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EXHIBIT 17(E)
NOTICE OF MERGER AND APPRAISAL RIGHTS
AVAILABLE TO STOCKHOLDERS OF
IMO INDUSTRIES INC.
IN CONNECTION WITH
THE MERGER OF
IMO MERGER CORP.,
A WHOLLY OWNED SUBSIDIARY OF
II ACQUISITION CORP.,
WITH AND INTO
IMO INDUSTRIES INC.
TO THE HOLDERS OF CERTIFICATES
REPRESENTING OR FORMERLY REPRESENTING COMMON STOCK OF
IMO INDUSTRIES INC.:
NOTICE IS HEREBY GIVEN pursuant to Section 262(d)(2) of the
Delaware General Corporation Law (the "DGCL") that effective on July 2, 1998
(the "Effective Time of the Merger"), Imo Merger Corp., a Delaware corporation
("Merger Sub") and wholly-owned subsidiary of II Acquisition Corp., a Delaware
corporation ("IIAC"), will be merged (the "Merger") with and into Imo Industries
Inc., a Delaware corporation (the "Company"), with the Company as the surviving
corporation. The Merger will be effected pursuant to Section 253 of the DGCL
when Merger Sub files a Certificate of Ownership and Merger with the Secretary
of State of Delaware. Immediately prior to the Merger, Merger Sub will own
approximately 92.8% of the outstanding shares of Common Stock, par value $1.00
per share (the "Shares"), of the Company. Under the DGCL, no action will be
required by the stockholders of the Company, other than Merger Sub (through its
Board of Directors), for the Merger to become effective.
As a result of the Merger, the Company will become a
wholly-owned subsidiary of IIAC, and, at the Effective Time of the Merger, each
of the remaining outstanding Shares of the Company (other than Shares held by
Merger Sub and Shares held in the treasury of the Company) will be automatically
converted, subject to the appraisal rights described below, into the right to
receive $7.05 in cash, without interest, upon surrender of the certificate for
such Share to First Chicago Trust Company of New York, as Paying Agent (the
"Paying Agent"), as set forth in the enclosed letter of transmittal (the "Letter
of Transmittal").
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SURRENDER OF CERTIFICATES
The Paying Agent will accept the surrender of certificates
formerly representing Shares in exchange for the $7.05 per Share cash payment.
TO RECEIVE THE $7.05 PER SHARE CASH PAYMENT FOR ALL OR PART OF
A STOCKHOLDER'S SHARES, THE STOCKHOLDER OR A DULY AUTHORIZED REPRESENTATIVE MUST
(A) DELIVER THE ENCLOSED LETTER OF TRANSMITTAL, APPROPRIATELY COMPLETED AND
EXECUTED, TO THE PAYING AGENT AND (B) SURRENDER SUCH SHARES BY DELIVERING THE
STOCK CERTIFICATE OR CERTIFICATES THAT, PRIOR TO THE MERGER, HAD EVIDENCED SUCH
SHARES TO THE PAYING AGENT, ALL AS SET FORTH IN THE LETTER OF TRANSMITTAL AND
ACCOMPANYING INSTRUCTIONS.
Each person who does NOT plan to seek an appraisal of all such
person's Shares is urged to execute (or, if such person is not the record holder
of such Shares, to arrange for such record holder or such holder's duly
authorized representative to execute) and mail postage paid or deliver a Letter
of Transmittal to the Paying Agent at one of the addresses set forth in the
Letter of Transmittal. STOCKHOLDERS SHOULD NOTE THAT SURRENDER TO THE PAYING
AGENT OF CERTIFICATE(S) FOR THEIR SHARES MAY CONSTITUTE A WAIVER OF APPRAISAL
RIGHTS UNDER THE DGCL.
