TROUTMAN SANDERS LLP
ATTORNEYS AT LAW
A LIMITED LIABILITY PARTNERSHIP
THE CHRYSLER BUILDING
405 LEXINGTON AVENUE
NEW YORK, NEW YORK 10174
www.troutmansanders.com
TELEPHONE: 212-704-6000
FACSIMILE: 212-704-6288
Timothy I. Kahler Direct Dial:212-704-6169
timothy.kahler@troutmansanders.com Fax: 212-704-5948
August 23, 2005
Via Edgar Correspondence
United States Securities and Exchange Commission
Division of Corporate Finance
450 Fifth Street, N.W.
Washington, D.C. 20549-0405
Attn: Mr. Yong Choi
Re: Cadence Resources Corporation - Amendment No. 1 to
Registration Statement on Form S-4; File No. 333-124904
Dear Mr. Choi:
Earlier today Cadence filed Amendment No. 1. to its registration
statement on Form S-4 with respect to the shares to be issued to the
stockholders of Aurora Energy, Ltd. upon the closing of the merger transaction
between Cadence and Aurora. I previously mentioned to you that (i) Aurora, a
private company with fewer than 300 stockholders, will hold a stockholders
meeting in which its stockholders will vote on the proposed merger with Cadence,
and (ii) Aurora intends to seek proxies from its stockholders designating
certain members of Aurora management to vote shares of Aurora stock at the
stockholders meeting.
As you suggested, I am herewith supplementally furnishing to you,
for the Staff's information, a draft of the letter to Aurora stockholders that
Aurora management has prepared for the purpose of seeking such proxies. As you
can see from the draft letter, Aurora's management currently intends to enclose
with the letter a copy of the prospectus contained in Cadence's registration
statement as declared effective by the Commission.
Please call the undersigned, or in my absence my partner Henry I.
Rothman, Esq. (212-704-6179), if you have any questions about the enclosed
document or Aurora's solicitation of proxies from its stockholders.
Very truly yours,
/s/ Timothy I. Kahler
---------------------
Timothy I. Kahler
TIK:se
cc: Henry I. Rothman, Esq.
Aurora Energy, Ltd.
PRINCIPAL EXECUTIVE OFFICES: PLACE OF MEETING:
3760 North US-31 South [____________________]
Traverse City, Michigan 49684 [____________________]
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
To the Stockholders:
Notice is hereby given that a special meeting of the stockholders of Aurora
Energy, Ltd. (the "Company" or "Aurora"), a Nevada corporation, will be held
at_________________________________, on _______, _______, 2005 at _________
__.m. local time.
The sole purpose of the meeting is to consider and vote on the approval of the
agreement and plan of merger between Cadence Resources Corporation and Aurora.
Enclosed for your consideration are the following:
1. A proxy card, instructions and return envelope.
2. A summary of the Agreement and Plan of Merger.
3. A copy of Nevada Revised Statutes 92A.300 to 92 A.500 relating
to dissenters' rights.
4. A prospectus relating to the proposed merger.
Only stockholders of the Company of record at the close of business on [Insert
Record Date], 2005 are entitled to notice of and to vote at the meeting.
All stockholders are cordially invited to attend the meeting in person. However,
to assure your representation at the meeting, you are urged to mark, sign and
date the enclosed Proxy Card and return it to the Company in the enclosed
envelope.
Sincerely,
Barbara J. Johnson, Secretary
Traverse City, Michigan
Dated: _________, 2005
AURORA ENERGY, LTD.
PROXY CARD
SOLICITED BY THE COMPANY'S BOARD OF DIRECTORS
The undersigned stockholder(s) of Aurora Energy, Ltd., (the "Company") hereby
appoints William W. Deneau, President and Chairman of the Board of the Company,
and John V. Miller, a Director of the Company, or instead of them , or any one
of the foregoing individuals acting singly, as Proxy of the undersigned with
full power of substitution, to attend the Special Meeting of the Company's
stockholders on ___________, ______, 2005 at _____ ___.m., local time, to be
held at __________________________ (the "Meeting") and any adjournment of the
Meeting, and to vote on the undersigned's behalf all shares of the Company's
stock registered in the undersigned's name, in the manner indicated by the
checked boxes below.
