A Misunderstanding and a
Larger Issue Uncovered
Joseph R. Marek
3L
Professor Palmiter
Spring 2001
Whether the court was correct in
subordinating plaintiffs’ allegations of fraud and unlawful conduct to fair
price.
North Carolina General Statute §55-13-02
grants shareholders the right to dissent from a corporate merger. Upon dissent, a shareholder is entitled to
obtain payment for the fair value of his shares. The statute further states that a shareholder entitled to dissent
and “obtain payment for his shares…may not challenge the corporate action
creating his entitlement…unless the action is unlawful or fraudulent with
respect to the shareholder or the corporation.”
Analysis
When corporate mergers force or cash-out minority
shareholders, valuation of the shareholders’ interests are guided by North
Carolina statute.[1] Under North Carolina statute, a minority
shareholder is entitled to dissent from a corporate merger.[2] However, the shareholder’s exclusive remedy
is receipt of the fair value of his shares, absent unlawful or fraudulent
conduct.[3]
In
adopting this statute, the legislature intended to embrace the “entire fairness
test” adopted by the Supreme Court of Delaware.[4] This test requires that all factors and
elements, which might be reasonable under the circumstances, be considered in
valuing the stock.[5] Therefore, although a dissenting shareholder
may be limited to statutory appraisal in the valuation of his stock, that valuation
must consider all relevant factors in determining value and whether there was
unlawful or fraudulent conduct.[6]
This
holding incorrectly subordinated plaintiffs’ allegations of fraud and unlawful
conduct to the determination of fair price.[9] Additionally, the holding evidences the
court’s misunderstanding of North Carolina statute and the concepts of Delaware
law that the statute seeks to incorporate.[10] Furthermore, the incorrect holding resulted
in the court apply a shortsighted analysis which obscured the larger issue in the
case – what constitutes fraud and unlawful conduct under the statute that
provides for an appraisal remedy.
Part
I of this note examines the factual and procedural background of the case. Part II examines the relevant North Carolina
law and the issues presented. Part III
challenges the court’s holding and considers whether the conduct in the case
would have amounted to unlawful or fraudulent conduct under the statute. Finally, this note concludes that the
court’s misunderstanding of North Carolina statute, and its incorporated
concepts of Delaware law, precluded them from properly examining and analyzing
the issues.
Part
I:
1. Factual
Background
a.
The Defendant
Brenner Companies Inc. (Brenner), a North
Carolina public corporation, was in the business of processing and recycling
metal, fabricating steel, and manufacturing refuse containers.[11] In 1978, Brenner sold its trash collection
business, reducing the public demand for its common stock.[12] Accordingly, Brenner decided to become a
private corporation by implementing a forced sale, or cash-out of its minority
shareholders.[13]
b.
The Plaintiffs
The plaintiffs, comprised of a small
group of minority shareholders, objected to the cash-out merger.[14] Plaintiffs characterized the stock valuation
to be “ridiculously low.”[15] Plaintiffs filed suit alleging that the
“ridiculously low” price was the result of the Brenner Board committing fraud
and breaching fiduciary duties.[16] Accordingly, they sought compensatory and
punitive damages, which the court denied.[17]
c.
The
Valuation Process[i]
In March 1988, Brennen hired Interstate
Securities Corporation (Interstate) to provide a valuation of the company.[18] Interstate provided Brennen with two
valuation reports that utilized three different valuations methods.[19] The reports priced the company’s stock
between $15.93 and $19.12 per share.[20]
The Brennen Board voted to set the merger
stock price at $17.50, the median of the two values.[21] The Board then requested that Interstate
conduct a fairness assessment of the $17.50 price.[22] Interstate utilized eight different
valuation techniques in the fairness assessment, none of which resulted in a
value great than $17.50.[23] Accordingly, the Board approved the cash-out
merger at $17.50 per share.[24] It was this price that the plaintiffs
characterized as “ridiculously low.”[25]
2. Procedural Background
In
May 1988, plaintiffs sued alleging that the defendants breached their fiduciary
duties and committed fraud.[26] In October 1988, plaintiffs sought, but were
denied, a preliminary injunction to enjoin the merger.[27]
Additionally, plaintiffs’ discovery
motions, requesting pre- and post-merger financial information, were denied.[28] In May 1990, defendants’ motion for summary
judgment was granted.[29] Plaintiffs appealed.[30]
Part
II:
Plaintiffs, dissatisfied over the
merger’s price per share, contended that statutory appraisal was not their
exclusive remedy.[31] Rather, plaintiffs’ complaint sought
compensatory and punitive damages.[32] Plaintiffs supported the damage requests by
contending that there were issues of material fact regarding the fairness of
the merger, breach of fiduciary duty, and commission of constructive and/or
actual fraud by the defendants.[33] Therefore, plaintiffs contended that they
were not limited to the statutory appraisal remedy.[34]
1. North
Carolina Statutes
a.
