Katzowitz v. Sidler,
Judges Burke, Scileppi, Bergan, Breitel and Jasen concur with Judge Keating; Chief Judge Fuld dissents and votes to affirm on the opinion at the Appellate Division.
Isador Katzowitz is a director and stockholder of a close corporation. Two other persons, Jacob Sidler and Max Lasker, own the remaining securities and, with Katzowitz, comprise Sulburn Holding Corp.'s board of directors. Sulburn was organized in 1955 to supply propane gas to three other corporations controlled by these men.*fn1 Sulburn's certificate of incorporation authorized it to issue 1,000 shares of no par value stock for which the incorporators established a $100 selling price. Katzowitz, Sidler and Lasker each invested $500 and received five shares of the corporation's stock.
The three men had been jointly engaged in several corporate ventures for more than 25 years. In this period they had always been equal partners and received identical compensation from the corporations they controlled. Though all the corporations controlled by these three men prospered, disenchantment with their inter-personal relationship flared into the open in 1956. At this time, Sidler and Lasker joined forces to oust Katzowitz from any role in managing the corporations. They first voted to replace Katzowitz as a director of Sullivan County Gas Company with the corporation's private counsel. Notice of directors' meetings was then caused to be sent out by Lasker and Sidler for Burnwell Gas Corporation. Sidler and Lasker advised Katzowitz that they intended to vote for a new board of directors. Katzowitz at this time held the position of manager of the Burnwell facility.
Katzowitz sought a temporary injunction to prevent the meeting until his rights could be judicially determined. A temporary injunction was granted to maintain the status quo until trial. The order was affirmed by the Appellate Division (Katzowitz v. Sidler, 8 A.D.2d 726).
Before the issue could be tried, the three men entered into a stipulation in 1959 whereby Katzowitz withdrew from active participation in the day-to-day operations of the business. The agreement provided that he would remain on the boards of all the corporations, and each board would be limited to three members composed of the three stockholders or their designees. Katzowitz was to receive the same compensation and other fringe benefits which the controlled corporations paid Lasker and Sidler. The stipulation also provided that Katzowitz, Sidler and Lasker were "equal stockholders and each of said parties now owns the same number of shares of stock in each of the defendant corporations and that such shares of stock shall continue to be in full force and effect and unaffected by this stipulation, except as hereby otherwise expressly provided." The stipulation contained no other provision affecting equal stock interests.
The business relationship established by the stipulation was fully complied with. Sidler and Lasker, however, were still interested in disassociating themselves from Katzowitz and purchased his interest in one of the gas distribution corporations and approached him with regard to the purchase of his interest in another. In December of 1961 Sulburn was indebted to each stockholder to the extent of $2,500 for fees and commissions earned up until September, 1961. Instead of paying this debt, Sidler and Lasker wanted Sulburn to loan the money to another corporation which all three men controlled. Sidler and Lasker called a meeting of the board of directors to propose that additional securities be offered at $100 per share to substitute for the money owed to the directors. The notice of meeting for October 30, 1961 had on its agenda "a proposition that the corporation issue common stock of its unissued common capital stock, the total par value which shall equal the total sum of the fees and commissions now owing by the corporation to its * * * directors ". (Emphasis added.) Katzowitz made it quite clear at the meeting that he would not invest any additional funds in Sulburn in order for it to make a loan to this other corporation. The only resolution passed at the meeting was that the corporation would pay the sum of $2,500 to each director.
With full knowledge that Katzowitz expected to be paid his fees and commissions and that he did not want to participate in any new stock issuance, the other two directors called a special meeting of the board on December 1, 1961. The only item on the agenda for this special meeting was the issuance of 75 shares of the corporation's common stock at $100 per share. The offer was to be made to stockholders in "accordance with their respective preemptive rights for the purpose of acquiring additional working capital". The amount to be raised was the exact amount owed by the corporation to its shareholders. The offering price for the securities was 1/18 the book value of the stock. Only Sidler and Lasker attended the special board meeting. They approved the issuance of the 75 shares.
