*1 he stayed Mr. Dillon near the house afterwards ... assisted did department personnel fire and did assist the ambulance surrounding arrive.” Given the nature of the circumstances assault, entry sexual such as Dillon’s forcible into the victim’s night, choking home in the middle the victim until she his leaving injured lost consciousness and the unconscious and house, burning victim alone in an isolated and and his Nero-like fiddling conduct in while with the around the home burned inside, say victim we the district court abused its cannot sentencing imprisonment discretion in for the term Dillon specified. glimmer The brief of Dillon’s civic assistance minuscule, moving against a firehose is when measured enormity surrounding of the crime committed Dillon and its atrocity circumstances. The annihilates assistance as availing aspect affecting the extent sentence to be imposed in imposed Dillon, this case. The sentence imprisonment years, statutory for 16 to 49 is within the limits. consistently that, This court has held in the absence of an abuse discretion, imposed statutory a sentence within limits will Last, not be appeal. disturbed on See State v. 212 Neb. N.W.2d 402 (1982). We find no regarding abuse of discretion imposed the sentence in this case. Dillon’s contention that the sentence is excessive is meritless.
Affirmed. appellee ConAgra, Inc., cross-appellant, Cargill, v. Holdings, Incorporated, Incorporated, appellants cross-appellees. Corporation, N.W.2d 576
Filed March No. 1986. 83-849. *2 Cline, Fredric H. Kauffman and David R. of Buntain Williams, Wright, Oldfather, Johnson & for appellants. McGrath,
John North, E. North and Leo A. Knowles of &Kratz, P.C., O’Malley appellee. for and Krivosha, Boslaugh, White, C.J., Shanahan, Grant, JJ., D.J., Colwell,D.J., and and Retired. Rist, Per Curiam. appeal This Douglas County from district court arises of a corporate plaintiff, out takeover battle between the ConAgra, Inc., Cargill, Incorporated, defendant acquire “target company,” a Corporation. MBPXL following surrounding litigation facts this are uncontroverted by parties. Further facts will greater be discussed in detail as they are applicable assignments individual of error. plaintiff, ConAgra, publicly corporation is a owned on Exchange. its stock listed the New York Stock wholly subsidiary, and its owned Cargill Holdings, Incorporated, privately corporations. are held Prior to its acquisition, target MBPXL, company, publicly a was also corporation held with its stock traded on the New York Stock Exchange. corporate parties corporations All three are organized under the laws of the State Delaware. management and MBPXL ConAgra July
In merger between potential stock discuss a met to representatives 1978, 11, management August companies. On the two ConAgra signed a “letter MBPXL and representatives of August On companies. the two proposing intent” rejected this letter directors of MBPXL board of intent, by respective approved letter of A second of intent. setting the terms of forth ConAgra and MBPXL boards of by presidents executed merger, was proposed From 1978. ConAgra September MBPXL 17, 1978, representatives through October September 28 proposed negotiations of MBPXL conducted Cargill met with representatives of merger. September 1978 In acquisition of the possible to discuss representatives stock. On purchase of MBPXL of a cash company means 12, 1978, representatives toured 11 and October major plant facilities. On October MBPXL’s resolution, directors, to its pursuant ConAgra’s board of Reorganization and “Agreement Plan of approved *3 1978, of 17, board of directors Merger.” On October duly agreement, copy and a approved MBPXL parties. both executed separate Cargill Holdings entered into
On November MBPXL, who of with certain shareholders agreements Marcus, and D. N. Marcus Jerome included Messrs. Howard contracts, Pursuant to these directors of MBPXL. officers and outright percent of MBPXL’s Holdings acquired 21.9 Cargill acquire agreed and outstanding of common stock shares and January On November 16 percent 4.5 on 1979. another 5, 1978, MBPXL board of directors of December agreement, proposed ConAgra merger met to discuss 7,1978, offer, December related matters. On Cargill tender agreed offer in which it Holdings its tender Cargill commenced January By 1978. on December begin purchasing shares approximately percent 92.5 24, 1979, Cargill acquired had Upon merger’s outstanding common stock. Cargill existence of separate corporate becoming effective the 1, 1979, Cargill Holdings was On March Holdings terminated. a operated and has since corporation merged into MBPXL subsidiary Cargill, Incorporated. wholly owned 21, 1978, ConAgra that on November The record reveals equity to restrain commenced an action in with the alleged interference Holdings from tortious day the merger agreement. On that same ConAgra-MBPXL restraining order judge temporary entered a district court matter, hearing Following a full on the against the defendants. injunction enjoining the preliminary the district court entered tortiously interfering with the contractual defendants “from Corporation.” and MBPXL relations between the Plaintiff the defendants Nothing temporary injunction prevented in the offer for the stock of proceeding proposed from with a tender MBPXL; however, enjoined court the defendants the district of, encumbering or otherwise “selling, disposing from stock, transferring until further order of this Court.” said petition, joining MBPXL as a later amended its alleging part MBPXL was of a party defendant and merger agreement and that conspiracy to interfere with the agreement. MBPXL had breached that The defendants petition grounds improper amended on the demurred to the joinder parties and tort defendant. The of contract claims special defendants’ demurrers were overruled.
