of the extrinsic evidence, and at a stage when it will be appropriate to weigh the evidence and make credibility determinations.

I.

In March 2000, plaintiff Andrew Chandler and his business partner, plaintiff Bernard Marcus, owned several Internet pornography companies in the State of Florida. Around that time, they negotiated to sell their pornography ventures to a company owned by defendants Robert L. Frome and Michael Wainstein. The sale was consummated by way of a May 5, 2000 purchase agreement whereby Frome and Wainstein's Delaware shell corporation acquired the Internet pornography companies from Chandler and Marcus in an agreement that created NuWeb. As part of the purchase, Chandler received 9,130,410 shares of Nuweb's stock and $150,000, and Marcus received 7,099,590 shares of Nuweb stock. Together, there appear to have blocks comprised nearly a voting majority.

Pursuant to the purchase agreement, Chandler and Marcus became officers and directors of NuWeb. NuWeb's initial board of directors consisted of Chandler, Marcus, and a third man, Darren Rosenthal. Chandler was elected chief executive officer; Marcus was elected treasurer and chairman of the board; Rosenthal was elected president. Frome and Wainstein, as well as entities controlled by them, retained material ownership stakes in Nuweb that were much smaller than Chandler's and Marcus's.

Just about six and a half months later, in November 2000, a dispute ensued between Chandler and Marcus as to whether Frome and Wainstein had defrauded them in the transactions that created NuWeb. Chandler believed that Frome and Wainstein had made certain material misrepresentations to Chandler and Marcus. Marcus, for his part, was considerably more trusting:

Mr. Chandler believed that we collectively had been defrauded and had been lied to by what I'll term the Frome group or the other side of the purchase agreement. It was my belief at the time that while things weren't the way they were supposed to be, why would people be lying to us, why would — I mean it just didn't make sense to me. And it got to the point where he just could not tolerate my attitude, he felt I was harming his, his interest and the interests of the company, and he asked me to resign.

Although Marcus did not follow Chandler's advice to resign, Chandler issued a press release stating that Marcus had, in fact, resigned his positions as director, chairman, and treasurer of NuWeb.

As a result of the discord between Marcus and Chandler, Marcus (acting on behalf of Performance Capital, a holding company controlled by Marcus), along with Frome and Wainstein, entered into a November 22, 2000 voting agreement (the "Voting Agreement"), which provides in relevant part:

[Marcus, Frome, and Wainstein] agree that for a period of two years from [November 22, 2000], they will continue to vote all the shares they own or have the power to vote, directly or indirectly, including any shares owned by Performance Capital Investments, LLC, for the election of [Marcus, Ottaviano, and Ciccoricco].

In the event any of the above-named individuals refuse to serve, the undersigned agree they will only vote in favor of the nominees acceptable to all of the undersigned.

The foregoing will not prevent any of the individuals from selling any of the shares they presently own, directly or indirectly. Any such shares, when sold, will no longer be subject to this agreement.

Notably, the Voting Agreement contained no express provision prohibiting the signatories from voting to enlarge the board of directors and later voting shares for directorial nominees in addition to Marcus, Ottaviano, and Ciccoricco.

The consummation of the Voting Agreement, by itself, did not deliver control over the NuWeb board to Marcus, Frome, and Wainstein. Instead, they needed to take some action as stockholders to remove the current NuWeb board and to replace it with a Marcus-Ottaviano-Ciccoricco board. Therefore, and in conjunction with the Voting Agreement, the Marcus, Frome, and Wainstein trio spearheaded a consent solicitation (the "Consent Solicitation") to:

1. Eliminate ARTICLE II, Section 3, of the Bylaws of NUWEB thereby permitting the stockholders, as well as the Board of Directors, to fill vacancies on the Board;

2. Remove the existing members of NUWEB's Board of Directors;

3. Fix the number of persons constituting the Board of Directors of NUWEB at three persons; and

4. Elect the following nominees, Bernard M. Marcus, Michael A. Ciccoricco and Anthony T. Ottaviano . . . as directors of NUWEB to serve until their respective successors are duly elected and qualified.

The Consent Solicitation was successful, and, on or about December 21, 2000, Chandler and Rosenthal were ousted as NuWeb directors and replaced by defendants Ciccoricco and Ottaviano. That is, a coalition led by Marcus, Frome, and Wainstein had removed Chandler — the largest individual stockholder and Marcus's former partner — from the board,

By the defendants' own admission, and the clear evidence in the record, Ciccoricco and Ottaviano have never owned shares of NuWeb stock and have always functioned as the representatives of their equity-holding patrons, Frome and Wainstein, at NuWeb. The day after the consent solicitation succeeded, the new board met and (1) removed Rosenthal as president; (2) suspended Chandler as chief executive officer; (3) elected Marcus as president and chairman of the board; (4) elected Ottaviano as secretary; and (5) elected Ciccoricco as treasurer.

