EXHIBIT D
DISSENTERS' RIGHTS
The following has been reproduced in its entirety from the Alaska Corporations
Code:
10.06.574 RIGHT OF SHAREHOLDERS TO DISSENT.--(a) A shareholder may
dissent from the following corporate actions:
(1) a plan of merger, consolidation, or exchange to which the corporation
is a party; or
(2) a sale or exchange of all or substantially all of the property and
assets of the corporation not made in the usual and regular course of its
business, including a sale in dissolution, but not including a sale under a
court order or a sale for cash on terms requiting that all or substantially all
of the net proceeds of the sale be distributed to the shareholders in accordance
with their respective interests within one year after the date of sale.
(b) The rights of a shareholder who dissents as to less than all of the
shares registered in the name of the shareholder shall be determined as if the
shares as to which the shareholder dissents and the other shares of the
shareholder are registered in the names of different shareholders.
(c) This section does not apply to the shareholders of the surviving
corporation in a merger if a vote of shareholders of the surviving corporation
is not necessary to authorize the merger.
(d) This section does not apply to the holders of shares of a class or
series if the shares of the class or series were registered on a national
securities exchange on the date fixed to determine the shareholders entitled to
vote at the meeting of shareholders at which the plan of merger, consolidation,
or exchange or the proposed sale or exchange of property and assets is to be
acted upon unless the articles of the corporation provide otherwise.
10.06.576 RIGHTS OF DISSENTING SHAREHOLDERS: PROCEDURE, TO ENFORCE
SHAREHOLDER'S RIGHT TO RECEIVE PAYMENT FOR SHARES; WITHDRAWAL OF DEMAND.--(a) A
shareholder electing to exercise a right to dissent shall file with the
corporation, before or at the meeting of shareholders at which the proposed
corporate action is submitted to a vote, a written objection to the proposed
corporate action. The objection must include a notice of election to dissent,
the shareholder's name and residence address, the number and classes of shares
as to which the shareholder dissents, and a demand for payment of the fair value
of the shares if the action is taken. A shareholder to whom the corporation did
not give notice of the meeting in accordance with this chapter is not required
to make the objection provided in this section.
(b) Within l0 days after the shareholders' vote authorizing the action,
the corporation shall given [sic] written notice of the authorization to each
shareholder who filed written objection or from whom written objection was not
required. The corporation may consider that a shareholder who voted for the
proposed action has elected not to enforce a right of dissent under this
chapter, and need not give notice to the shareholder.
(c) Within 20 days after notice has been given under (b) of this section,
a shareholder from whom written objection was not required under (a) of this
section and who elects to dissent
shall file with the corporation a written notice of the election, stating the
shareholder's name and residence address, the number and classes of shares as to
which the shareholder dissents, and a demand for payment of the fair value of
the shares. A shareholder who elects to dissent from a merger under AS
10.06.532, a consolidation under AS 10.06.534, a share exchange under AS
10.06.540, a transaction authorized under AS 10.06.562, or a sale of assets
under AS 10.06.568 shall file a written notice of the election to dissent within
20 days after the merger plan, consolidation plan, share exchange plan, or sale
of assets resolution has been mailed to the shareholder.
(d) A merger, consolidation, or exchange is considered completed within
the meaning of this chapter on the effective date determined in accordance with
AS 10.06.560; a transaction under AS 10.06.568 is completed within the meaning
of this chapter when the corporation has received the consideration specified in
the board resolution that was submitted to the shareholders in accordance with
that section.
(e) Upon completion of the corporation action, the shareholder shall cease
to have the rights of a shareholder except the right to be paid the fair value
of the shares as to which the dissenter's rights were perfected under this
chapter. A notice of election may be withdrawn -by the shareholder at any time
before an acceptance under AS 10.06.578(f), but in no case later than 60 days
from the date of completion of the corporate action, except that the time for
withdrawing a notice of election shall be extended for 60 days from the date an
offer is made, if the corporation fails to make a timely offer under AS
10.06.578. After the time for withdrawal has expired, withdrawal of a notice of
election requires the written consent of the corporation. In order to be
effective, withdrawal of a notice of election must be accompanied by the return
to the corporation of an advance payment made to the shareholder as provided in
AS 10.06.578. If a notice of election is withdrawn, if the corporate action is
rescinded, if a court determines that the shareholder is not entitled to the
right to dissent, or if the shareholder otherwise loses the right to dissent,
the shareholder shall not have the right to receive payment for the shares and
shall be reinstated to all rights as a shareholder that were effective on the
date of the completion of the corporate action. The rights to which the
shareholder is reinstated include intervening preemptive rights and the right to
payment of an intervening dividend or other distribution. If an intervening
right has expired or if a dividend or distribution that is not in cash has been
completed, the corporation may elect to pay the shareholder the fair value of
the shares in cash at the value, as determined by the board, at the time of the
expiration or completion. The election to pay the value in cash shall be
without prejudice to a corporate proceeding that has occurred in the interim;
(f) At the time of filing the notice of election to dissent, or within 30
days after the shareholder has filed the notice, the shareholder shall submit to
the corporation, or to its transfer agent, the certificates representing the
shares for which payment is claimed, if certificates have been issued. The
corporation or its transfer agent shall note conspicuously on the certificates,
or on a separate document if certificates have not been issued for the shares,
that a notice of election has been filed, and shall return the certificates or
the separate document to the shareholder or to the person who submitted them on
the shareholder's behalf. Unless a court, for good cause shown, otherwise
directs, a shareholder who fails to comply with this subsection loses the right
to dissent granted by this chapter, if the corporation gives written notice that
the right to dissent will
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be lost to the shareholder within 45 days from the date that the shareholder
filed the notice of election to dissent. If the corporation fails to exercise
this notice option in a timely manner, the shareholder retains the right to
dissent granted by this chapter.