*INSTRUCTIONS: A STOCKHOLDER HAS THE RIGHT TO APPOINT ANY PERSON TO ATTEND THE
MEETING AND ACT ON THE STOCKHOLDER'S BEHALF. IF THE STOCKHOLDER DESIRES TO
APPOINT A PERSON OTHER THAN THOSE NAMED IN THIS PRINTED DOCUMENT, THE
STOCKHOLDER SHOULD INSERT THE NAME AND ADDRESS OF THE DESIRED PERSON IN THE
BLANK SPACE PROVED.
1. APPROVAL OF PLAN OF MERGER. THE COMPANY'S BOARD OF DIRECTORS
RECOMMENDS A VOTE IN FAVOR OF THE RATIFICATION AND APPROVAL OF
THE PLAN OF MERGER WITH CADENCE RESOURCES CORPORATION.
For ( ) Against ( ) Abstain ( )
Stockholders who are unable to be present at the Meeting are requested
to COMPLETE, DATE, SIGN, and RETURN THIS PROXY CARD IN THE ENCLOSED
EVELOPE.
DATED:_____________________, 2005.
----------------------------------
Stockholder's signature
----------------------------------
Print Name
----------------------------------
Stockholder's signature
----------------------------------
Print Name
- -------------------------------------------------------------------------------
YOUR VOTE IS IMPORTANT
- -------------------------------------------------------------------------------
Regardless of the number of shares you own, your vote is important. We want and
need your input.
If you do not attend the Special Meeting to vote in person, your vote will not
be counted unless a proxy representing your shares is presented at the meeting.
To ensure that your shares will be voted at the meeting, please MARK, SIGN, DATE
AND PROMPTLY RETURN the enclosed Proxy card.
If you do attend the meeting in person, you may revoke your proxy and
vote in person.
- -------------------------------------------------------------------------------
SUMMARY OF PLAN OF MERGER
OVERVIEW
On January 31, 2005, Aurora Energy, Ltd. (the "Company"), entered into a
definitive merger agreement with Cadence Resources Corporation ("Cadence"), a
publicly-traded entity (Symbol: OTC BB: CDNR.OB) based in Walla Walla,
Washington. A copy of the Agreement and Plan of Merger ("Merger Agreement") is
attached to the Prospectus provided with the meeting notice for the Special
Meeting of the stockholders at which the proposed merger will be voted on.
Pursuant to the terms of the Merger Agreement, the Company will merge with
a wholly owned subsidiary of Cadence. All of the Company's outstanding stock
will be canceled, but the Company will be the survivor in this merger. As a
result, the Company will become a wholly-owned subsidiary of Cadence. The final
closing of this merger transaction will occur upon the approval of the Aurora
shareholders and the satisfaction of certain conditions to closing contained in
the Merger Agreement. After the final closing, the combined companies will be
headquartered in Traverse City, Michigan, and current Company management will
assume management control of Cadence. The merger will become effective at the
time the Company files the Articles of Merger with the Secretary of State of the
State of Nevada (the "Effective Time").
MERGER CONSIDERATION
i. Common Stock
At the Effective Time, each issued and outstanding share of the Company's
common stock, $.001 par value per share, will be converted into the right to
receive two (2) shares of Cadence's common stock, $.01 par value per share. All
shares of the Company's Common Stock converted in accordance with the Plan of
Merger will no longer be outstanding and will automatically be cancelled and
retired and shall cease to exist. Each shareholder of the Company's Common Stock
shall thereafter cease to have any rights with respect thereto, except the right
to receive the shares of Cadence Common Stock on a 2:1 basis.
ii. Convertible Securities
At the Effective Time, any securities convertible into or exercisable for
shares of the Company's Common Stock immediately prior to the Effective Time
will become, at the Effective Time, securities convertible into or exercisable
for that number of shares of Cadence Common Stock as the holder of the Company's
securities would have received had the holder converted the securities into the
Company's Common Stock immediately prior to the Effective Time. Appropriate
adjustment will be made to any exercise or conversion price of such securities.
EXCHANGE OF STOCK CERTIFICATES
As of the Effective Time, Cadence will enter into an agreement with a bank
or trust company designated by Cadence (the "Exchange Agent"), which will
provide that Cadence shall deposit with the Exchange Agent as of the Effective
Time, certificates representing the number of duly authorized whole shares of
Cadence Common Stock issuable in connection with this merger transaction.