Each Company stockholder should note that the method of
delivery of the Letter of Transmittal, stock certificate(s) and all other
required documents is at the election and risk of the stockholder. IF THE
DECISION IS MADE TO SEND STOCK CERTIFICATE(S) BY MAIL, IT IS RECOMMENDED THAT
SUCH CERTIFICATE(S) BE SENT BY REGISTERED MAIL PROPERLY INSURED, WITH RETURN
RECEIPT REQUESTED.
APPRAISAL RIGHTS
Notwithstanding the Merger, Shares held by stockholders of the
Company who (a) do not execute and return (or cause to be executed and returned)
a Letter of Transmittal with respect to such Shares or otherwise surrender such
Shares for the $7.05 per Share cash payment, (b) perfect their rights to
appraisal of such Shares in accordance with Section 262 of the DGCL ("Section
262") and (c) do not thereafter withdraw their demands for appraisal of such
Shares or otherwise lose or waive their appraisal rights, in each case in
accordance with the DGCL, shall represent the right to receive from the Company
such payment as the holders thereof may be entitled to receive as determined by
the Delaware Court of Chancery in an appraisal proceeding.
Section 262 provides a procedure by which persons who were
stockholders of the Company at the Effective Time of the Merger may seek an
appraisal of their Shares in lieu of accepting the $7.05 per Share cash payment.
A demand for appraisal must be made in writing by or for the stockholder of
record wishing to demand appraisal and must reasonably inform the Company of the
identity of the stockholder making the demand for appraisal and that such
stockholder intends thereby to demand appraisal of his Shares. In any such
appraisal proceeding, the Delaware Court of Chancery would determine the fair
value of the Shares, exclusive of any element of value arising from
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the accomplishment or expectation of the Merger. Stockholders should recognize
that such appraisal could result in a determination of a value higher or lower
than or equivalent to $7.05 per Share. Following such an appraisal proceeding,
the Delaware Court of Chancery would direct the Company (as the surviving
corporation in the Merger), pursuant to Section 262, to make payment of such
fair value of the Shares, together with a fair rate of interest, if any, to the
former stockholders entitled thereto who properly demanded appraisal.
APPRAISAL PROCEDURE
This Notice of Merger and Appraisal Rights from the Company
affords stockholders of the Company the notice required by Section 262(d)(2) of
the DGCL. The right to appraisal will be lost unless it is perfected by full and
precise satisfaction of the requirements of Section 262, the text of which is
set forth in full in APPENDIX A hereto. MERE FAILURE TO EXECUTE AND RETURN A
LETTER OF TRANSMITTAL TO THE PAYING AGENT DOES NOT SATISFY THE REQUIREMENTS OF
SECTION 262; RATHER, A SEPARATE WRITTEN DEMAND FOR APPRAISAL MUST BE PROPERLY
EXECUTED AND DELIVERED TO THE COMPANY AS DESCRIBED BELOW:
A stockholder of the Company who wishes to demand appraisal of
his Shares must make a written demand for appraisal ON OR PRIOR TO JUNE 25, 1998
(i.e., within 20 calendar days after the date of mailing of this Notice of
Merger and Appraisal Rights). A demand for appraisal should be addressed to the
Company at the following address:
Imo Industries Inc.
1009 Lenox Drive, Building Four West
Lawrenceville, New Jersey 08648-0550
Attn: Corporate Secretary
As provided under Section 262, failure of a stockholder of the
Company to make a written demand for appraisal (or a beneficial owner of Shares
who fails to cause the record holder of such Shares to demand an appraisal of
such Shares) within such time limit will result in the loss of such
stockholder's appraisal rights. The written demand for appraisal must be
executed by or for the stockholder of record, fully and correctly, as such
stockholder's name appears on the certificate(s) for his Shares. If the Shares
are owned of record in a fiduciary or representative capacity, such as by a
trustee, executor, administrator, guardian, attorney-in-fact or officer of a
corporation, execution of the demand must be made in such capacity, and if the
Shares are owned of record by more than one person, such as in a joint tenancy
or tenancy in common, the demand must be executed by or for all joint owners. An
authorized agent, including one of two or more joint owners may execute the
demand for appraisal for a stockholder of record; however, the agent must
identify the record owner(s) and expressly disclose the fact that, in executing
the demand, the agent is acting as agent for the record owner(s).
