N.D. Cent. Code § 10-19.1-88

10-19.1-88. Procedures for asserting dissenters' rights

1. For purposes of this section, the terms defined in this subsection have the meanings

given them.

a. "Corporation" means the issuer of the shares held by a dissenter before the

corporate action referred to in subsection 1 of section 10-19.1-87 or the

successor by merger of that issuer.

b. "Fair value of the shares" means the value of the shares of a corporation

immediately before the effective date of a corporate action referred to in

subsection 1 of section 10-19.1-87.

c. "Interest" means interest commencing five days after the effective date of the

corporate action referred to in subsection 1 of section 10-19.1-87, up to and

including the date of payment, calculated at the rate provided in section 28-20-34

for interest on verdicts and judgments.

2. If a corporation calls a shareholder meeting at which any action described in

subsection 1 of section 10-19.1-87 is to be voted upon, the notice of the meeting shall

inform each shareholder of the right to dissent and shall include a copy of section

10-19.1-87 and this section.

3. If the proposed action must be approved by the shareholders, and the corporation

calls a meeting of shareholders, then a shareholder who is entitled to dissent under

section 10-19.1-87 and who wishes to exercise dissenter's rights shall file with the

corporation before the vote on the proposed action a written notice of intent to demand

the fair value of the shares owned by the shareholder and may not vote the shares in

favor of the proposed action.

4. After the proposed action has been approved by the board and, if necessary, the

shareholders, the corporation shall send to all shareholders who have complied with

subsection 3, to all shareholders who did not sign or consent to a written action that

gave effect to the action creating the right to obtain payment under section 10-19.1-87,

and to all shareholders entitled to dissent if no shareholder vote was required, a notice

that contains:

a. The address to which a demand for payment and share certificates must be sent

in order to obtain payment and the date by which they must be received;

b. A form to be used to certify the date on which the shareholder, or the beneficial

owner on whose behalf the shareholder dissents, acquired the shares or an

interest in them and to demand payment; and

c. A copy of section 10-19.1-87 and this section.

5. In order to receive the fair value of shares, a dissenting shareholder must demand

payment and deposit certificated shares within thirty days after the notice required by

subsection 4 was given, but the dissenter retains all other rights of a shareholder until

the proposed action takes effect.

6. After the corporate action takes effect, or after the corporation receives a valid demand

for payment, whichever is later, the corporation shall remit, to each dissenting

shareholder who has complied with subsections 3, 4, and 5, the amount the

corporation estimates to be the fair value of the shares, plus interest, accompanied by:

a. The corporation's closing balance sheet and statement of income for a fiscal year

ending not more than sixteen months before the effective date of the corporate

action, together with the latest available interim financial statements;

b. An estimate by the corporation of the fair value of the shares and a brief

description of the method used to reach the estimate; and

c. A copy of section 10-19.1-87 and this section.

7. The corporation may withhold the remittance described in subsection 6 from a person

who was not a shareholder on the date the action dissented from was first announced

to the public or who is dissenting on behalf of a person who was not a beneficial owner

on that date. If the dissenter has complied with subsections 3, 4, and 5, the

corporation shall forward to the dissenter the materials described in subsection 6, a
hhold the remittance described in subsection 6 from a person

who was not a shareholder on the date the action dissented from was first announced

to the public or who is dissenting on behalf of a person who was not a beneficial owner

on that date. If the dissenter has complied with subsections 3, 4, and 5, the

corporation shall forward to the dissenter the materials described in subsection 6, a

statement of the reason for withholding the remittance, and an offer to pay to the

dissenter the amount listed in the materials if the dissenter agrees to accept the

amount in full satisfaction. The dissenter may decline the offer and demand payment

under subsection 9. Failure to do so entitles the dissenter only to the amount offered. If

the dissenter makes demand, subsections 10 and 11 apply.

8. If the corporation fails to remit within sixty days of the deposit of certificates, it shall

return all deposited certificates. However, the corporation may again give notice under

subsections 4 and 5 and require deposit at a later time.

9. If a dissenter believes that the amount remitted under subsections 6, 7, and 8 is less

than the fair value of the shares plus interest, the dissenter may give written notice to

the corporation of the dissenter's own estimate of the fair value of the shares plus

interest, within thirty days after the corporation mails the remittance under

subsections 6, 7, and 8, and demand payment of the difference. Otherwise, a

dissenter is entitled only to the amount remitted by the corporation.

10. If the corporation receives a demand under subsection 9, it shall, within sixty days

after receiving the demand, either pay to the dissenter the amount demanded or

agreed to by the dissenter after a discussion with the corporation or file in court a

petition requesting that the court determine the fair value of the shares plus interest.

The petition shall be filed in the county in which the registered office of the corporation

is located, except that a surviving foreign corporation that receives a demand relating

to the shares of a constituent corporation shall file the petition in the county in this

state in which the last registered office of the constituent corporation was located. The

petition shall name as parties all dissenters who have demanded payment under

subsection 9 and who have not reached agreement with the corporation. The

corporation, after filing the petition, shall serve all parties with a summons and copy of

the petition under the North Dakota Rules of Civil Procedure. The residents of this

state may be served by registered mail or by publication as provided by law. Except as

otherwise provided, the North Dakota Rules of Civil Procedure apply to the

proceeding. The jurisdiction of the court is plenary and exclusive. The court may

appoint appraisers, with powers and authorities the court deems proper, to receive

evidence on and recommend the amount of the fair value of the shares. The court

shall determine whether the shareholder or other shareholders in question have fully

complied with the requirements of this section, and shall determine the fair value of the

shares, taking into account any and all factors the court finds relevant, computed by

any method or combination of methods that the court, in its discretion, sees fit to use,

whether or not used by the corporation or by a dissenter. The fair value of the shares

as determined by the court is binding on all shareholders, wherever located. A

dissenter is entitled to judgment for the amount by which the fair value of the shares as

determined by the court, plus interest, exceeds the amount, if any, remitted under

subsections 6, 7, and 8, but shall not be liable to the corporation for the amount, if any,

by which the amount, if any, remitted to the dissenter under subsections 6, 7, and 8

exceeds the fair value of the shares as determined by the court, plus interest.
for the amount by which the fair value of the shares as

determined by the court, plus interest, exceeds the amount, if any, remitted under

subsections 6, 7, and 8, but shall not be liable to the corporation for the amount, if any,

by which the amount, if any, remitted to the dissenter under subsections 6, 7, and 8

exceeds the fair value of the shares as determined by the court, plus interest.

11. The court shall determine the costs and expenses of a proceeding under

subsection 10, including the reasonable expenses in compensation of any appraisers

appointed by the court, and shall assess those costs and expenses against the

corporation, except that the court may assess part or all of those costs and expenses

against a dissenter whose action in demanding payment under subsection 9 is found

to be arbitrary, vexatious, or not in good faith.

12. If the court finds that the corporation has failed to comply substantially with this

section, the court may assess all fees and expenses of any experts or attorneys as the

court deems equitable. These fees and expenses may also be assessed against a

person who has acted arbitrarily, vexatiously, or not in good faith in bringing the

proceeding, and may be awarded to a party injured by those actions.

13. The court may award, in its discretion, fees and expenses to an attorney for the

dissenters out of the amount awarded to the dissenters, if any.