As soon as reasonably practicable after the Effective Time, and in any
event within ten business days after the Effective Time, Cadence shall cause the
Exchange Agent to mail to each holder of record of a certificate or certificates
which immediately prior to the Effective Time represented outstanding shares of
the Company's Common Stock whose shares are converted pursuant to the Plan of
Merger, (i) a letter of transmittal in customary form, and (ii) instructions for
use in effecting the surrender of the Company's Common Stock in exchange for
certificates representing whole shares of Cadence Common Stock. Upon surrender
of the Company's Common Stock for cancellation to the Exchange Agent, together
with the letter of transmittal duly executed and completed in accordance with
its terms, the holder of the Company's Common Stock shall be entitled to receive
in exchange therefor a certificate representing 90% of that number of shares of
Cadence Common Stock, which the holder has the right to receive pursuant to the
provisions of the Plan of Merger, and the Company Common Stock so surrendered
shall forthwith be cancelled. The remaining 10% of the certificates for shares
of Cadence Common Stock issuable in the exchange shall initially be held in an
Exchange Fund by the Exchange Agent. The Exchange Agent shall have discretion to
determine and apply reasonable rules and procedures relating to the surrender
for exchange of a Certificate of Company Common Stock that is lost or destroyed.
No certificate or scrip representing fractional shares of Cadence Common
Stock will be issued in the Merger upon the surrender for exchange of
Certificates of Company Common Stock, and any fractional share interests will
not entitle the owner to any rights as a shareholder of Cadence. Each holder of
Certificates of Company Common Stock who would otherwise have been entitled to a
fraction equal to one-half or more of a share of Cadence Common Stock will
receive a full share of Cadence Common Stock, and fractional interests of less
than one-half of a share of Cadence Common Stock will be canceled.
The 10% of the shares of Cadence Common Stock to be issued in the merger
that are held in the Exchange Fund will be held for a period of up to six months
following the Effective Date. These shares will be used, if necessary, to pay
any liability to Cadence for indemnification for losses caused by the Company's
breach of the Merger Agreement. If no claim for indemnification has been
asserted by Cadence at the end of the six month period, the remaining 10% of the
shares will be distributed to the holders of the Company's Common Stock. If the
Company successfully asserts a claim for indemnification from Cadence under the
Merger Agreement, holders of the Company may receive up to 0.2 additional shares
of Cadence Common Stock for each share of the Company's Common Stock tendered in
the merger.
SHAREHOLDER RIGHT OF DISSENT
Pursuant to Nevada Revised Statutes ss.92A.380, any shareholder is
entitled to dissent from, and obtain payment of the fair value of the
shareholder's shares of the Company's Common Stock, in the event of the
consummation of this Plan of Merger with Cadence. The procedures under Nevada
law for exercising dissenters' rights may be found in NRS 92A.300 to 92A.500, a
copy of which is attached. In order to assert dissenter's rights, you must not
vote in favor of the merger, and must deliver to the Company prior to the vote
on the Plan of Merger a written notice of your intent to demand payment for your
shares if the merger is consummated.
YOUR BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE FOR THE RATIFICATION AND
APPROVAL OF THE PLAN OF MERGER WITH CADENCE RESOURCES CORPORATION
==============================
NRS 92A.300 Definitions. As used in NRS 92A.300 to 92A.500, inclusive, unless
the context otherwise requires, the words and terms defined in NRS 92A.305 to
92A.335, inclusive, have the meanings ascribed to them in those sections.
(Added to NRS by 1995, 2086)
NRS 92A.305 "Beneficial stockholder" defined. "Beneficial stockholder"
means a person who is a beneficial owner of shares held in a voting trust or by
a nominee as the stockholder of record.
(Added to NRS by 1995, 2087)
NRS 92A.310 "Corporate action" defined. "Corporate action" means the
action of a domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.315 "Dissenter" defined. "Dissenter" means a stockholder who is
entitled to dissent from a domestic corporation's action under NRS 92A.380 and
who exercises that right when and in the manner required by NRS 92A.400 to
92A.480, inclusive.