A beneficial owner of Shares held in "street name" who desires
appraisal should take such actions as may be necessary to ensure that a timely
and proper demand for appraisal is made by the record holder of such Shares.
Shares held through brokerage firms, banks and other financial
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institutions are frequently deposited with and held of record in the name of a
nominee of a central security deposit, such as Cede & Co., Philadep and others.
Any beneficial holder desiring appraisal who holds Shares through a brokerage
firm, bank or other financial institution is responsible for ensuring that the
demand for appraisal is made by the record holder. The beneficial holder of such
Shares should instruct such firm, bank or institution that the demand for
appraisal may be made by the record holder of the Shares, which may be the
nominee of a central security depository if the Shares have been so deposited.
As required by Section 262, a demand for appraisal must reasonably inform the
Company of the identity of the holder(s) of record (which may be a nominee as
described above) and of such holder's intention thereby to demand appraisal of
such Shares.
Within 120 calendar days after the Effective Time of the
Merger, the Company or any former stockholder entitled to appraisal rights under
Section 262 who has complied with the provisions thereof may file a petition in
the Delaware Court of Chancery demanding a determination of the value of the
Shares of all such stockholders. The Company is under no obligation, and has no
present intention, to file such a petition. Accordingly, any stockholder who
wishes to perfect his appraisal rights will be required to initiate all
necessary action within the time prescribed in Section 262. At any time within
60 calendar days after the Effective Time of the Merger, any former stockholder
who has demanded appraisal has the right to withdraw the demand and accept the
consideration offered pursuant to the Merger.
Within 120 calendar days after the Effective Time of the
Merger, any stockholder who has complied with the requirements for exercise of
appraisal rights will be entitled, upon written request, to receive from the
Company a statement setting forth the aggregate number of Shares with respect to
which demands for appraisal have been received and the aggregate number of
holders of such Shares. Such statement must be mailed (a) within 10 calendar
days after a written request therefor has been received by the Company or (b) by
July 5, 1998 (i.e., 10 calendar days after expiration of the period for delivery
of demands for appraisal), whichever is later.
If a petition for an appraisal is timely filed and a copy
thereof is delivered to the Company, the Company will then be obligated within
20 calendar days to provide the Register in Chancery with a duly verified list
containing the names and addresses of all former stockholders of the Company who
have demanded an appraisal of their Shares and with whom agreements as to the
value of their Shares have not been reached by the Company. After notice to such
former stockholders, the Court of Chancery is empowered to conduct a hearing on
such petition to determine those former stockholders who have complied with
Section 262 and who have become entitled to appraisal rights. The Court of
Chancery may require the holders of Shares who have demanded an appraisal for
their Shares to submit their stock certificates to the Register in Chancery for
notation thereon of the pendency of the appraisal proceeding; and if any former
stockholder fails to comply with such direction, the Court of Chancery may
dismiss the proceedings as to such former stockholder.
After determining the stockholders entitled to an appraisal,
the Court of Chancery will appraise the "fair value" of their Shares, exclusive
of any element of value arising from the accomplishment or expectation of the
Merger, together with a fair rate of interest, if any, to be paid upon the
amount determined to be the fair value. The Delaware Supreme Court has stated
that "proof
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of value by any techniques or methods which are generally considered acceptable
in the financial community and otherwise admissible in court" should be
considered in the appraisal proceedings. In addition, Delaware courts have held
that the Section 262 appraisal remedy, depending on factual circumstances, may
or may not be a dissenter's exclusive remedy.