Right to Dissent
North Carolina General Statute §55-13-02
grants shareholders the right to dissent from a corporate merger.[35] Upon dissent, a shareholder is entitled to
obtain payment for the fair value of his shares (emphasis
added).[36] The statute further states that a
shareholder entitled to dissent and “obtain payment for his shares…may not
challenge the corporate action creating his entitlement…unless the action is unlawful
or fraudulent
with respect to the shareholder or the corporation (emphasis added).”[37] In other words, absent fraud or unlawful
action, a dissenting shareholder’s exclusive statutory appraisal remedy is
receipt of the fair value for his share.[38]
b.
Fair Value
Fair value, as defined by §55-13-01,
“means the value of the shares immediately before the effectuation of the
corporate action to which the dissenter objects.”[39] The statute’s official comments state that
“the details by which ‘fair value’ is to be determined” is left to the
discretion of the parties, or ultimately the courts.[40]
This interpretation of fair value was
embraced in 1990 when the North Carolina Corporation Act became effective.[41] Prior to 1990, North Carolina General
Statute §55-113 specified a statutory appraisal method by which fair value was
to be determined.[42]
The legislature, however, in adopting the
North Carolina Corporation Act, sought to embrace the “entire fairness test”
adopted by Supreme of Delaware.[43] This entire fairness test breaks fair value
into two prongs; fair dealings and fair price.[44] Furthermore, it requires that appraisers and
the court “take into consideration all factors and elements which reasonably
might enter into fixing of value.”[45]
c.
Fraud and Unlawful Action
In a cash-out merger, a dissenting
shareholder’s exclusive statutory remedy is receipt of the fair value of his
shares, absent fraud or unlawful conduct.[46] The statute’s underlying theory, limiting
the dissenting shareholders to the fair value, is that a majority of
shareholders should be able to approve a corporate merger regardless of the
fact that a minority of shareholders disagree.[47] Since the dissenting shareholders are
entitled to the fair value for their shares, they are protected from pecuniary
loss.[48]
The statute’s official comments state
that this exclusive remedy, which differs from that specified in the former
statutory version, was designed to be in accordance with the principles that
have developed in Delaware, New York, and other states regarding the rights and
remedies of dissenting shareholders.[49]
Illustrative of those principles is Weinberger
v. UOP, Inc., 457 A.2d 701 (Del. 1983).[50] Weinberger held that the statutory
appraisal remedy was adequate unless “fraud, misrepresentation, self-dealing,
deliberate waste of corporate assets, or gross or palpable overreaching are
involved.”[51]
In sum, North Carolina statutes provide
that a minority shareholder is entitled to dissent from a merger.[52] The dissenting shareholder, however, is
entitled to obtain only the fair value of his shares unless unlawful or
fraudulent conduct is involved.[53] In appraising the shares, all relevant
factors must be considered.[54] Therefore, after considering all relevant
factors, absent unlawful conduct or fraud, the dissenting shareholder’s exclusive
remedy is this statutory appraisal method, or receipt of the shares fair value.[55]
2.
Issues
Plaintiffs characterized the issue as
whether statutory appraisal is their exclusive remedy when they are
dissatisfied with the merger’s stock price as a result of unfairness, breach of
fiduciary duties, and/or fraud.
Plaintiffs contended that any or all of these complaints should be
unlawful or fraudulent and thus, they should not be limited to the statutory
appraisal remedy.
a.
Unfair Dealings
Plaintiffs argued that the defendants’
acted unfairly by “appropriating for the Brenner family the assets of the
Company, by eliminating the public shareholders…at an inadequate price and as a
result of unfair dealings.”[56] The court, however, found that the plaintiffs
were unable to demonstrate that the defendants acted unfairly because they were
unable to present specific facts of misconduct.[57] The court found that the plaintiffs’
allegation of unfairness related only to price, which alone “does not render a
merger suspect.”[58]
b.
