Sec. 33-900. Election to purchase in lieu of dissolution.
Sec. 33-900. Election to purchase in lieu of dissolution. (a) In a proceeding under
subdivision (1) of subsection (a) of section 33-896 to dissolve a corporation that is
not a public corporation, the corporation may elect or, if it fails to elect, one or more
shareholders may elect to purchase all shares owned by the petitioning shareholder at
the fair value of the shares. An election pursuant to this section shall be irrevocable
unless the court determines that it is equitable to set aside or modify the election.
(b) An election to purchase pursuant to this section may be filed with the court at
any time within ninety days after the filing of the petition under subdivision (1) of
subsection (a) or subdivision (2) of subsection (b) of section 33-896 or at such later time
as the court in its discretion may allow. If the election to purchase is filed by one or
more shareholders, the corporation shall, within ten days thereafter, give written notice
to all shareholders, other than the petitioner. The notice must state the name and number
of shares owned by the petitioner and the name and number of shares owned by each
electing shareholder and must advise the recipients of their right to join in the election
to purchase shares in accordance with this section. Shareholders who wish to participate
must file notice of their intention to join in the purchase no later than thirty days after
the effective date of the notice to them. All shareholders who have filed an election or
notice of their intention to participate in the election to purchase thereby become parties
to ownership of shares as of the date the first election was filed, unless they otherwise
agree or the court otherwise directs. After an election has been filed by the corporation
or one or more shareholders, the proceeding under subdivision (1) of subsection (a) or
subdivision (2) of subsection (b) of section 33-896 may not be discontinued or settled,
nor may the petitioning shareholder sell or otherwise dispose of his shares, unless the
court determines that it would be equitable to the corporation and the shareholders, other
than the petitioner, to permit such discontinuance, settlement, sale or other disposition.
(c) If, within sixty days of the filing of the first election, the parties reach agreement
as to the fair value and terms of purchase of the petitioner's shares, the court shall enter
an order directing the purchase of petitioner's shares upon the terms and conditions
agreed to by the parties.
(d) If the parties are unable to reach an agreement as provided for in subsection (c)
of this section, the court, upon application of any party, shall stay the proceedings under
subdivision (1) of subsection (a) or subdivision (2) of subsection (b) of section 33-896
and determine the fair value of the petitioner's shares as of the day before the date on
which the petition was filed or as of such other date as the court deems appropriate under
the circumstances.
(e) Upon determining the fair value of the shares, the court shall enter an order
directing the purchase upon such terms and conditions as the court deems appropriate,
which may include payment of the purchase price in installments, where necessary in
the interests of equity, provision for security to assure payment of the purchase price
and any additional costs, fees and expenses as may have been awarded, and, if the shares
are to be purchased by shareholders, the allocation of shares among them. In allocating
the petitioner's shares among holders of different classes of shares, the court should
attempt to preserve the existing distribution of voting rights among holders of different
classes insofar as practicable and may direct that holders of a specific class or classes
shall not participate in the purchase. Interest may be allowed at the rate and from the
date determined by the court to be equitable, but if the court finds that the refusal of the
petitioning shareholder to accept an offer of payment was arbitrary or otherwise not in
good faith, no interest shall be allowed. In a proceeding under subdivision (1) of subsection (a) of section 33-896, if the court finds that the petitioning shareholder had probable
grounds for relief under said subdivision, it may award to the petitioning shareholder
reasonable fees and expenses of counsel and of any experts employed by him.
(f) Upon entry of an order under subsection (c) or (e) of this section, the court shall
dismiss the petition to dissolve the corporation under section 33-896, and the petitioning
shareholder shall no longer have any rights or status as a shareholder of the corporation,
except the right to receive the amounts awarded to him by the order of the court which
shall be enforceable in the same manner as any other judgment.
(g) The purchase ordered pursuant to subsection (e) of this section shall be made
within ten days after the date the order becomes final unless before that time the corporation files with the court a notice of its intention to adopt a certificate of dissolution
pursuant to sections 33-881 and 33-882, which certificate of dissolution must then be
adopted and filed within fifty days thereafter. Upon filing of such certificate of dissolution, the corporation shall be dissolved in accordance with the provisions of sections
33-884 to 33-887, inclusive, and the order entered pursuant to subsection (e) of this
section shall no longer be of any force or effect, except that the court may award the
petitioning shareholder reasonable fees and expenses in accordance with the provisions
of the last sentence of subsection (e) of this section and the petitioner may continue to
pursue any claims previously asserted on behalf of the corporation.
(h) Any payment by the corporation pursuant to an order under subsection (c) or
(e) of this section, other than an award of fees and expenses pursuant to subsection (e)
of this section, is subject to the provisions of section 33-687.
(P.A. 94-186, S. 177, 215; P.A. 96-271, S. 128, 254; P.A. 97-246, S. 28, 99; June Sp. Sess. P.A. 98-1, S. 118, 121; P.A.
06-68, S. 14.)
History: P.A. 94-186 effective January 1, 1997; P.A. 96-271 corrected statutory reference by replacing "subdivision
(2) of section 33-896" with "subdivision (1) of subsection (a) of section 33-896" where appearing and amended Subsec.
(g) to replace "articles" of dissolution with "certificate" of dissolution where appearing, effective January 1, 1997; P.A.
97-246 amended Subsec. (e) to make a technical change, effective June 27, 1997; June Sp. Sess. P.A. 98-1 amended Subsec.
(a) to specify that the proceeding is a proceeding "by a shareholder" and to include a proceeding under Sec. 33-896(a)(2),
amended Subsecs. (b) and (d) to include a proceeding under Sec. 33-896(a)(2) and amended Subsec. (e) to rephrase
provision re the award of fees and expenses of counsel and of experts, effective June 24, 1998; P.A. 06-68 amended Subsec.
(a) by deleting "by a shareholder" and reference to Sec. 33-896(b)(2) and replacing "has no shares listed on a national
securities exchange or regularly traded in a market maintained by one or more members of a national or affiliated securities
association" with "is not a public corporation".
Annotations to former section 33-117:
Appointment of receiver is in discretion of court. 127 C. 25. Cited. Id., 37.
Where corporation's financial condition liable to improve, plaintiff not allowed to buy stock to discontinue receivership.
14 CS 387.
Annotations to former section 33-384:
Shareholder's application to have fair value of petitioning shareholder's shares appraised does not survive withdrawal
of petition under section 33-382. 154 C. 289. Objections to appraiser's report under this section must follow rules of
procedure of superior court set forth in chapter 15 thereof. Id., 669. Cited. 194 C. 400. Cited. 229 C. 771.
Cited. 1 CA 656.
Subsec. (b):
Cited. 171 C. 699.