The costs of the appraisal proceeding may be determined by the
Court and taxed upon the parties as the Court deems equitable in the
circumstances. The Court may also order that all or a portion of the expenses
incurred by any former stockholder in connection with an appraisal, including,
without limitation, reasonable attorney's fees and the fees and expenses of
experts utilized in the appraisal proceeding, be charged pro rata against the
value of all the Shares entitled to be appraised.
No former stockholder, whether or not he has duly demanded an
appraisal in compliance with Section 262, will, from and after the Effective
Time of the Merger, be entitled to vote any Shares for any purpose or be
entitled to the payment of dividends or other distributions on any Shares
(except dividends or other distributions payable to stockholders of record at a
date prior to the Effective Time of the Merger).
If any stockholder who demands appraisal of his Shares under
Section 262 fails to perfect, or effectively withdraws or loses, his or her
right to appraisal, as provided in the DGCL, the Shares of such stockholder
will, at or after the Effective Time of the Merger, be converted into the right
to receive $7.05 in cash per Share, without interest. Such stockholders must
follow the procedures set forth in the Letter of Transmittal and accompanying
instructions.
The foregoing brief summary does not purport to be a complete
description of the applicable provisions of Section 262, and is qualified in its
entirety by reference to Section 262, which is attached hereto in full as
APPENDIX A.
INFORMATION CONCERNING THE COMPANY
Prior to the Effective Time of the Merger, the Company was
subject to the information reporting and other requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, was, and, in certain circumstances, is required to file reports and
other information with the Securities and Exchange Commission (the "Commission")
relating to the Company's business, financial condition and certain other
matters. These reports and other information should be available for inspection
at the public reference facilities maintained by the Commission at 450 Fifth
Street, N.W., Room 1024, Washington, D.C. 20549, and also should be available
for inspection and copying at the regional offices of the Commission located at
Seven World Trade Center (Suite 1300), New York, New York 10048; Northwest
Atrium Center, 500 West Madison Street (Suite 1400), Chicago, Illinois 60661;
and 5670 Wilshire Boulevard, 11th Floor, Los Angeles, California 90036. Copies
may also be obtained by mail, upon payment of the Commission's customary fees,
from the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. The Commission also maintains a World Wide Web site on
the Internet at http://www.sec.gov that contains certain reports and other
information regarding registrants that file
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electronically with the Commission. In addition, such information may also be
inspected and copied at the offices of the New York Stock Exchange at 20 Broad
Street, New York, New York 10005.
For more information concerning the Company and recent
transactions, former stockholders are directed in particular to the Company's
Annual Report on Form 10-K for the period ended December 31, 1997, copies of
which were mailed to such stockholders on or about April 8, 1998, and the
Company's Quarterly Report on Form 10-Q for the period ended April 3, 1998. Each
such Report shall be deemed to have been incorporated by reference herein, and
may be obtained as described in the immediately preceding paragraph.
Date: June 1, 1998
IMO INDUSTRIES INC.
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APPENDIX A
DELAWARE GENERAL CORPORATION LAW
SECTION 262. APPRAISAL RIGHTS
(a) Any stockholder of a corporation of this State who holds
shares of stock on the date of the making of a demand pursuant to subsection (d)
of this section with respect to such shares, who continuously holds such shares
through the effective date of the merger or consolidation, who has otherwise
complied with subsection (d) of this section and who has neither voted in favor
of the merger or consolidation nor consented thereto in writing pursuant to
Section 228 of this title shall be entitled to an appraisal by the Court of
Chancery of the fair value of the stockholder's shares of stock under the
circumstances described in subsections (b) and (c) of this section. As used in
this section, the word "stockholder" means a holder of record of stock in a
stock corporation and also a member of record of a nonstock corporation; the
words "stock" and "share" mean and include what is ordinarily meant by those
words and also membership or membership interest of a member of a nonstock
corporation; and the words "depository receipt" mean a receipt or other
instrument issued by a depository representing an interest in one or more
shares, or fractions thereof, solely of stock of a corporation, which stock is
deposited with the depository.