Breach of Fiduciary Duty
Plaintiffs argued that defendants’
conduct violated the fiduciary duty the officers and directions owe
shareholders under North Carolina law.[59] Specifically, plaintiffs argued that the
Board “failed to provide Interstate with information sufficient to do an
accurate valuation.”[60] Additionally, plaintiffs argued that the
Boards failure to investigate Interstates’ valuation breached their fiduciary
duty to protect the minority shareholders.[61]
The court, however, found again that
plaintiffs’ complaints could be traced to their disagreement over the price per
share.[62] Therefore, the court held that plaintiffs
failed to raise issue of material fact regarding breach of fiduciary duty.[63]
Plaintiffs alleged both actual fraud and
constructive fraud.[64] First, regarding actual fraud, plaintiffs
alleged that defendants “concealed material facts…and made misrepresentations
of fact…by engaging in a plan to scheme to defraud minority shareholders.”[65] The plaintiffs supported this allegation by
submitting into evidence proxy statements that they stated contained
misrepresentations.[66] The court, however, again held that the
plaintiffs’ claim for fraud was a result of their dissatisfaction over the price
received for their stock.[67] Therefore, the plaintiffs failed to meet the
elements required to support a fraud allegation.[68]
Second, plaintiffs alleged that the
defendants are guilty of constructive fraud.[69] They supported this allegation by citing case
law which purports that “[c]onstructive fraud is established when proof is
presented that a position of trust and confidence was taken advantage of to the
hurt of the other.”[70] The court, however, held this complaint must
also fail because the plaintiffs failed to present evidence of harm suffered,
“other than the damage from the price they received for their minority shares.”[71]
d.
Denial of Discovery
During the discovery stage, plaintiffs
filed discovery motions requesting Brenner’s pre- and post-merger financial
information.[72] The trial court denied these motions “due to
their irrelevancy.”[73] The appellate court affirmed the denial of
these motions.[74] The appellate court stated that the
information that these discovery requests would reveal would only relate to
price.[75] Therefore, the issues “influencing price
should be determined in the statutory appraisal proceeding.[76]
In sum, the court held that since
plaintiffs’ allegations were tied to their dissatisfaction over the price they
received for their stock, they were unfounded.[77] Therefore, plaintiffs’ exclusive remedy, as
proscribed by statute §55-13-02, was statutory appraisal.[78]
The court committed three errors in its
analysis of this case. First, the court
incorrectly characterized the issue.
Second, the court incorrectly applied the entire fairness test. Third, the court incorrectly decided that
nondisclosure, breach of fiduciary duty, and unfair dealing were subordinate to
price and therefore, not alone sufficient grounds for relief. These errors precluded the court from making
the proper inquiry -- what constitutes fraudulent and unlawful conduct under
the appraisal statute.
First, this section will examine the
court’s characterization of the issue.
Second, it will examine the court’s application of the entire fairness
test. Third, it will challenge the
court’s decision that discovery and issues regarding unfair dealings and breach
of fiduciary duties are insufficient grounds for additional relief when they
relate only to fair price. Finally, it
will examine the real issue in the case – what constitutes fraud and unlawful
conduct - and offer some possible interpretations. All of this supports the ultimate conclusion that the court
failed to adequately understand and apply the appropriate valuation principles
as required by statute and precedent.
1. Characterization of the Issue
The court characterized the issue as
“whether a statutory appraisal is a dissenting shareholder’s exclusive remedy
when the shareholder challenges only the fair value or price of the
stock….(emphasis added)”[79] Since this issue, as characterized by the
court, was one of first impression, the court looked to the law of other
jurisdictions.[80]
The court found persuasive the reasoning
used in Maryland decision Schloss Assoc. v. Chesapeake & Ohio Ry. Co.,
535 A.2d 147, (Md. Ct. Sp. App. 1988).[81] In Schloss, the Maryland court held
that the “statutory appraisal right is a wholly adequate remedy…when the
shareholders’ objection is essentially a complaint over price.”[82] The Schloss court’s rational was
based on a Maryland statute that provided for an exclusive remedy when
shareholders complain only over price.[83]
Additionally, the Brenner
court looked towards an Ohio case[84]. In Stepak v. Schey, 553 N.E.2d 1072
(Ohio 1990), the court held that a “remedy beyond the statutory procedure is
not available where the shareholder’s objection is essentially a complaint
regarding the price which he received for his shares.”[85]
Furthermore, although not mentioned
by the court, such a determination would be consistent with Delaware law.[86] In Delaware decision Cole v. National
Cash Credit Association, the court held that the appraisal remedy is
adequate absent “...fraud, misrepresentation, self-dealing, deliberate waste of
corporate assets, or gross and palpable overreaching....”[87]
The aforementioned precedent all
indicates that the court’s decision is not objectionable if shareholders’
complaint is solely based on the price received for stock. However, the facts of the case reveal that
the shareholders’ complaint was not solely based upon the price they received
for their stock. Rather, plaintiffs
argued that there was unfairness, breach of fiduciary duties, and/or fraud
associated with the valuation of the shares.[88] Therefore, the court’s mischaracterization
of the issue resulted in a shortsighted and incorrect analysis under the entire
fairness test.
