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Zeeb v. Atlas Powder Co.

Supreme Court of Delaware

March 6, 1952

Zeeb
v.
Atlas Powder Co.

Page 124

[32 Del.Ch. 488] H. James Conaway, Jr. (of Hering, Morris, James & Hitchens), of Wilmington, for appellant.

Richard F. Corroon (of Berl, Potter & Anderson), of Wilmington, for appellee.

WOLCOTT and TUNNELL, Justices, and HERRMANN, Judge, sitting:

WOLCOTT, Justice.

The appellant was a common stockholder of Darco Corporation which, on July 31, 1950, merged into Atlas Powder Company. In compliance with the requirements of Section 61 of the General Corporation Law, Rev.Code 1935, § 2093, Atlas thereafter filed a petition seeking a determination of Darco's objecting stockholders entitled to payment for their shares. Pursuant to the order entered upon the petition the appellant filed his claim and demanded an appraisal of the value of his Darco shares and payment therefor in cash.

Section 61 permits a dissatisfied stockholder to withdraw from the corporate enterprise after merger and to obtain in cash the value of his shares if he complies with certain required steps. Briefly stated, the dissenting stockholder is required (1) to object to the proposed merger in writing prior to the meeting at which the stockholders' vote on the merger is to be taken; (2) not to vote his stock in favor of the merger, and (3) to make written demand for payment for his stock within 20 days after the recording of the merger agreement.

[32 Del.Ch. 489] Atlas resists the claim of appellant for an appraisal of and payment for his shares on the ground that he has not complied with the first step of the statutory requirements.

Appellant contends that both of two letters addressed to Darco are objections in writing within the meaning of the statute. These letters were received by the corporation prior to the meeting of stockholders called to vote upon the proposed merger.

The first letter is dated June 24, 1950, is signed by the appellant himself and, in effect, states that, having read in the newspapers of the proposed merger of Darco with Atlas, he desires further information, and further indicates that he considers the proposed merger unfair to the common stockholders of Darco. Vice Chancellor (now Chancellor) Seitz citing Wiswall v. General Water Works Corporation, Del.Ch., 66 A.2d 424, held that this letter was not an objection in writing within the meaning of Section 61.

The second letter is under date of July 13, 1950 and in form is an absolute objection

Page 125

In re Universal Pictures Co., 28 Del.Ch. 72 37 A.2d 615 Friedman v. Booth ...

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