(b) Appraisal rights shall be available for the shares of any
class or series of stock of a constituent in a merger or consolidation to be
effected pursuant to Section 251 (other than a merger effected pursuant to
Section 251(g) of this title, Section 252, Section 254, Section 257,
Section 258, Section 263 or Section 264 of this title:
(1) Provided, however, that no appraisal rights under this
section shall be available for the shares of any class or series of
stock, which stock, or depository receipts in respect thereof, at the
record date fixed to determine the stockholders entitled to receive
notice of and to vote at the meeting of stockholders to act upon the
agreement of merger or consolidation, were either (i) listed on a
national securities exchange or designated as a national market system
security on an interdealer quotation system by the National Association
of Securities Dealers, Inc. or (ii) held of record by more than 2,000
holders; and further provided that no appraisal rights shall be
available for any shares of stock of the constituent corporation
surviving a merger if the merger did not require for its approval the
vote of the stockholders of the surviving corporation as provided in
subsection (f) of Section 251 of this title.
(2) Notwithstanding paragraph (1) of this subsection,
appraisal rights under this section shall be available for the shares
of any class or series of stock of a constituent corporation if the
holders thereof are required by the terms of an agreement of merger or
consolidation pursuant to Sections 251, 252, 254, 257, 258, 263
and 264 of this title to accept for such stock anything except:
a. Shares of stock of the corporation surviving or
resulting from such merger or consolidation, or depository
receipts in respect thereof;
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b. Shares of stock of any other corporation, or
depository receipts in respect thereof, which shares of stock
(or depository receipts in respect thereof) or depository
receipts at the effective date of the merger or consolidation
will be either listed on a national securities exchange or
designated as a national market system security on an
interdealer quotation system by the National Association of
Securities Dealers, Inc. or held of record by more than 2,000
holders;
c. Cash in lieu of fractional shares or fractional
depository receipts described in the foregoing subparagraphs
a. and b. of this paragraph; or
d. Any combination of the shares of stock,
depository receipts and cash in lieu of fractional shares or
fractional depository receipts described in the foregoing
subparagraphs a., b. and c. of this paragraph.
(3) In the event all of the stock of a subsidiary Delaware
corporation party to a merger effected under Section 253 of this title
is not owned by the parent corporation immediately prior to the merger,
appraisal rights shall be available for the shares of the subsidiary
Delaware corporation.
(c) Any corporation may provide in its certificate of
incorporation that appraisal rights under this section shall be available for
the shares of any class or series of its stock as a result of an amendment to
its certificate of incorporation, any merger or consolidation in which the
corporation is a constituent corporation or the sale of all or substantially all
of the assets of the corporation. If the certificate of incorporation contains
such a provision, the procedures of this section, including those set forth in
subsections (d) and (e) of this section, shall apply as nearly as is
practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which
appraisal rights are provided under this section is to be submitted for
approval at a meeting of stockholders, the corporation, not less than
20 days prior to the meeting, shall notify each of its stockholders who
was such on the record date for such meeting with respect to shares for
which appraisal rights are available pursuant to subsections (b) or (c)
hereof that appraisal rights are available for any or all of the shares
of the constituent corporations, and shall include in such notice a
copy of this section. Each stockholder electing to demand the appraisal
of his shares shall deliver to the corporation, before the taking of
the vote on the merger or consolidation, a written demand for appraisal
of his shares. Such demand will be sufficient if it reasonably informs
the corporation of the identity of the stockholder and that the
stockholder intends thereby to demand the appraisal of his shares. A
proxy or vote against the merger or consolidation shall not constitute
such a demand. A stockholder electing to take such action must do so by
a separate written demand as herein provided. Within 10 days after the
effective date of such merger or consolidation, the surviving or
resulting corporation shall notify each stockholder of each constituent