The managerial picture at NuWeb during this period is clouded. It appears that a rough form of power sharing was in place. Although Marcus had the most important title, Ciccoricco and Ottaviano also played key roles. As significant, it appears that Hanover a company controlled by Frome and Wainstein — managed NuWeb's finances under a contractual agreement.

In the spring of 2002, new disputes at NuWeb developed — this time between Marcus, on one side, and his board brethren Ottaviano and Ciccoricco, on the other. From what I can discern from the record, Marcus sought to assume unilateral control over NuWeb over some concern about possible mismanagement at NuWeb:

[Mr. Heyman:] Okay. When did you decide you were going to assume control?

[Mr. Marcus:] When I found out that the rent and the bandwidth hadn't been paid, the employees still hadn't been paid, there were still bounced checks for employees that hadn't been redeemed.

As part of Marcus's April 2002 power grab, Marcus — acting as company president and chairman of the board — rescinded Hanover's authority to manage NuWeb's finances.

Thus began the latest control battle at NuWeb. Because Frome and Wainstein — through Ottaviano and Ciccoricco — controlled a majority on the NuWeb board, it did not take long for the tit for tat to begin in earnest.

On April 30, 2002, the board of NuWeb held a meeting at which Marcus was removed as an officer of NuWeb. In attendance at the meeting were directors Ottaviano and Ciccoricco, along with defendant Wainstein, who "represented" Hanover and whose attendance was "at the request of the Board" — that is, he was there by request of his allies, Ciccoricco and Ottaviano. Marcus did not attend the April 30 board meeting.

On June 4, 2002, the NuWeb board again met. At that meeting, the board ratified the actions taken at the April 30 meeting over the objection of Marcus. But by a unanimous vote, the NuWeb board did allow Marcus to maintain his position as chairman of the board and permitted him to continue to exercise "day to day oversight of [NuWeb's] operations." The board also unanimously agreed to restore Hanover to its role as consultant and to implement what can be best described as a renewed power-sharing arrangement between Marcus and Frome and Wainstein.

Also, at the June 4, 2002 meeting, the board discussed the possibility of converting certain debt to NuWeb common stock. In other words, the board considered offering certain NuWeb creditors shares of NuWeb common stock in exchange for canceling certain NuWeb debt. Five creditors were identified in the minutes as prospects for this debt-to-common stock conversion: Wireless Acquisition Partners, Hanover, Continuum Group D, and Frome and Wainstein personally. All of the entity creditors appear to be owned or controlled by Frome and Wainstein. Collectively, I sometimes refer to these creditors, including Frome and Wainstein personally, as the "Frome/Wainstein Interests."

Later that month, on June 28, 2002, the NuWeb board met yet again. Ottaviano, Marcus, Ciccoricco, and Wainstein (purportedly representing Hanover) were each present. The board agreed to issue up to 2,000,000 shares of Series A Preferred Stock, which, at the option of the holder, could convert to common stock on a one-to-ten basis. While the minutes of this meeting do not indicate the results of any roll call vote of the directors on the issuance of the preferred stock, Marcus testified at his deposition that he voted against the issuance. According to the meeting minutes:

the holder of each share of Series A Preferred Stock shall be entitled to the number of votes equal to the number of shares of Common Stock into which such share of Series A Preferred Stock could be converted on the record date set for purposes of determining the shares entitled to vote at any regular, annual, or special meeting of the shareholders of the Corporation, and shall have voting rights and powers equal to the voting rights and powers of the Common Stock, and shall be entitled to notice of any shareholders' meeting in accordance with the Bylaws of the Corporation.

Also at the June 28, 2002 board meeting, the directors authorized NuWeb to "execute a Certificate of Designation of Rights and Preferences of the Series A Preferred Stock."

