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Sterling v. Mayflower Hotel Corp. In that leading "interested merger" case, this Court recognized as established law in this State that the dominant corporation, as a majority stockholder standing on both sides of a merger transaction, has "the burden of establishing its entire fairness" to the minority stockholders, sufficiently to "pass the test of careful scrutiny by the courts.
See also Bastian v. Bourns, Inc. Dunhill International, Inc. The fiduciary obligation is the cornerstone of plaintiffs' rights in this controversy and the corollary, of course, is that it is likewise the measure of the duty owed by defendants. Delaware courts have long announced and enforced high standards which govern the internal affairs of corporations chartered here, particularly when fiduciary relations are under scrutiny.
It is settled  Delaware law, for example, that corporate officers and directors, Guth v. Breuil Petroleum Corp. Other cases applying that equitable doctrine include Schnell v. Fenton, Del. Brown, Del. Greene, Del. Hannigan, Del. Lunkenheimer Company, 43 Del. Graphic Arts Studio, Inc. Cities Service Co. The classic definition of the duty was stated by Chief Justice Layton in Guth, where he wrote:. While that comment was about directors, the spirit of the definition is equally applicable to a majority stockholder in any context in which the law imposes a fiduciary duty on that stockholder for the benefit of minority stockholders.
We so hold. Defendants concede that they owe plaintiffs a fiduciary duty but contend that, in the context of the present transaction, they have met that obligation by offering fair value for the Magnavox shares. We disagree. In our view, defendants cannot meet their fiduciary obligations to plaintiffs simply by relegating them to a statutory appraisal proceeding. At the core of defendants' contention is the premise that a shareholder's right is exclusively in the value of his investment, not its form.
This argument assumes that the right to take is coextensive with the power to take and that a dissenting stockholder has no legally protected right in his shares, his certificate or his company beyond a right to be paid fair value  when the majority  is ready to do this.
Simply stated, such an argument does not square with the duty stated so eloquently and so forcefully by Chief Justice Layton in Guth. We agree that, because the power to merge is conferred by statute, every stockholder in a Delaware corporation accepts his shares with notice thereof.
See Federal United Corporation v. Havender, Del. Indeed, some Delaware decisions have noted that to "the extent authorized by statute, Beyond question, the common law right of a single stockholder to simply veto a merger is gone. Plaintiffs allege that defendants violated their respective fiduciary duties by participating in the tender offer and other acts which led to the merger and which were designed to enable Development and North American to, among other things:.
Defendants contend, and the Court of Chancery agreed, that the "business purpose" rule does not have a place in Delaware's merger law. In support of this contention defendants cite: Stauffer v. Standard Brands, Incorporated, Del. Havender, supra; David J. Schenley Industries, Inc. Bruce Company, 40 Del. American Capital Corporation, D. Each of these cases involved an effort to enjoin or attack a merger and each was unsuccessful. To this extent they support defendants' side of the controversy.
But none of these decisions involved a merger in which the minority was totally expelled via a straight "cash-for-stock" conversion in which the only purpose of the merger was, as alleged here, to eliminate the minority. Viewing the case in this light, the Court ruled that a statutory appraisal was plaintiffs' exclusive medium of relief.
We do not read the decision  as approving a merger accomplished solely to freeze-out the minority without a valid business purpose. Without question, Havender is an important opinion under our merger law, but we do not regard it as precedent here because the Merger Statute in effect at the time it was written did not authorize a pure cash-for-shares conversion. Moreover, Havender stands for the proposition that a merger must be "fair and equitable in the circumstances of the case" in order to withstand the veto of a dissenting shareholder.
See 11 A. Likewise, neither Shenley nor Bruce involved a "cash-out merger," the sole purpose of which was to eliminate minority stockholders. Accordingly, those cases are inapposite. Any statement therein which seems to be in conflict with what is said herein must be deemed overruled.
We hold the law to be that a Delaware Court will not be indifferent to the purpose of a merger when a freeze-out of minority stockholders on a cash-out basis is alleged to be its sole purpose. In such a situation, if it is alleged that the purpose is improper because of the fiduciary obligation owed to the minority, the Court is duty-bound to closely examine that allegation even when all of the relevant statutory formalities have been satisfied.
Consistent with this conclusion is Bennett v. At the outset the Court said:. Thereafter, the Chancellor denied defendants' motions for dismissal and summary judgment, ruling:. And in Condec Corporation v. Lunkenheimer Company, supra, the Court applied a similar approach in an action for cancellation of stock alleged to be issued for the purpose of retaining corporate control, stating that "shares may not be issued for an improper purpose such as a take-over of voting control from others.
See Yasik v. Wachtel, 25 Del. Quoting from the above language in Bennett, the Court reaffirmed that the "corporate machinery may not be manipulated so as to injure minority stockholders," A. Similarly, in Schnell v. In ordering that the advanced date be nullified, Chief Justice then Justice Herrmann answered management's claim that strict statutory compliance insulated its action from attack by saying "that inequitable action does not become permissible simply because it is legally possible.
Read as a whole, those opinions illustrate two principles of law which we approve: First, it is within the responsibility of an equity court to scrutinize a corporate act when it is alleged that its purpose violates the fiduciary duty owed to minority stockholders; and second, those who control the corporate machinery owe a fiduciary duty to the minority in the exercise thereof over corporate powers and property, and  the use of such power to perpetuate control is a violation of that duty.