2. The
Entire Fairness Test
North Carolina General Statute §55-13-02
entitles a shareholder to dissent from a corporate merger and receive the fair
value for his shares.[89] The official comments to North Carolina
General Statute §55-13-01 state that this concept of fair value is adopted from
the Supreme Court of Delaware’s decision in Weinberger v. UOP, Inc., 457
A.2d 701 (Del. 1983).[90]
Weinberger held that the concept of fair value
embraces the concepts of fair dealings and fair price.[91] It held, however, that the test is not a
bifurcated one as between fair dealings and fair price.[92] Rather, all aspects of the issue must be
examined “…since the question is one of entire fairness.”[93] Thus, in a “...non-fraudulent
transaction, price may be the primary consideration outweighing the fair
dealings of the merger (emphasis added).”[94]
Note
that Weinberger expressly stated that absent fraud, it was not incorrect
for the court to find that price was the primary consideration, which outweighs
a plaintiffs’ fair dealings claims.[95] The plaintiffs, however, explicitly allege
fraud in their claim.[96] Therefore, upon a finding that there is an issue
regarding fraud, it would be incorrect for the court to resolve all issues
regarding fair dealings as being subordinate to price.[97]
The
court failed to apply the entire fairness test according to the North Carolina
statute and Weinberger because it failed to adequately resolve the issue
of whether there was fraud (or unlawful conduct). These issues were not adequately resolved because the court
incorrectly considered price as the paramount consideration, and thus
incorrectly subordinated to price plaintiffs’ disclosure requests and
allegations of fraud and breach of fiduciary duty.[98]
3. Fairness of Price is not Controlling
Plaintiffs alleged that their
dissatisfaction over the price received for their stock was the result of an
unfair merger, breach of fiduciary duties, and actual or constructive fraud.[99] They alleged that the Board’s “action is
unlawful or fraudulent” and plaintiffs’ exclusive remedy should not be limited
to statutory appraisal.[100] The court, however, reasoned that all of the
plaintiffs’ allegations were related to the fairness of the price and that they
were unable to “present facts to support any of their underlying theories of
recovery other than that of a challenge to the stock value.”[101] Therefore, plaintiffs were limited to the
statutory appraisal remedy.[102] The court reasoning, however, is flawed for
two reasons.
First, the court’s failure to grant
plaintiffs’ discovery motions denied plaintiffs full disclosure, thereby
undermining their ability to present facts sufficient to support their
allegations. The full disclosure
requirement is fully supported by Weinberger, which has been
incorporated into North Carolina statute, and precedent, which the Brenner
court relied.[103]
Weinberger specifically states that the court must
determine “whether defendants had disclosed all information in their possession
germane to the transaction…and by germane we mean…information such as a
reasonable shareholder would consider important.”[104] Additionally, the Brenner court’s
holding relied heavily on the reasoning used in Maryland decision Schloss
Assoc. v. Chesapeake & Ohio Ry. Co., which held that the statutory
appraisal remedy was exclusive upon full disclosure.[105] Therefore, full disclosure is a paramount
consideration in evaluating plaintiffs’ allegations and the court’s failure to
so undermines their holding.
Second, the court failed to understand
that the presence of unlawful or fraudulent conduct, regardless of whether it
related to price or dealings, was sufficient to entitle plaintiffs to a remedy
other than statutory appraisal.[106] The court’s misunderstanding was evident by
their decision regarding the discovery motion, breach of fiduciary duty, and
unfair dealings.[107]
Regarding the denial of discovery, the
court held that Brenner’s pre-merger financial information was irrelevant
because it was important only as to price.[108] This reasoning overlooks the possibility
that the Board may have, for example, inappropriately withheld price
information from the valuation company, which clearly would be considered
fraudulent or unlawful conduct (an allegation made by the plaintiffs). According to the court’s reasoning, however,
since the allegedly withheld information deals with price, the fraudulent or
unlawful conduct can be overlooked.