As it turns out, only 1,400,000 of those 2,000,000 preferred shares were accepted by NuWeb creditors. The only recipients of the preferred stock were Hanover, Continuum D, and Wireless — i.e., the exclusive beneficiaries of the preferred stock issuance were entities controlled by Frome and Wainstein. Given the one-to-ten voting rights of the preferred stock, the 1,400,000 preferred shares possessed voting rights equal to 14,000,000 shares of NuWeb common stock. That is, the preferred stock constituted one-third of the NuWeb voting power. The following chart helps illustrate the preferred stock's effect on the balance of power at NuWeb:

Votes Controlled as a Percentage of All Votes Before and After Preferred Stock Issuance

Individual or Voting Percentage Percentage Percentage Bloc Before After Change

Chandler 31.9% 21.4% (10.5)

Marcus 24.8% 16.6% (8.2)

Frome/Wainstein 6.1% 36.9% 30.8 Interests

Publicly-Traded Shares 37.3% 25.0% (12.3)

The overall effect of the preferred stock issuance can be understood thusly: Before the issuance, Chandler and Marcus, if they voted together, could wield a majority (56.7%) of the votes at NuWeb, After the issuance, they collectively controlled only about 38.O% of NuWeb's votes — or, to put it another way, about the same percentage of votes controlled by Frome and Wainstein (36.9%).

The shaky peace alliance at NuWeb between Marcus and the Frome/Wainstein Interests apparently did not satisfy Marcus. His dissatisfaction led him back to his old partner Chandler, who he had earlier helped jettison as NuWeb's CEO. After the June 28 board meeting, but before the Certificate of Designation of Rights and Preferences was filed, Marcus and Chandler met. Although the parties characterize this meeting differently, there is uncontroverted evidence that Marcus and Chandler discussed the possibility of voting their shares together in order to effect a change in the composition of the NuWeb board.

Marcus's initial reaction appears to have been that the Voting Agreement kept him from using his voting power to alter the composition of the three-person board. Marcus informed Chandler of the provisions of the Voting Agreement, which required Marcus to vote his shares for Ciccoricco and Ottaviano as directors.

In light of the apparently constraining aspects of the Voting Agreement (i.e., the requirement that Marcus vote for Ciccoricco and Ottaviano), Chandler's lawyer advised Chandler and Marcus to skin the cat another way. Specifically, Chandler and Marcus could achieve their objective of taking control of the board while, arguably, remaining faithful to the Voting Agreement if they merely increased the size of the board from three to five and acted together to fill the vacancies created by this enlargement.

[Mr. Heyman:] Okay. Okay, at some point did you enter into a voting agreement with Mr. Chandler?

[Mr. Marcus:] Yes.

. . .

Q. Okay. At some point did you act with Mr. Chandler to make a change in the board?

A. Yes.

Q. Okay. And what was that change, if you recall?

A. To increase the size of the board from three to five and elect two additional people.

* * *

[Mr. Heyman:] And how did it come about that you entered into that voting agreement?

[Mr. Chandler:] We discussed it when we talked about voting our stock to replace the board members.

Q: Okay, and how did you come into contact with Mr. Marcus to discuss that?

A. Mr. Marcus contacted me and informed me that Ottaviano and Ciccoricco, along with the Frome group, were intending to dilute the stock of the stockholders.

On July 1, 2002, by way of a stockholder consent, Marcus (in his capacity as managing member of Performance Capital and Webnet) and Chandler enlarged the NuWeb board to five members and appointed Irving Marcus and Linda Marcus to fill the two new board seats.

One day later, on July 2, 2002, Chandler and Marcus (again, acting as managing member of Performance Capital and Webnet) entered into a voting trust agreement, which gave Chandler the power to vote the shares controlled by Marcus. That same day, the new five-member NuWeb board met and purportedly (I) removed Ottaviano and Ciccoricco as officers; (2) elected Marcus as president, secretary, and treasurer; and (3) mandated that Marcus be the sole signatory for the purpose of NuWeb's bank accounts.

The record is devoid of any evidence that any of the defendants had specific knowledge that Marcus planned to meet with Chandler as of the time of the June 28 board meeting. Indeed, Marcus himself testified that he did not form an intent to talk to Chandler until after that meeting. Rather, the first specific knowledge any of the defendants had of a renewed Marcus-Chandler alliance came July 1, when the written consent was executed.

It was not until three weeks later that, on July 23, 2002, Ottaviano filed with the Delaware Secretary of State a Certificate of Designation of Rights and Preferences for the preferred stock supposedly issued at the June 28, 2002 board meeting. Even though the Certificate was not filed until July 23, 2002 (and it bears the Secretary of State's date stamp reflecting that filing date), the document is dated July 1, 2002 — i.e., the same day as the disputed consent expanding the board and one day before the meeting of the five-member board at which Marcus purportedly replaced Ottaviano and Ciccoricco as a corporate officer. Ottaviano purported to sign the Certificate as Secretary of NuWeb.

II.

This is a dispute over the control of NuWeb's board and the ownership of its shares, with the plaintiffs aligned with the Marcus/Chandler faction and the defendants aligned with the Frome/Wainstein faction. In essence, the plaintiffs argue that the preferred stock issuance was an improper act of self-dealing for entrenchment purposes and therefore void. The plaintiffs also contend that Ciccoricco and Ottaviano are no longer NuWeb officers and that Linda Marcus and Irving Marcus were properly elected to the board of directors.