corporation who has complied with this
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subsection and has not voted in favor of or consented to the merger or
consolidation of the date that the merger or consolidation has become
effective; or
(2) If the merger or consolidation was approved pursuant to
Section 228 or Section 253 of this title, each constituent corporation,
either before the effective date of the merger or consolidation or
within 10 days thereafter, shall notify each of the holders of any
class or series of stock of such constituent corporation who are
entitled to appraisal rights of the approval of the merger or
consolidation and that appraisal rights are available for any or all
shares of such class or series of stock of such constituent
corporation, and shall include in such notice a copy of this section;
provided that, if the notice is given on or after the effective date of
the merger or consolidation, such notice shall be given by the
surviving or resulting corporation to all such holders of any class or
series of stock of a constituent corporation that are entitled to
appraisal rights. Such notice may, and, if given on or after the
effective date of the merger or consolidation, shall, also notify such
stockholders of the effective date of the merger or consolidation. Any
stockholder entitled to appraisal rights may, within 20 days after the
date of mailing of such notice, demand in writing from the surviving or
resulting corporation the appraisal of such holder's shares. Such
demand will be sufficient if it reasonably informs the corporation of
the identity of the stockholder and that the stockholder intends
thereby to demand the appraisal of such holder's shares. If such notice
did not notify stockholders of the effective date of the merger or
consolidation, either (i) each such constituent corporation shall send
a second notice before the effective date of the merger or
consolidation notifying each of the holders of any class or series of
stock of such constituent corporation that are entitled to appraisal
rights of the effective date of the merger or consolidation or (ii) the
surviving or resulting corporation shall send such a second notice to
all such holders on or within 10 days after such effective date;
provided, however, that if such second notice is sent more than 20 days
following the sending of the first notice, such second notice need only
be sent to each stockholder who is entitled to appraisal rights and who
has demanded appraisal of such holder's shares in accordance with this
subsection. An affidavit of the secretary or assistant secretary or of
the transfer agent of the corporation that is required to give either
notice that such notice has been given shall, in the absence of fraud,
be prima facie evidence of the facts stated therein. For purposes of
determining the stockholders entitled to receive either notice, each
constituent corporation may fix, in advance, a record date that shall
be not more than 10 days prior to the date the notice is given;
provided, that if the notice is given on or after the effective date of
the merger or consolidation, the record date shall be such effective
date. If no record date is fixed and the notice is given prior to the
effective date, the record date shall be the close of business on the
day next preceding the day on which the notice is given.
(e) Within 120 days after the effective date of the merger or
consolidation, the surviving or resulting corporation or any stockholder who has
complied with subsections (a) and (d) hereof and who is otherwise entitled to
appraisal rights, may file a petition in the Court of Chancery demanding a
determination of the value of the stock of all such stockholders.
Notwithstanding the foregoing, at any time within 60 days after the effective
date of the merger or consolidation, any stockholder shall have the right to
withdraw his demand for appraisal and to accept the terms offered upon the
merger or consolidation. Within 120 days after the effective date of the merger
or consolidation, any
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stockholder who has complied with the requirements of subsections (a) and (d)
hereof, upon written request, shall be entitled to receive from the corporation
surviving the merger or resulting from the consolidation a statement setting
forth the aggregate number of shares not voted in favor of the merger or
consolidation and with respect to which demands for appraisal have been received
and the aggregate number of holders of such shares. Such written statement shall
be mailed to the stockholder within 10 days after his written request for such a
statement is received by the surviving or resulting ration or within 10 days
after expiration of the period for delivery of demands for appraisal under
subsection (d) hereof, whichever is later.