(Added to NRS by 1995, 2087; A 1999, 1631)
NRS 92A.320 "Fair value" defined. "Fair value," with respect to a
dissenter's shares, means the value of the shares immediately before the
effectuation of the corporate action to which he objects, excluding any
appreciation or depreciation in anticipation of the corporate action unless
exclusion would be inequitable.
(Added to NRS by 1995, 2087)
NRS 92A.325 "Stockholder" defined. "Stockholder" means a stockholder of
record or a beneficial stockholder of a domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.330 "Stockholder of record" defined. "Stockholder of record" means
the person in whose name shares are registered in the records of a domestic
corporation or the beneficial owner of shares to the extent of the rights
granted by a nominee's certificate on file with the domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.335 "Subject corporation" defined. "Subject corporation" means the
domestic corporation which is the issuer of the shares held by a dissenter
before the corporate action creating the dissenter's rights becomes effective or
the surviving or acquiring entity of that issuer after the corporate action
becomes effective.
(Added to NRS by 1995, 2087)
NRS 92A.340 Computation of interest. Interest payable pursuant to NRS
92A.300 to 92A.500, inclusive, must be computed from the effective date of the
action until the date of payment, at the average rate currently paid by the
entity on its principal bank loans or, if it has no bank loans, at a rate that
is fair and equitable under all of the circumstances.
(Added to NRS by 1995, 2087)
NRS 92A.350 Rights of dissenting partner of domestic limited partnership.
A partnership agreement of a domestic limited partnership or, unless otherwise
provided in the partnership agreement, an agreement of merger or exchange, may
provide that contractual rights with respect to the partnership interest of a
dissenting general or limited partner of a domestic limited partnership are
available for any class or group of partnership interests in connection with any
merger or exchange in which the domestic limited partnership is a constituent
entity.
(Added to NRS by 1995, 2088)
NRS 92A.360 Rights of dissenting member of domestic limited-liability
company. The articles of organization or operating agreement of a domestic
limited-liability company or, unless otherwise provided in the articles of
organization or operating agreement, an agreement of merger or exchange, may
provide that contractual rights with respect to the interest of a dissenting
member are available in connection with any merger or exchange in which the
domestic limited-liability company is a constituent entity.
(Added to NRS by 1995, 2088)
NRS 92A.370 Rights of dissenting member of domestic nonprofit corporation.
1. Except as otherwise provided in subsection 2, and unless otherwise
provided in the articles or bylaws, any member of any constituent domestic
nonprofit corporation who voted against the merger may, without prior notice,
but within 30 days after the effective date of the merger, resign from
membership and is thereby excused from all contractual obligations to the
constituent or surviving corporations which did not occur before his resignation
and is thereby entitled to those rights, if any, which would have existed if
there had been no merger and the membership had been terminated or the member
had been expelled.
2. Unless otherwise provided in its articles of incorporation or bylaws,
no member of a domestic nonprofit corporation, including, but not limited to, a
cooperative corporation, which supplies services described in chapter 704 of NRS
to its members only, and no person who is a member of a domestic nonprofit
corporation as a condition of or by reason of the ownership of an interest in
real property, may resign and dissent pursuant to subsection 1.
(Added to NRS by 1995, 2088)
NRS 92A.380 Right of stockholder to dissent from certain corporate actions
and to obtain payment for shares.
1. Except as otherwise provided in NRS 92A.370 and 92A.390, any
stockholder is entitled to dissent from, and obtain payment of the fair value of
his shares in the event of any of the following corporate actions:
(a) Consummation of a conversion or plan of merger to which the domestic
corporation is a constituent entity:
(1) If approval by the stockholders is required for the
conversion or merger by NRS 92A.120 to 92A.160, inclusive, or the articles of
incorporation, regardless of whether the stockholder is entitled to vote on the
conversion or plan of merger; or
(2) If the domestic corporation is a subsidiary and is merged
with its parent pursuant to NRS 92A.180.
(b) Consummation of a plan of exchange to which the domestic corporation
is a constituent entity as the corporation whose subject owner's interests will
be acquired, if his shares are to be acquired in the plan of exchange.
(c) Any corporate action taken pursuant to a vote of the stockholders to
the extent that the articles of incorporation, bylaws or a resolution of the
board of directors provides that voting or nonvoting stockholders are entitled
to dissent and obtain payment for their shares.
