351.455. Shareholder entitled to appraisal and payment of fair value, when--remedy exclusive, when.
Shareholder entitled to appraisal and payment of fair value,when--remedy exclusive, when.
351.455. 1. Any shareholder shall be deemed a dissenting shareholderand entitled to appraisal under this section if such shareholder:
(1) Owns stock of a corporation which is a party to a merger orconsolidation as of the record date for the meeting of shareholders atwhich the plan of merger or consolidation is submitted to a vote;
(2) Files with the corporation before or at such meeting a writtenobjection to such plan of merger or consolidation;
(3) Does not vote in favor thereof if the shareholder owns votingstock as of such record date; and
(4) Makes written demand on the surviving or new corporation withintwenty days after the merger or consolidation is effected for payment ofthe fair value of such shareholder's shares as of the day before the dateon which the vote was taken approving the merger or consolidation.
2. The surviving or new corporation shall pay to each such dissentingshareholder, upon surrender of his or her certificate or certificatesrepresenting said shares in the case of certificated shares, the fair valuethereof. Such demand shall state the number and class of the shares ownedby such dissenting shareholder. Any shareholder who:
(1) Fails to file a written objection prior to or at such meeting;
(2) Fails to make demand within the twenty-day period; or
(3) In the case of a shareholder owning voting stock as of suchrecord date, votes in favor of the merger or consolidation;
shall be conclusively presumed to have consented to the merger orconsolidation and shall be bound by the terms thereof and shall not bedeemed to be a dissenting shareholder.
3. Notwithstanding the provisions of subsection 1 of section 351.230,notice under the provisions of subsection 1 of section 351.230 stating thepurpose for which the meeting is called shall be given to each shareholderowning stock as of the record date for the meeting of shareholders at whichthe plan of merger or consolidation is submitted to a vote, whether or notsuch shareholder is entitled to vote.
4. If within thirty days after the date on which such merger orconsolidation was effected the value of such shares is agreed upon betweenthe dissenting shareholder and the surviving or new corporation, paymenttherefor shall be made within ninety days after the date on which suchmerger or consolidation was effected, upon the surrender of his or hercertificate or certificates representing said shares in the case ofcertificated shares. Upon payment of the agreed value the dissentingshareholder shall cease to have any interest in such shares or in thecorporation.
5. If within such period of thirty days the shareholder and thesurviving or new corporation do not so agree, then the dissentingshareholder may, within sixty days after the expiration of the thirty-dayperiod, file a petition in any court of competent jurisdiction within thecounty in which the registered office of the surviving or new corporationis situated, asking for a finding and determination of the fair value ofsuch shares, and shall be entitled to judgment against the surviving or newcorporation for the amount of such fair value as of the day prior to thedate on which such vote was taken approving such merger or consolidation,together with interest thereon to the date of such judgment. The judgmentshall be payable only upon and simultaneously with the surrender to thesurviving or new corporation of the certificate or certificatesrepresenting said shares in the case of certificated shares. Upon thepayment of the judgment, the dissenting shareholder shall cease to have anyinterest in such shares, or in the surviving or new corporation. Suchshares may be held and disposed of by the surviving or new corporation asit may see fit. Unless the dissenting shareholder shall file such petitionwithin the time herein limited, such shareholder and all persons claimingunder such shareholder shall be conclusively presumed to have approved andratified the merger or consolidation, and shall be bound by the termsthereof.
6. The right of a dissenting shareholder to be paid the fair value ofsuch shareholder's shares as herein provided shall cease if and when thecorporation shall abandon the merger or consolidation.
7. When the remedy provided for in this section is available withrespect to a transaction, such remedy shall be the exclusive remedy of theshareholder as to that transaction, except in the case of fraud or lack ofauthorization for the transaction.
(L. 1943 p. 410 § 71, A.L. 2003 S.B. 394, A.L. 2006 H.B. 1715)(2001) In dissenting shareholders' appraisal proceeding, proper valuation of minority stock calculates value of corporation as a whole and awards pro-rata share to dissenting shareholders; applications of a minority discount and a discount for lack of marketability are inappropriate. Swope v. Siegel-Robert, Inc., 243 F.3d 486 (8th Cir.).