Following discovery, extensive November summary judgment respect parties partial moved for liability. examining pleadings, the issue of After voluminous exhibits, court, depositions, April the district liability genuine respect of fact with concluded no issue existed, summary judgment entered in favor of the partial partial motion for plaintiff, and denied the defendants’ summary judgment. subsequently The defendants moved the fact, findings which specific court to reconsider or make 30, 1981, the court September motion was overruled. On equitable to trial as an proceed determined that the case should action, to transfer the thereby denying request the defendants’ trial, was transferred to Prior to the case case to the law docket. *4 renewed judge, and the defendants a different district court make summary judgment or partial motion to vacate again denied. motions were specific findings of fact. These 16, 1982, court held a 4-week August the district Beginning on damages. On October proximate trial on the issues of cause 3, 1983, judgment decree and the district court entered its Cargill and MBPXL and awarded against the defendants $15,996,000 subsequent ConAgra damages. The defendants’ 21, motion for new trial whs overruled on October 1983. appeal assigned The defendants to this court have rulings, relating pretrial partial numerous errors summary judgment, and final decree rendered the district purposes only we need whether the court. For our discuss respective court in error when it found that the district was ConAgra corporations were liable to because of MBPXL’s failing bring proposed merger to use its best efforts to about the ConAgra. “target” corporate
The of two bidders in this case was MBPXL, integrated slaughterer and fabricator of beef products byproducts. corporation formed in was Packers, Inc., through of Missouri Beef of Amarillo, Texas, Industries, Inc., Wichita, and Kansas Beef Kansas. Since the companies these two with their facilities, slaughter grew combined and fabrication largest processor industry, be the second in the boxed beef Processors, recognized behind Iowa Beef leader in this highly industry. competitive Omaha-based,
ConAgra diversified, is an basic foods company with operations. both domestic and international As year 29, 1977, ending May of its fiscal ConAgra and its $143,259,373, subsidiaries had total assets of and stockholders’ $66,136,678. equity of earnings consolidated net year ending May for its fiscal were $12,831,140. Minnesota,
Cargill headquartered Minneapolis, is and is a privately company engaged held principally in the warehousing, transporting, merchandising, processing agricultural year ending May commodities. As of its fiscal 1978, Cargill and its subsidiaries had total assets of $3,252,315,000 approximately equity stockholders’ $1,177,763,000. approximately year For ending May the fiscal the consolidated net income of $121,429,000. approximately
141 ConAgra Cargill competitors. and Approximately are percent ConAgra’s products competition are in with those of Cargill. evaluation, In study after careful and both ConAgra and concluded that MBPXL was the most merger attractive candidate for entrance into the boxed beef industry. early ConAgra began In contemplating entrance industry into the boxed beef and retained Lehman Brothers Loeb, Kuhn Incorporated, firm, an banking investment However, potential merger discover candidates. it was not until July 1978 that ConAgra initially officials from met with representatives of MBPXL to possibility merger discuss the of a ConAgra. Following with meeting, this Messrs. Charles M. Harper Fleur, respective David La presidents of ConAgra MBPXL, again met in Omaha. 9,1978, August Fleur,
On Harper Messrs. and La along with Priceman, Messrs. Erving Melvin Rolf and the chairman and MBPXL, vice chairman of the board meeting held another agreed City to meet in days Kansas within a few with their lawyers and investment bankers attempt up to draw agreement 10, 1978, in principle. August On the executive committee of MBPXL’s board of directors met and authorized Rolf, Fleur, Messrs. La and Priceman “to continue discussions Agra” with Con reaching agreement. toward such August On 11,1978, signed by an initial letter of intent Harper was Messrs. Fleur, outlining and La the terms of in principle. Under this initial each shareholder of MBPXL was receive, exchange in for one share of MBPXL common stock, seven-eighths ConAgra of one share of common stock plus thirty-second one ConAgra preferred of one share of 14, 1978, August stock. On the proposed publicly announced parties. 16, 1978, August ConAgra
On the board of directors of met approved Understanding” the “Letter of executed on August ConAgra between and MBPXL. That same day, the board of directors of MBPXL also met and resolved “that MBPXL Corporation pursue negotiations not further ConAgra, Inc. and to terminate and all such negotiations immediately,” company and that would publicly announce the same. 1976, Cargill studying the U.S. had been
Since November industry. Cargill particularly became interested processing beef following the publicity in MBPXL after the that ensued negotiations ConAgra in between and MBPXL. On breakdown among were August two internal memos circulated executives, expressing acquiring an interest top recommending possible company MBPXL and contact bank, Manhattan, through its lead Chase to Mr. Samuel Marcus, a retired former officer and director of MBPXL.
However, mid-August early September negotiations began again between and MBPXL. *6 negotiations, ConAgra revived Pursuant to these increased its proposed exchange offer for MBPXL and MBPXL offer of ConAgra common stock one-for-one for stock. 14, 1978, September acquisitions
On agreed committee of MBPXL met and to recommend to the corporation’s executive banking committee that an investment comparative firm be hired to determine the value of the corporation entirety. were it to be sold in Following its this recommendation, the executive day committee met the same banking Blyth resolved to retain the investment firm of Co., Incorporated (hereafter Eastman Dillon & referred to as BEDCO). September representatives
On 21 of BEDCO contacted Cargill inquired it whether would be interested in MBPXL. Benjamin
In Jaffray, the notes of Mr. S. president-finance vice Cargill, appears and treasurer of it September that the conversation with response Cargill’s BEDCO was in inquiry bank, During conversation, MBPXL’s Chase. it was conveyed Jaffray to Mr. that MBPXL was “not for sale” but Fleur, president, that its Mr. La responsibility considered it his anyone to talk with might who be company. interested in the Jaffray’s Mr. notes also indicate that he was informed that the MBPXL board of directors would meeting week, in apparently to discuss the proposal, and that Cargill if interested, truly it would quickly. have to act Notes from the conversation also evince that certain MBPXL shareholders would be amenable to a “cash deal.” September
On representatives again BEDCO talked with Jaffray Mr. and indicated it Cargill that would be better if met prior September Accordingly, officials with MBPXL 28. September Cargill met in officials Wichita with Messrs. La Fleur and Rolf of MBPXL and Mr. Stanton of meeting BEDCO. At Cargill expressed officials industry, interest in the parties generally boxed beef and the strengths discussed During the meeting, weaknesses. parties apparently Cargill discussed “what would do for MBPXL,” MBPXL or could Cargill do for but officials “left meeting feeling with no real about whether or not it would be appropriate possible Cargill proceed or even with attempted kind of acquisition.” Again, before the conclusion of meeting, Mr. Cargill Stanton told they officials that if were interested, they should take action September before scheduled date of MBPXL’s next meeting. board September
On Jaffray Messrs. and Stanton had another phone possible conversation about the acquisition of MBPXL. Mr. Stanton indicated favorably that Mr. La Fleur was impressed $27- but that a $30-per-share cash fly,” tender' offer “$25 “won’t versus a stock tax free transaction.” day,
That same informally officials met with their BEDCO Although advisers. all not the MBPXL directors were present, present, those including Messrs. Howard Marcus and Marcus, Jerome were meeting informed of the company’s possible of that interest in MBPXL.
However, earlier, 28, 1978, as stated September on ConAgra and MBPXL intent, entered into a second confirming letter of general “the understanding concerning reached possible ConAgra combination” of and MBPXL. The letter was jointly executed by Mr. Harper, ConAgra’s chief executive officer, Fleur, and Mr. president MBPXL, La contemplated negotiations the further of a “Definitive Agreement Reorganization and Plan of Merger.” second letter duly of intent approved by was both boards of signing directors. The of the second letter of intent was well also publicized.
