2019 South Dakota Codified Laws
Title 47 - Corporations
Chapter 33 - South Dakota Domestic Public Corporation Takeover Act
§ 47-33-14 Right to demand fair value of voting shares--Notice of right of demand.

47-33-14. Right to demand fair value of voting shares--Notice of right of demand. (1) Unless otherwise provided in the articles of the domestic public corporation before the control share acquisition has occurred, in the event control shares acquired in the control share acquisition are accorded voting rights pursuant to § 47-33-12 and the acquiring person beneficially owns a majority or more of all voting shares, all shareholders of the domestic public corporation who did not vote to approve the resolution pursuant to § 47-33-12 shall have the right to make written demand on the acquiring person for payment of the fair value of the voting shares of the corporation held by the shareholder and the acquiring person shall be required to pay the fair value, plus interest, to the shareholder in cash pursuant to the procedures herein specified. Interest shall be payable on the fair value of the shares at the Category C rate of interest provided in § 54-3-16 from and after the date the control shares acquired in the control share acquisition are accorded full voting rights pursuant to § 47-33-12.

(2) As used in this section, "fair value" includes an increment representing a proportion of any value payable for acquisition of control of the corporation and, in no event, shall be less than the highest price paid per share by the acquiring person in the control share acquisition for other shares of the same class or series.

(3) As soon as practicable after such events have occurred, the acquiring person shall cause a notice to be delivered to all shareholders of the domestic public corporation:

(a) Advising them that all shareholders who did not vote to accord voting rights to the control shares pursuant to § 47-33-12 are entitled to demand that they be paid the fair value of their shares;

(b) Advising them that the minimum value any such shareholder can receive under this section is the highest price paid per share by the acquiring person in the control share acquisition for other shares of the same class or series and stating that value, plus interest;

(c) Stating the acquiring person's opinion of the fair value of the shares, explaining the basis upon which that value was determined, and offering to pay each shareholder that amount in cash for each share, plus interest, upon receiving the shareholder's agreement to accept it; however, in no event shall the amount offered by the acquiring person be less than the minimum value the shareholder can receive under this section;

(d) Advising them that any such shareholder may elect to employ the procedure set forth in § 47-33-15 for a determination of the fair value of his shares if the shareholder believes the fair value of his shares is higher than the amount offered by the acquiring person; and

(e) Stating the address to which such shareholders may send their demands to be paid the fair value of their shares and the time within which the shareholders must submit their demands, which shall not be less than thirty days from the date of mailing of the notice by the acquiring person to the shareholders.
The notice shall also include copies of this section and § 47-33-15 and a form which may be used by the shareholder for demanding payment pursuant to § 47-33-15.

(4) The provisions of this section shall not preclude an acquiring person from purchasing voting shares of the corporation at a price other than the fair value of those shares and does not preclude any shareholder from agreeing to sell his voting shares at that or any other price to any person.

Source: SL 1990, ch 369, § 207.