DECISION AND ORDER INTRODUCTION This shareholder derivative action arises out of the events surrounding a Letter of Interest (“LOI”) entered into between nominal defendant Eastman Kodak Company (“Kodak”) and the United States International Development Finance Corporation (“DFC”) in July of 2020, discussing a contemplated loan of $765 million from DFC to Kodak to support the conversion of Kodak’s manufacturing facilities to produce pharmaceutical products.1 It consists of two matters commenced by Kodak shareholders and consolidated for all purposes into a single action denominated “In re Eastman Kodak Company Derivative Litigation.” (Dkt. 71). The operative pleading is the corrected verified consolidated stockholder derivative complaint. (Dkt. 129) (the “consolidated complaint”). In the consolidated complaint, plaintiffs Louis Peters (“Peters”) and Herbert Silverberg (“Silverberg”) (collectively “Plaintiffs”) allege violations of the Securities Exchange Act of 1934 (the “Exchange Act”), breaches of fiduciary duties, and unjust enrichment by Kodak’s Executive Chairman and CEO James V. Continenza (“Continenza”), CFO David Bullwinkle (“Bullwinkle”), General Counsel Roger W. Byrd (“Byrd”), Senior Vice President Randy D. Vandagriff (“Vandagriff”), director Philippe D. Katz (“Katz”), director Richard Todd Bradley (“Bradley”), director Jason New (“New”), and director George Karfunkel (“Karfunkel”) (collectively “Defendants”). (Id). Continenza, Bullwinkle, Byrd, and Vandagriff are sometimes collectively referred to as “Option Recipients,” while Katz, Bradley, and New are sometimes collectively referred to as the “CNG Committee.” Kodak is named as a nominal defendant. (Id.). Presently before the Court are: (1) a motion to dismiss for failure to state a claim, or in the alternative, for summary judgment filed by Kodak (Dkt. 100); (2) a motion to dismiss for failure to state a claim filed by Continenza, Bullwinkle, Byrd, Bradley, Katz, New, and Vandagriff (Dkt. 101); (3) a motion to dismiss for failure to state a claim filed by Continenza (Dkt. 102); and (4) a motion to dismiss for failure to state a claim filed by Karfunkel (Dkt. 103). For the reasons that follow, the Court grants Kodak’s motion for summary judgment and denies the remaining motions as moot. BACKGROUND I. Factual Background Continenza became Kodak’s Executive Chairman on or about February 20, 2019. (Dkt. 129 at 45). Continenza and Kodak entered into an employment agreement and an “Award Agreement” pursuant to the Eastman Kodak Company 2013 Omnibus Incentive Plan (the “Incentive Plan”). (Id.). These agreements provided Continenza with options topurchase 1.75 million Kodak shares at various strike prices and were disclosed on April 1, 2019. (Id.). At that time, Kodak’s market capitalization was approximately $100 million. (Id. at 46). Kodak’s April 1, 2019 Form 10-K disclosed that its auditors had issued a going concern qualification based on its liquidity, capital resources, and negative cash flow. (Id.). Each of Kodak’s subsequent annual reports has included a similar going concern qualification. (Id.). On May 21, 2019, Kodak and Southeastern Asset Management (“Southeastern”) entered into a Notes Purchase Agreement (the “Purchase Agreement”) for $100 million of Secured Convertible Notes (the “Notes”) due in 2021. (Id.). The Notes were convertible into Kodak stock at a price of $3.17482 per share. (Id.). Upon conversion, they would represent 42.8 percent of Kodak’s outstanding shares. (Id.). At a February 2020 meeting of Kodak’s board of directors (the “Board”), Karfunkel proposed that Continenza be given an additional two million options to offset the potential devaluing of his options associated with the Purchase Agreement between Kodak and Southeastern. (Id. at 47). Following the onset of the COVID-19 pandemic in 2020 and its associated drug shortages, Kodak recognized an opportunity to expand its pharmaceutical business, including the manufacture of key starting materials (“KSMs”) that pharmaceutical companies use to make Active Pharmaceutical Ingredients (“APIs”), which are in turn used to make final drug products. (Id. at
48-49). Kodak began reaching out to governmental officials and agencies, looking for an opportunity to partner with the government to leverage its chemical manufacturing capacity and expertise. (Id. at 49). Kodak gave this initiative the code name “Project Tiger.” (Id.). As part of Project Tiger, Kodak’s Vice President of Public Affairs contacted the Biomedical Advanced Research and Development Authority (“BARDA”). (Id. at 50). BARDA was the federal agency responsible for investing in countermeasures to diagnose, treat, and protect against COVID-19. (Id.). BARDA suggested that Kodak reach out to Phlow Corporation (“Phlow”), a “pharmaceutical management company focused on securing domestic drug reserves.” (Id.). Phlow was in the process of negotiating a contract with BARDA to manufacture medications to treat COVID-19. (Id.). In March of 2020, Phlow’s CEO Eric Edwards (“Edwards”) told Kodak that he had been working with Congress, the White House, and other government agencies on increasing domestic pharmaceutical manufacturing. (Id. at 51). In April of 2020, Phlow connected Kodak with Peter Navarro (“Navarro”), the Director of the White House Office of Trade and Manufacturing Policy, and Chris Abbott (“Abbott”), a White House senior policy analyst. (Id. at 52). Kodak had several conversations with Navarro and Abbott in April and May of 2020. (Id.). On May 14, 2020, then-President Trump issued an executive order pursuant to the Defense Production Act allow DFC to issue loans to support “domestic production of strategic resources needed to respond to the COVID-19 outbreak.” (Id. at 53). On April 9, 2020, Kodak issued its annual proxy statement on Schedule 14A (the “2020 Proxy”). (Id. at 54). The 2020 Proxy solicited stockholder approval with respect to a May 20, 2020 annual meeting of shareholders. (Id.). The fourth proposal in the 2020 Proxy (“Proposal 4″) sought to add approximately 2.2 million shares to the Incentive Plan, and was necessary because there were not enough shares available in the Executive Compensation Plan to satisfy the Board’s February 2020 agreement to award additional options to Continenza. (Id. at