(g) When a share of a dissenting shareholder under (f) of this section is
transferred, the new certificate must bear a notation similar to that made under
(f) of this section and state the name of the original dissenting holder of the
shares, or if the share is a certificateless share, the corporation must give
the transferee a written notice stating that a notice of election to dissent has
been filed and giving the name of the original dissenting holder. A transferee
acquires only the rights in the corporation that the original dissenting
shareholder had at the time of transfer.
10.06.5.78 OFFER AND PAYMENT TO DISSENTING SHAREHOLDERS; CIRCUMSTANCES
WHERE PROHIBITED.--(a) Within 15 days after the expiration of the period within
which shareholders may file their notice of election to dissent under AS
10.06.576, or within 15 days after the proposed corporate action is completed,
whichever is later, the corporation or, in the case of a merger or
consolidation, the surviving or new corporation, shall make a written offer by
certified mail to each shareholder who has filed the notice of election, to pay
the amount the corporation estimates to be the fair value of the shares. The
offer shall be made at the same price for each share to all dissenting
shareholders of the same class, or if divided into series, of the same series.
(b) The offer required by (a) of this section shall be accompanied by a
(1) balance sheet of the corporation whose shares the dissenting
shareholder holds; the date of the balance sheet shall be that of the most
recent balance sheet produced in the 12 months before the offer;
(2) profit and loss statement or statements for at least 12 months
preceding the date of the balance sheet; if the corporation was not in existence
during the entire 12-month period preceding the balance sheet required by (1) of
this section, then a profit and loss statement for that portion of the 12-month
period preceding the balance sheet during which the corporation was in
existence;
(3) statement of the total number of shares with respect to which notices
of election to dissent have been received and the total number of holders of
these shares; and
(4) copy of this section and AS 10.06.580. (c) If the corporate action has
been completed the offer required by (a) of this section shall also be
accompanied by
(1) advance payment to each shareholder who submitted the share
certificates to the corporation, or to whom notice was sent if the shares were
certificateless, as provided in AS 10.06.576(f), of the amount offered under (a)
of this section; or
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(2) a statement to a shareholder who has not submitted the share
certificates, if certificates were issued for the shares, that advance payment
of the amount offered under (a) of this section will be made by the corporation
promptly upon submission of the certificates.
(d) If the corporate action has not been completed when the offer required
by (a) of this section is made, the advance payment or statement about the
advance payment shall be sent to each shareholder entitled to the payment or
notice, after completion of the corporate action.
(e) The advance payment or statement about the advance payment shall
include advice to the shareholder that acceptance of the payment does not
constitute a waiver of the shareholder' s right to dissent.
(f) The corporation may consider that a shareholder who fails to make
written objection to the amount tendered under (c)(1) of this section or to
submit shares in response to the statement sent under (c)(2) of this section
within 30 days of the date the statement was mailed has agreed that the amount
offered represents the fair value of the shares. The shareholder shall have no
interest in the shares or the outcome of litigation begun under AS 10.06.580.
(g) Notwithstanding the other provisions of this section, if the payments
otherwise required by (c) and (d) of this section or determined in accordance
with AS 10.06.580 would be distributions in violation of AS 10.06.358-10.06.375,
the corporation may not make a distribution to a dissenting shareholder. In that
event, a corporation that would otherwise have the payment obligation under (c)
and (d) of this section or AS 10.06.580 shall, in addition to complying with (a)
and (b) of this section, give written notice within the time limits of (a) and
(b) of this section to dissenting shareholders of its inability to make payment.
The notice shall include
(1) an explanation why the corporation is unable to make the payments
otherwise required by this section;
(2) a statement that a dissenting shareholder has an option to
(A) withdraw the shareholder's notice of election to dissent, and that the
corporation will consider that the withdrawal was made with the written consent
of the corporation; or
(B) retain the status of a dissenter, and, if the corporation is
liquidated, be subordinated to the rights of the creditors of the corporation,
but have rights superior to the nondissenting shareholders, but if the
corporation is not liquidated, retain the right to be paid under (c) and (d) of
this section or AS 10.06.580 and the corporation must satisfy the obligation
when the restrictions on distributions do not apply; and
(3) a statement that if the corporation does not receive the written
election provided under (2) of this subsection within 60 days after notice given
as required by this section, the
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corporation will consider that the shareholder has withdrawn the of election
under (2)(A) of this subsection.
