Universal City Studios, Inc. v. Francis I. duPont & Co.

• Decision Date: 20 January 1975
• Citation: 334 A.2d 216
• Parties: UNIVERSAL CITY STUDIOS, INC., Defendant Below-Appellant and Cross-Appellee, v. FRANCIS I. duPONT & CO., et al., Plaintiffs Below-Appellees and Cross-Appellants.
• Court: United States State Supreme Court of Delaware

Page 216

334 A.2d 216

UNIVERSAL CITY STUDIOS, INC., Defendant Below-Appellant and Cross-Appellee, v. FRANCIS I. duPONT & CO., et al., Plaintiffs Below-Appellees and Cross-Appellants.

Supreme Court of Delaware.

Argued Nov. 20, 1974.

Decided Jan. 20, 1975.

E. N. Carpenter, II, and R. Franklin Balotti, of Richards, Layton & Finger, Wilmington; Cyrus R. Vance, of Simpson, Thacher 3 Bartlett, New York City, for defendant below-appellant and cross-appellee.

Richard F. Corroon and Charles S. Crompton, Jr., of Potter, Anderson & Corroon, Wilmington; Walter G. McNeill, of Brown, Wood, Fuller, Caldwell & Ivey, New York City, for plaintiffs below-appellees and cross-appellants.

Edward Maxwell, of Young, Conaway, Stargatt & Taylor, Wilmington, for Joseph Keane, one of plaintiffs below-appellees and cross-appellants.

Before McNEILLY, Justice, and O'HARA and WALSH, Judges.

McNEILLY, Justice:

This is an appeal from a decision rendered by the Court of Chancery ¹ pertaining to the valuation of shares of stock held by dissenting stockholders of Universal Pictures Co. (Universal) at the time of its merger ² with Universal City Studios, Inc. (defendant). Plaintiff stockholders perfected their right to an appraisal under 8 Del.C. § 262 after their rejection of a tendered offer of $75 per share by defendant. The Appraiser determined that on March 25, 1966, the date of the merger, the value per share of Universal stock was $91.47. In arriving at this figure, the Appraiser attributed a $92.89 value to earnings and an $85.82 value to assets and accorded these figures a weight of 80 per cent and 20 per cent respectively. Both parties filed exceptions in Chancery, and it was there held that the value of a share amounted to $92.75. The Court agreed with the Appraiser's use of asset value and earnings value as determinants of the stock's worth. Furthermore, the Court approved the $92.89 earning value factor, but gave it an 87.5 per cent weight. It placed a $91.72 value on assets and gave it the resultant 12.5 per cent weight.

Both parties have appealed. Universal City Studios, Inc. (appellant) assigns as error the earnings multiplier arrived at by the Appraiser and the Court of Chancery. Further, appellant contends that the Court below erred in the determination of the asset value of a share of Universal stock. The plaintiff shareholders (appellees and cross-appellants), on the other hand, would have this Court affirm the findings below with respect to the earnings multiplier and assets value, but modify the award of interest. We shall consider each question separately.

I.

The first issue is the proper value to be placed upon a corporation's earnings as one of the indicia of a share of stock's worth at the time of a merger. A corporation's earnings, along with the market value of its stock, asset value, dividend record, earning prospects and other factors reflecting on a corporation's financial stability and prospects for growth, are all relevant matters for inquiry in ascertaining the value of stock held by dissenting stockholders. A compilation of as many of these factors as are pertinent to a given case has been held mandatory in arriving at the intrinsic value of stock held by shareholders who wish to disassociate themselves with an impending merger. Tri Continental Corporation v. Battye, Del.Supr., 31 Del.Ch. 523, 74 A.2d 71 (1950). As part of the valuation process, the Appraiser and the Court below took the earnings of Universal over the past five years prior to the merger and averaged them to arrive at a $5.77 per share average. The five-year average is reasonable and supported by the established law of this State. In Re Olivetti Underwood Corp., Del.Ch., 246 A.2d 800 (1968); Sporborg v. City Specialty Stores, 35 Del.Ch. 560, 123 A.2d 121 (1956); Application of Delaware Racing, Del.Supr., 213 A.2d 203 (1965).