For their part, Frome and Wainstein and their co-defendants argue that Marcus's actions to increase the size of the NuWeb board and to install two of his family members (Linda Marcus and Irving Marcus) as new directors violated the terms of their Voting Agreement with Marcus.

The issues for resolution now can be simply stated.

First, defendants Frome, Wainstein, Continuum D, and Hanover ("the Frome/Wainstein Defendants") press a motion under Rule 12(b)(2) that this court has no personal jurisdiction over them. None of the Frome/Wainstein Defendants are domiciled in or otherwise reside in Delaware. Frome and Wainstein are residents of the State of New York; Hanover is a New Jersey corporation operating in New York; and Continuum D is a Nevada corporation operating in New York.

Second, the defendants, by way of a motion under Rule 56, seek summary judgment that Linda Marcus and Irving Marcus were not properly added to the NuWeb board. They claim that undisputed evidence demonstrates that Marcus violated the Voting Agreement by acting with Chandler to enlarge the NuWeb board of directors and to assume personal control of the board.

III. A.

To determine whether this court may exercise personal jurisdiction over the Frome/Wainstein Defendants, I must engage in a two-part analysis. First, I must decide whether a statute of this state authorizes the exercise of personal jurisdiction over each of them. Second, I must determine whether such an exercise of personal jurisdiction comports with the due process requirements of the Fourteenth Amendment to the United States Constitution.

The plaintiffs must show that an exercise of personal jurisdiction in this case would be consistent with Delaware statutory law and federal constitutional law. In deciding a motion to dismiss for lack of personal jurisdiction, the court may go beyond the pleadings and look to affidavits and other discovery of record. To meet their evidentiary burden, the plaintiffs must make a prima facie case that an exercise of personal jurisdiction is appropriate.

B.

(c) As to a cause of action brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or a personal representative, who in person or through an agent:

(1) Transacts any business or performs any character of work or service in the State . . .

The Delaware long-arm statute must be broadly construed by this court in favor of permitting an exercise of personal jurisdiction by this court.

For the purposes of the present case, it is important to note that § 3104(c) requires that the act or acts triggering long-arm personal jurisdiction be committed "in person or through an agent." In the spirit of broadly construing the long-arm statute and in recognition of the fact that conspirators have traditionally been held responsible for the actions of their co-conspirators, our Supreme Court has articulated a "conspiracy theory" of long-arm jurisdiction, whereby all of the members of a conspiracy may be subjected to personal jurisdiction under § 3104 if one of the co-conspirators, acting in furtherance of the conspiracy, committed an act sufficient to invoke long-arm jurisdiction.

Specifically, in 1982, the Delaware Supreme Court in Istituto Bancario Italiano SpA v. Hunter Engineering Co. held that

a conspirator who is absent from the forum state is subject to the jurisdiction of the court, assuming he is properly served under state law, if the plaintiff can make a factual showing that: (1) a conspiracy to defraud existed; (2) the defendant was a member of that conspiracy; (3) a substantial act or substantial effect in furtherance of the conspiracy occurred in the forum state; (4) the defendant knew or had reason to know of the act in the forum state or that acts outside the forum state would have an effect in the forum state; and (5) the act in, or effect on, the forum state was a direct and foreseeable result of the conduct in furtherance of the conspiracy.

In this case, the plaintiffs have met their prima facie burden of showing that each of the Frome/Wainstein Defendants engaged in a civil conspiracy aimed at illicitly securing a block of stock sufficient to entrench Ciccoricco and Ottaviano as a board majority. Indeed, the conspiracy in this case — allegedly concerted activity to entrench certain conspirators in office at a Delaware corporation in certain of the conspirators through an improper stock issuance — is reminiscent of the alleged jurisdiction-invoking conspiracy that the Supreme Court found sufficient in Istituto itself.

