In Malpiede v. Townson, 780 A2d 1075 (2001), where stockholders brought a breach of fiduciary duty and due care claim against a corporation's board of directors following a merger, the Delaware Supreme Court addressed the propriety of defendants' raising of a charter exculpatory provision under Delaware Code Annotated, title 8, 102 (b) (7) as part of their motion to dismiss the claim. The court stated that (1) the more proper procedure would have been for the court to convert the motion to one for summary judgment, permitting further proof to be submitted or expedited discovery; however, (2) where the allegations were based solely upon a failure to exercise due care, as opposed to a breach of loyalty or other violation, the complaint is dismissible once the corporation's Section 102 (b) (7) provision is invoked. (Id. at 1092-1093.)