It is well settled that in an appraisal proceeding under 8 Del.C. § 262, the shares must be valued on a going concern basis. Sporborg v. City Specialty Stores, 35 Del.Ch. 160, 123 A.2d 121, 123 (1956). This approach necessitates not only the Court's examination of historical earnings but also a perusal of the corporation's stability and future prospects as of the date of merger. The prospective financial condition of the subject corporation and the risk factor inherent in the corporation and the industry within which it operates are vital factors to be considered in arriving at a realistic present earnings value. These considerations are manifested in the valuation process through the choice of a capitalization factor, or multiplier. The multiplier will be low if the financial outlook for a corporation is poor, or high if prospects are encouraging. When the multiplier is computed with the past earnings record (in this case $5.77 per share), the resultant figure is deemed to best approximate the present earnings value of a share of stock. The multiplier adopted by the Appraiser and the Court below was 16.1 and that figure, as well as the means used to arrive at such number, are the primary issues upon which appellant bases its appeal.

The choice of a multiplier is a most difficult task and one which is often the subject of parties' exceptions, since its use leads to an approximation of value for which creditable arguments can always be made for increase or decrease. Professor Dewing states in his work, 'The Financial Policy of Corporation' (5th Ed., 1953):

'(T)he determination of this rate is at best a matter of guesswork, but guesswork supported by the evidence of prices at which business of various kinds are being actually valued at any one time. This evidence from current experience with reference to the value of different enterprises can be called . . . from the valuation put upon them . . . by investors who are willing to buy their bonds and stocks. (at 292)

The multifarious evidence available to aid in a determination of a multiplier and the inherent difficulties in assigning weight to the relevant factors have led this Court to pronounce that '. . . the application of a multiplier to average earnings in order to capitalize them lies within the realm of judgment. . . . (for which) there is no hard and fast rule . . .' Application of Delaware Racing Assoc., Inc., Del.Supr., 213 A.2d 203, 213 (1965). The innate impreciseness of a chosen multiplier has necessitated the adoption of a liberal test for reviewing decisions in appraisal proceedings below. Delaware Racing, supra, makes clear that if error in law or fact was committed in the stockholder's action below, then a redetermination of the multiplier by the Court would be proper; but, absent such error, the appraiser's choice will be upheld. Further, the rule in this State is that a lower tribunal's choice of a multiplier will be upheld if it is 'within the range of reason.' Swanton v. State Guaranty Corp., Del.Ch., 215 A.2d 242, 246 (1965); Felder v. Anderson, Clayton & Co., 39 Del.Ch. 76, 159 A.2d 278, 285 (1960).

The appellees assert that the 16.1 figure should be affirmed. The appellant contends that improper criteria were used by the Appraiser and the Court in determining the multiplier and that the figure is impermissably high. For this letter proposition, appellants cite Professor Dewing, whose works in the past have been accorded deferential treatment in Delaware. At page 388 of this work, 'The Financial Policy of Corporations,' (5th Ed. 1953) Professor Dewing states that a multiplier of 10 is the highest value that can be assigned to a business. We, however, do not find such a view to be persuasive, but instead concur with the findings of Swanton, supra, (where a multiplier of 14 was fixed), which recognized that Professor Dewing's capitalization chart was not the 'be-all and end-all,' and it did not 'freeze the subject matter for all time,' especially since 'contemporary financial history' reveals a 'need for flexibility.' (at 246). ³

Appellants contend that the Appraiser and the Chancellor looked solely to the price-earnings ratios of nine other motion picture companies on March 25, 1966, and averaged them together to arrive at a 16.1 multiplier. ⁴ We agree with the appellant insofar as the 16.1 figure is arrived at through precise mathematical calculations involving the price-earnings ratios of these nine other companies. We disagree however that this was the sole consideration, and we give credence to the words of the Chancellor when he expressly stated:

'Arguably, there is much to be said about the choice of any particular multiplier and the briefs cover it all. In the last analysis, I am not persuaded that the Court should reject the Appraiser's reasonable judgment in this matter. In accepting his choice, I note particularly the trend of Universal's earnings, the predictability of certain of its television income during the four years following merger (which I regard as an earning prospect to be considered under Tri-Continental Corporation), that valuation on a going concern basis as of a single date (of the merger) is the object of the appraisal, and the norm, therefore, is to determine the multiplier as of that date; determination of the multiplier by reference to the average experience of other companies in comparable businesses is a reasonable formulation in this case.

The earnings value (16.1 $5.77=$92.89) determined by the Appraiser will be approved'. (312 A.2d at 350)

The Chancellor included a table in the opinion which showed that in 1961, earnings per share were $3.32, and that the earnings steadily increased until in 1965, they were at $8.02 per share. The record shows that during these years, none of the companies except Disney could show a steady growth trend. Within the industry, there was pronounced volatility of earnings, with years of deficit and decline. Universal, on the other hand, was able to show a steady growth, even during the period of 1962 and 1963, when the industry was suffering greatly. As for the 'predict...