Sec. 33-856. Right to appraisal.
Sec. 33-856. Right to appraisal. (a) A shareholder is entitled to appraisal rights,
and to obtain payment of the fair value of that shareholder's shares, in the event of any
of the following corporate actions:
(1) Consummation of a merger to which the corporation is a party (A) if shareholder
approval is required for the merger by section 33-817 and the shareholder is entitled to
vote on the merger, except that appraisal rights shall not be available to any shareholder
of the corporation with respect to shares of any class or series that remain outstanding
after consummation of the merger, or (B) if the corporation is a subsidiary and the merger
is governed by section 33-818;
(2) Consummation of a share exchange to which the corporation is a party as the
corporation whose shares will be acquired, if the shareholder is entitled to vote on the
exchange, except that appraisal rights shall not be available to any shareholder of the
corporation with respect to any class or series of shares of the corporation that is not
exchanged;
(3) Consummation of a disposition of assets pursuant to section 33-831 if the shareholder is entitled to vote on the disposition;
(4) An amendment of the certificate of incorporation with respect to a class or series
of shares that reduces the number of shares of a class or series owned by the shareholder
to a fraction of a share if the corporation has the obligation or right to repurchase the
fractional share so created; or
(5) Any other merger, share exchange, disposition of assets or amendment to the
certificate of incorporation to the extent provided by the certificate of incorporation,
the bylaws or a resolution of the board of directors.
(b) Notwithstanding subsection (a) of this section, the availability of appraisal rights
under subdivisions (1), (2), (3) and (4) of subsection (a) of this section shall be limited
in accordance with the following provisions:
(1) Appraisal rights shall not be available for the holders of shares of any class or
series of shares which is: (A) Listed on the New York Stock Exchange or the American
Stock Exchange or designated as a National Market System security on an interdealer
quotation system by the National Association of Securities Dealers, Inc.; or (B) not so
listed or designated but has at least two thousand shareholders and the outstanding shares
of such class or series has a market value of at least twenty million dollars, exclusive
of the value of such shares held by its subsidiaries, senior executives, directors and
beneficial shareholders owning more than ten per cent of such shares.
(2) The applicability of subdivision (1) of this subsection shall be determined as
of: (A) The record date fixed to determine the shareholders entitled to receive notice
of, and to vote at, the meeting of shareholders to act upon the corporate action requiring
appraisal rights; or (B) the day before the effective date of such corporate action if there
is no meeting of shareholders.
(3) Subdivision (1) of this subsection shall not be applicable and appraisal rights
shall be available pursuant to subsection (a) of this section for the holders of any class
or series of shares who are required by the terms of the corporate action requiring appraisal rights to accept for such shares anything other than cash or shares of any class
or any series of shares of any corporation, or any other proprietary interest of any other
entity, that satisfies the standards set forth in subdivision (1) of this subsection at the
time the corporate action becomes effective.
(4) Subdivision (1) of this subsection shall not be applicable and appraisal rights
shall be available pursuant to subsection (a) of this section for the holders of any class
or series of shares where:
(A) Any of the shares or assets of the corporation are being acquired or converted,
whether by merger, share exchange or otherwise, pursuant to the corporate action by a
person, or by an affiliate of a person, who:
(i) Is, or at any time in the one-year period immediately preceding approval by the
board of directors of the corporate action requiring appraisal rights was, the beneficial
owner of twenty per cent or more of the voting power of the corporation, excluding any
shares acquired pursuant to an offer for all shares having voting power if such offer
was made within one year prior to the corporate action requiring appraisal rights for
consideration of the same kind and of a value equal to or less than that paid in connection
with the corporate action; or
(ii) Directly or indirectly has, or at any time in the one-year period immediately
preceding approval by the board of directors of the corporate action requiring appraisal
rights had, the power, contractually or otherwise, to cause the appointment or election
of twenty-five per cent or more of the directors to the board of directors of the corporation; or
(B) Any of the shares or assets of the corporation are being acquired or converted,
whether by merger, share exchange or otherwise, pursuant to such corporate action by
a person, or by an affiliate of a person, who is, or at any time in the one-year period
immediately preceding approval by the board of directors of the corporate action requiring appraisal rights was, a senior executive or director of the corporation or a senior
executive of any affiliate thereof, and that senior executive or director will receive,
as a result of the corporate action, a financial benefit not generally available to other
shareholders as such, other than:
(i) Employment, consulting, retirement or similar benefits established separately
and not as part of or in contemplation of the corporate action; or
(ii) Employment, consulting, retirement or similar benefits established in contemplation of, or as part of, the corporate action that are not more favorable than those
existing before the corporate action or, if more favorable, that have been approved on
behalf of the corporation in the same manner as is provided in section 33-783; or
(iii) In the case of a director of the corporation who will, in the corporate action,
become a director of the acquiring entity in the corporate action or one of its affiliates,
rights and benefits as a director that are provided on the same basis as those afforded
by the acquiring entity generally to other directors of such entity or such affiliate.