Following signing intent, however, of the second letter of Cargill’s interest MBPXL did not September abate. On Jaffray. Mr. Nau telephoned BEDCO Mr.
Mr. Nau from delay unable to that Mr. Stanton had been indicated at that time anything were do and that if BEDCO to MBPXL board action behalf, any by Cargill would have to be above Cargill’s offer $25 per share. October, early Cargill retained both the September or
In late Corporation and banking firm of The First Boston investment Slate, Skadden, Meagher & Arps, firm of the New York law concerning possible legal advice Flom for financial MBPXL. acquisition of 5, 1978, Cargill’s interest in MBPXL was
On October MacMillan, Jr., through Cargill formalized a letter from Mr. Cargill’s president, vice to Mr. La Fleur. The letter was senior evidently phone a the two men had followup conversation conversation, day. During phone Mr. La had earlier that that, $27 opinion, Fleur told Mr. MacMillan in his an offer of per share would not “draw flies” and also that he felt that signed ConAgra, because had letter of intent with company obligation carry had an it out. Mr. MacMillan’s Cargill’s president, McVay, letter stated that he and Mr. M.D. prepared Cargill’s were to recommend to board of directors that $27 approve acquisition per it of MBPXL at share in if cash Cargill Mr. La Fleur indicated to that the MBPXL board would support proposal. The letter further indicated that if there interest, Cargill mutual expect position would to be in a proposal 17, 1978, make a formal no later than October requested a tour MBPXL also facilities. meantime, 5,1978,
In the on October a memo was circulated among ConAgra setting MBPXL and officials forth the merger. timetable for the The memo set the date of October merger agreement for distribution of the to MBPXL’s and ConAgra’s directors.
By October Cargill keenly both were aware of the other’s interest in MBPXL. An internal memo circulated at on October 5 to its board of directors indicates that was aware ConAgra-MBPXL agreement. that, view, This memo Cargill’s also indicated acquired MBPXL could be competing $27 based on a offer of memo, $30 per share. Another captioned internal “MBPXL *8 Tactics,” was at on October circulated outlining presumed ConAgra selling points the to MBPXL detailing Cargill’s counterpoints. portion A of this memo was specifically “Strategy Agra drop entitled to cause Con to out of bidding.” part any In range the the memo “The of stated: competing part presumably offer on our is so narrow we only will be able to make one bid. As a it consequence, should high enough be to Agra bidding, force Con out of the but necessary get job should be no more than to done.” October, Throughout early engaged and MBPXL negotiations in concerning language agreement. particular drawing Of concern MBPXL the of to in language concerning the final right of MBPXL to consider other they offers of more if were substance appear. to prepared by The initial draft ConAgra’s counsel and presented general to MBPXL’s language counsel contained “appeared obligate which the MBPXL Board to recommend ConAgra, irrespective of whether MBPXL any received merge other offer to be acquired.” or Concerned language, Williams, counsel, about this Mr. MBPXL’s Houston, Texas, consulted with a law in experienced firm merger agreements, similar suggestions possible language which would purpose. Using achieve MBPXL’s modifying language suggested firm, by the Houston Mr. following proposed provisions Williams sent ConAgra’s counsel:
From the date hereof until the time effective merger, not, prior MBPXL will without written ConAgra, approve consent of or recommend to any stock, capital any merger, holders shares of its consolidation, disposition substantially of all or all of its properties assets, any offer, or business tender acquisition, combinations, or other business or furnish or cause be any furnished concerning information its business properties any party or assets connection with it, tender or involving offer ‘other takeover’ transaction may law, except required by necessary insofar as or counsel, Vincent, opinion Elkins, its Messrs. [sic] Houston, Texas, possible liability to avoid its directors capital stock. holders officers *9 Harper discussed Fleur and Messrs. La (Emphasis supplied.) be provision agreed emphasized language this obligations rest on the to make MBPXL’s deleted so as not law firm. of the Houston determination prepared ConAgra’s counsel Around October following merger” draft, “no which contained another clause: Merger. until the Effective the date hereof
No From not, prior merger, will without Time of the MBPXL ConAgra, approve or recommend written consent of stock, any merger, any capital its holders of shares of the consolidation, substantially of its all all disposition of or offer, assets, business, any acquisition tender properties or combination, cause to be or furnish or or other business business, any concerning its furnished information any properties party assets to in connection or it, involving transaction tender offer or other “takeover” may except required insofar as be law. ConAgra’s desire to provision
This was inserted because of becoming “bidding for MBPXL. avoid involved contest” However, by deleting language, the revised emphasized seeking provision completely purpose altered MBPXL’s binding appeared. avoid directors in the event a better offer During the of October Mr. Williams met with afternoon counsel, Shook, Hardy Messrs. Olson and Bacon of MBPXL’s merger” gentlemen agreed & The three that the “no Bacon. unacceptable to MBPXL. Mr. La Fleur was clause was opinion Harper. informed of his counsel’s and related it to Mr. day, negotiations ConAgra The next between and MBPXL ConAgra’s ultimately agreed continued. counsel to delete the merger” “no clause and substitute a “best efforts” instead part: clause which read in respective
Best Efforts. The Boards of Directors and principal officers of each of and MBPXL shall may necessary take further action as be all such appropriate in order to effectuate transactions contemplated hereby including recommending to their respective approved; shareholders that provided, however, nothing herein contained shall relieve either continuing Board Directors their duties to respective shareholders. (Emphasis supplied.) changes After these were made in the agreement, draft of the Mr. specially Williams went into a meeting. discussion, convened MBPXL Following board some unanimously the MBPXL board approved definitive agreement. the meeting After Messrs. Williams La Omaha, headquarters Fleur flew from MBPXL where the final signed and executed. change,
Besides this final provided: further duly The Board of Directors of MBPXL call will and use its best special meeting efforts to cause be held a shareholders of on December or the practicable thereafter, earliest date has directed Agreement Merger Agreement this be submitted *10 meeting, to a vote at such and will recommend that the approval shareholders of vote in favor of of this Agreement Merger Agreement. and the During negotiations leading up signing to the of the agreement, merger Cargill remained in interested MBPXL. On 11, 1978, Cargill October several part officials toured a of plant Cargill MBPXL’s facilities. also had several discussions bankers, Boston, regarding investment First Cargill acquisition. Basically, developed strategies by two which acquire negotiate major (1) to MBPXL: with the groups of Fulton, Marcus, MBPXL’s (e.g., Brown); shareholders (2) any outstanding a for make cash tender offer and all shares. 16, 1978,
On or about Mr. October Stanton BEDCO Cargill prepared informed that it to make an offer should days, within the next 2 before the Cargill signed. representatives, through was Mr.