2. A stockholder who is entitled to dissent and obtain payment pursuant to
NRS 92A.300 to 92A.500, inclusive, may not challenge the corporate action
creating his entitlement unless the action is unlawful or fraudulent with
respect to him or the domestic corporation.
(Added to NRS by 1995, 2087; A 2001, 1414, 3199; 2003, 3189)
NRS 92A.390 Limitations on right of dissent: Stockholders of certain
classes or series; action of stockholders not required for plan of merger.
1. There is no right of dissent with respect to a plan of merger or
exchange in favor of stockholders of any class or series which, at the record
date fixed to determine the stockholders entitled to receive notice of and to
vote at the meeting at which the plan of merger or exchange is to be acted on,
were either listed on a national securities exchange, included in the national
market system by the National Association of Securities Dealers, Inc., or held
by at least 2,000 stockholders of record, unless:
(a) The articles of incorporation of the corporation issuing the shares
provide otherwise; or
(b) The holders of the class or series are required under the plan of
merger or exchange to accept for the shares anything except:
(1) Cash, owner's interests or owner's interests and cash in lieu
of fractional owner's interests of:
(I) The surviving or acquiring entity; or
(II) Any other entity which, at the effective date of the
plan of merger or exchange, were either listed on a national securities
exchange, included in the national market system by the National Association of
Securities Dealers, Inc., or held of record by a least 2,000 holders of owner's
interests of record; or
(2) A combination of cash and owner's interests of the kind described in
sub-subparagraphs (I) and (II) of subparagraph (1) of paragraph (b).
2. There is no right of dissent for any holders of stock of the surviving
domestic corporation if the plan of merger does not require action of the
stockholders of the surviving domestic corporation under NRS 92A.130.
(Added to NRS by 1995, 2088)
NRS 92A.400 Limitations on right of dissent: Assertion as to portions
only to shares registered to stockholder; assertion by beneficial stockholder.
1. A stockholder of record may assert dissenter's rights as to fewer than
all of the shares registered in his name only if he dissents with respect to all
shares beneficially owned by any one person and notifies the subject corporation
in writing of the name and address of each person on whose behalf he asserts
dissenter's rights. The rights of a partial dissenter under this subsection are
determined as if the shares as to which he dissents and his other shares were
registered in the names of different stockholders.
2. A beneficial stockholder may assert dissenter's rights as to shares
held on his behalf only if: (a) He submits to the subject corporation the
written consent of the stockholder of record to the dissent not later than the
time the beneficial stockholder asserts dissenter's rights; and (b) He does so
with respect to all shares of which he is the beneficial stockholder or over
which he has power to direct the vote.
(Added to NRS by 1995, 2089)
NRS 92A.410 Notification of stockholders regarding right of dissent.
1. If a proposed corporate action creating dissenters' rights is submitted
to a vote at a stockholders' meeting, the notice of the meeting must state that
stockholders are or may be entitled to assert dissenters' rights under NRS
92A.300 to 92A.500, inclusive, and be accompanied by a copy of those sections.
2. If the corporate action creating dissenters' rights is taken by written
consent of the stockholders or without a vote of the stockholders, the domestic
corporation shall notify in writing all stockholders entitled to assert
dissenters' rights that the action was taken and send them the dissenter's
notice described in NRS 92A.430.
(Added to NRS by 1995, 2089; A 1997, 730)
NRS 92A.420 Prerequisites to demand for payment for shares.
1. If a proposed corporate action creating dissenters' rights is submitted
to a vote at a stockholders' meeting, a stockholder who wishes to assert
dissenter's rights:
(a) Must deliver to the subject corporation, before the vote is taken,
written notice of his intent to demand payment for his shares if the proposed
action is effectuated; and
(b) Must not vote his shares in favor of the proposed action.
2. A stockholder who does not satisfy the requirements of subsection 1 and
NRS 92A.400 is not entitled to payment for his shares under this chapter.
(Added to NRS by 1995, 2089; 1999, 1631)
NRS 92A.430 Dissenter's notice: Delivery to stockholders entitled to
assert rights; contents.
1. If a proposed corporate action creating dissenters' rights is
authorized at a stockholders' meeting, the subject corporation shall deliver a
written dissenter's notice to all stockholders who satisfied the requirements to
assert those rights.