The preferred stock in question was purportedly issued on June 28, 2002. It was in April of that year that Marcus attempted to assume control over NuWeb and purported to terminate Hanover's services on behalf of NuWeb. Hanover is an entity controlled by defendants Frome and Wainstein. The preferred stock issued 1,400,000 shares with a one-to-ten conversion ratio to common stock — was sufficient, if valid, to take away from Marcus and Chandler the ability to vote together a majority of NuWeb's stock. After the preferred stock issuance, their collective share of votes slipped from 56.7% to 38.0%, with the Frome/Wainstein controlled block rising to 36.9%

Supporting the inference that a civil conspiracy existed is the fact that Ottaviano filed the July 23, 2002 Certificate of Designation of Rights and Preferences after the new five-member board purportedly removed Ciccoricco and Ottaviano as corporate officers. Moreover, the Certificate is dated July 1, 2002, the same day that Marcus purported to elect a new board majority and just one day before the new five-member NuWeb board supposedly removed Ottaviano and Ciccoricco as officers. Most important, all of the key events involving the preferred stock issuance occurred well after the rift between Marcus and Frome and Wainstein was gapingly wide. In light of these facts, it would not be unreasonable to conclude that the defendants' actions were concerted and motivated by a joint desire to retain a firm grip on power at NuWeb.

The inference that the Frome/Wainstein Defendants conspired with Ottaviano and Ciccoricco is strengthened when the interconnectedness of the defendants is considered. Both Frome and Wainstein were officers, directors, and stockholders of Continuum D and Hanover. Both Frome and Wainstein were members of Wireless, Frome and Continuum D have the same mailing address — 505 Park Avenue, New York, New York. And, Wainstein, Hanover, Wireless, and NuWeb share a suite — Suite 600 to be exact — at 545 Madison Avenue, New York, New York.

Frome and Wainstein, along with Marcus, signed a voting agreement aimed at protecting the board positions of Ottaviano and Ciccoricco. Ottaviano and Ciccoricco, who have never owned shares of NuWeb stock, functioned after that time as representatives for Frome and Wainstein on NuWeb's board. Ottaviano and Ciccoricco in turn voted to issue a controlling block of preferred stock to entities controlled by their patrons.

The Frome/Wainstein Defendants attempt to defeat the plaintiffs' conspiracy argument by pointing out that Marcus and Chandler did not discuss making changes to NuWeb's board and management until after the meeting at which the preferred shares were issued. As such, the Frome/Wainstein Defendants argue, they could not have conspired to dilute Chandler's and Marcus's shares. This argument, however, ignores a crucial fact — i.e., that Marcus's falling out with Frome, Wainstein, Ciccoricco, and Ottaviano dates to the spring of 2002, long before the board's June 28 meeting. For purposes of this Rule 12(b)(2) motion, the record must be construed in favor of the plaintiffs, and it is equally, if not more reasonable, to infer that the preferred stock was issued to head off any attempt by Marcus (by any possible means, not just an alliance with his estranged partner, Chandler) to contest his denudement at the hands of Ottaviano and Ciccoricco. It is quite possible that Marcus's recent attempt to assert unilateral control over NuWeb and to remove Hanover convinced Frome, Wainstein, Ciccoricco, and Ottaviano of the wisdom of taking preemptive defensive action to thwart any further efforts by Marcus to seize unilateral control. Certainly, they had serious reason to suspect that their relationship with Marcus was strained and that he might break ranks with them. After all, Marcus had demonstrated, by his prior abandonment of his partner Chandler, "flexibility" in determining which side he would join in a control contest.

No doubt the plaintiffs poorly argued the conspiracy issue. In their amended complaint, the plaintiffs allege that "[t]he purpose of the preferred stock offering was to thwart the impending action by [Chandler and Marcus] to remove Ottaviano and Ciccoricco as officers." Yet, they failed to produce any evidence that Chandler and Marcus had even spoken to each other — let alone devised a plan to oust Ottaviano and Ciccoricco before the board voted to issue the preferred stock. Indeed, from the record before me, it appears undisputed that Chandler and Marcus did not hatch their plan until after the preferred stock issuance. As such, the defendants' point — i. e., that the preferred stock could not have been issued for the purpose of thwarting a nonexisting Marcus-Chandler scheme — is well taken.

Yet, when I read the plaintiffs' first answering brief on the motion to dismiss liberally, it appears that the plaintiffs are pressing a broader unfair dilution claim. The plaintiffs seem to argue that the preferred stock — which carried formidable voting power was issued to defend against a real, but inchoate threat from Marcus and had the effect of eliminating Marcus and Chandler's ability to act bilaterally against Frome's and Wainstein's interests. The objective circumstances that emerge from the record support this as a triable theory. Therefore, the defendants' undisputed assertion that Marcus and Chandler did not devise their plan to topple Ottaviano and Ciccoricco until after the preferred stock was issued does not defeat the plaintiffs' prima facie showing of a conspiracy. When, as in this case, there is evidentiary uncertainty, "all factual inferences are viewed in the light most favorable to the plaintiff." Thus, the finding that a civil conspiracy existed for Rule 12(b)(2) purposes is warranted.

