§ 47-33-15 — Written demand for fair value of shares--Remittance by acquiring person--Court settlement after sixty days--Court procedure--Costs.

South Dakota § 47-33-15

• Jurisdiction: South Dakota
• Title 47: CORPORATIONS
• Ch. 47-33: SOUTH DAKOTA DOMESTIC PUBLIC CORPORATION TAKEOVER ACT

Text

(1) Any shareholder of the domestic public corporation who receives the notice required by § 47-33-14 and who is entitled to and desires to receive fair value for his shares from the acquiring person, may make written demand on the acquiring person for payment of the fair value of his shares. The written demand shall be sent by the shareholder to the acquiring person to the address and within the time period specified in the notice. The demand of the shareholder shall state the number and class or series, if any, of the shares owned by him with respect to which the demand is made and shall also state the amount the shareholder is willing to accept in payment for those shares from the acquiring person. Any shareholder who does not make such written demand within such time period shall have no further right to receive payment from the acquiring person required by § 47-33-14 for the shares owned by him with respect to which no written demand was made. (2) Immediately upon receipt of a demand for payment from a shareholder pursuant to this section, the acquiring person shall remit to the shareholder either the amount demanded by the shareholder or the amount offered by the acquiring person in the notice required by § 47-33-14 , together with interest to the date of payment. If the remittance made by the acquiring person is less than the amount demanded by the shareholder, the remittance shall be accompanied by a notice from the acquiring person of the shareholder's right to demand supplemental payment, accompanied by copies of this section and § 47-33-14 . Upon receipt of the remittance from the acquiring person pursuant to this subsection, the shareholder shall immediately transmit to the acquiring person the certificates for the certificated shares with respect to which the payment was made, duly endorsed for transfer to the acquiring person, and shall execute such documents provided by the acquiring person as are reasonably necessary to transfer any uncertificated shares to the acquiring person. Prior to receipt of the remittance from the acquiring person pursuant to this subsection, the shareholder shall retain the right to vote those shares and receive dividends and other distributions thereon and, thereafter, the acquiring person shall be entitled to vote such shares and receive dividends and other distributions thereon. The fair value of the dividends and other distributions received by the shareholder subsequent to the date the control shares were accorded voting rights pursuant to § 47-33-12 shall be subtracted from any amount owing to the shareholder by the acquiring person under § 47-33-14 . (3) If within sixty days after the acquiring person gives the notice pursuant to § 47-33-14 , any of the demands for payment made by shareholders pursuant to subdivision (1) remain unsettled, the acquiring person shall file an action in the circuit court of the county of this state where the registered office of the domestic public corporation is located requesting that the fair value of such shares be determined by the court. All shareholders, wherever residing, whose demands have not been settled, shall be made parties to the proceeding. A copy of the petition shall be served on each such shareholder. The jurisdiction of the court shall be plenary and exclusive. (4) The court may appoint one or more persons as appraisers to receive evidence and recommend a decision on the question of fair value of the shares. The appraiser shall have such power and authority as shall be specified in the order of their appointment or in any amendment thereof. The parties to the proceeding shall be entitled to discovery in the same manner as in other civil actions. All shareholders who are made parties to such action shall be entitled, after a hearing without a jury, to judgment against the acquiring person for the amount by which the fair value of their shares is found to exceed the amount previously remitted by the acquiring person to the shareholder, with interest. If the acquiring shareholder fails to file an action as provided in this section, each shareholder who has made a timely demand and who has not already settled his claim against the acquiring person shall be paid by the acquiring person the amount demanded by the shareholder pursuant to subdivision (1), with interest, and may sue therefor in an appropriate court. (5) The costs and expenses of any action under this section, including the reasonable compensation and expense of appraisers appointed by the court, shall be determined by the court and assessed against the acquiring person, except that any part of the costs and expenses may be apportioned and assessed as the court considers equitable against some or all of the shareholders who are parties and whose demand for payment in excess of the amount remitted by the acquiring person the court finds to be arbitrary, vexatious or not in good faith. Fees and expenses of counsel and of experts for the parties to the proceeding may be assessed as the court considers equitable against the acquiring person and in favor of any or all shareholders who are parties to the action if the acquiring person fails to comply substantially with the requirements of this section, and may be assessed against either the acquiring person or a shareholder in favor of any other party, if the court finds that the party against whom the fees and expenses are assessed acted arbitrarily, vexatiously, or not in good faith with respect to the rights provided by this section and § 47-33-14 . If the court finds that services of counsel for any shareholder were of substantial benefit to other shareholders similarly situated and should not be assessed against the acquiring person, it may award such counsel reasonable fees to be paid out of the amount awarded to the other shareholders who were benefited. (6) Upon full payment by the acquiring person of all amounts required by this section, the shareholder shall cease to have any interest in the shares purchased by the acquiring person under this section.

Legislative History

SL 1990, ch 369, § 208.