10.06.580 ACTION TO DETERMINE VALUE OF SHARES UPON FAILURE TO ACCEPT
CORPORATE OFFER.--(a) If the corporation fails to make the offer required by AS
10.06.578(a) or the Shareholder rejects the offer within the 30-day period
specified in AS 10.06.578(f)
(1) the corporation shall, within 20 days after the expiration of the
30-day period specified in AS 10.06.578(f), file a petition in the court of the
judicial district where the registered office of the corporation is located,
requesting that the fair value of the shares be determined; if, in the case of a
merger or consolidation, the surviving or new corporation is a foreign
corporation without a registered office in the state, the petition shall be
filed in the judicial district where the registered office of the domestic
corporation was last located; or
(2) if the corporation fails to institute a proceeding as provided in this
section, a dissenting shareholder may institute a proceeding in the name of the
corporation; if a dissenting shareholder does not institute a proceeding within
30 days' after the expiration of the 20-day period granted the corporation under
(1) of this subsection, the dissenter loses the dissenter's rights unless the
superior court, for good cause shown, otherwise directs.
(b) All dissenting shareholders who have rejected the corporate offer
extended under AS 10.06.578(a), wherever residing, shall be made parties to the
proceeding as an action against their shares quasi in rem. The corporation
shall serve a copy of the complaint in the proceeding on each dissenting
shareholder who is a resident of this state in the manner provided by the Alaska
Rules of Civil Procedure, and on each nonresident dissenting shareholder either
by certified mail and publication, or in another manner permitted by law. The
jurisdiction of the court shall be plenary and exclusive. A dissenting
shareholder who is a party to the proceeding is entitled to judgment against the
corporation for the amount determined under (c) of this section to be the fair
value of the shares of that shareholder.
(c) The court shall determine whether a dissenting shareholder who is a
party to the court action is entitled to receive payment for the shareholder's
shares. If the corporation does not request a determination, or if the court
finds that a dissenting shareholder is entitled to a determination, the court
shall establish the value of the shares; for the purposes of this section, the
value shall be the fair value at the close of business on the day before the
date on which the vote was taken approving the proposed corporate action. In
fixing the fair value of the shares, the court shall consider the nature of the
transaction giving rise to the right to dissent under AS 10.06.576, its effects
on the corporation and its shareholders, the concepts and methods customary in
the relevant securities and financial markets for determining the fair value of
shares of a corporation engaging in a similar transaction under comparable
circumstances, and other relevant factors. The court may appoint one or more
persons as appraisers to receive evidence and recommend a decision on the
question of fair value of the shares. The appraisers have the power and
authority specified in the order of appointment or as amended.
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(d) The judgment must include an allowance for interest at the rate the
court finds to be fair and equitable, from the date on which the proposed
corporate action vote was taken to the date of payment. If determining the rate
of interest, the court shall consider all relevant factors, including the rate
of interest that the corporation would have had to pay to borrow money during
the pendency of the proceeding. If the court finds that the refusal of a
shareholder to accept the corporate offer of payment for the shares is
arbitrary, vexatious, or otherwise in bad faith, the court shall deny interest
to the shareholder.
(e) A party to the proceeding shall bear its own costs and expenses,
including the fees and expenses of its counsel and of any experts employed by
it. Notwithstanding the foregoing, the court may, in its discretion, apportion
and assess all or part of the costs, expenses, and fees incurred by the
corporation against one or more of the dissenting shareholders who are parties
to the proceeding, if the court finds that a refusal to accept the corporate
offer was arbitrary, vexatious, or otherwise in bad faith. The court may, in
its discretion, apportion and assess all or a part of the costs, expenses, and
fees incurred by one or more of the dissenting shareholders who are parties to
the proceeding against the corporation if the court finds that
(1) the fair value of the shares materially exceeds the amount that the
corporation offered to pay;
(2) an offer or required advance payment was not made by the corporation
as provided in AS 10.06.578;
(3) the corporation failed to institute the special proceeding within the
period specified under (a) of this section; or
(4) the action of the corporation in complying with its obligations as
provided in this chapter was arbitrary, vexatious, or otherwise in bad faith.
(f) Unless prohibited by AS 10.06.578(g), within 60 days after the final
determination of the proceeding, the corporation shall pay to each dissenting
shareholder who is a party the amount determined under (e) of this section in
exchange for the surrender of the certificate representing the dissenter's
shares or the dissenter's shares if the shares are certificateless.
Upon payment of the judgment, the dissenting shareholder ceases to have an
interest in the shares.
10.06.582 STATUS OF SHARES ACQUIRED FROM DISSENTING
SHAREHOLDERS.--Shares acquired by a corporation under AS 10.06.578 and 10.06.580
shall be held and disposed of by the corporation as other shares reacquired
under AS 10.06.388, except that, in the case of a merger or consolidation, they
shall be held and disposed of as the plan of merger or consolidation may
otherwise provide.
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