2. The dissenter's notice must be sent no later than 10 days after the
effectuation of the corporate action, and must:
(a) State where the demand for payment must be sent and where and when
certificates, if any, for shares must be deposited;
(b) Inform the holders of shares not represented by certificates to what
extent the transfer of the shares will be restricted after the demand for
payment is received;
(c) Supply a form for demanding payment that includes the date of the
first announcement to the news media or to the stockholders of the terms of the
proposed action and requires that the person asserting dissenter's rights
certify whether or not he acquired beneficial ownership of the shares before
that date;
(d) Set a date by which the subject corporation must receive the demand
for payment, which may not be less than 30 nor more than 60 days after the date
the notice is delivered; and
(e) Be accompanied by a copy of NRS 92A.300 to 92A.500, inclusive.
(Added to NRS by 1995, 2089)
NRS 92A.440 Demand for payment and deposit of certificates; retention of
rights of stockholder.
1. A stockholder to whom a dissenter's notice is sent must:
(a) Demand payment;
(b) Certify whether he or the beneficial owner on whose behalf he is
dissenting, as the case may be, acquired beneficial ownership of the shares
before the date required to be set forth in the dissenter's notice for this
certification; and
(c) Deposit his certificates, if any, in accordance with the terms of the
notice.
2. The stockholder who demands payment and deposits his certificates, if
any, before the proposed corporate action is taken retains all other rights of a
stockholder until those rights are cancelled or modified by the taking of the
proposed corporate action.
3. The stockholder who does not demand payment or deposit his certificates
where required, each by the date set forth in the dissenter's notice, is not
entitled to payment for his shares under this chapter.
(Added to NRS by 1995, 2090; A 1997, 730; 2003, 3189)
NRS 92A.450 Uncertificated shares: Authority to restrict transfer after
demand for payment; retention of rights of stockholder.
1. The subject corporation may restrict the transfer of shares not
represented by a certificate from the date the demand for their payment is
received.
2. The person for whom dissenter's rights are asserted as to shares not
represented by a certificate retains all other rights of a stockholder until
those rights are cancelled or modified by the taking of the proposed corporate
action.
(Added to NRS by 1995, 2090)
NRS 92A.460 Payment for shares: General requirements.
1. Except as otherwise provided in NRS 92A.470, within 30 days after
receipt of a demand for payment, the subject corporation shall pay each
dissenter who complied with NRS 92A.440 the amount the subject corporation
estimates to be the fair value of his shares, plus accrued interest. The
obligation of the subject corporation under this subsection may be enforced by
the district court:
(a) Of the county where the corporation's registered office is located; or
(b) At the election of any dissenter residing or having its registered
office in this state, of the county where the dissenter resides or has its
registered office. The court shall dispose of the complaint promptly.
2. The payment must be accompanied by:
(a) The subject corporation's balance sheet as of the end of a fiscal year
ending not more than 16 months before the date of payment, a statement of income
for that year, a statement of changes in the stockholders' equity for that year
and the latest available interim financial statements, if any;
(b) A statement of the subject corporation's estimate of the fair value of
the shares; (c) An explanation of how the interest was calculated; (d) A
statement of the dissenter's rights to demand payment under NRS 92A.480; and (e)
A copy of NRS 92A.300 to 92A.500, inclusive.
(Added to NRS by 1995, 2090)
NRS 92A.470 Payment for shares: Shares acquired on or after date of
dissenter's notice.
1. A subject corporation may elect to withhold payment from a dissenter
unless he was the beneficial owner of the shares before the date set forth in
the dissenter's notice as the date of the first announcement to the news media
or to the stockholders of the terms of the proposed action.
2. To the extent the subject corporation elects to withhold payment, after
taking the proposed action, it shall estimate the fair value of the shares, plus
accrued interest, and shall offer to pay this amount to each dissenter who
agrees to accept it in full satisfaction of his demand. The subject corporation
shall send with its offer a statement of its estimate of the fair value of the
shares, an explanation of how the interest was calculated, and a statement of
the dissenters' right to demand payment pursuant to NRS 92A.480.
(Added to NRS by 1995, 2091)
NRS 92A.480 Dissenter's estimate of fair value: Notification of subject
corporation; demand for payment of estimate.
