§ 23-48-506 - Dissenting stockholders.
23-48-506. Dissenting stockholders.
(a) For purposes of this section, with respect to a state bank:
(1) "Corporate action" means:
(A) Consummation of a merger to which the state bank is a party;
(B) Consummation of a sale or transfer of over fifty percent (50%) of the state bank's assets to another depository institution; or
(C) Consummation of a sale or transfer of over fifty percent (50%) of the state bank's liabilities to another depository institution; and
(2) "Selling bank" means a state bank selling or transferring over fifty percent (50%) of its assets or over fifty percent (50%) of its liabilities to another depository institution.
(b) (1) The owner of shares of a state bank which were not voted for a corporate action, and who has given notice in writing to the state bank at or prior to the meeting of the stockholders approving the corporate action, that he dissents from the corporate action shall be entitled to receive in cash the value of the shares held by him, if the dissenting stockholder has delivered a written demand for payment to the resulting bank at any time within ten (10) days after the date on which the stockholders' meeting authorizing the corporate action was concluded.
(2) This written demand for payment shall state the number and the class of shares owned by the dissenting stockholder. Any dissenting stockholder failing to make the demand shall be bound by the terms of the purchase or assumption, or merger.
(3) (A) The resulting bank shall fix an amount, which it considers to be not more than the fair market value of the shares of the merging, resulting, or selling bank as of the date on which the stockholders' meeting authorizing the corporate action was concluded, which it will offer to pay dissenting stockholders entitled to payment in cash.
(B) Upon receipt from a dissenting stockholder of a written demand for payment in cash of the fair value of his shares, the resulting bank shall give the dissenting stockholder notice of the amount it will pay for dissenting shares within twenty (20) days after the date on which the stockholders' meeting authorizing the corporate action was concluded.
(4) Any dissenting stockholder may agree to accept the amount in lieu of pursuing the appraisal remedy set forth in subdivision (c)(1) of this section by delivering a written acceptance of the offer to the resulting bank within thirty (30) days after the date on which the stockholders' meeting authorizing the corporate action was concluded.
(c) (1) The value of shares held by dissenting stockholders entitled to receive in cash the value of the shares held by them, who do not accept the offer of the resulting bank within the thirty-day period set forth in subdivision (b)(4) of this section, shall be determined as of the date on which the stockholders' meeting authorizing the corporate action was concluded by three (3) appraisers. The appraisers are to be chosen as follows:
(A) One (1) shall be selected by the dissenting stockholders by the vote of a majority of the aggregate number of dissenting shares held by the dissenting stockholders;
(B) One (1) shall be selected by the board of directors of the resulting bank; and
(C) The third shall be selected by the two (2) so chosen.
(2) The valuation agreed upon by any two (2) of the three (3) appraisers thus chosen shall govern. However, if the value so fixed shall not be satisfactory to any dissenting stockholder who has requested payment as provided herein, the stockholder may, within five (5) days after being notified of the appraised value of his shares, appeal to the Bank Commissioner, who shall cause a reappraisal to be made, which shall be final and binding as to the value of the shares of the appellant.
(3) If, within ninety (90) days after the date on which the stockholders' meeting authorizing the corporate action was concluded, for any reason, one (1) or more of the appraisers is not selected as provided in this section, or the appraisers fail to determine the value of dissenting shares, the commissioner shall, upon written request of any interested party made within five (5) days after the expiration of the ninety-day period, cause an appraisal to be made which shall be final and binding upon all parties.
(d) (1) The expenses of the appraiser selected by the dissenting stockholders shall be paid by the dissenting stockholders.
(2) The expenses of the appraiser selected by the board of directors of the resulting bank shall be paid by the resulting bank.
(3) The expenses of the third appraiser shall be paid by and prorated among the dissenting stockholders and the resulting bank in such a manner as is determined by the commissioner to be fair and equitable under the circumstances.
(e) (1) If the commissioner is required to make the appraisal, his expenses in making the appraisal shall be paid by and prorated among the dissenting stockholders and the resulting bank in such a manner as is determined by the commissioner to be fair and equitable under the circumstances.
(2) If the commissioner is required to make a reappraisal, his expenses in making the reappraisal shall be paid by the appellant.
(f) If, within ninety (90) days after the date on which the stockholders' meeting authorizing the corporate action was concluded, for any reason, one (1) or more of the appraisers are not selected as provided in this section or the appraisers fail to determine the value of dissenting shares, and if no written request to value the dissenting shares is filed with the commissioner within five (5) days after the expiration of the ninety-day period, then all dissenting stockholders who have failed to accept the offer of the resulting bank within the thirty-day period prescribed in subdivision (b)(4) of this section shall be bound by the terms of the purchase or assumption, or merger.
(g) The amount due a dissenting stockholder under an accepted offer of the resulting bank or under the appraisal shall constitute a debt of the resulting bank which must be paid, if and when the purchase or assumption, or merger, is consummated, simultaneously with the surrender by the dissenting stockholder of his shares.
(h) Within ten (10) days after the corporate action, the resulting bank shall give written notice of the consummation of the corporate action to each dissenting stockholder who is entitled to receive in cash the fair value of his shares.
(i) The plan of merger, or the plan of purchase or assumption, shall provide for payment of or the manner of disposing of any shares of the resulting bank not taken by dissenting stockholders.