1
Exhibit 4
156B:86. SECTIONS APPLICABLE TO APPRAISAL; PREREQUISITES.
Section 86. If a corporation proposes to take a corporate action as to which
any section of this chapter provides that a stockholder who objects to such
action shall have the right to demand payment for his shares and an appraisal
thereof, sections eighty-seven to ninety-eight, inclusive, shall apply except
as otherwise specifically provided in any section of this chapter. Except as
provided in sections eighty-two and eighty-three, no stockholder shall have
such right unless (1) he files with the corporation before the taking of the
vote of the shareholders on such corporate action, written objection to the
proposed action stating that he intends to demand payment for his shares if the
action is taken and (2) his shares are not voted in favor of the proposed
action.
156B:87. STATEMENT OF RIGHTS OF OBJECTING STOCKHOLDERS IN NOTICE OF MEETING;
FORM.
Section 87. The notice of the meeting of stockholders at which the approval
of such proposed action is to be considered shall contain a statement of the
rights of objecting stockholders. The giving of such notice shall not be deemed
to create any rights in any stockholder receiving the same to demand payment
for his stock, and the directors may authorize the inclusion in any such notice
of a statement of opinion by the management as to the existence or
non-existence of the right of the stockholders to demand payment for their
stock on account of the proposed corporate action. The notice may be in such
form as the directors or officers calling the meeting deem advisable, but the
following form of notice shall be sufficient to comply with this section:
2
"If the action proposed is approved by the stockholders at the meeting and
effected by the corporation, any stockholder (1) who files with the corporation
before the taking of the vote on the approval of such action, written objection
to the proposed action stating that he intends to demand payment for his shares
if the action is taken and (2) whose shares are not voted in favor of such
action has or may have the right to demand in writing from the corporation (or,
in the case of a consolidation or merger, the name of the resulting or
surviving corporation shall be inserted), within twenty days after the date of
mailing to him of notice in writing that the corporate action has become
effective, payment for his shares and an appraisal of the value thereof. Such
corporation and any such stockholder shall in such cases have the rights and
duties and shall follow the procedure set forth in sections 88 to 98,
inclusive, of chapter 156B of the General Laws of Massachusetts."
156B:88. NOTICE OF EFFECTIVENESS OF ACTION OBJECTED TO.
Section 88. The corporation taking such action, or in the case of a
merger or consolidation the surviving or resulting corporation, shall, within
ten days after the date on which such corporate action became effective, notify
each stockholder who filed a written objection meeting the requirements of
section eighty-six and whose shares were not voted in favor of the approval of
such action, that the action approved at the meeting of the corporation of
which he is a stockholder has become effective. The giving of such notice shall
not be deemed to create any rights in any stockholder receiving the same to
demand payment for his stock. The notice shall be sent by registered or
certified mail, addressed to the stockholder at his last known address as it
appears in the records of the corporation.
156B:89. DEMAND FOR PAYMENT; TIME FOR PAYMENT.
Section 89. If within twenty days after the date of mailing of a notice
under subsection (c) of section eighty-two, subsection (f) of section
eighty-three, or section eighty-eight, any stockholder to whom the corporation
was required to give such notice shall demand in writing from the corporation
taking such action, or in the case of a consolidation or merger from the
resulting or surviving corporation, payment for his stock, the corporation upon
which such demand is made shall pay to him the fair value of his stock within
thirty days after the expiration of the period during which such demand may be
made.
156B:90. DEMAND FOR DETERMINATION OF VALUE; BILL IN EQUITY; VENUE.
Section 90. If during period of thirty days provided for in section
eighty-nine the corporation upon which such demand is made and any such
objecting stockholder fail to agree as to the value of such stock,
3
such corporation or any such stockholder may within four months after the
expiration of such thirty-day period demand a determination of the value of the
stock of all such objecting stockholders by a bill in equity filed in the
superior court in the county where the corporation in which such objecting
stockholder held stock had or has its principal office in the commonwealth.
156B:91. PARTIES TO SUIT TO DETERMINE VALUE; SERVICE.
Section 91. If the bill is filed by the corporation, it shall name as
parties respondent all stockholders who have demanded payment for their shares
and with whom the corporation has not reached agreement as to the value thereof.
