Levin v. Midland-Ross Corp.

194 A.2d 50, 41 Del. Ch. 276, 1963 Del. Ch. LEXIS 96
CourtCourt of Chancery of Delaware
DecidedAugust 30, 1963
StatusPublished
Cited by16 cases

This text of 194 A.2d 50 (Levin v. Midland-Ross Corp.) is published on Counsel Stack Legal Research, covering Court of Chancery of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Levin v. Midland-Ross Corp., 194 A.2d 50, 41 Del. Ch. 276, 1963 Del. Ch. LEXIS 96 (Del. Ct. App. 1963).

Opinion

Marvel, Vice Chancellor:

Petitioners in the above consolidated action were stockholders of Industrial Rayon Corporation on April 28, 1961, the effective date of the merger of their corporation with Midland-Ross Corporation. As such they have resorted to the provisions of 8 Del.C. § 262 for the purpose of dissenting from the now accomplished merger and obtaining payment of what they claim to be the value of their shares of stock as of the date of merger. Exceptions have been filed to the report of the appraiser by petitioners and respondent and this is the decision of the Court on such exceptions. The rights of certain other stockholders who have complied with the statute but who have not filed briefs will be determined by the results herein reached.

[278]*278Industrial Rayon Corporation was incorporated on July 20, 1925 and since its merger with Midland-Ross on April 28, 1961 its business has been carried on under the name of Industrial Rayon Division of Midland-Ross Corporation. During the years in issue, namely the ten year period of 1951 to 1961, Industrial Rayon’s production was divided between the manufacture of a type of tough rayon cord used primarily in the manufacture of tires for motor vehicles and the making of ordinary rayon yarn for clothes. However, production of rayon tire cord was Industrial Rayon’s principal business.

Total American production of high tenacity rayon rose rapidly during the years 1936 to 1953, a period during which such material was used in increasingly larger amount in the manufacture of pneumatic tires. However, with the introduction of nylon and other synthetic tire cords during the early 1950’s demand for rayon tires, particularly in the replacement market, slackened. In short, since 1953, total production of high tenacity yarn demonstrated a pronounced if erratic decline, and by 1960 only 64% of all tire cord was being made of rayon. It is significant, however, that as recently as 1960 rayon cord tires were original equipment on most new automobiles due no doubt to the fact that they are less expensive than nylon tires.

Faced with the fact that nylon would, however, possibly preempt the tire market in the long run and that their own business was already suffering from overproduction, a concerted effort was made in 1958 by producers of rayon tire cord to develop a product that could compete favorably with nylon. However, notwithstanding the development of an improved tire cord known as Tyrex, nylon continued to take over an increasingly larger part of the tire market. In short, by the early part of 1961, the future of the rayon tire cord industry was definitely clouded.

In addition to the production of high tenacity tire cord, which accounted for 75% of Industrial Rayon’s total output from 1951 through 1960, such corporation also engaged in the business of producing ordinary textile yarns, a field in which such corporation continued to lose business to its competitors during this same period. [279]*279This latter fact when coupled with general conditions in the business made it essential that some means be found to derive greater net earnings for Industrial Rayon’s stockholders.

The productive capacity of all manufacturers of rayon yarn reached a peak in 1953. Thereafter, as the demand for rayon yarn decreased, economic pressures led to a gradual closing down of plant facilities. In the economic struggle for survival thereafter ensuing Industrial Rayon was the only producer during this period to operate at a net loss, its net income dropping more drastically than its sales. After earning a peak net income of $10,700,000 in 1955, Industrial Rayon reported a loss of $3,100,000 in 1958 and a $3,300,000 loss in 1960, a temporary recovery having been made in 1959 when a profit of $800,000 was earned. As a result dividends on Industrial Rayon’s common stock was reduced from $3.00 per share in 1956 to $1.75 in 1957. From 1957 to the date of merger Industrial Rayon’s stockholders received no dividends whatsoever.

The board of directors of Industrial Rayon thereupon took steps to counter this downward trend by eliminating waste and by reorganizing. By the end of 1960 the board had succeeded in selling the plant at Covington, Virginia and has also closed its Cleveland plant. Thereafter, manufacturing was confined to the Painesville, Ohio plant. Steps were simultaneously taken to cut research and development expenses and to sell off unneeded assets including excess inventory. Appraisals of unused facilities and land were obtained but a number of such properties remained unsold at the time of the merger.

Such reorganization and elimination of unprofitable operations put the company in a position of extreme and controversial liquidity on the eve of merger, leading petitioners to assert claims in this proceeding more appropriate to a true liquidation proceeding. On April 27, 1961, immediately prior to the effective date of the merger, almost one half of the assets of Industrial Rayon had been liquidated, and it is this condition of unusual liquidity that has engendered much of the controversy between the parties as to the proper method under Delaware law of appraising the value of the corporation’s common [280]*280stock, there being no other corporate securities outstanding senior to such stock.

The parties agree on the basic principles which govern the valuation of a dissenter’s stock in proceedings based on Title 8 Del.C. § 262. Thus both sides cite Tri-Continental Corporation v. Battye, 31 Del.Ch. 523, 74 A.2d 71, in which the Supreme Court of Delaware stated:

“The basic concept of value under the appraisal statute is that the stockholder is entitled to be paid for that which has been taken from him, viz., his proportionate interest in a going concern. By value of the stockholder’s proportionate interest in the corporate enterprise is meant the true or intrinsic value of his stock which has been taken by the merger. In determining what figure represents this true or intrinsic value, the appraiser and the courts must take into consideration all factors and elements which reasonably might enter into the fixing of value. Thus, market value, asset value, dividends, earning prospects, the nature of the enterprise and any other facts which were known or which could be ascertained as of the date of merger and which throw any light on future prospects of the merged corporation are not only pertinent to an inquiry as to the value of the dissenting stockholders’ interest, but must be considered by the agency fixing the value.”

It is also conceded that the three elements of value considered by the appraiser are generally given major consideration in proceedings such as this, namely market value, asset value, and earnings value. No dividends having been paid since 1957, they have, of course, been disregarded as a factor and no other relevant factors have been suggested.

The appraiser found that an active market for shares of Industrial Rayon had existed during the year prior to April 28, 1961, the effective date of the merger, and assigned to petitioners’ stock a market value of $18.69 per share, the mean market price on the day the merger was announced, a price which he necessarily found to be uninfluenced by the merger, as the statute requires, 8 Del.C. § 262(b).

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Levin v. Midland-Ross Corporation
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Bluebook (online)
194 A.2d 50, 41 Del. Ch. 276, 1963 Del. Ch. LEXIS 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levin-v-midland-ross-corp-delch-1963.