Weiksner, $30 conveyed per a to Mr. proposal Stanton share any, liability, pending if MBPXL would if assume litigation. antitrust proposal, along with the October 5 letter of Mr.
This Fleur, by to Mr. MBPXL’s MacMillan La considered board meeting. However, on special at October 17 the advice of counsel, legal Mr. the board concluded that at that Stanton Cargill to consider. had no firm offer from time it opinion released its BEDCO On October exchange for the terms of of directors that MBPXL board plan set forth in the MBPXL common stock as equitable were fair and reorganization and an internal memo was On October 20 MBPXL’s stockholders. “key con- outlining among Cargill directors circulated Cor- in MBPXL an interest acquiring siderations Cargill by which a timetable memo set forth poration.” major purchase their approach the shareholders would shares; problems; inform help potential them with tax interest; board, letter, through Cargill’s MBPXL’s a shortly public proposed of the thereafter make a announcement not, however, signing mention the tender offer. The memo does MBPXL-ConAgra merger agreement, although it does “price to be in its own offer a mention as a variable considered Agra.” realistically preempts competing bid Con which Nevertheless, Cargill’s on October board of acquire decided “make no effort directors met and decision was not communicated to MBPXL at this time.” This MBPXL.
Meanwhile, afternoon, Marcus, that same Mr. Howard MBPXL, called Mr. director and stockholder of indicating message and left a that he was a MacMillan of MBPXL.” When Mr. Marcus later reached Mr. “stockholder MacMillan, calling capacity he he told him that was his as a inquired whether still had stockholder and continuing “acquiring interest MBPXL.” Mr. Howard brother, Jerome, Marcus, father, Samuel, and aside from his directors, significant were respective roles officers in MBPXL. shareholders *11 that, during phone
While Mr. MacMillan testified their conversation, representing Mr. Marcus said he was the Marcus family, only Mr. Marcus himself maintained that he was family. the In speaking for himself and for no other member of testimony indicating Howard Marcus did not recall deposition to Mr. MacMillan that a definitive between MBPXL However, ConAgra had been executed. Mr. Marcus did knowledge.” agree “public was that Further, notes, conversation, during Mr. MacMillan’s taken read, day contain a that Dec.” notation “60 Mid late According MacMillan, to Mr. this date note referred “the time when the MBPXL would completed.” suggested get Mr. Marcus then that the two together. meeting, purpose according of such a to Mr. deposition, Cargill’s acquisition MacMillan’s was of MBPXL. rekindled, Their interest in MBPXL now four Wichita, Kansas, representatives met on November 1 in Howard, Jerome, Messrs. and Samuel their Marcus and attorney. meeting Cargill’s general At this counsel announced purpose that the sole meeting family with the Marcus members was “as shareholders” and not in capacity directors or officers of MBPXL. The Marcuses indicated present any problems this would not they inasmuch as apparently proviso believed the to the “best efforts” clause allowed them to parties enter into such discussions. The then discussed, according Marcus, to Mr. Howard “the attributes of company MBPXL as a and the we going why direction were thought company we buying.” (Emphasis worth supplied.) parties selling price also discussed a for the by shares of stock held possible Marcuses and the price litigation ramifications in the pending antitrust against MBPXL. meeting, Cargill’s At conclusion representatives they said would take this latest information back to their board for further discussion.
Meanwhile, throughout early November, late October and ConAgra-MBPXL merger continued on schedule. On 25, 1978, October MBPXL’s board met to determine its representatives on the combined board of directors. From through representatives, October 25 October including Marcus, Messrs. Howard and Jerome toured ConAgra plants in Alabama and part Puerto Rico as diligence” investigation. “due however, On October ConAgra’s board, still concerned competition, about purchase authorized the of MBPXL hedge common stock “as a against party.” cash tender offer a third
On November 7 Messrs. Anderson Calvin and Heinz Hutter Cargill phoned Mr. Howard Marcus and said that
150 range the lower of an offer in principle” to make “agreed in had November 8 1. On on November price figures discussed Mr. Anderson held between was telephone conversation Moe, attorney, with Mr. James Blaes, family Marcus Mr. in the participating present but not Cargill, counsel for conversation, Cargill representatives During this conversation. Marcus was Mr. Howard about whether Mr. Blaes questioned get major shareholders being emissary to “uneasy about affirmatively. responded together” Mr. Blaes Cargill met attorneys the Marcuses 10 for On November by the MBPXL stock agreements for the sale of to draft 13 relatives, On November Marcuses, and close associates. their from shareholders copy of a list of MBPXL Cargill received a attorney. the Marcuses’ Holdings, Cargill of directors of November 14the board
On for to execute contracts authorized its officers Incorporated, $27 that same at a share. On MBPXL stock purchases families, Mr. Joe Kirk individuals, including Marcus day director, of their Fulton, and several another and executed Cargill representatives met with associates purchase deferred the immediate or agreements for either Cargill Through agreements, these of MBPXL. shares outstanding MBPXL’s shares outright percent acquired 21.9 January 1979. percent 4.5 agreed acquire another through purchase acquiring from prevented due to limitations percent of stock agreements the entire Antitrust under the Hart-Scott-Rodino imposed by federal law (1982). The 15 U.S.C. 18a. Act of 1976. See Improvements § part that would “use agreements provided in purchase make, practicable and promptly as efforts to its best laws, (the a tender offer applicable with all accordance not Common offer’) for and all MBPXL tender ‘proposed share, per $27.00 net by Cargill, price at a then owned in cash.” Seller McVay La Messrs. evening November
On the expressed his met, Mr. La Fleur at which time Fleur MBPXL and agreement between pursue commitment Cargill publicly announced ConAgra. On November to make a tender and its intention transaction purchase stock offer acquire balance of MBPXL stock. following day, November the MBPXL board of meeting
directors met in Wichita. At this the board ratified its appointments proxy executive committee’s of members to a meeting committee concerning stockholders’ to be held ConAgra merger. The board further decided to consider *13 Cargill’s announced intention to a $27-per-share make tender offer, analysis and toward purpose retained BEDCO for an proposals. By of the two an 11-to-l vote board also suspended the Marcus brothers “of all duties and responsibilities as . . employee[s] . and officer^] Corporation . . . pending investigation further their participation regarding in Merger Agreement activities ConAgra, Cargill, Inc. and the recent proposed by tender offer Inc.”