By analogy, if not a fortiori, use of corporate power solely to eliminate the minority is a violation of that duty. Accordingly, while we agree with the conclusion of the Court of Chancery that this merger was not fraudulent merely because it was accomplished without any purpose other than elimination of the minority stockholders, we conclude that, for that reason, it was violative of the fiduciary duty owed by the majority to the minority stockholders.
In such case the Court will scrutinize the circumstances for compliance with the Sterling rule of "entire fairness" and, if it finds a violation thereof, will grant such relief as equity may require. Finally, we consider plaintiffs' claim that defendants violated the Delaware Securities Act, 6 Del.
First, they challenge plaintiffs' standing to maintain a suit under the Act and, second, they argue that the Act is not applicable because Development held Since Development's interest was large enough to approve the merger regardless of how the remaining shareholders voted, the Vice Chancellor reasoned that plaintiffs failed to state a claim because there could not be a causal relationship between the proxy materials and consummation of the merger.
The motion to dismiss was granted without reaching the standing issue. The Securities Act became law in this State on July 1, and this appears to be the first reported case construing it. In the view we take of the case, a detailed examination of its purpose or provision is not required. We note, however, that with some specificity the Act requires registration of securities offered or sold here, states that certain representations are unlawful, creates a registration procedure for broker-dealers and investment advisors, and provides for administration by the Attorney General or a designated Deputy.
But, detailed as the Act is, it does not include legislative findings as to purpose, nor are its objectives stated in even the broadest of terms. And so we must divine the Assembly's intention from a reading of the statute as a whole. So viewed, we read the Securities Act as a Blue Sky Law governing transactions which are subject to Delaware jurisdiction under traditional tests.
To state it another way, we do not read the Act as an attempt to introduce Delaware commercial law into the internal affairs of corporations merely because they are chartered here. Of course, a Delaware corporation is bound by the Act, if it is otherwise applicable. But it is not bound simply because the company is incorporated here. There is, of course, a presumption that a law is not intended to apply outside the territorial jurisdiction of the State in which it is enacted.
Hilton v. Guyot, U. Brocalsa Chemical Co. Langsenkamp, 6 Cir. Iceco, Inc. Blood, 81 Utah , 17 P. Plaintiffs are residents of Pennsylvania and were not solicited here. Nor does it appear that the contract was made in Delaware nor that any part of the "sale" occurred here. It follows that the Delaware Securities Act does not apply and that the judgment of the Court of Chancery was correct in so ruling. That is simply too fragile a basis on which to establish subject matter jurisdiction over an alleged fraud in Pennsylvania or over a contract made in New York.
And plaintiffs' arguments based on registration of the merger documents in Delaware, see 8 Del. I also agree with the learned and eloquent analysis of the Delaware case law on the subject of mergers made by Justice Duffy in his opinion.
Mayflower, Del. It is not disputed that majority stockholders owe to the minority a fiduciary obligation in dealing with the latter's holdings, and full compliance with the statutory requirements to effect a merger does not insulate a breach of that duty from judicial intervention, although it may affect the relief afforded. In my opinion a complaint alleging such a breach states a cause of action, shifting the burden to the majority to establish the entire fairness of the transaction.
To determine whether that burden has been met under Sterling, I think the Court must scrutinize the business purpose, or economic necessity, desirability and feasibility involved, evidence of self-serving, manipulation, or overreaching, and all other relevant factors of intrinsic fairness or unfairness.
Upon finding a breach of the fiduciary duty owed, the Court must then grant such relief as the circumstances require, by injunction, appraisal, damages, or other available equitable relief, if any, keeping in mind, however, the continuing legislative approval of mergers and the judicially mandated avoidance of their disruption by dissenting stockholders. Tuckman, Del. Any of the terms of the agreement of merger or consolidation may be made dependent upon facts ascertainable outside of such agreement, provided that the manner in which such facts shall operate upon the terms of the agreement is clearly and expressly set forth in the agreement of merger or consolidation.
Due notice of the time, place and purpose of the meeting shall be mailed to each holder of stock, whether voting or nonvoting, of the corporation at his address as it appears on the records of the corporation, at least 20 days prior to the date of the meeting.
At the meeting, the agreement shall be considered and a vote taken for its adoption or rejection. If a majority of the outstanding stock of the corporation entitled to vote thereon shall be voted for the adoption of the agreement, that fact shall be certified on the agreement by the secretary or assistant secretary of the corporation. It shall be recorded in the office of the recorder of the county of this State in which the registered office of each such constituent corporation is located; or if any of the constituent corporations shall have been specially created by a public act of the General Assembly, then the agreement shall be recorded in the county where such corporation had its principal place of business in this State Each stockholder electing to demand the appraisal of his shares under this section shall deliver to the corporation, before the taking of the vote on the merger or consolidation, a written demand for appraisal of his shares.
Such demand will be sufficient if it reasonably informs the corporation of the identity of the stockholder and that the stockholder intends thereby to demand the appraisal of his shares; provided, however, that such demand must be in addition to and separate from any proxy or vote against the merger. Within 10 days after the effective date of such merger or consolidation, the surviving corporation shall notify each stockholder of each constituent corporation who has complied with this subsection and has not voted in favor of or consented to the merger or consolidation of the date that the merger or consolidation has become effective; or.
A copy of this section shall be included in the notice. The notice shall be sent by certified or registered mail, return receipt requested, addressed to the stockholder at his address as it appears on the records of the corporation. Any stockholder entitled to appraisal rights may, within 20 days after the date of mailing of the notice, demand in writing from the surviving corporation the appraisal of his shares.
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