OHIO'S UNFAVORABLE STANDARD OF VALUE IN APPRAISALS

The Ohio statute's definition of “fair cash value” is unfavorable to dissenting shareholders in public and private companies:

The fair cash value of a share for the purposes of this section is the amount that a willing seller, under no compulsion to sell, would be willing to accept, and which a willing buyer, under no compulsion to purchase, would be willing to pay, but in no event shall the amount thereof exceed the amount specified in the demand of the particular shareholder.216

In computing . . . fair cash value, any appreciation or depreciation in market value resulting from the proposal submitted to the directors or to the shareholders shall be excluded.217

Importantly, fair cash value is to be determined as of the day prior the shareholders' vote.218 Under the Ohio statute, if there is an active market for a company's shares, the value for an appraisal will be no more than the market price.219 In addition, the market price must be adjusted to reflect any impact on the market in reaction to the merger proposal.220 In the landmark Armstrong case, the Ohio Court of Appeals conceded that shareholders seeking appraisal would likely receive less than shareholders who accepted the merger terms:

[I]t is apparent that [appraisal] is likely to produce a fair cash value to be paid dissenting shareholders different from that received by assenting shareholders unless the fundamental corporate change is found to have had absolutely no ...

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