On representatives November 20 MBPXL Cargill met with representatives generally Cargill’s and discussed intent regarding MBPXL, management, the future of and control. stated, On previously November ConAgra commenced legal Cargill. against action
On November again. the MBPXL board met Mr. Stanton that, of BEDCO advised $27 the board opinion, his offer Cargill from superior proposal. At attorneys, direction of one of the MBPXL the board reviewed options: its various
1) proceed ConAgra, merger; to recommend 2) Inc. Cargill, offer; proposed recommend Inc. 3) tender proceed proxy, and meetings etc. shareholders present proposals; 4) position by facts both a no action proceeding not ConAgra, with the Inc. and make Cargill no regarding recommendation proposed time; tender at 5) offer this a continued review the Cargill, proposed Inc. offer tender because of the legal financial advice now before the Board present view of the market situation.
MBPXL’s pursue board decided to option. fifth
The board also potential liability discussed its under the merger agreement ConAgra. Following meeting, this legal MBPXL’s officers and directors were advised ConAgra unless the to communicate with counsel not ConAgra. Mr. from concerned an increased offer discussions day informed Cargill that La Fleur called Mr. Anderson of Cargill “agreed positively pursue him that MBPXL had to more offer.” ConAgra’s just hearing full on prior November
On injunction, Cargill’s investment preliminary request for representatives legal advisers met with MBPXL bankers and Dods, Olson, Minneapolis. Notes taken at this and Stanton in options, meeting participants reveal that the discussed stock management positions, expansion operations, the Marcus indemnification, meeting family, MBPXL board upcoming brought by December and the of lawsuits defense ConAgra against Cargill. the Marcuses and again
On December 1 these individuals met with Messrs. McGrory Cargill. and Anderson of memo of this “Again, meeting stated: at the end of the discussions it was negotiated reiterated that had not made an offer nor merely type with MBPXL but had advised the gentlemen representing Cargill policies MBPXL of practices with a number respect to of issues.” stated, previously temporary
As on December *14 restraining against Cargill, Incorporated, order was issued and Cargill Holdings, Incorporated. Also on December Mr. ConAgra’s Harper representatives met with MBPXL to discuss Cargill. day, issued offer vis-a-vis that of This same BEDCO superior to opinion its to MBPXL that the offer was ConAgra’s $27.00 proposed per and that “the tender offer of higher present share affords a financial benefit to MBPXL proposed merger shareholders than do the terms offered ConAgra.”
On December the MBPXL board of directors met and, upon options presented by further consideration of the counsel, legal unanimously following approved resolutions:
“RESOLVED, that as a result of the intensive investigation by management undertaken financial its legal fiduciary and in obligation advisors view of the shareholders, of this Board to its this Board of Directors they cannot recommend to its shareholders that vote in Inc.; proposed merger ConAgra, favor of the RESOLVED, “FURTHER that in view of this decision meeting originally that the shareholders scheduled for cancelled; December be RESOLVED, management legal
“FURTHER negotiate ConAgra counsel be authorized and its legal Merger counsel a mutual termination of the Agreement 17, 1978; dated as of October RESOLVED,
“FURTHER Board of that this Directors recommend to they accept its shareholders that the offer $27.00 of net .per Cargill, share to seller Inc. which has future, indicated it would make in subject the immediate to the approval being of final terms of this offer acceptable consisting to a committee of the Board of Messrs. legal Rolf and Fleur with La consultation.” Messrs. Howard and participated Jerome Marcus this vote. remaining pertinent facts are as in the stated introduction opinion. of this correctly
To determine whether the district court found the defendants MBPXL and liable to for breach contract, both, of contract or tortious interference with a we must, threshold, at obligation, any, determine what if a of pursuant merger board directors agreement prior has to a approval by question the shareholders. The of resolution this upon interplay turns principles delicate of both contract corporate law, wholly controlling neither outcome. appellants that ConAgra assert has no claim to the bargain “benefits” because consummation of the upon dependent subject was the approval ConAgra. the shareholders Applicable of MBPXL and provides Delaware law board of directors of each “[t]he corporation merge adopt which desires .. . shall resolution agreement merger approving or consolidation” and that agreement adopted “shall submitted to the stockholders corporation... purpose acting of each constituent for the agreement.” 251(b) Del. Code Ann. tit. and (c) (rev. § Appellants 1974). further assert that the *15 executory “specifically permit contract drafted duty fiduciary company’s MBPXL Board to its fulfill 154 that the Appellants Brief for at 16. We believe
shareholders.”
regard.
appellants are correct
corporate
A
director must act in the best interests
“fidelity, good
obligated
the duties of
shareholders and is
security
faith,
prudence
respect
with
to the interests
holders,
duty
independent judgment
as well as the
to exercise
of the board
respect
to matters committed to
discretion
lying
management
directors
of the
‘at
heart
”
West.United,
corporation.’ Gt.
v. Gt.
200 Colo.
West.Prod.
873,
(1980).
applicable
613 P.2d
878
These duties are
merger.
recommending
proposed
to a director’s
See
acts
Gorkom,
(Del. 1985).
Smith v. Van
In Jewel Companies Drug v. Less Stores 741 1555, recognized F.2d (9th 1984), appeals 1564 Cir. the court of merger agreement may not, signed “after is a board fiduciary obligations shareholders, consistent to its regarding potentially withhold information more attractive See, also, competing Co., offer.” Finklea v. Carolina Farms S.C. 466, 13 S.E.2d (1941). Exchange places Securities Act of 1934 affirmative obligations See,
disclosure on directors in a case such as this. e.g., 15 78j(b) 78n(d) (1982) (commonly U.S.C. §§ 10(b) and 14(d)). §§ “agreements
This court should not sanction
which have the
removing
very
effect of
from
way
directors in a
substantial
duty
judgment
to use their own best
management
matters.”
Abercrombie,
Davies, et al.,
599, 611, 123
et al. vs.
35 Del. Ch.
A.2d
(1956),
grounds
rev’d on other
36 Del. Ch.
See, also,
130A.2d338 (1957).
Chapin v. Benwood Foundation
Inc.,
(Del.
402 A.2d
1979).