If the bill is filed by a stockholder, he shall bring the bill in his own behalf
and in behalf of all other stockholders who have demanded payment for their
shares and with whom the corporation has not reached agreement as to the value
thereof and service of the bill shall be made upon the corporation by subpoena
with a copy of the bill annexed. The corporation shall file with its answer a
duly verified list of all such other stockholders, and such stockholders shall
thereupon be deemed to have been added as parties to the bill. The corporation
shall give notice in such form and returnable on such date as the court shall
order to each stockholder party to the bill by registered or certified mail,
addressed to the last known address of such stockholder as shown in the records
of the corporation, and the court may order such additional notice by
publication or otherwise as it deems advisable. Each stockholder who makes
demand as provided in section eighty-nine shall be deemed to have consented to
the provisions of this section relating to notice, and the giving of notice by
the corporation to any such stockholder in compliance with the order of the
court shall be a sufficient service of process on him. Failure to give notice to
any stockholder making demand shall not invalidate the proceedings as to other
stockholders to whom notice was properly given, and the court may at any time
before the entry of a final decree make supplementary orders of notice.
156B:92. DECREE DETERMINING VALUE AND ORDERING PAYMENT; VALUATION DATE.
Section 92. After hearing the court shall enter a decree determining the
fair value of the stock of those stockholders who have become entitled to the
valuation of and payment for their shares, and shall order the corporation to
make payment of such value, together with interest, if any, as hereinafter
provided, to the stockholders entitled thereto upon the transfer by them to the
corporation of the certificates representing such stock if certificated or, if
uncertificated, upon receipt of an instruction transferring such stock to the
corporation. For this purpose, the value of the shares shall be determined as
of the day preceding the date of the vote approving the proposed corporate
action and shall be exclu-
4
sive of any element of value arising from the expectation or accomplishment of
the proposed corporate action.
156B:93. REFERENCE TO SPECIAL MASTER.
Section 93. the court in its discretion may refer the bill or any question
arising thereunder to a special master to hear the parties, make findings and
report the same to the court, all in accordance with the usual practice in
suits in equity in the superior court.
156B:94. NOTATION ON STOCK CERTIFICATES OF PENDENCY OF BILL.
Section 94. On motion the court may order stockholder parties to the bill to
submit their certificates of stock to the corporation for the notation thereon
of the pendency of the bill and may order the corporation to note such pendency
in its records with respect to any uncertificated shares held by such
stockholder parties, and may on motion dismiss the bill as to any stockholder
who fails to comply with such order.
156B:95. COSTS; INTEREST.
Section 95. The costs of the bill, including the reasonable compensation and
expenses of any mater appointed by the court, but exclusive of fees of counsel
or of experts retained by any party, shall be determined by the court and taxed
upon the parties to the bill, or any of them, in such manner as appears to be
equitable, except that all costs of giving notice to stockholders as provided
in this chapter shall be paid by the corporation. interest shall be paid upon
any award from the date of the vote approving the proposed corporate action,
and the court may on application of any interested party determine the amount
of interest to be paid in the case of any stockholder.
156B:96. DIVIDENDS AND VOTING RIGHTS AFTER DEMAND FOR PAYMENT.
Section 96. Any stockholder who has demanded payment for his stock as
provided in this chapter shall not thereafter be entitled to notice of any
meeting of stockholders or to vote such stock for any purpose and shall not be
entitled to the payment of dividends or other distribution on the stock (except
dividends or other distributions payable to stockholders of record at a date
which is prior to the date of the vote approving the proposed corporate
action) unless:
(1) A bill shall not be filed within the time provided in section ninety;
(2) A bill, if filed, shall be dismissed as to such stockholder; or
(3) Such stockholder shall with the written approval of the corporation, or
in the case of a consolidation or merger, the resulting or surviving
corporation, deliver to it a written withdrawal of his objections to and an
acceptance of such corporate action.
5
Notwithstanding the provisions of clauses (1) to (3), inclusive, said
stockholder shall have only the rights of a stockholder who did not so demand
payment for his stock as provided in this chapter:
156B:97. STATUS OF SHARES PAID FOR.
Section 97. The shares of the corporation paid for by the corporation
pursuant to the provisions of this chapter shall have the status of treasury
stock, or in the case of a consolidation or merger the shares or the securities
of the resulting or surviving corporation into which the shares of such
objecting stockholder would have been converted had he not objected to such
consolidation or merger shall have the status of treasury stock or securities.
156B:98. EXCLUSIVE REMEDY; EXCEPTION.
Section 98. The enforcement by a stockholder of his right to receive payment
for his shares in the manner provided in this chapter shall be an exclusive
remedy except that this chapter shall not exclude the right of such
stockholder to bring or maintain an appropriate proceeding to obtain relief on
the ground that such corporate action will be or is illegal or fraudulent as to
him.