42 Del. Ch. 233 | New York Court of Chancery | 1965
The plaintiffs are stockholders of P. R. M., Inc., a Delaware corporation, the name of which was Associated Artists Productions Corp. (hereinafter “AAP”) at the time of the transaction here in question. The plaintiffs brought this action, individually and derivatively, to challenge the transaction whereby the defendant United Artists Associated, Inc. (hereinafter “UAA”), acquired all of the assets of AAP except cash in bank. Certain defendants moved for summary judgment of dismissal. The plaintiffs moved for partial summary judgment. The Vice Chancellor granted the defendants’ motion and denied the plaintiffs’ motion. See Alcott v. Hyman, 40 Del.Ch. 449, 184 A.2d 90 (1962). The plaintiffs appeal.
The facts are as follows:
AAP was a Delaware corporation engaged in the business of distributing for television use motion picture films originally produced for theatrical exhibition. A film library constituted the main asset of the corporation and consisted principally of feature films produced between 1919 and 1949 by Warner Brothers Studios and a group of “Popeye” cartoons. In addition to television rights, AAP owned the literary, theatrical, motion picture remake and radio adaptation rights in the films. AAP was a publicly held corporation, its stock being traded on the American Stock Exchange.
United Artists Corporation (hereinafter “United Artists”) was a large producer and distributor of motion pictures which often obtained grants of television rights in its distribution agreements. It is not a defendant.
In August 1958, the Chesler-Goldhar group agreed to a revision of their agreement with United Artists permitting settlement of the NTA litigation and consummation of the United Artists transaction. Under the revision, Chesler and Goldhar would receive $10.62 per share in cash, and their associates would receive $11.19 per share.
United Artists then proceeded to acquire the additional stock of AAP needed under the agreement and it formed UAA, a Delaware Corporation, for the purpose. Two of the four directors of AAP, Eliot
On September 11, 1958, UAA mailed to all AAP security holders an invitation to tender their securities to UAA at $11.19 per share for stock and at related prices for certain warrants and convertible debentures. The invitation was accompanied by a Report, modeled on a SEC registration statement, which outlined UAA’s plan under the agreement and gave to AAP security holders a full and complete statement of the details of the transaction. The managements of both UAA and AAP offered in this communication to supply any further information on written or telephone request. Under the invitation, UAA offered to purchase the tendered stock at the specified price and to use such stock, together with additional cash, to buy from AAP all of the latter’s assets except cash, provided that at least 80% of the outstanding AAP stock was tendered and that AAP’s directors, stockholders and debenture holders approved. The stockholders were informed that, as part of the transaction, UAA would assume all of AAP’s liabilities and that the cash to be paid with the stock would be sufficient to redeem all AAP debentures not tendered to UAA and $11.19 for each share of AAP stock not tendered left outstanding.
The proposal was approved unanimously by AAP’s directors. AAP’s debenture holders voted unanimously for the debenture changes necessary to implement the proposal. At a special AAP stockholders’ meeting, of 2,112,484 shares entitled to be voted, 1,590,040 shares were voted in favor of the UAA proposal and 5,556 against.
Thereafter, the AAP security holders acted almost unanimously in tendering their securities pursuant to UAA’s invitation. The offer was accepted by the holders of 97.5% of the stock available for purchase,
The transaction was consummated on October 17, 1958. UAA delivered to AAP all of the securities it had purchased and it assumed all of AAP’s liabilities except $51,000. in face amount of debentures. UAA also delivered to AAP sufficient cash so that, at the conclusion of the transaction, AAP had $1,949,734. in its treasury — $11.19 for each of the 174,239 shares remaining outstanding, plus sufficient additional cash to cover the $51,000. in outstanding debentures. In return, UAA received all of AAP’s other assets including, of course, the library of motion picture films and distribution rights here in controversy.
In February 1959, this suit was filed.
Both the plaintiffs and certain defendants moved for summary judgment. The plaintiffs’ motion was for partial summary judgment limited to the issue of liability. The defendants’ motion sought dismissal of the action.
Upon this appeal, the plaintiffs make a two-pronged attack upon the transaction and the Vice Chancellor’s decision.
They first contend that a genuine issue of fact exists as to the fairness of the transaction, precluding summary judgment, by reason of gross inadequacy of price, the presence of Hyman and Zittau on both boards of directors, their status as employees of UAA and the relationships of Hyman’s son and attorney to AAP. The plaintiffs contend that, under such circumstances, the defendants had the burden of establishing the adequacy of the price and the fairness of the transaction in a trial of that issue which was improperly denied to the plaintiffs by the court below.