Ch.
danger
A
inherent in a
merger agreement
prevents
which
submission
competing
offers to the
pending
shareholders
submission of a
proposal
might
is that a director
feel “bound to honor a
Agreement
decision rendered under the
even though it was
contrary
Abercrombie,
judgment.”
to his own best
supra, 35
Del. Ch. at
The MBPXL recognized board difficulty in such an agreement when upon replacing it insisted ConAgra’s “no merger” clause with its own “best efforts” clause which was intended to allow MBPXL to competing consider offers. Specifically, the “best efforts” clause read:
The respective Boards of principal Directors and officers ConAgra of each of and MBPXL shall take all such may further action necessary be appropriate in order to effectuate the contemplated transactions hereby including recommending to their respective shareholders provided, however, that the approved; nothing herein contained shall relieve either Board Directors of their continuing respective duties to their shareholders.
(Emphasis supplied.)
While the language
proviso
before the
language
and the
after
proviso may
conflict,
be somewhat in
it is clear that the
parties recognized that there was a continuing fiduciary duty
by
owed
each board of
respective
directors to its
shareholders
which could not be
away.
contracted
In
regard
we cannot
imagine greater
duty owed to
advising
shareholders than
them
higher
existence of a
offer for their
asking
stock before
them approve
a lower offer. The directors of MBPXL could
agree
not
ConAgra by
assist
pledging
their best efforts if
doing so the
directors MBPXL
legal
violated their
duties to
the MBPXL
West.Prod.,
shareholders. See Gt.
supra. To hold
otherwise
place
would be to
innocent shareholders of a
company
mercy
at the
corporate
directors whom the
rely upon
shareholders
dealing.
candor and fair
duty
A director’s
to inform himself
preparation
or herself in
for a decision
fiduciary capacity
derives from the
in which he or
corporation
Lutz,
she serves the
and its shareholders. See
et al.
Boos,
al.,
585,
vs.
et
Del.
Ch.
171 A.2d
(1961).
Since a
director is vested
responsibility
with the
management
for the
corporation,
affairs of the
he or she
duty
must execute that
recognition
that he or she acts on behalf of others.
obligation
Such
does not tolerate
self-dealing.
faithlessness or
Gorkom,
See Smith v. Van
(Del.
al. vs. Enstar
Ch. June
July
Aug.
1984) (Hartnett, V.C.).
rev.
5 &
may
Whether
directors of MBPXL
havé breached an
agreement
enforceable
between
and themselves
might
personal liability ConAgra
which
result in their
is a
we
matter
do not decide. That matter is not
before us. But
directors could not enter into an
to violate their
fiduciary obligations to their shareholders and then render the
ultimately
company
failing
the shareholders liable for
carry
out an
duty
violation of the directors’
hold,
seem,
To
get
shareholders.
so
it would
would be to
*17
coming
going.
shareholders
When the MBPXL board resolved to cancel
the
meeting
ConAgra merger
shareholders’
at which the
proposal
was to have been submitted and instead recommended
acceptance
offer,
shareholder
Cargill
of the cash-out
that was
ConAgra merger agreement.
not a breach of the
Once the
offer,
directors of MBPXL learned of the competing Cargill
the
“best efforts” clause in the
proposal could not relieve
the MBPXL directors of their
duties to act
the shareholders’
They
obligation
best
interests.
point
had an
at
that
investigate
competing offer,
if,
the
in the exercise of their
independent good
judgment, they
faith
Cargill
found that the
offer
shareholders,
was a better offer for the MBPXL
they were
bound to recommend the better offer. Gt. West.Prod. v.
United,
180,
Gt. West.
200
(1980).
Colo.
The MBPXL statutory power board was without to bind the corporation proposed ConAgra to the merger absent approval. shareholder Del. Code Ann. 251(c). tit. Several § courts have held analogous agreements that are without binding legal effect approval. absent shareholder In Finklea v. Co., Carolina Farms 196 S.C. 13 S.E.2d (1941), 596
157 agreement, specific performance option court denied of an subject approval, which was to shareholder purchase company’s defendant land. The shareholders indicated that they plaintiff’s they would not approve the offer after received information a better offer from the company’s defendant management. concluding The court denied relief after that option agreement binding was not absent approval shareholder agreement and that the management had not relieved of its fiduciary obligation to inform the of a shareholders better offer. Inc.,
Similarly,
Ebert,
Temple,
Masonic
et
v.
al.
S.C.
(1942),
specific
case the by informally approved the shareholders. case, MBPXL in this board’s
Under the circumstances obligated it withdraw its recommendation fiduciary duties West.Prod., ConAgra supra. proposal. Gt. evidence, is, such as it Furthermore, appear that the it would engage speculation fact required have the trier of would any by the regarding whether action not taken question proximate of MBPXL could have been the board of directors by ConAgra. difficult sustained It is cause of loss facts, that, imagine presented the the stockholders of Because, however, we have accepted the offer. would have liability, we that issue determined there was no need not address further. summary judgment for should have plaintiff’s
The motion overruled, summary judgment the defendants’ motion for been sustained, petition and the dismissed. and remanded with directions.
Reversed White, J., dissenting. ignores contract law majority opinion principles basic
which, law, integrated statutory corporate properly if partial would have resulted in a affirmance of district no contractual corporation court’s order. A “suitor” now has rights “target” respect to actions the board of here, agreements, pledging only that the corporation, despite target’s promote will board of directors use its best efforts to agree Because I do not with the with its shareholders. law, majority’s application selective I dissent. negotiations ConAgra height At between MBPXL, proposed the latter a “best efforts” clause agreement. inclusion in the This clause reads: principal respective Boards of Directors and officers all of each of and MBPXL shall take such may necessary appropriate further action as be order contemplated hereby transactions effectuate including recommending respective to their shareholders provided, however, nothing approved; that the relieve either Board of Directors of herein contained shall continuing respective duties to their shareholders. *19 (Emphasis supplied.) agreement
The also states: duly use The Board of Directors of MBPXL will call and meeting the special its best efforts to cause to be held a of the shareholders of MBPXL December or thereafter, practicable earliest date directed has Agreement Merger Agreement the this submitted meeting, to a vote at will the such recommend that approval shareholders of MBPXL in favor this vote of of Agreement Merger Agreement. and the Corporation The MBPXL promises breached the contained paragraphs. both majority promisee holds that is afforded no relief majority for those breaches. The mentions inconsistency language between proviso before and after the clause; however, in the “best efforts” application a balanced yields contract corporate inconsistency, law no it respects viability judgment of both the business rule and the duty of due care. language agreement allows the boards of both
corporations seeking merge reorganize or to enter into a binding governing parties contract pending conduct of the submission of to the approval. shareholders for To language majority view the does circumscribes the role corporate boards directors contravention of their management function, traditional the exercise business judgment. nothing There unique is about the decision to enter negotiated into a merger transaction that would warrant ordinary removal from the realm of business affairs of corporation, management of which is entrusted Indeed, duties, board fiduciary of directors. consistent with its a board of directors is in the position provide guidance best corporation considering buy-out shareholders of a merger. majority’s position
To
ignores
adhere
also
principles
A
properly interpreted
contract law.
contract of this
is
sort
as a
binding
indicating
present undertaking,
with the
parties contemplating the satisfaction of certain further
duty
perform
conditions before a
arises. Mid-Continent
Co.,
Telephone Corp.
f.
