7-1.2-1202. Rights of dissenting shareholders.
(a) Any shareholder electing to exercise the right of dissent shall file with the corporation,
prior to or at the meeting of shareholders at which the proposed corporate action
is submitted to a vote, a written objection to the proposed corporate action. If the
proposed corporate action is approved by the required vote and the shareholder has
not voted in favor of it, the shareholder may, within ten (10) days after the date
on which the vote was taken, or if a corporation is to be merged without a vote of
its shareholders into another corporation, any of its shareholders may, within fifteen
(15) days after the plan of the merger has been mailed to the shareholders, make written
demand on the corporation, or, in the case of a merger, on the surviving or new corporation,
domestic or foreign, for payment of the fair value of the shareholder’s shares. If
the proposed corporate action is effected, the corporation shall pay to the shareholder,
upon surrender of the certificate or certificates representing the shares, the fair
value of the shares as of the day prior to the date on which the vote was taken approving
the proposed corporate action, excluding any appreciation or depreciation in anticipation
of the corporate action. Any shareholder failing to make demand within the ten (10)
day period or the fifteen (15) day period, as the case may be, is bound by the terms
of the proposed corporate action. Any shareholder making the demand is thereafter
only entitled to payment as provided in this section and is not entitled to vote or
to exercise any other rights of a shareholder.
(b) No demand may be withdrawn unless the corporation consents to it. If, however, the
demand is withdrawn upon consent, or if the proposed corporate action is abandoned
or rescinded or the shareholders revoke the authority to effect the action, or if,
in the case of a merger, on the date of the filing of the articles of merger the surviving
corporation is the owner of all the outstanding shares of the other corporations,
domestic and foreign, that are parties to the merger, or if no demand or petition
for the determination of fair value by a court has been made or filed within the time
provided in this section, or if a court of competent jurisdiction determines that
the shareholder is not entitled to the relief provided by this section, then the right
of the shareholder to be paid the fair value of his or her shares ceases and his status
as a shareholder is restored, without prejudice to any corporate proceedings taken
during the interim.
(c) Within ten (10) days after the corporate action is effected, the corporation, or,
in the case of a merger, the surviving or new corporation, domestic or foreign, shall
give written notice of the action to each dissenting shareholder who has made demand
as provided in these provisions, and shall make a written offer to each dissenting
shareholder to pay for the shares at a specified price deemed by the corporation to
be the fair value of the shares. The notice and offer must be accompanied by a balance
sheet of the corporation the shares of which the dissenting shareholder holds, as
of the latest available date and not more than twelve (12) months prior to the making
of the offer, and a profit and loss statement of the corporation for the twelve (12)
month period ended on the date of the balance sheet.
(d) If within thirty (30) days after the date on which the corporate action was effected
the fair value of the shares is agreed upon between any dissenting shareholder and
the corporation, payment for the shares must be made within ninety (90) days after
the date on which the corporate action was effected, upon surrender of the certificate
or certificates representing the shares. Upon payment of the agreed value, the dissenting
shareholder ceases to have any interest in the shares.
(e) If within the period of thirty (30) days a dissenting shareholder and the corporation
do not agree on the matter, then the corporation, within thirty (30) days after receipt
of written request for the filing from any dissenting shareholder given within sixty
(60) days after the date on which the corporate action was effected, shall, or at
its election at any time within the period of sixty (60) days may, file a petition
in any court of competent jurisdiction in the county in this state where the registered
office of the corporation is located praying that the fair value of the shares is
found and determined. If, in the case of a merger, the surviving or new corporation
is a foreign corporation without a registered office in this state, the petition must
be filed in the county where the registered office of the domestic corporation was
last located. If the corporation fails to institute the proceeding as provided, any
dissenting shareholder may do so in the name of the corporation. All dissenting shareholders,
wherever they reside, must be made parties to the proceeding as an action against
their shares quasi in rem. A copy of the petition must be served on each dissenting
shareholder who is a resident of this state and served by registered or certified
mail on each dissenting shareholder who is a nonresident. Service on nonresidents
may also be made by publication as provided by law. The jurisdiction of the court
is plenary and exclusive. All shareholders who are parties to the proceeding are entitled
to judgment against the corporation for the amount of the fair value of their shares.
The court may, if it so elects, appoint one or more persons as appraisers to receive
evidence and recommend a decision on the question of fair value. The appraisers have
the power and authority that is specified in the order of their appointment or an
amendment of the order. The judgment is payable only upon and concurrently with the
surrender to the corporation of the certificate or certificates representing the shares.
Upon payment of the judgment, the dissenting shareholder ceases to have any interest
in the shares.
(f) The judgment should include an allowance for interest at the rate of interest on judgments
in civil actions from the date on which the vote was taken on the proposed corporate
action to the date of payment.
(g) The court shall determine and assess the costs and expenses of any proceeding against
the corporation, but all or any part of the costs and expenses may be apportioned
and assessed as the court deems equitable against any or all of the dissenting shareholders
who are parties to the proceeding to whom the corporation has made an offer to pay
for the shares if the court finds that the action of the shareholders in failing to
accept the offer was arbitrary or vexatious or not in good faith. The expenses include
reasonable compensation for and reasonable expenses of the appraisers, but exclude
the fees and expenses of counsel for and experts employed by any party; but if the
fair value of the shares as determined materially exceeds the amount which the corporation
offered to pay for the shares, or if no offer was made, the court in its discretion
may award to any shareholder who is a party to the proceeding a sum that the court
determines to be reasonable compensation to any expert or experts employed by the
shareholder in the proceeding.
(h) Within twenty (20) days after demanding payment for his or her shares, each shareholder
demanding payment shall submit the certificate or certificates representing his or
her shares to the corporation for notation on the certificate that the demand has
been made. His or her failure to do so may, at the option of the corporation, terminate
his or her rights under this section unless a court of competent jurisdiction, for
good and sufficient cause shown, directs otherwise. If shares represented by a certificate
on which notation has been made are transferred, each new certificate issued for the
shares must bear similar notation, together with the name of the original dissenting
holder of the shares, and a transferee of the shares acquires by the transfer no rights
in the corporation other than those which the original dissenting shareholder had
after making demand for payment of the fair value of the shares.
(i) Shares acquired by a corporation pursuant to payment of the agreed value for the shares
or to payment of the judgment entered for the shares, as provided in this section,
may be held and disposed of by the corporation. However, in the case of a merger,
they may be held and disposed of as the plan of merger otherwise provides.
P.L. 2004, ch. 216, § 2; P.L. 2004, ch. 274, § 2; P.L. 2005, ch. 120, § 1; P.L. 2005,
ch. 130, § 1.
