SSI Surgical Services (fka SGSI)

[PDC ™]

sgsi details out. geting a buck a share weeeeeeeeeeeeeeeeeeeeeeeeeee

TELEFLEX INCORPORATED
155 SOUTH LIMERICK ROAD
LIMERICK, PA 19468 USA
PHONE: [phone]
FAX : [phone]
www.teleflex.com
Re: Notice of merger and appraisal rights with respect to the merger of SSI Surgical Services, Inc. with
and into TFX Medical Subsidiary Inc.
Dear Holder of Common Stock of
SSI Surgical Services, Inc.:
On or about May 14, 2007, SSI Surgical Services, Inc., a New York corporation (“SSI”), will be
merged with and into a subsidiary of Teleflex Incorporated that owns more than 90% of SSI’s outstanding
common stock, par value $0.01 per share (the “Common Stock”). Following the merger, as a holder of
shares of the Common Stock, you will automatically be entitled to receive cash in the amount of $1.00 per
share in cancellation of your shares. To receive this cash payment you will need to surrender the
certificate(s) representing your shares when you are asked to do so. Please do not send your share
certificates now. As an alternative to accepting this cash payment, you may perfect your right to appraisal
under New York law. Additional details about the merger and the your appraisal rights are set out below
and in the attached exhibits.
TFX Medical Subsidiary Inc., a Delaware corporation (“TFX”), is an indirect wholly owned
subsidiary of Teleflex Incorporated and owns more than 90% of the Common Stock. On April 4, 2007,
by written consent, the board of directors of TFX approved a plan of merger, in accordance with which
SSI will merge with and into TFX, with TFX continuing as the surviving corporation, in a “short form”
merger under Section 253 of the Delaware General Corporation Law (“DGCL”) and Section 907 of the
New York Business Corporation Law (“NYBCL”).
TFX does not intend to enter into a merger agreement with SSI or to seek the approval of SSI’s
directors or shareholders for the merger. Holders of the Common Stock (which constitutes the only class
of capital stock of SSI that is outstanding and that, in the absence of Section 253 of the DGCL and
Section 907 of the NYBCL, would be entitled to vote on the merger) will not be entitled to vote their
shares with respect to the merger.
Plan of Merger
In accordance with Section 905(b) of the NYBCL, a true copy of the plan of merger is attached as
Exhibit A hereto. The plan of merger provides that, among other things:
• The merger will become effective upon the filing of the appropriate statutory merger
filings as required under the DGCL and under the NYBCL. We expect that such filings
will be made, and that the merger will become effective, on or about May 14, 2007 (or as
soon thereafter as practicable), which date is at least 30 days after the date on which we
are mailing this notice to each holder of shares of SSI not owned by TFX.
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• Each outstanding share of Common Stock (other than shares held in treasury or by TFX,
all of which will be canceled, and other than shares, if any, held by shareholders who
perfect their appraisal rights under the NYBCL) will, on the date on which the merger
becomes effective, be automatically converted into the right to receive cash in the amount
of $1.00 per share upon surrender of the certificate(s) representing such shares, without
interest.
• Once the merger becomes effective, shares of Common Stock, if any, held by any
shareholder who has properly demanded payment of the fair value of such shares
pursuant to and in compliance in all respects with Section 623 of the NYBCL (a copy of
which is attached as Exhibit B hereto) will not be converted into or be exchangeable for
the right to receive cash as described above, but rather the holders of such shares will be
entitled to payment of the fair value of such shares in accordance with Section 623 of the
NYBCL, provided that if any such holder fails to perfect or otherwise waives, withdraws
or loses the right to receive payment of the fair value of such shares under Section 623 of
the NYBCL, then the right of such holder to be paid the fair value of such shares will
cease, and such shares will be deemed to have been automatically converted, as of the
date on which the merger becomes effective, into the right to receive cash in the amount
of $1.00 per share upon surrender of the certificates representing such shares, without
interest.
Holders of shares of Common Stock who properly elect to receive cash in the amount of $1.00 per
share thereof will be paid for their shares promptly after the date on which the merger becomes effective.
No interest will be paid.