Having disposed of the defendants' principal objections, I can more simply state why the remaining three elements of the Istituto test are also satisfied. A member of the conspiracy — namely, Ottaviano — committed an act in the State in furtherance of that conspiracy — i.e., the filing of the Certificate of Designation of Rights and Preferences with the Secretary of State. And, given the fact that such a filing is required by Delaware law, the members of the conspiracy should have known that such a transaction would occur in Delaware and that such an act was both a foreseeable consequence of and a necessary — i.e., important — act in furtherance of their conspiracy. Indeed, at the June 28, 2002 NuWeb board meeting, at which Ottaviano, Ciccoricco, and Wainstein were present, the board directed that the Certificate be executed and filed.

C.

The important statutory question that remains is whether the filing of a Certificate of Designation of Rights and Preferences amounts to a transaction of business for the purposes of 10 Del. C. § 3104(c)(1). Unless it does amount to a transaction of business, § 3104(c)(1) will not supply this court with personal jurisdiction, notwithstanding the fact that the other elements of Istituto's conspiracy test are met. In other words, the conspiracy theory does not support jurisdiction unless it works in tandem with a statute authorizing service of process. In answering this question, I am mindful that the Supreme Court has instructed that § 3104 be broadly construed in favor of permitting an exercise of jurisdiction by this court.

Under that mandate, my task should be to give the words of the statute a liberal construction and to conclude that the filing of a Certificate of Designation of Rights and Preferences is a transaction of business if that can be reasonably done. Any problems of overbreadth by such a liberal construction can be policed by application of the minimum contacts analysis under the due process clause of the Fourteenth Amendment.

Approaching the question in this way, the answer is relatively obvious. I am satisfied that the act of filing a Certificate of Designation of Rights and Preferences with the Delaware Secretary of State is a transaction of business for the purposes of § 3104(c)(1). Other state courts interpreting identical language in their own long-arm statutes have defined the term broadly and in a manner that covers the activity here. For example, a New York court has concluded that the term "[t]ransacts any business" contemplates activities whose purpose is to "attempt to make a profit, directly or indirectly" or otherwise are "affected with a commercial aspect." The filing of a Certificate of Designation does involve a transaction of business in which a sum of money is paid to the Secretary of State to effect filing of an important document, necessary in this case to a transaction "affected with a commercial aspect" — the valid issuance of preferred stock to the Frome/Wainstein Interests. That is, the filing in this case was integral to and effected for the precise purpose of consummating an important commercial transaction — i.e., converting NuWeb debt into a large block of NuWeb preferred stock. Indeed, this court in Gibralt Capital Corp. v. Smith found that the filing of a certificate of designation satisfied the "substantial act" requirement of the Istituto test and § 3104(c)(1).

Finally, § 3104(c)(1) is a "single act" provision of the long-arm statute. As such, § 3104(c)(1) will only support an exercise of personal jurisdiction with respect to those causes of action that have a nexus to the transaction of business that took place in the State. Those counts of the amended complaint pertaining to the validity of the preferred stock issuance directly relate to the filing of the Certificate of Designation of Rights and Preferences. Put simply, the filing was a necessary act to the complete the issuance of the preferred shares. The composition of the NuWeb board and the status of certain corporate offices is intimately bound up with the questions of whether that filing itself and the preferred stock more generally are valid. As such, the § 3104(c)(1) supplies this court with jurisdiction over the Frome/Wainstein Defendants with respect to counts I, III, IV, and V of the amended complaint

D.

Because § 3104 permits an exercise of personal jurisdiction, the next question is whether the exercise of personal jurisdiction over the Frome/Wainstein Defendants comports with the requirements of the Fourteenth Amendment.

Frome and Wainstein are not ingenues, without a sophisticated understanding of the Delaware-directed nature of their conduct. Each had served as a director of the Delaware shell corporation that purchased Chandler's and Marcus's pornography businesses and that became, after that purchase, NuWeb. And, after the purchase, each continued to play a key managerial role in NuWeb. Indeed, Frome and Wainstein entered into a voting agreement with the purpose (from their side at least) of ensuring that two of the three members of the NuWeb board Ciccoricco and Ottaviano — would be persons of their choosing. And, Wainstein even personally participated (as a representative of Hanover, a company controlled by Frome and Wainstein) at two board meetings — i.e., the June 4, 2002 and June 28, 2002 board meetings — that were of key importance in the stock issuance scheme.

From the present facts, it is inferable that the Frome/Wainstein Defendants engaged in a conspiracy formed to help entrench Ciccoricco and Ottaviano as the board majority of a Delaware corporation, a conspiracy which required the performance of a key act in Delaware for its ultimate success. To that alleged end, Hanover and Continuum D, entities controlled by Frome and Wainstein, received a very large block of capital stock in a Delaware corporation. As such, the Frome/Wainstein Defendants purposefully availed themselves of the benefits and protections of Delaware law and, therefore, should not be surprised about being haled into a Delaware court.