Notice was mailed to each stockholder that they had the right to purchase 25 shares of the corporation's stock at $100 a share. The offer was to expire on December 27, 1961. Failure to act by that date was stated to constitute a waiver. At about the same time Katzowitz received the notice, he received a check for $2,500 from the corporation for his fees and commissions. Katzowitz did not exercise his option to buy the additional shares. Sidler and Lasker purchased their full complement, 25 shares each. This purchase by Sidler and Lasker caused an immediate dilution of the book value of the outstanding securities.
On August 25, 1962 the principal asset of Sulburn, a tractor trailer truck, was destroyed. On August 31, 1962 the directors unanimously voted to dissolve the corporation. Upon dissolution, Sidler and Lasker each received $18,885.52 but Katzowitz only received $3,147.59
The plaintiff instituted a declaratory judgment action to establish his right to the proportional interest in the assets of Sulburn in liquidation less the $5,000 which Sidler and Lasker used to purchase their shares in December, 1961.
Special Term (Westchester County) found the book value of the corporation's securities on the day the stock was offered at $100 to be worth $1,800. The court also found that "the individual defendants * * * decided that in lieu of taking that sum in cash [the commissions and fees due the stockholders], they preferred to add to their investment by having the corporate defendant make available and offer each stockholder an additional twenty-five shares of unissued stock." The court reasoned that Katzowitz waived his right to purchase the stock or object to its sale to Lasker and Sidler by failing to exercise his pre-emptive right and found his protest at the time of dissolution untimely.
The Appellate Division (Second Department), two Justices dissenting, modified the order of Special Term. The modification was procedural. The decretal paragraph in Special Term's order was corrected by reinstating the complaint and substituting a statement of the parties' rights. On the substantive legal issues and findings of fact, the Appellate Division was in agreement with Special Term. The majority agreed that the book value of the corporation's stock at the time of the stock offering was $1,800. The Appellate Division reasoned, however, that showing a disparity between book value and offering price was insufficient without also showing fraud or overreaching. Disparity in price by itself was not enough to prove fraud. The Appellate Division also found that the plaintiff had waived his right to object to his recovery in dissolution by failing to either exercise his pre-emptive rights or take steps to prevent the sale of the stock. The concept of pre-emptive rights was fashioned by the judiciary to safeguard two distinct interests of stockholders -- the right to protection against dilution of their equity in the corporation and protection against dilution of their proportionate voting control. (Ballantine, Corporations [rev. ed., 1946], § 209.) After early decisions ((Gray v. Portland Bank, 3 Mass. 364; Stokes v. Continental Trust Co., 186 N. Y. 285), legislation fixed the right enunciated with respect to proportionate voting but left to the judiciary the role of protecting existing shareholders from the dilution of their equity (e.g., Stock Corporation Law, § 39, now Business Corporation Law, § 622; see Drinker, The Preemptive Right of Shareholders to Subscribe to New Shares, 43 Harv. L. Rev. 586; Frey, Shareholders' Pre-emptive Rights, 38 Yale L. J. 563).
It is clear that directors of a corporation have no discretion in the choice of those to whom the earnings and assets of the corporation should be distributed. Directors, being fiduciaries of the corporation, must, in issuing new stock, treat existing shareholders fairly. (Dunlay v. Avenue M Garage & Repair Co., 253 N. Y. 274, 278-280; Albrecht, Maguire & Co. v. General Plastics, 256 App. Div. 134, affd. 280 N. Y. 840; Hammer v. Werner, 239 App. Div. 38, 42.) Though there is very little statutory control over the price which a corporation must receive for new shares (Stock Corporation Law, §§ 12, 27, 69, 74; Business Corporation Law, § 504) the power to determine price much be exercised for the benefit of the corporation and in the interest of all the stockholders (see, e.g., Bodell v. General Gas & Elec. Corp., 15 Del. Ch. 119, affd. 15 Del. Ch. 420; Minn. Stat., § 301.16 ).
Issuing stock for less than fair value can injure existing shareholders by diluting their interest in the corporation's surplus, in current and future earnings and in the assets upon liquidation. Normally, a stockholder is protected from the loss of his equity from dilution, even though the stock is being offered at less than fair value, because the shareholder receives rights which he may either exercise or sell. If he exercises, he has protected his interest and, if not, he can sell the rights, thereby compensating himself for the dilution of his remaining ...