(5) For the purposes of subdivision (4) of this subsection, "beneficial owner" means
any person who, directly or indirectly, through any contract, arrangement or understanding, other than a revocable proxy, has or shares the power to vote, or to direct the voting
of, shares, provided a member of a National Securities Exchange shall not be deemed
to be a beneficial owner of securities held directly or indirectly by it on behalf of another
person solely because such member is the record holder of such securities if the member
is precluded by the rules of such exchange from voting without instruction on contested
matters or matters that may affect substantially the rights or privileges of the holders of
the securities to be voted. When two or more persons agree to act together for the purpose
of voting their shares of the corporation, each member of the group formed thereby shall
be deemed to have acquired beneficial ownership, as of the date of such agreement, of
all voting shares of the corporation beneficially owned by any member of the group.
(c) Notwithstanding any other provision of this section, the certificate of incorporation as originally filed or any amendment thereto may limit or eliminate appraisal rights
for any class or series of preferred shares, but any such limitation or elimination contained in an amendment to the certificate of incorporation that limits or eliminates appraisal rights for any of such shares that are outstanding immediately prior to the effective
date of such amendment or that the corporation is or may be required to issue or sell
thereafter pursuant to any conversion, exchange or other right existing immediately
before the effective date of such amendment shall not apply to any corporate action that
becomes effective within one year of that date if such action would otherwise afford
appraisal rights.
(d) Where the right to be paid the value of shares is made available to a shareholder
by this section, such remedy shall be the exclusive remedy as holder of such shares
against the corporate transactions described in this section, whether or not the shareholder proceeds as provided in sections 33-855 to 33-872, inclusive.
(P.A. 94-186, S. 148, 215; P.A. 96-271, S. 111, 254; P.A. 01-199, S. 16.)
History: P.A. 94-186 effective January 1, 1997; P.A. 96-271 replaced "articles" of incorporation with "certificate" of
incorporation where appearing, effective January 1, 1997; P.A. 01-199 substantially revised section including amending
Subsec. (a) to provide that a shareholder is entitled to "appraisal rights" in the event of certain corporate action rather than
to "dissent from" such action, revising Subdivs. (1) to (5), inclusive, of Subsec. (a) re transactions which afford appraisal
rights, adding new Subsec. (b) re market exception to the availability of appraisal rights and the availability of appraisal
rights in conflict transactions, adding new Subsec. (c) re limitation or elimination of appraisal rights for preferred shares,
redesignating former Subsec. (b) as Subsec. (d) and making technical changes throughout section for purposes of gender
neutrality.
Annotations to former section 33-19:
Cited. 116 C. 628. Cited. 123 C. 640. Minority stockholder cannot prevent sale of nonessential assets. 131 C. 25.
Annotations to former section 33-373:
Cited. 178 C. 262.
Cited. 44 CS 12.
Subsec. (f):
Cited. 220 C. 721.