Appraisal Rights
Notwithstanding the Merger, persons who were record holders of shares of the Common Stock on
April 4, 2007 (the “Record Date”) and who do not wish to accept the cash payment per share provided in the
Merger have the right, under Section 910 of the NYBCL, to seek an appraisal of the fair value of their
shares of Common Stock together with an equitable rate of interest as determined by the court to be paid
thereon. A copy of Section 623 of the NYBCL, which sets forth the procedures that must be followed to
perfect this right to an appraisal, is attached as Exhibit B hereto. In accordance with Section 623 of the
NYBCL, any holder of shares of the Common Stock as of the Record Date who wishes to exercise his or
her right to an appraisal must do so within 20 days after the date of mailing of this notice (i.e., by May 3,
2007) by making a written demand to SSI at the following address:
SSI Surgical Services, Inc.
c/o Teleflex Incorporated
155 South Limerick Road
Limerick, Pennsylvania 19468
Attn: James J. Leyden,
Associate General Counsel
APPRAISAL DEMANDS WILL NOT BE ACCEPTED UNLESS MADE BY PERSONS WHO
WERE HOLDERS OF SHARES OF THE COMMON STOCK AS OF THE RECORD DATE. THE
FOREGOING DESCRIPTION IS NOT, AND DOES NOT PURPORT TO BE, A COMPLETE
DESCRIPTION OF THE APPLICABLE PROVISIONS OF SECTION 623 OF THE NYBCL AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THESE PROVISIONS, WHICH ARE SET
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FORTH IN THEIR ENTIRETY IN EXHIBIT A. ANY FORMER HOLDER CONSIDERING
DEMANDING APPRAISAL IS ADVISED TO CONSULT HIS OR HER OWN LEGAL COUNSEL.
Instructions for surrendering stock certificates will be set forth in a Notice of Merger and a Letter of
Transmittal, which will be mailed to shareholders of record of SSI promptly following the date on which
the merger becomes effective and should be read carefully. Please do not submit your stock certificates
before you have received these documents.
If you have any questions regarding the contents of this letter, please do not hesitate to call Jan
Monster, Sr. Director Corporate Development, at [phone].
TELEFLEX INCORPORATED
April 13, 2007
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EXHIBIT A
PLAN OF MERGER
This Plan of Merger is between TFX MEDICAL SUBSIDIARY INC., a Delaware corporation
(the “TFX Medical”), and SSI SURGICAL SERVICES, INC., a New York corporation, at least 90% of
the issued and outstanding shares of capital stock of which are owned by TFX Medical (“SSI Surgical”).
The terms and conditions of merger and the mode of carrying the same into effect are as follows:
1. Merger of SSI Surgical into TFX Medical. At the Effective Time (as defined in Section 2
below), SSI Surgical (f/k/a Medical Sterilization, Inc.) will merge with and into TFX Medical (the
“Merger”) in accordance with Section 253 of the Delaware General Corporation Law (“DGCL”) and
Section 907 of the New York Business Corporation Law (the “NYBCL”), and the separate existence of
SSI Surgical will cease. TFX Medical will be the surviving corporation (the “Surviving Corporation”),
and will continue its existence under Delaware law.
2. Effective Time. If this Plan of Merger has not been terminated in accordance with Section
10 below, TFX Medical and SSI Surgical shall file the appropriate statutory merger filings as required
under the DGCL and under the NYBCL as soon as practicable following the approval hereof, but not less
than 30 days after a copy of this Plan of Merger or an outline of the material features thereof has been
given, personally or by mail, to each holder of any shares of SSI Surgical not owned by TFX Medical, or
at any time after the waiving thereof by all such holders. This Plan of Merger will become effective upon
the filing of such statutory merger filings with the Office of the Secretary of State of each of the States of
Delaware and New York (the “Effective Time”).
3. Effect of Merger. The effect of the Merger will be as provided in the DGCL and the
NYBCL. As a result of the Merger and without limiting the generality of the foregoing, at the Effective
Time, all the property, rights, interests and other assets of SSI Surgical will, by operation of law and
without further act or deed, be transferred to and vested in the Surviving Corporation, and the Surviving
Corporation will assume all the liabilities and obligations of SSI Surgical.
