Isaac D. Short

“ Plaintiff contends that the transaction, though in form a sale of assets of Arco, is in substance and effect a merger, and that it is unlawful because the merger statute has not been complied with, thereby depriving plaintiff of his right of appraisal. ”

“ At common law a single dissenting stockholder could also prevent a sale of all of the assets of a corporation. 18 C.J.S.C.orporations § 515, p. 1194. The Legislatures of many states have seen fit to grant the appraisal right to a dissenting stockholder not only under the merger statutes but as well under the sale of assets statutes. Our Legislature has seen fit to expressly grant the appraisal right only under the merger statutes. ”

“ By the same token, Arco continued in existence as a corporate entity following the exchange of securities for its assets. The fact that it continued corporate existence only for the purpose of winding up its affairs by the distribution of Loral stock is, in my mind, of little consequence. The argument underlying the applicability of the doctrine of de facto merger, namely, that the stockholder is forced against his will to accept a new investment in an enterprise foreign to that of which he was a part has little pertinency. ”