The court further endorsed this incorrect
reasoning, that fraudulent or unlawful conduct that related to price can be
overlooked, when they addressed the plaintiffs’ allegations of unfair dealings
and breach of fiduciary duty.[109] Specifically the court stated that “…each of
plaintiffs’ contentions may…be traced to a dispute over the value of the
minority shares [price]…” and therefore “…a question to be determined at a
statutory appraisal proceeding.[110]
This reasoning flies in the face of North
Carolina statute and precedent.[111] The official comments to North Carolina
General Statute §55-13-02 states that “…the prospect that shareholders may be
‘paid off’ does not justify the corporations in proceeding unlawfully or
fraudulently.”[112] Additionally, precedent states that claims
based on other than inadequacy of price will not limit shareholders to the
appraisal remedy.[113] Specifically, Weinberger states that
price can be the predominant consideration only when there are no allegations
of fraudulent conduct.[114]
In sum, the court committed two
errors. First, they incorrectly decided
that full disclosure was not necessary because the information related to
price.[115] Second, they incorrectly decided that the
allegations of unfair dealings and breach of fiduciary duties are insignificant
because they related to price.[116] Therefore, the court incorrectly interpreted
and applied North Carolina statute and relevant precedent.[117] Accordingly, their analysis was
shortsighted, incorrect, and resulted in the court failing to address a larger,
more relevant issue – whether defendants’ conduct amounted to unlawful or
fraudulent action under the North Carolina appraisal statute.
4. The Real Issue – What is Unlawful or
Fraudulent Conduct?
North Carolina General Statute §55-13-02
grants shareholders the right to dissent from a corporate merger but makes
their exclusive remedy receipt of the fair value of their shares
“…unless the action is unlawful or fraudulent (emphasis
added).”[118] If the Brenner court correctly
characterized the issue and correctly applied the entire fairness test and
properly analyzed the issues they would have been confronted with the larger
and more significant issue – whether the defendant’s conduct would be
considered unlawful or fraudulent under North Carolina General Statute
§55-13-02.
An examination of the legislative history
of §55-13-02 indicates that the House Judiciary Committee “saddled the North
Carolina courts with the task of determining the extent of the exclusivity by
construing the statute’s terms ‘unlawful’ and ‘fraudulent.’”[119] The courts, however, have not yet
interpreted “unlawful” and “fraudulent” in the context of North Carolina
General Statute §55-13-02.[120] Therefore, since there is no definitive
guidance as to what is or is not entitled to exception under the statute, an
examination of history, statute, and precedent, is in order.
a.
History of the Cash-Out Merger
Early statutes provided that when a
majority sought to approve a merger, minority shareholders would receive shares
in the surviving corporation preserving their equity interest.[121] Thus, the majority had no express power to
force out the minority.[122]
Sometime in the 1930’s and thereafter,
however, merger statutes began to be drafted and interpreted to allow a
majority to force or cash-out minority shareholders.[123] This was not considered unfair since the
minority shareholders received cash in exchange for their stock[124].
As this method of merger became more
common, so did the challenges by minority shareholders.[125] Accordingly, tension arose between a
majority shareholder’s fiduciary duty towards treating the minority
shareholders fairly and the majority’s power to make corporate decisions.[126]
It is against this history that case
law and statutes developed, like the one at issue in this case, where the
minority shareholder is entitled to receive the fair value for his shares
unless evidence of unlawful conduct or fraud exists.[127] In such a situation, the minority would then
not be limited to the fair value of the stock, but would be able to seek
additional relief, such as compensatory or punitive damages.[128]
b. Breach of Fiduciary Duty is Fraudulent
A fair interpretation of North Carolina
precedent could support a finding that breach of fiduciary duty is fraudulent
conduct entitling a shareholder to relief other than the statutory appraisal
remedy.[129] North Carolina law states that “[d]irectors,
officers and majority shareholders owe a fiduciary duty and obligation of good
faith to minority shareholders….”[130] North Carolina courts have held that “a
fiduciary duty exists in all cases where there has been a special confidence
reposed in one who in equity and good conscience is bound to act in good faith
and with due regard to the interest of the one reposing confidence.”[131]
Additionally, the North Carolina courts
have held that “constructive fraud is established when proof is presented that
a position of trust and confidence was taken advantage of to the hurt of the
other.”[132] Therefore, North Carolina’s appraisal
statute limiting shareholders solely to an appraisal “unless the corporate
action is fraudulent” is open to such an interpretation whereby constructive
fraud, which can result from a breach of fiduciary duties, is fraudulent
conduct.”[133]
c. Breach of Fiduciary Duty is Unlawful
An examination of the legislative history of the North Carolina
Corporations Act indicates that unlawful conduct might result from the breach
of fiduciary duties, and thereby be considered outside the exclusivity of the
appraisal statute.[134] This is supported by the fact that when the
Act was originally introduced, the appraisal exclusivity provision contained
language limiting unlawfulness to procedural violations.[135] The House eventually deleted this limiting
language leaving only an unlawfulness requirement.[136] Therefore, this implicitly indicates that
unlawfulness is not limited to mere procedural violations and may include
breach of fiduciary duties.[137]
Furthermore,
in keeping with the statutes adoption of laws that are in accordance with those
of other jurisdictions, it is insightful to consider a New York precedent.[138] In Alpert v. 28 Williams Street
Corporation, the court held “[w]hen a breach of fiduciary duty occurs, that
action will be considered unlawful and the aggrieved shareholder may be entitled
to equitable relief.”[139] Therefore, it would be a fair interpretation
to find that breach of fiduciary duties constitute unlawful action.
