Kohn v. American Metal Climax, Inc., No. 19175

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: SEITZ, , and ADAMS and MAX ROSENN, Circuit
• Citation: 458 F.2d 255
• Parties: Harold E. KOHN, Trustee, et al. v. AMERICAN METAL CLIMAX, INC., et al., Appellants in 19175, 19537, 71-1099. Appeal of ROAN SELECTION TRUST, LIMITED, in 19176, 19538, 71-1100. Appeal of Harold E. KOHN, Trustee, et al., in 71-1101.
• Decision Date: 31 March 1972
• Docket Number: 71-1099,71-1101.,19176,19538,No. 19175,71-1100,19537

458 F.2d 255 (1972)

Harold E. KOHN, Trustee, et al.
v.
AMERICAN METAL CLIMAX, INC., et al., Appellants in 19175, 19537, 71-1099.
Appeal of ROAN SELECTION TRUST, LIMITED, in 19176, 19538, 71-1100.
Appeal of Harold E. KOHN, Trustee, et al., in 71-1101.

Nos. 19175, 19176, 19537, 19538, 71-1099, 71-1100, 71-1101.

United States Court of Appeals, Third Circuit.

Argued April 20, 1971.

Further Briefing Completed on October 14, 1971.

Decided March 31, 1972.

As Amended April 17, 1972.

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COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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Marvin Schwartz, Sullivan & Cromwell, New York City, for appellant in

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Nos. 19175, 19176, 19537, 19538, 71-1099, 71-1100 and appellee in No. 71-1101

Harold E. Kohn, Philadelphia, Pa., for appellant in No. 71-1101 and appellee in Nos. 19175, 19176, 19537, 19538, 71-1099, 71-1100.

Before SEITZ, Chief Judge, and ADAMS and MAX ROSENN, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

These are consolidated appeals from orders of the United States District Court for the Eastern District of Pennsylvania.

The case arises out of the amalgamation of defendants Roan Selection Trust Limited (RST), a Zambian corporation, into American Metal Climax, Inc. (AMAX), a New York corporation, which prior to the consummation of the amalgamation owned 42.3% of the outstanding stock of RST.

The facts as found by the district court indicate that on August 11, 1969, the President of the Republic of Zambia issued the "Matero Declaration" which expressed the Government's intention to acquire a controlling equity interest in operating copper properties within Zambia. At that time RST was a corporation organized under the laws of Zambia and had its principal place of business in that country. Its operations involved primarily the production, smelting and refining of Zambian copper.

After issuance of the declaration, between August 11, 1969, and November 17, 1969, RST negotiated the sale of a 51% interest in its operating assets to the Zambian Government. The chief concern of the corporation in the negotiations was to secure from the Government the right to transfer the corporate domicile and externalize the corporation's non-operating assets. In this manner a significant part of RST's total worth would be free from Zambian exchange controls.

On November 17, 1969, the board of directors of RST approved, in principle, an agreement among RST, the Government of Zambia, and a Zambian dominated corporation called the Industrial Development Corporation of Zambia (INDECO). The agreement provided, inter alia, that:

(a) the mining operations of RST would be merged into a company to be formed under the name Roan Consolidated Mining, Ltd. (RCM) in which INDECO would own 51% and RST would own 36.75%. The remaining 12.25% would be held by other companies known as the Anglo-American Group. These firms maintained a substantial minority interest in certain RST subsidiaries;

(b) INDECO would issue negotiable bonds, guaranteed by the Zambian Government, in the amount of $151 million and RST would be entitled to receive 36.75% of the total issue;

(c) RST, or a company nominated by it, would manage the operations of RCM and act as sales agent for a period of not less than ten years during which period RST or its nominee would receive 1½% of RCM's gross sales revenues and 2% of its profits net of mineral taxes but before income taxes;

(d) the holder of the management contract would maintain a holding of not less than 20% of RCM's outstanding stock;

(e) RCM would pay quarterly dividends, not subject to any restrictive limitation and equal to the net income of RCM after provision for a reserve for exploration and development in an amount approved by the entire RCM board; and

(f) all assets of RST, except those nationalized by Zambia, might be transferred to a new corporation outside Zambia and would consist principally of cash approximating $60 million; a 30% interest in Botswana RST, Ltd. (a Botswanian corporation the assets of which were primarily majority interests in two Botswanian mining companies);

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Ametalco (a group of corporations wholly owned by RST International Metals Ltd. which, in turn, was a wholly owned subsidiary of RST); the INDECO bonds; and RST's interest in RCM

Seeking alternative means by which to externalize the RST assets not nationalized by the Zambian Government, the RST board eventually began negotiations with AMAX, a New York corporation. On March 5, 1970, a committee of the RST board approved in principle an agreement to effect the externalization through an amalgamation of RST with AMAX. The agreement provided, inter alia, for:

(1) the consolidation of RST's Zambian operating assets into RCM, 51% of which would be sold to INDECO in exchange for INDECO bonds;

(2) the pro rata distribution to all RST shareholders of (a) the INDECO bonds thus acquired; (b) RST's shareholdings in Botswana RST Ltd.; and (c) RST shareholdings in RCM, except for the 20% interest required to be held by RST or its nominee under the management provision of the Zambian agreement; and

(3) the acquisition of the remainder of RST by AMAX, for which non-AMAX shareholders of RST would be paid approximately $76 million principal amount of 8% AMAX subordinated debentures with common stock warrants attached and $6.3 million in cash.

On April 8, 1970, plaintiff Kohn, as trustee of American Depositary Receipts representing 2000 shares of RST, filed a complaint against the defendants derivatively on behalf of RST and also as representative of all non-AMAX shareholders of RST. Seeking to enjoin the proposed amalgamation, he alleged the following in his complaint:

(1) defendants had violated the disclosure provisions of section 10(b) of the Securities and Exchange Act of 1934, 15 U.S.C. § 78j, and Rule 10b-5, 17 C.F.R. § 240.10b-5, promulgated thereunder;

(2) the proposed amalgamation would violate section 7 of the Clayton Act, 15 U.S.C. § 18; and

(3) the terms of the amalgamation evidenced a fraud on non-AMAX shareholders of RST, were unfair to these shareholders' interests in the corporation, and demonstrated a breach of fiduciary duty by AMAX, as a controlling RST shareholder.

The approval of both the High Court of Zambia and the RST shareholders was necessary before the amalgamation could be effected. On July 8, 1970, the district court enjoined the distribution of proxy material to RST shareholders, unless defendants included therewith a letter prepared by plaintiff Kohn setting forth his bases for claiming that the proposed amalgamation was unfair. The Court's order specifically provided that inclusion of Kohn's letter was "without prejudice to plaintiffs' claims that the proxy material was in substance materially misleading or otherwise violative of Section 10(b) and . . . Rule 10b-5. . . ." This condition was met and the shareholders were sent an Explanatory Statement with Appendices setting forth the details of the RST-AMAX reorganization.

The proxy materials which the shareholders received presented the amalgamation agreement and the Zambian nationalization in the form of one resolution. Thus, there was no opportunity to approve the transfer of RST assets from within Zambia without also endorsing the agreement negotiated between RST and AMAX. At the meeting held August 6, 1970, RST shareholders voted on the resolution. The vote was 85.5% in favor and 14.5% opposed. After this vote was taken the non-AMAX shareholders of RST were polled again as a distinct voting group. The tally of this vote was 66% in favor and 34% opposed.

The way was now clear for presenting the proposed plan of externalization to the High Court of Zambia for its approval. But on August 12, 1970, the district court preliminarily enjoined this presentation, finding that the plaintiff Kohn had demonstrated a strong probability that upon final hearing he would

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be granted relief and that effectuation of the amalgamation would only complicate the formulation of an appropriate remedy. The following day, however, this court stayed the effect of the district court's order on the condition that defendant AMAX deposit with the court $10 million as security for any injury plaintiffs might suffer. The stay also required that the non-liquid assets of RST be frozen and neither transferred nor assigned until further order of the court

Thereafter, on August 14, 1970, the High Court of Zambia approved the reduction of capital necessary to complete the amalgamation. This approval was registered on August 15, 1970, and had the effect of cancelling and rendering void all issued shares of RST other than those held by AMAX and its nominees. On August 31, 1970, this court amended its previous order to permit the transfer of RST's externalized assets to RST International, Inc., a Delaware subsidiary of AMAX.

There followed a lengthy trial and, on November 25, 1970, the district court filed its Findings of Fact, Opinion, Conclusions of Law, and Order. The court essentially found that: (1) the High Court of Zambia's confirmation of the reduction of capital did not bar the plaintiffs' claims challenging the amalgamation; (2) the amalgamation was unfair to the non-AMAX shareholders of RST; (3) certain directors of RST, and AMAX as a controlling shareholder of RST, breached their fiduciary duty owed to non-AMAX shareholders of RST; (4) the Explanatory Statement and Appendices sent to RST shareholders was deliberately misleading and thereby violated Section 10(b) of the Securities Exchange Act as well as Rule 10b-5; and (5) plaintiffs failed to prove any violation of the Clayton Act. Plaintiffs were granted injunctive relief and the defendants were ordered to offer plaintiffs as a class, in accordance with each class member's interest in RST as of March 5, 1970, a pro rata share in RST International, Inc.

Defendants AMAX and RST immediately appealed the district court's order...