Nor is there anything unfair or unjust about the exercise of personal jurisdiction over the Frome/Wainstein Defendants by this court. Each of the Frome/Wainstein Defendants operates out of New York City and will face only minimal inconvenience by having to respond to the claims made against them here. And, Delaware has a strong interest in resolving disputes involving the ownership of shares in, and the governance of, corporations formed under its laws. Thus, the Frome/Wainstein Defendants' motion to dismiss for lack of personal jurisdiction is denied.

Finally, because jurisdiction can properly be exercised over Hanover and Continuum D, the remaining defendants' motion to dismiss for failure to join a party under Rule 19 is necessarily denied. That motion was premised on the idea that the validity of the preferred stock could not be adjudicated in the absence of Continuum D and Hanover. Without that supporting premise, the motion fails.

IV.

The defendants have moved for summary judgment on the counts of the plaintiffs' complaint relating to, among other things, the composition of the NuWeb board of directors and whether Ottaviano and Ciccoricco are NuWeb officers. Of course, I may only grant the defendants' summary judgment motion if, after affording every reasonable inference to the plaintiffs, there is no genuine issue of material fact in dispute in the case and the defendants are entitled to judgment as a matter of law.

The defendants argue that the Voting Agreement prohibited Marcus from acting with Chandler to change the composition of the NuWeb board. Specifically, the defendants contend that Marcus violated the terms of that voting agreement when he executed a written consent to increase the size of the board and to select candidates not agreeable to Frome and Wainstein. If that action was improper, then the five-person board was never created, rendering invalid any action that rump body took — such as purporting to remove Ciccoricco and Ottaviano as officers.

As noted, the Voting Agreement provides:

[Marcus, Frome, and Wainstein] agree that for a period of two years from [November 22, 2000], they will continue to vote all the shares they own or have the power to vote, directly or indirectly, including any shares owned by Performance Capital Investments, LLC, for the election of [Marcus, Ottaviano, and Ciccoricco].

In the event any of the above-named individuals refuse to serve, the undersigned agree they will only vote in favor of the nominees acceptable to all of the undersigned.

The foregoing will not prevent any of the individuals from selling any of the shares they presently own, directly or indirectly. Any such shares, when sold, will no longer be subject to this agreement.

The defendants press the argument that the literal terms of the Voting Agreement should be read as providing that "in no event would [Marcus, Frome, and Wainstein] vote or cause their shares to be voted for any candidate for director that was not agreed upon by all of the signatories to the Voting Agreement." But, the defendants' argument ignores the fact that the terms of the Agreement do not literally proscribe any party from voting to increase the size of the board and filling the new positions with persons not named in the Voting Agreement.

For that reason, the defendants — in actuality — do not base their argument on the plain language of the Voting Agreement alone. Instead, they argue that, read in the context of the extrinsic evidence, the Voting Agreement impliedly precluded the actions Marcus took. In more general support of their argument, the defendants contend that it would have been commercially senseless for Frome and Wainstein to have secured merely a right to have two representatives on a board that could be expanded at Marcus's whim if he could find another alliance. Rather, the Voting Agreement's most logical purpose was to give Frome and Wainstein a majority of a three-person board for the term of the Agreement. The extrinsic evidence, the defendants assert, shows that this was indisputably the purpose of the Voting Agreement.

Before considering the extrinsic evidence the defendants cite, it is important to set forth the principles that apply to voting agreements. Put simply, Delaware courts "rightly hesitate to construe a contract as disabling a majority of a corporate electorate from changing the board of directors unless that reading of the contract is certain and unambiguous." Although a party arguing that an agreement restricted voting rights in a particular manner may rely on extrinsic evidence if the text of the agreement is subject to more than one reasonable interpretation, that party cannot prevail unless the court finds clear and convincing evidence that the agreement was intended to have that restrictive effect. Thus, it is inappropriate to grant summary judgment for the defendants unless the record clearly demonstrates that the only reasonable reading of the agreement is the one they advance — i.e., that there are no material disputes of fact and that the defendants' reading is "certain." This is no doubt a very onerous burden to meet on a Rule 56 motion when a party is relying principally on extrinsic evidence. With that in mind, I turn to three pieces of extrinsic evidence the defendants believe are critical.