Telephone
Supp.
v. Home
between this
(N.D.
1970). The critical distinction
Miss.
majority is the difference between
interpretation and that of the
*20
performed
before
precedent
a
which must
condition
and one
binding
a
contract
agreement
parties
of the
becomes
existing
duty
perform
to
which must be fulfilled before
Mid-Continent,
See, also, Omaha Public
supra.
contract arises.
Co.,
Fire Insurance
The does not with the language Paragraph of the of the at issue. “Agreement Reorganization Merger” and Plan of provides: Obligation ConAgra.
Conditions Precedent to The obligation perform to and observe the covenants, agreements and conditions hereof to be by ConAgra performed and observed at or before the Merger, Merger, Effective Time of the and to effect the subject following shall be to the of the satisfaction conditions, may writing by which conditions be waived in ConAgra: ....
One of the conditions listed below this clause was the Approval. following: Merger “MBPXL Shareholder . . . [T]he Agreement by approved shall have been the shareholders of provided Corporation MBPXL as in the Delaware General interpret Law.” I precedent the conditions in this to duty mean which must be before the those conditions satisfied arises, perform existing on an contract and not as conditions binding which must be satisfied before a contract exists at all. majority quoted relies on law either case out of context entirely inapposite majority to the at facts and law issue. United, uses Gt. West.Prod. v. Gt. West. 200 Colo. 613 P.2d (1980), support proposition corporate of the that a director must act the best interests of shareholders and is faith, obligated “fidelity, good prudence duties of holders, respect security interests as well as the duty judgment independent respect to exercise to matters lying committed to the discretion of the board of directors and ” management corporation.’ of the ‘at the heart of the West.Prod., supra majority Gt. at 613 P.2d at also 878. The proposition target on that case for the relies that directors of a company agree company pledging cannot to assist the suitor by doing their best target efforts if so the directors company legal target’s violate their duties to stockholders. Finally, majority Gorkom, asserts that Smith v. Van (Del. 1985), A.2d 858 applicable makes these duties to a recommending director’s acts in proposed merger. West.Prod.,
In Gt.
supra,
Supreme
Court of Colorado
required
interpret
obligations
was
imposed by
a “best
efforts” clause.
Co-operative
Great Western Producers
had
agreed
buy
all
Sugar
the stock of
Company,
Great Western
wholly
subsidiary
owned
United
Great Western
Corporation.
lengthy negotiations,
Pursuant to
United and the
co-op
purchase agreement,
executed a
unanimously
which was
approved by United’s
sugar
board of directors. Because the
asset,
company
major
required
United’s
Delaware law
*21
the
approved by
corporation’s
sale be
the
stockholders. A
clause
the
stated that “United will use its best
efforts
to obtain the approval of its shareholders and
West.Prod.,
debentureholders whose approval is solicited.” Gt.
supra at
During the interval between the execution of the meeting, and price sugar, the shareholders’ the of the seller’s principal commodity, dramatically. Considering rose the effect price of change corporation, this on of the value the United’s board of directors informed its it shareholders that could no longer agreed price. recommend the sale at the The held, meeting shareholders’ was and the sale failed due to co-op insufficient votes. The then sued for breach of the “best efforts” clause. Supreme parties Colorado Court concluded that the
did not intend impose that the “best efforts” clause would obligation United’s board of directors which would conflict with the legal corporation’s directors’ duties to the fidelity, faith, security good holders. These duties include prudence respect security to the of interests holders, duty independent as well as the to exercise judgment respect committed to matters lying “at heart directors and of the board of
discretion
management
corporation.”
of the
United,
West.
West.Prod. v. Gt.
omitted.) Gt.
(Citations
affirmed
(1980). The court
P.2d
Colo.
held:
appeals, which had
of the
court of
the decision
state
required United to exercise
purchase agreement
(1) the
security
only
holder
its “best lawful efforts” to obtain
Company; (2) both
Sugar
of the
approval
the sale
obligated
its board of
United and
federal and state law
that,
security
“to
holders
because
directors
inform
[i.e.,
sugar
change of
the increases
circumstances
increase in the
profits
corresponding
prices and
Sugar Company], they believed
terms for
value of the
longer
Sugar Company
were no
fair and
the sale
14,1974,
September
reversal in the
equitable”;
(3)
United’s
of directors to its
recommendation of
board
security
not therefore constitute evidence of
holders could
of the
efforts” clause.
a breach
“best
184-85,
determining
In
A blindly following board of directors the lead of one cry director to the ultimate detriment of all shareholders is a far from the facts in this case. Van Gorkom dealt with a board wholly apparently uninformed and uninterested in the terms of merger agreement. Nevertheless, it recommended the shareholders, and the shareholders followed the advice.
In this case all
MBPXL directors were aware of the
proposal
participated
constructing
agreement.
the final
The MBPXL
deprived
board
its shareholders
opportunity to decide which
it
superior
was the
offer when
promised
canceled
meeting.
shareholders’
Had the
then,
board used its best
meeting,
required
efforts to hold the
law,
by Delaware
compared
shareholders could have
Indeed,
arrangement.
terms and selected
superior
*23
fiduciary duties
directors,
pursuant to
even if the
in an informed
obligation
determine
statutory
to
merger before
the
manner whether to recommend
deliberate
stockholders, Del. Code Ann. tit.
submitting
to
proposal
the
Cargill’s
ultimately recommended
(rev. 1974), had
251(b)
§
adhering
would have been
ConAgra’s, the board still
terms over
the “best efforts” clause.
to the terms of
West.Prod. v.
precisely the situation in Gt.
