Seagrave Corp. v. Mount

• Decision Date: 23 April 1954
• Docket Number: 11915.,No. 11914,11914
• Citation: 212 F.2d 389
• Parties: SEAGRAVE CORP. v. MOUNT et al. SPAIN et al. v. MOUNT et al.
• Court: U.S. Court of Appeals — Sixth Circuit

212 F.2d 389 (1954)

SEAGRAVE CORP. v. MOUNT et al.

SPAIN et al. v. MOUNT et al.

Nos. 11914, 11915.

United States Court of Appeals, Sixth Circuit.

April 23, 1954.

COPYRIGHT MATERIAL OMITTED

Walter M. Shohl, Cincinnati, Ohio (Allen I. Pretzman, Noel L. Greenlee, Columbus, Ohio, on the brief), for appellants.

George E. Netter, New York City, Robert S. Marx, Cincinnati, Ohio (Robert N. Gorman, Cincinnati, Ohio, Robert Dow Hamilton, Columbus, Ohio, on the brief), for appellees.

Before ALLEN, MARTIN and MILLER, Circuit Judges.

MILLER, Circuit Judge.

Appellees, minority stockholders in The Seagrave Corporation, hereinafter called Seagrave, brought a stockholders' derivative suit against Seagrave and its officers to enjoin them from carrying out a proposed transaction between Seagrave and Herbert A. Post, Incorporated, hereinafter called Post, which provided for the purchase by Seagrave from Post of all the common stock of The Fyr-Fyter Company, hereinafter called Fyr-Fyter, on the ground that it was unfair to Seagrave and its stockholders and in violation of the fiduciary duty of the officers and dominant stockholders to Seagrave and all its stockholders. The District Judge held the plan to be unfair and illegal, and enjoined the defendants from consummating the transaction. Separate appeals by Seagrave and by its officers were consolidated and heard together.

The underlying facts, which are not in controversy, are as follows: Seagrave, a Michigan Corporation, has its principal place of business in Columbus, Ohio. Its principal product is motorized fire-fighting equipment. It has an authorized capital of 125,000 shares of common stock of the par value of $5 per share, of which there are issued and outstanding 122,700 shares. The ten plaintiffs own 800 shares.

The Fyr-Fyter Company, an Ohio corporation, is engaged in the manufacture of portable fire extinguishers and other items of fire-fighting equipment. Its capital consists of 40,000 shares of common stock of the par value of $5 per share, owned by Herbert A. Post, Incorporated, and 20,000 shares of 5% cumulative preferred stock of the par value of $30 per share, of which William McKinley Wetzel owns at least 9,485 shares, and Mr. Marlier, a friend and business associate of Wetzel, owns 10,000 shares. Wetzel is the owner of all the issued and outstanding stock of Post. Fyr-Fyter owns the stock of the Wooster Brass Company, which it operates as a division of its business.

Seagrave's chief competitor is American-LaFrance Foamite Company, which not only manufactures motorized fire-fighting equipment, but also portable fire prevention equipment, such as is manufactured by Fyr-Fyter. Seagrave has no affiliation with any company manufacturing portable fire prevention equipment.

The proposed transaction now under attack would join Seagrave with Fyr-Fyter and its subsidiary the Wooster Brass Company for the purpose of enabling Seagrave to better meet the competition of American-LaFrance. The plan provides for the purchase by Seagrave from Post of all of the common stock of Fyr-Fyter, in consideration of the issuance and delivery to Post of 146,084 shares of Seagrave common stock, and for the purchase by Seagrave from the holders thereof of not less than 95% of the 20,000 shares of 5% cumulative preferred stock of Fyr-Fyter of the par value of $30 per share, in consideration of the issuance and delivery to such preferred shareholders of Fyr-Fyter shares of 5% cumulative preferred stock of Seagrave, of the par value of $30 per share, on a share for share basis. This required that Seagrave increase its authorized common stock to 268,784 shares and create a new issue of 20,000 of 5% cumulative preferred stock of the par value of $30 per share. The plan provided for an increase in the authorized common stock to 368,784 shares, thus authorizing 100,000 shares of unissued common stock. A written agreement of date August 26, 1952 was entered into between Seagrave and Post containing the foregoing provisions.

As a part of the over-all plan, Wetzel, who owns all of the outstanding stock of Post, entered into contracts with approximately thirty stockholders of Seagrave for the purchase of 35,000 shares of the Seagrave stock at a price of $20 per share. Of these 35,000 shares, Arthur A. Marcus and Charles B. Wilkes, two of the seven Seagrave directors, are selling 1700 shares and 15,700 shares respectively. This purchase is conditioned upon consummation of the contract between Seagrave and Post and its approval by a majority vote of all outstanding Seagrave stockholders, after deducting from the total outstanding shares the stock of those stockholders who were under contract to sell to Wetzel. This contract provides that the selling stockholders deliver to Wetzel, on the closing date therein referred to, the written resignations of four directors of the Company.

