Exhibit D
Form of Notice of Merger and Appraisal Rights
NOTICE OF MERGER AND APPRAISAL RIGHTS AVAILABLE TO STOCKHOLDERS OF
BIOTECHNICA INTERNATIONAL, INC. IN CONNECTION WITH THE MERGER OF
BIOTECHNICA INTERNATIONAL, INC. WITH AND INTO
BTI MERGER CORP.,
A WHOLLY OWNED SUBSIDIARY OF
LIMAGRAIN GENETICS CORP.
TO THE HOLDERS OF CERTIFICATES
REPRESENTING COMMON STOCK OF
BIOTECHNICA INTERNATIONAL, INC.:
NOTICE IS HEREBY GIVEN pursuant to Section 262(d)(2) of the
General Corporation Law of the State of Delaware (the "DGCL") that effective on
_____________, 1998 (the "Effective Time of the Merger"), BioTechnica
International, Inc., a Delaware corporation (the "Company"), will be merged
(the "Merger") with and into BTI Merger Corp. ("Mergerco"), a Delaware
corporation and wholly-owned subsidiary of Limagrain Genetics Corp., a
Delaware corporation ("LG Corp"), with Mergerco as the surviving corporation
(Mergerco is sometimes referred to herein as the "Surviving Corporation").
The Merger will be effected pursuant to Section 253 of the DGCL when
Mergerco files a Certificate of Ownership and Merger with the Secretary of
State of Delaware. Immediately prior to the Merger, Mergerco will own
approximately 95% of the outstanding shares of common stock,
par value $.01 per share (the "Shares"), of the Company. Under the DGCL, no
action will be required by the board of directors or stockholders of the
Company, other than Mergerco (through its Board of Directors), for the Merger to
become effective. Prior to the consummation of the merger, LG Corp. and
Mergerco reserve the right to cancel the merger for any reason, including
without limitation if (i) any stockholder of the Company seeks to enjoin the
merger or (ii) in their judgment, the anticipated cost of the merger would be
materially increased by the number of stockholders of the Company seeking
their appraisal remedy.
As a result of the Merger, the separate corporate existence of the Company will
cease. At the Effective Time of the Merger, each of the outstanding Shares
of the Company (other than Shares held by Mergerco 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 $.05 in cash,
without interest, upon surrender of the certificate for such Share to Harris
Trust Company of New York, as Paying Agent (the "Paying Agent"), as set forth
in the enclosed letter of transmittal (the "Letter of Transmittal").
SURRENDER OF CERTIFICATES
The Paying Agent will accept the surrender of certificates
representing Shares in exchange for the $.05 per Share cash payment.
TO RECEIVE THE $.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 the address 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 $.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 $.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 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 $.05 per Share. Following such an appraisal proceeding,
the Delaware Court of Chancery would direct the Surviving Corporation, 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 _______________,
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:
BioTechnica International, Inc.
4001 North War Memorial Drive
Peoria, Illinois 61614
Attn: 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
Share) 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 or her 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 or 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 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 Surviving
Corporation 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 Surviving Corporation is under no obligation,
and has no present intention, to file such a petition. Accordingly, any
stockholder who wishes to perfect his or her 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 Surviving Corporation 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
_____________, 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 Surviving Corporation, the Surviving Corporation 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 Surviving
Corporation. 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 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 of Chancery and taxed upon the parties as the Court of Chancery deems
equitable in the circumstances. The Court of Chancery 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 or she 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 Share 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 $.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 electronically with the Commission.
Dated: ___________, 1998 BTI MERGER CORP.
By:
Name:
Title:
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 S 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 corporation in a merger or consolidation to be
effected pursuant to S 251 (other than a merger effected pursuant to S 251(g)
of this title), S 252, S 254, S 257, S 258, S 263 or S 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
S 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 S 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;
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 of 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 S 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 such stockholder's shares shall deliver to the corporation,
before the taking of the vote on the merger or consolidation, a written
demand for appraisal of such stockholder'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 stockholder's 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
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 S 228 or S 253
of this title, each constituent corporation, either before the effective
date of the merger or consolidation or within ten 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 such
stockholder's 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 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 such stockholder's written request for such a statement is received
by the surviving or resulting corporation 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 such stockholder's
certificates of stock to the Register in Chancery if such is required, may
participate fully in all proceedings until it is finally determined that
such stockholder is not entitled to appraisal rights under this section.
(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 such stockholder's 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 such stockholder's 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.