This was
Gt.West.United,
(1980),
P.2d 873
200 Colo.
Pay
v.
majority,
Companies
Jewel
another case cited
Northwest,
Supp.
(N.D.
1982),
Cal.
Drug Stores
550F.
Less
(9th
1984).
plaintiff,
Cir.
In Jewel the
Jewel
rev’d
While it is Board Directors agreed complete merger, to use their best efforts to it is then, true that Jewel and its shareholders did not have also now, unequivocal right and do not have to the benefits merger. power approve rested shareholders, with the and the Jewel Oakland ratify imposed duty on those no shareholders merger agreement.
Jewel, find supra, Supp. 550 F. at 772. The court went on to contract, binding itself was not a since the shareholders, offerees, only parties power with the were Jewel, accept supra, Supp. the contract. 550 F. 770. The marketplace court further proper commented that is the “[t]he *24 Jewel, competing supra, forum to resolve tender offers.” 550 F. Supp. at 773. holding
The ninth circuit reversed the
of the district court in
appeals
Jewel. In its decision the court of
first held that under
Corporate
the California
Code the boards of
directors
two
corporations seeking merge
reorganize “may
to
enter into a
binding merger agreement governing
parties
the
the
conduct of
pending
agreement
submission
the
to the shareholders
Jewel,
approval.” (Emphasis supplied.)
supra,
The ninth circuit
held
also
shareholder
approval,
may
a
bind
in limited
board
itself
areas to exert its
merger.
delineating
best efforts to consummate a
Without
scope
obligation,
full
of a board’s “best efforts”
the court
duty
determined that the term
minimum
does “include at a
a
good
party
act in
faith toward the
whom it owes a
‘best
Jewel,
obligation.”
supra,
efforts’
The with corporation board can bind the provisions essentially require . . . which the board of the any target entering firm to refrain from contract outside altering ordinary course of business or from provisions are corporation’s capital structure. Such intended, essentially, quo until the preserve the status shareholders consider the offer.
Jewel, supra, 741 F.2d at 1564n.12. MBPXL, argued appellees
Like Jewel may obligations of directors have are contractual board higher fiduciary always subject to its duties to the shareholders in Jewel had held that corporation. district court corporate corporate law mandated that directors California high fiduciary duty respect to observe standards of shareholders, offer, presented and when another duty compare directors had a the two offers and recommend Jewel, supra, the more attractive offer to the shareholders. However, Supp. specifically F. 770. the district court reserved question fiduciary of whether the board of directors’ obligation required “affirmatively toit seek out other offers.” Jewel, supra, Supp. 550 F. at 773 n.1. reversing decision,
In
the district court’s
the ninth circuit
validity
acknowledged
importance
fiduciary
duties
may
preapproval
but concluded that a board
bind
itself
merger agreement
violating
without
those duties. At the outset
recognized
corporate
the circuit court
that a
board of directors
“may
lawfully
fiduciary obligations
not
divest itself of its
in a
West.Prod,
Jewel, supra,
contract.”
741 F.2d
(citing
at 1563
Gt.
United,
v. Gt. West.
200 Colo.
(1980)).
The shareholders retain the ultimate control over the corporation’s They assets. accept reject remain free to or merger proposal by board, the respond the to to presented merger proposal a or tender offer made another firm subsequent to the board’s execution of exclusive agreement, or to hold out for a better offer.
Jewel, supra,
Nevertheless,
Whether
defendant’s
will be
actions
considered the
plaintiff’s
cause of a
loss turns on more than the mere fact that
reaped
the defendant
advantages
has
of the broken
played
contract.
defendant must have
a material and
causing
role in
plaintiff
substantial
lose the benefits of
Keeton,
contract. Prosser and
A
supra.
is
defendant
considered
actively
participated
causing
have
the breach of contract
resulting damages
and the
when the defendant holds out to the
party
third
suggesting
price
incentives
better
a
better terms.
Co.,
Pure
Ass’n
Milk
v.
App.
Foods
Ill.
2d
Kraft
(1955);
DeWitt,
N.E.2d 765
Cumberland Glass
Co.
Mnf’g
v.
The evidence at trial on this is issue testimony considering part Cargill’s that it consisted in from expert by plaintiff’s witness. When own asked counsel merger agreement assume that had been executed and party recommended the boards and that no other had made offer, intervening merger agreement tender whether the gone through, Cargill’s expert responded, my would have “In opinion overwhelmingly it would have been approved and gone through.” would have testimony ConAgra’s expert
This
is consistent with that of
witness,
Kennedy,
president,
Mr. Peter
and MBPXL’s
Mr.
that,
Kennedy
David La Fleur. Mr.
opinion,
testified
in his
had
presented
the MBPXL
been
shareholders
in December 1978
tendering
each,
$27
with the choices of
their shares for
exchanging
ConAgra
their shares for
pursuant
shares of
stock
agreement,
retaining
doing nothing,
their stock and
opted
ConAgra’s
stockholders would have
terms
they
highest
Similarly,
because
offered the
economic value.
Mr.
that,
independent judgment,
La Fleur testified
in
ConAgra’s
his
Cargill’s,
part
terms were better than
because of tax
ramifications of a cash deal. Mr. La Fleur also
that
testified
members,
his discussions with other board
none seemed to
Cargill’s
believe that
arrangement
cash
was worth more to
ConAgra
shareholders than the
shares would be after
with MBPXL.
conflict,
In a de novo review where evidence is in
this court
gives weight
judge
to the fact that the trial
heard and observed
accepted
witnesses
one
version
the facts over the
Chalupa
Chalupa,
other.
v.
220 Neb.
Based sweeping declaration of a board’s fiduciary stockholders, duties to its appears it now agreements, drawn, carefully no matter how are at best mere formalities, legal with no effect. agree
I with the statement in Companies Pay Jewel v. Less Drug Northwest, 1555, 1568-69 Stores 741 F.2d (9th 1984), Cir. which reads: *27 is jungle
It nowhere written in that the law of the stone governing must be the sorties exclusive doctrine into mergers. legitimate corporate world exercise of by right responsible to contract boards of directors can bring degree help some of much needed order to these transactions. JJ., join in this dissent. Grant,
Shanahan Lienemann, In re Estate of Arthur H. deceased. Arthur H. Lienemann, deceased, Lienemann, F. Arthur appellant Representative, cross-appellee, Personal v. appellee cross-appellant. Lienemann, Donald H.