Following approval of the plan by the Board of Directors of Seagrave, it was submitted to a special meeting of the stockholders of Seagrave on September 29, 1952, at which 97,168 shares voted in favor of the purchase, and 6,673 shares voted against the purchase. This action was filed shortly prior to the stockholders' meeting, but by agreement the meeting was permitted to be held, but completion of the transaction was stayed pending the final ruling of the Court upon the merits.

The evidence showed that as of June 30, 1952, Seagrave had capital and surplus of $2,377,158.37, while Fyr-Fyter and its subsidiary had capital and surplus of $1,087,986.72. For the four and one-half years prior to June 30, 1952 Seagrave earned $1,661,681, while Fyr-Fyter and its subsidiary earned $842,095. In the eleven and one-half years prior to June 30, 1952 Seagrave earned $2,160,804, while Fyr-Fyter and its subsidiary earned $2,810,396. The years 1943-1947 were poor years for Seagrave. Its net earnings in 1946 and 1947 dropped to $25,213 and $36,791 respectively from $130,053 in 1941 and $124,609 in 1942. In 1948, they jumped to $322,567. On the other hand, Fyr-Fyter and its subsidiary had two of its best years in 1946 and 1947 with net earnings of $318,244 and $334,393 respectively. In 1948, its net earnings were $298,268. The book value of the shares of Seagrave as of June 30, 1952 was $19.37 per share. Upon consummation of the plan it would be $10.29 per share. The high and low sales prices on the New York Stock Exchange on August 22, 1942 for Seagrave common stock was 15 and 14 ½ respectively.

The evidence also showed that a group of investors, headed by Charles B. Wilkes, Arthur A. Brown, and Morton Globus, of New York City or environs, had over a period of time accumulated sufficient stock of Seagrave to constitute by the spring of 1951 a working majority for the election of directors and to enable them to accomplish the replacement of a majority of four of the seven board members with directors of their own choosing at the annual meeting in March 1951. This stockholder group, referred to as the Wilkes group, are represented on the board by Charles B. Wilkes, Robert B. Wilkes, Arthur A. Marcus and John J. McCarthy. The other three directors are H. B. Spain, President, J. Lester Stevenson, Vice-President, and Allen Pretzman, Counsel and Chairman of the Board, who constitute the active management. Their connection with the corporation long antedates that of the Wilkes group. Spain, Stevenson and Pretzman have been in disagreement with the dominant Wilkes group. The Wilkes group was insistent upon a dividend in excess of the current earnings which was strongly opposed by the management group. This, together with other differences, made an unhappy situation for these three to the extent that their resignations were probable if the Wilkes group continued to dominate the Board. Under the plan, the four members of the Wilkes group would resign as directors, Wetzel would name their successors, and Spain, Stevenson and Pretzman would continue with the Company, with Pretzman becoming local counsel and director instead of Counsel and Chairman of the Board.

The Proxy Statement, sent out in connection with the stockholders meeting, gave the details of the plan together with appropriate background and financial information about the two companies. It recited the purpose and advantages of the plan. It referred to the proposed purchase by Wetzel of 35,000 shares at $20 per share and contained the statement, "such price being approximately one-third higher than the current market on the New York Stock Exchange." It stated the proposed change of directors effective upon the consummation of the plan, advising that it was the intention of the Board to elect as the four new directors Wetzel and three others to be nominated by Wetzel, who had "not yet been determined." It stated that consummation of the plan would vest voting control in Wetzel, who "does not at present contemplate any substantial change in the operating management." No reference was made to any existing differences among the present directors. It stated that the Board of Directors of Seagrave (Arthur A. Marcus opposing) had approved the plan. The reason for the negative vote of Marcus was not given.

The District Judge found that the conflict between the members of the Board of Directors was so bitter and intense that if it continued the logical consequences appeared to be either the resignation or discharge of Pretzman, Spain and Stevenson from their respective positions as Counsel, President and Vice-President of Seagrave; that Wetzel, who would gain control of Seagrave if the plan was consummated, had promised to continue to employ Pretzman, Spain and Stevenson in their respective positions with the Corporation; that the proxy statement did not inform the stockholders of the conflict among the directors or of the fact that Pretzman, Spain and Stevenson had definite reasons to believe that their continued employment by the Corporation would be more certain if the plan...