The plaintiffs argue that the defendants had the burden of proving fairness because the case involves interested and self-dealing directors. The defendants reply that, because of stockholder ratification, the burden of proof shifted to the plaintiffs to demonstrate gross disparity between the value of the assets sold and the sale price in order to warrant judicial intervention. The plaintiffs rebut by saying that since Gotham, the wholly owned subsidiary "of United Artists, held and voted 837,532 shares of the total of 1,590,040 shares voted in favor of the transaction, Gotham’s shares may not properly be counted in arriving at the approval by the independent majority of the outstanding stock which is requisite for a shifting of the burden of proof. The court below did not decide the question. It apparently left the burden of proof of fairness with the defendants, “assuming but not
The placement and scope of the burden of proof, in cases involving the fairness of a corporate transaction and the bona fides of interested directors, have been discussed in several cases since this court last spoke on the subject in Gottlieb v. Heyden Chemical Corp., 33 Del.Ch. 82, 90 A.2d 660, on limited reargument, 33 Del.Ch. 177, 91 A.2d 57 (1952). It has been stated that where, upon the trial of the cause, it appeared that the purchaser dominated and controlled the board of directors of the selling corporation, those espousing a sale of corporate assets had the burden of showing its fairness, absent stockholder approval; but that upon a showing of approval of the transaction by a “legally disinterested group of stockholders owning a majority of all of the outstanding shares”, the plaintiffs attacking the sale, to be successful upon the trial of the cause, had “the burden of showing that the disparity between the money received and the value of the assets sold is so great that the court will infer that those passing judgment are guilty of improper motives or are recklessly indifferent to or intentionally disregarding the interest of the whole body of stockholders.” Schiff v. RKO Pictures Corp., 34 Del.Ch. 329, 104 A.2d 267 (1954). And it has been held that, in support of a motion for summary judgment, in a sale-of-assets case involving alleged director self-dealing and stockholder ratification, the defendant directors could rest upon a submission of the records of the transaction and that, thereupon, it was incumbent upon the plaintiffs to offer proof which would either establish that the transaction was constructively fraudulent or otherwise invalid or which would, in the alternative, show a genuine issue of fact as to the legality of the transaction. Lewis v. Hat Corporation of America, 38 Del.Ch. 313, 150 A.2d 750 (1959). In that case, the court held that, faced with stockholder ratification, the
Another development of the problem appears in Manacher v. Reynolds, 39 Del.Ch. 401, 165 A.2d 741 (1960), in which the court distinguished cases involving the question of the fairness of the proposed settlement of a stockholders’ action, stating that in “litigation, as opposed to settlements, where an interested board is involved, the court generally does shift the burden to the Objector upon a showing of independent stockholder approval” but that in passing upon the fairness of a settlement such shift would not take place and independent stockholder approval would be considered as but one important factor in resolving the fairness issue. And in Abelow v. Symonds, 40 Del.Ch. 462, 184 A.2d 173 (1962), after denial of cross motions for summary judgment and trial of the issue of fairness of the price paid for the sale of corporate assets, the court held that the burden of proof as to that issue rested on the defendant directors and did not shift to the plaintiff minority stockholders of the selling corporation, notwithstanding stockholder ratification, because almost all of the stock voted in favor of the sale was owned by the buyer; and that, therefore, the transaction lacked the independent stockholder ratification necessary for shifting the burden. See also Saxe v. Brady, 40 Del.Ch. 474, 184 A.2d 602 (1962).
The parties cited certain of the above cases indiscriminately without distinguishing between those decided at the summary judgment stage and those decided after trial of the issue of fairness. It is apparent that clarification is needed as to the burden of proof of the issue of fairness at the summary judgment stage of a case of this nature.
As moving parties for summary judgment, the defendants undertook the burden of demonstrating, with reasonable certitude, that there is no genuine issue as to any material fact relating to the question of fairness and that the defendants are entitled to judgment as a matter of law. The moving defendants had the burden of negating the plaintiffs’ claim of unfairness and only when that burden had been
What showing, then, were the defendants obliged to make in support of their burden of proof upon their motion for summary judgment to negate the plaintiffs’ claim of unfairness and to demonstrate that they were entitled to judgment as a matter of law ?
To carry their burden of proof, since they could not show disinterested AAP director approval, the defendants were obliged to make a prima facie showing, with reasonable certitude, of utmost good faith on the part of AAP’s directors and of the scrupulous fairness of the transaction. In scrutinizing the showing of good faith and fairness made by the defendants, and in determining whether their burden of proof in support of their motion for summary judgment has been sustained, two varying degrees of judicial examination are applied, depending upon the existence or nonexistence of ratification of the transaction by the stockholders. In the absence of stockholder ratification, the burden of the defendants is to show to the court’s satisfaction, in the exercise of its own judgment after a close scrutiny of the transaction, that the directors in fact acted in utmost good faith and exercised scrupulous fairness. Given such stockholder ratification, however, the defendants’ burden is reduced to that of showing that the terms were not so unbalanced as to amount to waste or that the question is such a close one factually as to fall within the realm of the exercise of sound business judgment. See Gottlieb v. Heyden Chemical Corp., supra; Beard v. Elster, 39 Del.Ch. 153, 160 A.2d 731 (1960). Not until the apposite burden was discharged by the moving defendants did the burden shift to the plaintiffs to come forward with further evidence to demonstrate that there is a genuine issue of material fact upon the question. See Howard v. Food Fair, supra.
