Guam § 281302 - Right to Appraisal.

§ 281302. Right to Appraisal.

(a) A shareholder is entitled to appraisal rights, and to obtain payment

of the fair value of that shareholder’s shares, in the event of any of the

following corporate actions:

(1) consummation of a merger to which the corporation is a party:

(A) if shareholder approval is required for the merger by §

281104 and the shareholder is entitled to vote on the merger,

except that appraisal rights shall not be available to any

shareholder of the corporation with respect to shares of any class

or series that remain outstanding after consummation of the

merger, or

(B) if the corporation is a subsidiary and the merger is

governed by § 281105;

(2) consummation of a share exchange to which the corporation is

a party as the corporation whose shares will be acquired if the

shareholder is entitled to vote on the exchange, except that appraisal

rights shall not be available to any shareholder of the corporation with

respect to any class or series of shares of the corporation that is not

exchanged;

(3) consummation of a disposition of assets pursuant to § 281202

if the shareholder is entitled to vote on the disposition;

(4) an amendment of the articles of incorporation with respect to a

class or series of shares that reduces the number of shares of a class or

series owned by the shareholder to a fraction of a share if the

corporation has the obligation or right to repurchase the fractional share

so created; or

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(5) any other amendment to the articles of incorporation, merger,

share exchange or disposition of assets to the extent provided by the

articles of incorporation, bylaws or a resolution of the board of

directors.

(b) Notwithstanding subsection (a), the availability of appraisal rights

under subsections (a)(1), (2), (3) and (4) shall be limited in accordance with

the following provisions:

(1) Appraisal rights shall not be available for the holders of shares

of any class or series of shares which is:

(A) listed on the New York Stock Exchange or the American

Stock Exchange or designated as a national market system security

on an interdealer quotation system by the National Association of

Securities Dealers, Inc.; or

(B) not so listed or designated, but has at least 2,000

shareholders and the outstanding shares of such class or series has

a market value of at least $20 million (exclusive of the value of

such shares held by its subsidiaries, senior executives, directors

and beneficial shareholders owning more than 10 percent of such

shares).

(2) The applicability of subsection (b)(1) shall be determined as

of:

(A) the record date fixed to determine the shareholders

entitled to receive notice of, and to vote at, the meeting of

shareholders to act upon the corporate action requiring appraisal

rights; or

(B) the day before the effective date of such corporate action

if there is no meeting of shareholders.

(3) Subsection (b)(1) shall not be applicable and appraisal rights

shall be available pursuant to subsection (a) for the holders of any class

or series of shares who are required by the terms of the corporate action

requiring appraisal rights to accept for such shares anything other than

cash or shares of any class or any series of shares of any corporation, or

any other proprietary interest of any other entity, that satisfies the

standards set forth in subsection (b)(1) at the time the corporate action

becomes effective.

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(4) Subsection (b)(1) shall not be applicable and appraisal rights

shall be available pursuant to subsection (a) for the holders of any class

or series of shares where:

(A) any of the shares or assets of the corporation are being

acquired or converted, whether by merger, share exchange or

otherwise, pursuant to the corporate action by a person, or by an

affiliate of a person, who:

(i) is, or at any time in the one-year period

immediately preceding approval by the board of directors of

the corporate action requiring appraisal rights was, the

beneficial owner of 20 percent or more of the voting power

of the corporation, excluding any shares acquired pursuant to

an offer for all shares having voting power if such offer was

made within one year prior to the corporate action requiring

appraisal rights for consideration of the same kind and of a

value equal to or less than that paid in connection with the

corporate action; or

(ii) directly or indirectly has, or at any time in the one-

year period immediately preceding approval by the board of

directors of the corporation of the corporate action requiring

appraisal rights had, the power, contractually or otherwise, to

cause the appointment or election of 25 percent or more of

the directors to the board of directors of the corporation; or

(B) any of the shares or assets of the corporation are being

acquired or converted, whether by merger, share exchange or

otherwise, pursuant to such corporate action by a person, or by an

affiliate of a person, who is, or at any time in the one-year period

immediately preceding approval by the board of directors of the

corporate action requiring appraisal rights was, a senior executive

or director of the corporation or a senior executive of any affiliate

thereof, and that senior executive or director will receive, as a

result of the corporate action, a financial benefit not generally

available to other shareholders as such, other than:

(i) employment, consulting, retirement or similar

benefits established separately and not as part of or in

contemplation of the corporate action; or

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(ii) employment, consulting, retirement or similar

benefits established in contemplation of, or as part of, the

corporate action that are not more favorable than those

existing before the corporate action; or

(iii) in the case of a director of the corporation who will,

in the corporate action, become a director of the acquiring

entity in the corporate action or one of its affiliates, rights and

benefits as a director that are provided on the same basis as

those afforded by the acquiring entity generally to other

directors of such entity or such affiliate.

(5) For the purposes of paragraph (4) only, the term beneficial

owner means any person who, directly or indirectly, through any

contract, arrangement, or understanding, other than a revocable proxy,

has or shares the power to vote, or to direct the voting of, shares,

provided that a member of a national securities exchange shall not be

deemed to be a beneficial owner of securities held directly or indirectly

by it on behalf of another person solely because such member is the

record holder of such securities if the member is precluded by the rules

of such exchange from voting without instruction on contested matters

or matters that may affect substantially the rights or privileges of the

holders of the securities to be voted. When two or more persons agree

to act together for the purpose of voting their shares of the corporation,

each member of the group formed thereby shall be deemed to have

acquired beneficial ownership, as of the date of such agreement, of all

voting shares of the corporation beneficially owned by any member of

the group.

(c) Notwithstanding any other provision of § 281302, the articles of

incorporation as originally filed or any amendment thereto may limit or

eliminate appraisal rights for any class or series of preferred shares, but any

such limitation or elimination contained in an amendment to the articles of

incorporation that limits or eliminates appraisal rights for any of such shares

that are outstanding immediately prior to the effective date of such

amendment or that the corporation is or may be required to issue or sell

thereafter pursuant to any conversion, exchange or other right existing

immediately before the effective date of such amendment shall not apply to

any corporate action that becomes effective within one year of that date if

such action would otherwise afford appraisal rights.

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(d) A shareholder entitled to appraisal rights under this Article may not

challenge a completed corporate action for which appraisal rights are

available unless such corporate action:

(1) was not effectuated in accordance with the applicable

provisions of Articles 10, 11 or 12 of this Part or the corporation’s

articles of incorporation, bylaws or board of directors’ resolution

authorizing the corporate action; or

(2) was procured as a result of fraud or material misrepresentation.