In sum, although there is no explicit
legislative or judicial guidance, it is suggested that a breach of fiduciary
duties can be considered fraudulent and/or unlawful conduct.[140] Therefore, had the court correctly analyzed
the case, the plaintiff may not have been limited to the statutory appraisal
remedy.
IV. Conclusion
[i] The plaintiffs made no challenges to the valuation process itself. Rather, plaintiffs challenge price exclusively by arguing that they are entitled to remedies other than provided by the appraisal because of the defendants unlawful and/or fraudulent conduct.
[1] N.C. Gen. Stat. §55-13-02(a) & (b) (2000).
[2] N.C. Gen. Stat. §55-13-02(a) & (b) (2000).
[3] N.C. Gen. Stat. §55-13-02(a) & (b) (2000).
[4] N.C. Gen. Stat. §55-13-01(n. 3) (2000).
[5] N.C. Gen. Stat. §55-13-01(n. 3) (2000).
[6] N.C. Gen. Stat. §55-13-01(n. 3) (2000).
[7] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[8] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[9] Weinberger v. UOP, Inc., 457 A.2d 701, 710 (Del. 1983); N.C. Gen. Stat. §55-13-01(n. 3) (2000).
[10] Weinberger v. UOP, Inc., 457 A.2d 701, 710 (Del. 1983); N.C. Gen. Stat. §55-13-01(n. 3) (2000).
[11] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 355 (N.C. Ct. App. 1992).
[12] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 355 (N.C. Ct. App. 1992).
[13] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992). Brenner originally implemented a stock repurchase program in order to become private but later decided that a freeze out merger would allow them to avoid federal regulations regarding “going-private” transactions.
[14] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[15] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[16] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[17] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[18] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[19] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[20] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[21] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[22] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[23] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[24] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[25] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[26] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[27] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[28] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[29] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[30] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[31] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[32] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[33] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[34] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[35] N.C. Gen. Stat. §55-13-02(a) (2000).
[36] N.C. Gen. Stat. §55-13-02(a) (2000).
[37] N.C. Gen. Stat. §55-13-02(b) (2000).
[38] N.C. Gen. Stat. §55-13-02 (n. 2) (2000).
[39] N.C. Gen. Stat. §55-13-01(1) (2000).
[40] N.C. Gen. Stat. §55-13-01(n. 3) (2000).
[41] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 357 (N.C. Ct. App. 1992).
[42] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 357 (N.C. Ct. App. 1992).
[43] N.C. Gen. Stat. §55-13-01(n. 3) (2000).
[44] Weinberger v. UOP, Inc., 457 A.2d 701, 713 (Del. 1983).
[45] Weinberger v. UOP, Inc., 457 A.2d 701, 713 (Del. 1983).
[46] N.C. Gen. Stat. §55-13-02 (2000).
[47] N.C. Gen. Stat. §55-13-02 (n. 2) (2000).
[48] N.C. Gen. Stat. §55-13-02 (n. 2) (2000).
[49] N.C. Gen. Stat. §55-13-02 (n. 2) (2000).
[50] Weinberger v. UOP, Inc., 457 A.2d 701 (Del. 1983).
[51] Weinberger v. UOP, Inc., 457 A.2d 701, 714 (Del. 1983).
[52] N.C. Gen. Stat. §55-13-02 (2000).
[53] N.C. Gen. Stat. §55-13-02 (2000).
[54] N.C. Gen. Stat. §55-13-02 (n. 2) (2000).
[55] N.C. Gen. Stat. §55-13-02 (2000).
[56] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 358 (N.C. Ct. App. 1992).
[57] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 358 (N.C. Ct. App. 1992).
[58] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 358 (N.C. Ct. App. 1992).
[59] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 359 (N.C. Ct. App. 1992).
[60] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 359 (N.C. Ct. App. 1992).
[61] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 359 (N.C. Ct. App. 1992).
[62] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 359 (N.C. Ct. App. 1992).