First, the defendants cite to a passage of the Consent Solicitation that reads:

In [the Voting Agreement], [Marcus (acting on behalf of Performance Capital), Frome, and Wainstein] . . . agreed that for a period of 2 years they will vote their shares of Common Stock for the election of [Marcus, Ciccoricco, and Ottaviano], or other such persons as are acceptable to all of [Marcus, Frome, and Wainstein], as directors of NUWEB.

The Consent Solicitation was part and parcel of the Frome/Wainstein Interests and Marcus's joint efforts at wresting control over NuWeb from Chandler, and does cast some light on the intentions of the signatories to the Voting Agreement. The defendants say this passage makes clear that the Voting Agreement was intended to lock into place a three-member board, two of whose members were controlled by Frome and Wainstein.

Although obviously supportive of the defendants' reading, this extrinsic evidence is not clear enough to obviate the need for a trial, given the absence of unambiguous language supporting the defendants' position in the text of the Voting Agreement and the legal principles that govern the interpretation of voting agreements. The cited passage may be read, in a commercial context, as an attempt to paraphrase the Voting Agreement's literal terms. Viewed in that light, the passage could have been meant as a shorthand way to say that only substitute candidates for Marcus, Ciccoricco, or Ottaviano require unanimity of opinion — i.e., if one of Marcus, Ciccoricco, or Ottaviano cannot or will not serve, the signatories can substitute a candidate by unanimous agreement.

Second, the defendants point to the fact that Marcus, at his deposition, testified that the Voting Agreement "prevent[ed] [him] from voting against Ciccoricco and Ottaviano." Contrary to the defendants' assertions, this statement by Marcus does not indisputably demonstrate that the Voting Agreement proscribed the conduct in which Marcus engaged. There is no doubt that under the terms of the Voting Agreement Marcus must vote for Ciccoricco and Ottaviano. At this stage — when I cannot make credibility determinations — any reading of this deposition testimony that goes beyond the fact that Marcus believed he could not vote against Ciccoricco and Ottaviano as individual candidates in a directorial election would be impermissible. Put simply, Marcus did not testify that the Voting Agreement prevented him from voting to increase the size of the NuWeb board and then voting to appoint whomever he liked to fill the newly created vacancies. In other words, while Marcus's testimony might support, with other evidence, a trial finding that he believed that the Voting Agreement had a larger purpose than merely securing Ciccoricco's and Ottaviano's individual board seats, it is too oblique to support an award of summary judgment.

Third, the defendants point to the fact that one of the purposes of the Consent Solicitation was to "[f]ix the number of persons constituting the Board of Directors of NUWEB at three persons." The problem with this piece of extrinsic evidence is that it may simply be a statement of one of the then-present purposes of the Consent Solicitation and not a broader indication of the parties' intent with respect to the reach of the Voting Agreement in the future. Indeed, the defendants' argument that the Voting Agreement and the Consent Solicitation were simply two parts of a single effort to establish control over NuWeb cuts to some extent against their contention that the "[f]ix the number" language reflects the intent of the Voting Agreement's signatories. If I accept the defendants' argument, then I must conclude that the Marcus, Frome, and Wainstein knew how to draft language to create a three-member NuWeb board but failed to draft explicit language to lock it into place. At this stage, I cannot presume that the omission of such an obvious protection from the Voting Agreement was a mere oversight.

In summary, although the defendants have, in their summary judgment briefs, highlighted several pieces of evidence that, taken together, tend to support their position that the Voting Agreement, as understood by its signatories, was intended to lock in a particular balance of power on a three-person board for its term, I continue to harbor doubt that theirs is the only reasonable interpretation. Because (i) the literal terms of the Voting Agreement did not proscribe Marcus's actions, (ii) a ruling for the defendants necessarily requires reliance on extrinsic evidence and perhaps on the implied covenant of good faith and fair dealing, and (iii) the Voting Agreement remains of utility to Frome and Wainstein insofar as it helped guarantee seats for Ciccoricco and Ottaviano regardless of whether Marcus was free — in concert with others — to expand the board, it seems to me that the ultimate question of intent depends in a material way on what the parties mutually understood their intent to be, and whether their testimony about that issue is credible.

Therefore, the defendants' motion for summary judgment is denied.

V.

(1) The Frome/Wainstein Defendants' motion to dismiss for lack of personal jurisdiction is DENIED.

(2) The defendants' motion to dismiss the complaint in part for failure to join parties under Rule 19 is DENIED.

(3) The defendants' motion to dismiss the complaint in part for lack of subject matter jurisdiction is DENIED.

(4) The defendants' motion to dismiss the plaintiffs' § 220 count for failure to state a claim upon which relief can be granted is GRANTED.

(5) The defendants' motion for partial summary judgment is DENIED.

IT IS SO ORDERED.