§248. Rights of a shareholder dissenting from certain corporate actions
A. Except as provided in Subsection B of this Section, if a corporation
having only shareholding members has, by vote of its shareholders, authorized
a sale, lease, or exchange of all of its assets, or has, in accordance with the
provisions of R.S. 12:243, become a party to a merger or consolidation, then,
unless such authorization or action shall have been given or approved by at
least two-thirds of the total voting power, a shareholder who voted against
such corporate action shall have the right to dissent. If a corporation has
become a party to a merger pursuant to R.S. 12:243(7), the shareholders of any
subsidiary corporations party to the merger shall have the right to dissent
without regard to the proportion of the voting power which approved the
merger.
B. The right to dissent provided by this Section shall not exist in the
case of:
(1) Shareholders of a parent merged with one or more subsidiaries
pursuant to R.S. 12:243(7).
(2) A sale pursuant to an order of a court having jurisdiction in the
premises.
(3) A sale for cash on terms requiring distribution of all or substantially
all of the net proceeds to the shareholders in accordance with their respective
interests within one year after the date of the sale.
C. Except as provided in the last sentence of this Subsection, any
shareholder electing to exercise such right of dissent shall file with the
corporation, prior to, or at, the meeting of shareholders at which such proposed
corporate action is submitted to a vote, a written objection to such proposed
corporate action and shall vote his shares against such action. If such proposed
corporate action be taken by the required vote, but by less than two-thirds of
the total voting power, and the merger, consolidation, or sale, lease, or
exchange of assets authorized thereby be effected, the corporation shall
promptly thereafter give written notice thereof, by registered mail, to each
shareholder who filed such written objection to, and voted his shares against,
such action, at such shareholder's last address on the corporation's records.
Each such shareholder may, within twenty days after the mailing of such notice
to him, but not thereafter, file with the corporation a demand in writing for the
fair cash value of his shares as of the day before such vote was taken; provided
that he state in such demand the value demanded, and a post office address to
which the reply of the corporation may be sent, and at the same time deposit
in escrow in a chartered bank or trust company located in the parish of the
registered office of the corporation, the certificates representing his shares,
duly endorsed and transferred to the corporation upon the sole condition that
said certificates shall be delivered to the corporation upon payment of the
value of the shares determined in accordance with the provisions of this
Section. With his demand, the shareholder shall deliver to the corporation the
written acknowledgment of such bank or trust company that it so holds his
certificates of stock. Unless the objection, demand, and acknowledgment
aforesaid be made and delivered by the shareholder within the period above
limited, he shall conclusively be presumed to have acquiesced in the corporate
action proposed or taken. In the case of a merger pursuant to R.S. 12:243(7),
the dissenting shareholder need not file an objection with the corporation nor
vote against the merger, but need only file with the corporation, within twenty
days after a copy of the merger certificate was mailed to him, a demand in
writing for the cash value of his shares as of the day before the certificate was
filed with the secretary of state, state in such demand the value demanded and
a post office address to which the corporation's reply may be sent, deposit the
certificates representing his shares in escrow as hereinabove provided, and
deliver to the corporation with his demand the acknowledgment of the escrow
bank or trust company as hereinabove prescribed.
D. If the corporation does not agree to the value so stated and
demanded, or does not agree that a payment is due, it shall, within twenty days
after receipt of such demand and acknowledgment, notify in writing the
shareholder, at the designated post office address, of its disagreement, and
shall state in such notice the value it will agree to pay if any payment should
be held to be due; otherwise it shall be liable for, and shall pay to the
dissatisfied shareholder, the value demanded by him for his shares.
E. In case of disagreement as to such fair cash value, or as to whether
any payment is due, after compliance by the parties with the provisions of
Subsections C and D of this Section, the dissatisfied shareholder, within sixty
days after receipt of notice in writing of the corporation's disagreement, but not
thereafter, may file suit against the corporation, or the merged or consolidated
corporation, as the case may be, in the district court of the parish in which the
corporation or the merged or consolidated corporation, as the case may be, has
its registered office, praying the court to fix and decree the fair cash value of
the dissatisfied shareholder's shares as of the day before such corporate action
complained of was taken, and the court shall, on such evidence as may be
adduced in relation thereto, determine summarily whether any payment is due,
and, if so, such cash value, and render judgment accordingly. Any shareholder
entitled to file such suit may, within such sixty-day period but not thereafter,
intervene as a plaintiff in such suit filed by another shareholder, and recover
therein judgment against the corporation for the fair cash value of his shares.
No order or decree shall be made by the court staying the proposed corporate
action, and any such corporate action may be carried to completion
notwithstanding any such suit. Failure of the shareholder to bring suit, or to
intervene in such a suit, within sixty days after receipt of notice of
disagreement by the corporation shall conclusively bind the shareholder (1) by
the corporation's statement that no payment is due, or (2) if the corporation
does not contend that no payment is due, to accept the value of his shares as
fixed by the corporation in its notice of disagreement.
F. When the fair value of the shares has been agreed upon between the
shareholder and the corporation, or when the corporation has become liable for
the value demanded by the shareholder because of failure to give notice of
disagreement and of the value it will pay, or when the shareholder has become
bound to accept the value the corporation agrees is due because of his failure
to bring suit within sixty days after receipt of notice of the corporation's
disagreement, the action of the shareholder to recover such value must be
brought within five years from the date the value was agreed upon, or the
liability of the corporation became fixed.
G. If the corporation or the merged or consolidated corporation, as the
case may be, shall, in its notice of disagreement, have offered to pay to the
dissatisfied shareholder on demand an amount in cash deemed by it to be the
fair cash value of his shares, and if, on the institution of a suit by the
dissatisfied shareholder claiming an amount in excess of the amount so
offered, the corporation, or the merged or consolidated corporation, as the case
may be, shall deposit in the registry of the court, there to remain until the final
determination of the cause, the amount so offered, then, if the amount finally
awarded such shareholder, exclusive of interest and costs, be more than the
amount offered and deposited as aforesaid, the costs of the proceeding shall be
taxed against the corporation, or the merged or consolidated corporation, as the
case may be; otherwise the costs of the proceeding shall be taxed against such
shareholders.
H. Upon filing a demand for the value of his shares, the shareholder
shall cease to have any of the rights of a shareholder except the rights accorded
by this Section. Such a demand may be withdrawn by the shareholder at any
time before the corporation gives notice of disagreement, as provided in
Subsection D of this Section. After such notice of disagreement is given,
withdrawal of a notice of election shall require the written consent of the
corporation. If a notice of election is withdrawn, or the proposed corporate
action is abandoned or rescinded, or a court shall determine that the
shareholder is not entitled to receive payment for his shares, or the shareholder
shall otherwise lose his dissenter's rights, he shall not have the right to receive
payment for his shares, his share certificates shall be returned to him (and, on
his request, new certificates shall be issued to him in exchange for the old ones
endorsed to the corporation), and he shall be reinstated to all his rights as a
shareholder as of the filing of his demand for value, including any intervening
preemptive rights, and the right to payment of any intervening dividend or
other distribution, or, if any such rights have expired or any such dividend or
distribution other than in cash has been completed, in lieu thereof, at the
election of the corporation, the fair value thereof in cash as determined by the
board as of the time of such expiration or completion, but without prejudice
otherwise to any corporate proceedings that may have been taken in the
interim.