[63] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 359 (N.C. Ct. App. 1992).
[64] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 355 (N.C. Ct. App. 1992).
[65] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 359 (N.C. Ct. App. 1992).
[66] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 359 (N.C. Ct. App. 1992).
[67] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 359 (N.C. Ct. App. 1992).
[68] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 359 (N.C. Ct. App. 1992).
[69] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[70] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[71] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[72] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 356 (N.C. Ct. App. 1992).
[73] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[74] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[75] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[76] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[77] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[78] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[79] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 357 (N.C. Ct. App. 1992).
[80] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 357 (N.C. Ct. App. 1992).
[81] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 357 (N.C. Ct. App. 1992).
[82] Schloss Assoc. v. Chesapeake & Ohio Ry. Co., 536 A.2d 147, 158 (Md. Ct. Sp. App. 1988).
[83] Schloss Assoc. v. Chesapeake & Ohio Ry. Co., 536 A.2d 147, 154 (Md. Ct. Sp. App. 1988).
[84] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[85] Stepack v. Schey, 553 N.E.2d 1072, 1075 (Ohio 1990).
[86] Weinberger v. UOP, Inc., 457 A.2d 701, 712 (Del. 1983).
[87] Weinberger v. UOP, Inc., 457 A.2d 701, 712 (Del. 1983).
[88] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[89] N.C. Gen. Stat. §55-13-02(a) (2000).
[90] N.C. Gen. Stat. §55-13-01(n. 3) (2000).
[91] Weinberger v. UOP, Inc., 457 A.2d 701, 712 (Del. 1983).
[92] Weinberger v. UOP, Inc., 457 A.2d 701, 713 (Del. 1983).
[93] Weinberger v. UOP, Inc., 457 A.2d 701, 713 (Del. 1983).
[94] Weinberger v. UOP, Inc., 457 A.2d 701, 713 (Del. 1983).
[95] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 358, 359 (N.C. Ct. App. 1992).
[96] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 358 (N.C. Ct. App. 1992).
[97] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 358, 359 (N.C. Ct. App. 1992).
[98] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 357 (N.C. Ct. App. 1992).
[99] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 358 (N.C. Ct. App. 1992).
[100] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 358 (N.C. Ct. App. 1992).
[101] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[102] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[103] N.C. Gen. Stat. §55-13-01(n. 3) (2000).
[104] Weinberger v. UOP, Inc., 457 A.2d 701, 710 (Del. 1983).
[105] Schloss Assoc. v. Chesapeake & Ohio Ry. Co., 536 A.2d 147, 158 (Md. Ct. Sp. App. 1988).
[106] N.C. Gen. Stat. §55-13-01(n. 3) (2000).
[107] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[108] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[109] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 358 (N.C. Ct. App. 1992).
[110] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 358 (N.C. Ct. App. 1992).
[111] N.C. Gen. Stat. §55-13-02 (n. 2) (2000).
[112] N.C. Gen. Stat. §55-13-02 (n. 2) (2000).
[113] Umstead v. Durham Hosiery Mills Inc. 578 F. Supp. 342 (W.D.N.C. 1982); Austell v. Smith, 634 F. Supp. 326 (W.D.N.C. 1986).
[114] Weinberger v. UOP, Inc., 457 A.2d 701, 713 (Del. 1983).
[115] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[116] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 358 (N.C. Ct. App. 1992).
[117] N.C. Gen. Stat. §55-13-02 (n. 2) (2000); Umstead v. Durham Hosiery Mills Inc. 578 F. Supp. 342 (W.D.N.C. 1982); Austell v. Smith, 634 F. Supp. 326 (W.D.N.C. 1986); Weinberger v. UOP, Inc., 457 A.2d 701, 713 (Del. 1983).
[118] N.C. Gen. Stat. §55-13-02(a) (2000).
[119] Julie Gwyn Hudson, The Exclusivity of the Appraisal Remedy Under the New North Carolina Business Corporation Act: Deciding the Standard of Review for Cash-Out Mergers, 69 N.C.L. Rev. 501, 515 (1991).
[120] N.C. Gen. Stat. §55-13-02(a) (2000).
[121] Julie Gwyn Hudson, The Exclusivity of the Appraisal Remedy Under the New North Carolina Business Corporation Act: Deciding the Standard of Review for Cash-Out Mergers, 69 N.C.L. Rev. 501, 506 (1991).
[122] Julie Gwyn Hudson, The Exclusivity of the Appraisal Remedy Under the New North Carolina Business Corporation Act: Deciding the Standard of Review for Cash-Out Mergers, 69 N.C.L. Rev. 501, 506 (1991).
