concurring specially:
I concur. The holding and the opinion of the Court effectively reduce.a complicated series of business transactions to their critical elements. I wish, however, to place brief emphasis upon certain aspects of our decision.
It deserves emphasis that the only critical transaction in this case is the 1981 merger under which Teleprompter became the wholly owned subsidiary of Group W which in turn is a wholly owned subsidiary of Westinghouse. All of the relevant aspects of this entire corporate history of El Paso Cablevision Corp. and the controlling Paragraph 8 of its Stock Subscription Agreement are to be evaluated solely on the basis of that 1981 merger and the situation which prevailed when it took place.
It was at this time that Jack Kent Cooke for the first time sold out his large financial interest in Teleprompter. Plaintiffs claim, with some support in the record, that as Chairman of the Board of Teleprompter *136and its largest shareholder, Cooke could well have been in functioning control of Teleprompter, and in turn, therefore, of El Paso Cablevision. It was this event, then, that led the district court to conclude that something of legal significance had happened because Cooke, the original incorporator of El Paso Cablevision, for the first time bowed out of the picture of having a substantial interest in that corporation through ownership of shares in Teleprompter. Thus, while I agree with the conclusion of the Court, I do not agree that the district court was as overtly incorrect as the majority opinion tends to imply. The withdrawal of Jack Kent Cooke from serving, as a practical matter, as a significant influence on El Paso Cablevision from its inception until the sale of his shares in Teleprompter in 1981 raised critical questions to be resolved by the interpretation of the Paragraph 8 first refusal agreement.
The opinion of the Court speculates upon whether the 1969 transaction of Jack Kent Cooke’s transfer of his sixty-six shares of El Paso stock to Cooke Inc. was an exempt transfer or not. The opinion concludes that there was no clear error in the district court finding that this was an internal or exempt transaction under Paragraph 8.
I would not engage even in this much speculative evaluation. It is obvious that all of the parties treated the transaction as an internal transaction under Paragraph 8, and the corporation’s stock transfer records note that the transfer was one authorized by that paragraph without first refusal.
I would place full emphasis upon the fact that the Court in finding that the conclusion of the district court was not clearly erroneous settles once and for all any issue concerning the 1969 transaction. It was an exempt transaction under Paragraph 8. This, in turn, leads to the critical implications of the current status of the parties. I agree that the El Paso Cablevision’s stock has never been “sold or otherwise disposed of” within the meaning of Paragraph 8 of the Subscription Agreement since 1969, and that was an exempt transfer. The stock continued, therefore, as a block of stock never sold or otherwise transferred when the parent companies owning it engaged in corporate mergers three different times.
The final conclusion must be that after this decision the El Paso shares are still subject to Paragraph 8 of the Subscription Agreement. They may not be sold or otherwise transferred (converted into some other kind of shares or asset) by Teleprompter, the subsidiary of Group W, the subsidiary of. Westinghouse, without granting the first refusal rights to plaintiff stockholders. I would not concur in the holding of the Court if this continuing right were not recognized. To find that it has been lost, somehow, because Jack Kent Cooke sold his shares in Teleprompter in 1981 would be a conclusion that something had happened by way of sale or other disposition of the El Paso Cablevision shares at some time since 1969 which ended the first refusal restriction. Paragraph 8 contains no provision which would do this.
Appellant Teleprompter stresses strongly that the investment of the plaintiffs in El Paso Cablevision was very small, and it now is very valuable. The majority opinion makes some reference to this situation. I find it of no relevance at all unless we were engaging in an equitable balancing under a determination to pierce a corporate veil. We properly do not do so. We should not leave an implicit conclusion, however, that the plaintiffs are not entitled to any serious consideration of their legal rights because they invested so little in this company at the beginning. It is clear from this record that the major original investor in El Paso Cablevision, Jack Kent Cooke, realized a huge profit when Teleprompter bought him out. Teleprompter is hardly in a position to buy out Jack Kent Cooke, giving him the full return on his profitable investment in El Paso Cablevision, but then insist that the other stockholders are being unfair and unreasonable when they claim the full benefit of their investment, which included the right of first refusal of any non-exempt sale of El Paso Cablevision’s stock. That restriction properly continues. But with no sale or other disposition of the El Paso *137Cablevision shares having been shown to have taken place in 1981, the plaintiff stockholders had no right at that time to exercise first refusal rights under Paragraph 8 of the Stock Subscription Agreement.