1. A dissenter may notify the subject corporation in writing of his own
estimate of the fair value of his shares and the amount of interest due, and
demand payment of his estimate, less any payment pursuant to NRS 92A.460, or
reject the offer pursuant to NRS 92A.470 and demand payment of the fair value of
his shares and interest due, if he believes that the amount paid pursuant to NRS
92A.460 or offered pursuant to NRS 92A.470 is less than the fair value of his
shares or that the interest due is incorrectly calculated.
2. A dissenter waives his right to demand payment pursuant to this section
unless he notifies the subject corporation of his demand in writing within 30
days after the subject corporation made or offered payment for his shares.
(Added to NRS by 1995, 2091)
NRS 92A.490 Legal proceeding to determine fair value: Duties of subject
corporation; powers of court; rights of dissenter.
1. If a demand for payment remains unsettled, the subject corporation
shall commence a proceeding within 60 days after receiving the demand and
petition the court to determine the fair value of the shares and accrued
interest. If the subject corporation does not commence the proceeding within the
60-day period, it shall pay each dissenter whose demand remains unsettled the
amount demanded.
2. A subject corporation shall commence the proceeding in the district
court of the county where its registered office is located. If the subject
corporation is a foreign entity without a resident agent in the state, it shall
commence the proceeding in the county where the registered office of the
domestic corporation merged with or whose shares were acquired by the foreign
entity was located.
3. The subject corporation shall make all dissenters, whether or not
residents of Nevada, whose demands remain unsettled, parties to the proceeding
as in an action against their shares. All parties must be served with a copy of
the petition. Nonresidents may be served by registered or certified mail or by
publication as provided by law.
4. The jurisdiction of the court in which the proceeding is commenced
under subsection 2 is plenary and exclusive. The court may appoint one or more
persons as appraisers to receive evidence and recommend a decision on the
question of fair value. The appraisers have the powers described in the order
appointing them, or any amendment thereto. The dissenters are entitled to the
same discovery rights as parties in other civil proceedings.
5. Each dissenter who is made a party to the proceeding is entitled to a
judgment:
(a) For the amount, if any, by which the court finds the fair value of his
shares, plus interest, exceeds the amount paid by the subject corporation; or
(b) For the fair value, plus accrued interest, of his after-acquired
shares for which the subject corporation elected to withhold payment pursuant to
NRS 92A.470.
(Added to NRS by 1995, 2091)
NRS 92A.500 Legal proceeding to determine fair value: Assessment of costs
and fees.
1. The court in a proceeding to determine fair value shall determine all
of the costs of the proceeding, including the reasonable compensation and
expenses of any appraisers appointed by the court. The court shall assess the
costs against the subject corporation, except that the court may assess costs
against all or some of the dissenters, in amounts the court finds equitable, to
the extent the court finds the dissenters acted arbitrarily, vexatiously or not
in good faith in demanding payment.
2. The court may also assess the fees and expenses of the counsel and
experts for the respective parties, in amounts the court finds equitable:
(a) Against the subject corporation and in favor of all dissenters if the
court finds the subject corporation did not substantially comply with the
requirements of NRS 92A.300 to 92A.500, inclusive; or
(b) Against either the subject corporation or a dissenter in favor of any
other party, if the court finds that the party against whom the fees and
expenses are assessed acted arbitrarily, vexatiously or not in good faith with
respect to the rights provided by NRS 92A.300 to 92A.500, inclusive.
3. If the court finds that the services of counsel for any dissenter were
of substantial benefit to other dissenters similarly situated, and that the fees
for those services should not be assessed against the subject corporation, the
court may award to those counsel reasonable fees to be paid out of the amounts
awarded to the dissenters who were benefited.
4. In a proceeding commenced pursuant to NRS 92A.460, the court may assess
the costs against the subject corporation, except that the court may assess
costs against all or some of the dissenters who are parties to the proceeding,
in amounts the court finds equitable, to the extent the court finds that such
parties did not act in good faith in instituting the proceeding.
5. This section does not preclude any party in a proceeding commenced
pursuant to NRS 92A.460 or 92A.490 from applying the provisions of N.R.C.P. 68
or NRS 17.115.
(Added to NRS by 1995, 2092)