We are of the opinion that the defendants have undertaken and discharged the greater of the two burdens of proof. The defendants have shown by affidavits and records that the price was established after lengthy, competitive negotiations conducted at arms length by United Artists and NTA with the controlling stockholders, officers
Since the defendants thus undertook and discharged the greater burden of proof, we are not required to decide whether United Artists’ control of Gotham disqualified the stock held and voted by Gotham from being counted in arriving at the stockholder ratification which would have reduced the burden. Accordingly, we express no view on that question.
The defendants’ burden having been thus discharged, the burden shifted to the plaintiffs to come forward with further evidence to demonstrate that there is a genuine issue of fact on the question. The plaintiffs have failed utterly in this regard. They have presented one affidavit, being that of one of the plaintiffs who is an attorney and accountant. The affidavit provides no facts. It is limited to the argument, opinions and projections of the affiant as to the value of the assets and stock of AAP, based entirely upon the contents of the Report which had been distributed to AAP security holders with United Artists’ offer.
We conclude that the defendants were entitled to summary judgment in their favor upon the fairness issue.
The second prong of the attack upon the transaction is more technical. It consists of the contention (a) that the transaction is ultra vires because in violation of Article Fourth of AAP’s Certificate of Incorporation but, if not, (b) the transaction is invalid, nevertheless, because it was not authorized by any provision of the Delaware Corporation Law.
Article Fourth provided:
“In the event of any liquidation or winding up of the Corporation or distribution of the assets by way of return of capital (whether voluntary or involuntary), the holders of said twenty-five (25c) Par Value Common Stock shall be entitled to receive the complete distribution of the assets of the Corporation in pari passu.”
The plaintiffs argue that this Article was violated because the transaction amounted to a “distribution of the assets by way of return of capital”, upon the happening of which the stockholders should have received “the complete distribution of the assets * * * in pari passu”. The answer to this is two-fold: First, the “distribution of the assets” referred to in Article Fourth must be construed, we think, to mean distribution of all the assets. This appears to be clear from the third position of that language in the series of terms connected by “or”, consisting first of “liquidation” and secondly of “winding up”. The reference to a “complete” distribution is also meaningful in this connection. Since AAP remained a viable corporate entity with almost $2,000,000. in its treasury, there was no such final distribution of
As to statutory sanction for the transaction, § 160 of the Delaware Corporation Law (8 Del.C. § 160), furnishes ample authorization. That section provides:
“Every corporation organized under this chapter may purchase, hold, sell and transfer shares of its own capital stock; but no such corporation shall use its funds or property for the purchase of its own shares of capital stock when such use would cause any impairment of the capital of the corporation.”
Implicit in § 160 is authorization for a corporation to use its property for the purchase of its own capital stock if such use will not impair its capital. The plaintiffs concede that there was no ultimate impairment of capital in this case. They argue, however, that the transaction was not a “purchase” because AAP received cash and an assumption of liabilities as well as its own stock. We find no merit in this contention. We conclude that § 160 provides statutory authority for the transaction. We do not reach the question of whether § 271
We think that the defendants have demonstrated that here is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law. The judgment below is affirmed.
. It was announced in the Report that Hyman would not tender his 124,000 shares because of special tax problems. His shares were voted in favor of the transaction, however.
. It is noteworthy, and perhaps significant that this appeal comes before this Court in 1965 in a case commenced in 1959 challenging a transaction which occurred in 1958. It appears that this status of the case results principally from lack of diligence on the part of the plaintiffs in the prosecution of their cause.
. 8 Del.C. § 271 provides :
“Every corporation organized under the provisions of this chapter, may at any meeting of its board of directors, sell, lease or exchange all of its property and assets, including its good will and its corporate franchises, upon such terms and conditions and for such consideration, which may be in whole or in part shares of stock in, and/or other securities of, any other corporation or corporations, as its board of directors deems expedient and for the best interests of the corporation, when and as authorized by the affirmative vote of the holders of a majority of the stock issued and outstanding having voting power given at a stockholders’ meeting duly called for that purpose, or when authorized by the written consent of the holders of a majority of the voting stock issued and outstanding.”