[123] Julie Gwyn Hudson, The Exclusivity of the Appraisal Remedy Under the New North Carolina Business Corporation Act: Deciding the Standard of Review for Cash-Out Mergers, 69 N.C.L. Rev. 501, 506 (1991).
[124] Julie Gwyn Hudson, The Exclusivity of the Appraisal Remedy Under the New North Carolina Business Corporation Act: Deciding the Standard of Review for Cash-Out Mergers, 69 N.C.L. Rev. 501, 507 (1991).
[125] Julie Gwyn Hudson, The Exclusivity of the Appraisal Remedy Under the New North Carolina Business Corporation Act: Deciding the Standard of Review for Cash-Out Mergers, 69 N.C.L. Rev. 501, 507 (1991).
[126] Julie Gwyn Hudson, The Exclusivity of the Appraisal Remedy Under the New North Carolina Business Corporation Act: Deciding the Standard of Review for Cash-Out Mergers, 69 N.C.L. Rev. 501, 508 (1991).
[127] Julie Gwyn Hudson, The Exclusivity of the Appraisal Remedy Under the New North Carolina Business Corporation Act: Deciding the Standard of Review for Cash-Out Mergers, 69 N.C.L. Rev. 501, 508 (1991).
[128] Austell v. Smith, 634 F. Supp. 326 (W.D.N.C. 1984).
[129] Julie Gwyn Hudson, The Exclusivity of the Appraisal Remedy Under the New North Carolina Business Corporation Act: Deciding the Standard of Review for Cash-Out Mergers, 69 N.C.L. Rev. 501, 508 (1991).
[130] Meiselman v. Meiselman, 58 N.C. App. 758 (1982).
[131] Hajmm Company v. House of Raeford, Inc., 94 N.C. App. 1, 12 (1989).
[132] Stilwell v. Walden, 70 N.C. App. 543, 540 (1984); Hajmm Company v. House of Raeford, Inc., 94 N.C. App. 1, 12 (1989).
[133] Julie Gwyn Hudson, The Exclusivity of the Appraisal Remedy Under the New North Carolina Business Corporation Act: Deciding the Standard of Review for Cash-Out Mergers, 69 N.C.L. Rev. 501, 541 (1991).
[134] Julie Gwyn Hudson, The Exclusivity of the Appraisal Remedy Under the New North Carolina Business Corporation Act: Deciding the Standard of Review for Cash-Out Mergers, 69 N.C.L. Rev. 501, 540 (1991).
[135] Julie Gwyn Hudson, The Exclusivity of the Appraisal Remedy Under the New North Carolina Business Corporation Act: Deciding the Standard of Review for Cash-Out Mergers, 69 N.C.L. Rev. 501, 508 (1991).
[136] Julie Gwyn Hudson, The Exclusivity of the Appraisal Remedy Under the New North Carolina Business Corporation Act: Deciding the Standard of Review for Cash-Out Mergers, 69 N.C.L. Rev. 501, 508 (1991).
[137] Julie Gwyn Hudson, The Exclusivity of the Appraisal Remedy Under the New North Carolina Business Corporation Act: Deciding the Standard of Review for Cash-Out Mergers, 69 N.C.L. Rev. 501, 508 (1991).
[138] Julie Gwyn Hudson, The Exclusivity of the Appraisal Remedy Under the New North Carolina Business Corporation Act: Deciding the Standard of Review for Cash-Out Mergers, 69 N.C.L. Rev. 501, 542 (1991).
[139] Alpert v. 28 Williams Street Corporation, 473 N.E.2d 19, 26 (N.Y. 1984).
[140] Julie Gwyn Hudson, The Exclusivity of the Appraisal Remedy Under the New North Carolina Business Corporation Act: Deciding the Standard of Review for Cash-Out Mergers, 69 N.C.L. Rev. 501, 508 (1991).
[141] IRA for benefit of Oppenheimer v. Brenner Cos., 419 S.E.2d 354, 360 (N.C. Ct. App. 1992).
[142] Weinberger v. UOP, Inc., 457 A.2d 701, 710 (Del. 1983); N.C. Gen. Stat. §55-13-01(n. 3) (2000).
[143] Weinberger v. UOP, Inc., 457 A.2d 701, 710 (Del. 1983); N.C. Gen. Stat. §55-13-01(n. 3) (2000).
[144] Julie Gwyn Hudson, The Exclusivity of the Appraisal Remedy Under the New North Carolina Business Corporation Act: Deciding the Standard of Review for Cash-Out Mergers, 69 N.C.L. Rev. 501, 541 (1991).