(f) Upon the filing of any such petition by a stockholder, service of
a copy thereof shall be made upon the surviving or resulting corporation, which
shall within 20 days after such service file in the office of the Register in
Chancery in which the petition was filed a duly verified list containing the
names and addresses of all stockholders who have demanded payment for their
shares and with whom agreements as to the value of their shares have not been
reached by the surviving or resulting corporation. If the petition shall be
filed by the surviving or resulting corporation, the petition shall be
accompanied by such a duly verified list. The Register in Chancery, if so
ordered by the Court, shall give notice of the time and place fixed for the
hearing of such petition by registered or certified mail to the surviving or
resulting corporation and to the stockholders shown on the list at the addresses
therein stated. Such notice shall also be given by 1 or more publications at
least 1 week before the day of the hearing, in a newspaper of general
circulation published in the City of Wilmington, Delaware or such publication as
the Court deems advisable. The forms of the notices by mail and by publication
shall be approved by the Court, and the costs thereof shall be borne by the
surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the
stockholders who have complied with this section and who have become entitled to
appraisal rights. The Court may require the stockholders who have demanded an
appraisal for their shares and who hold stock represented by certificates to
submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder
fails to comply with such direction, the Court may dismiss the proceedings as to
such stockholder.
(h) After determining the stockholders entitled to an appraisal, the
Court shall appraise the shares, determining their fair value exclusive of any
element of value arising from the accomplishment or expectation of the merger or
consolidation, together with a fair rate of interest, if any, to be paid upon
the amount determined to be the fair value. In determining such fair value, the
Court shall take into account all relevant factors. In determining the fair rate
of interest, the Court may consider all relevant factors, including the rate of
interest which the surviving or resulting corporation would have had to pay to
borrow money during the pendency of the proceeding. Upon application by the
surviving or resulting corporation or by any stockholder entitled to participate
in the appraisal proceeding, the Court may, in its discretion, permit discovery
or other pretrial proceedings and may proceed to trial upon the appraisal prior
to the final determination of the stockholder entitled to an appraisal. Any
stockholder whose name appears on the list filed by the surviving or resulting
corporation pursuant to subsection (f) of this section and who has submitted his
certificates of stock to the Register in Chancery, if such is required, may
participate fully in all proceedings until it is finally determined that he is
not entitled to appraisal rights under this section.
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(i) The Court shall direct the payment of the fair value of the
shares, together with interest, if any, by the surviving or resulting
corporation to the stockholders entitled thereto. Interest may be simple or
compound, as the Court may direct. Payment shall be so made to each such
stockholder, in the case of holders of uncertificated stock forthwith, and the
case of holders of shares represented by certificates upon the surrender to the
corporation of the certificates representing such stock. The Court's decree may
be enforced as other decrees in the Court of Chancery may be enforced, whether
such surviving or resulting corporation be a corporation of this State or of any
state.
(j) The costs of the proceeding may be determined by the Court and
taxed upon the parties as the Court deems equitable in the circumstances. Upon
application of a stockholder, the Court may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal
proceeding, including, without limitation, reasonable attorney's fees and the
fees and expenses of experts, to be charged pro rata against the value of all
the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation,
no stockholder who has demanded his appraisal rights as provided in subsection
(d) of this section shall be entitled to vote such stock for any purpose or to
receive payment of dividends or other distributions on the stock (except
dividends or other distributions payable to stockholders of record at a date
which is prior to the effective date of the merger or consolidation); provided,
however, that if no petition for an appraisal shall be filed within the time
provided in subsection (e) of this section, or if such stockholder shall deliver
to the surviving or resulting corporation a written withdrawal of his demand for
an appraisal and an acceptance of the merger or consolidation, either within 60
days after the effective date of the merger or consolidation as provided in
subsection (e) of this section or thereafter with the written approval of the
corporation, then the right of such stockholder to an appraisal shall cease.
Notwithstanding the foregoing, no appraisal proceeding in the Court of Chancery
shall be dismissed as to any stockholder without the approval of the Court, and
such approval may be conditioned upon such terms as the Court deems just.
(l) The shares of the surviving or resulting corporation to which the
shares of such objecting stockholders would have been converted had they
assented to the merger or consolidation shall have the status of authorized and
unissued shares of the surviving or resulting corporation.
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