4. Name of the Surviving Corporation. At the Effective Time, the name of TFX Medical, as
the Surviving Corporation, will be changed to “SSI Surgical Services, Inc.”
5. Certificate of Incorporation and Bylaws of the Surviving Corporation. At the Effective
Time, the Certificate of Incorporation and Bylaws of TFX Medical as in effect immediately prior to the
Effective Time will become the Certificate of Incorporation and Bylaws of the Surviving Corporation and
will thereafter continue to be its Certificate of Incorporation and Bylaws until changed as provided therein
and by applicable law.
6. Directors and Officers of the Surviving Corporation. (a) The directors of TFX Medical
immediately prior to the Effective Time shall be the directors of the Surviving Corporation until their
respective successors are duly elected and qualified.
(b) At the Effective Time, the following individuals shall replace the officers of TFX
Medical immediately prior to the Effective Time and shall serve in the offices of the Surviving
Corporation set forth opposite their respective names, each to serve in accordance with the Bylaws of the
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Surviving Corporation and at the discretion of the Board of Directors of the Surviving Corporation until
such individual’s successor is duly elected and qualified.
Name Position
Todd Riddell President
Matthew Jennings Vice President
Kevin K. Gordon Vice President
C. Jeffrey Jacobs Vice President and Treasurer
Johannes Monster Vice President
Jens Boy Vice President
James J. Leyden Secretary
7. Outstanding Shares of the Constituent Corporations. (a) As to each constituent
corporation, the designation and number of outstanding shares of each class and series and the voting
rights thereof are as follows:
Name of Corporation
Designation and Number of Shares in
Each Class or Series Outstanding
Class or Series of
Shares with Voting Rights
SSI Surgical Common Stock, par value $0.01 per
share, 19,768,216 shares
Common Stock, par value $0.01
per share
TFX Medical Common Stock, par value $0.001 per
share, 100 shares
Common Stock, par value $0.001
per share
(b) The number of outstanding shares of Common Stock, par value $0.01 per
share, of SSI Surgical is subject to change prior to the Effective Time if holders of options to purchase
such shares exercise any such options. The number of outstanding shares of Common Stock, par value
$0.001 per share, of TFX Medical is not subject to change prior to the Effective Time.
(c) TFX Medical is the owner of 18,035,218 shares of Common Stock, par
value $0.01 per share, of SSI Surgical.
8. Conversion of Shares. (a) At the Effective Time, (i) each issued and outstanding share
and each share held in the treasury, in each case, of the capital stock of TFX Medical will remain issued
and outstanding without change; (ii) each issued and outstanding share held by TFX Medical and each
share held in the treasury, in each case, of the capital stock of SSI Surgical will be canceled and
extinguished, without any conversion thereof, and no shares or other securities or obligations of TFX
Medical or any other entity will be issued in consideration for the cancellation of such shares; and (iii)
each issued and outstanding share of the capital stock of SSI Surgical other than those held by TFX
Medical or in the treasury or, if any, by stockholders who perfect their appraisal rights pursuant to Section
623 of the NYBCL will be automatically converted into the right to receive cash in the amount of $1.00
per share upon surrender of the certificates representing such shares, without interest.
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(b) Notwithstanding anything to the contrary contained in this Plan of Merger, at the
Effective Time, any issued and outstanding shares of the capital stock of SSI Surgical, if any, held by any
stockholder who is entitled to demand and properly demands payment of the fair value of such shares (the
“Dissenting Shares”) pursuant to and in compliance in all respects with, Section 623 of the NYBCL (the
“Appraisal Procedure”) will not be converted into or be exchangeable for the right to receive cash in
accordance with clause (iii) of Section 8(a) above, but rather the holders of Dissenting Shares will be
entitled to payment of the fair value of such Dissenting Shares in accordance with the Appraisal
Procedure; provided that if any such holder fails to perfect or otherwise waives, withdraws or loses the
right to receive payment of the fair value of its Dissenting Shares under the Appraisal Procedure, then the
right of such holder to be paid the fair value of its Dissenting Shares will cease, and such Dissenting
Shares are to be deemed to have been automatically converted as of the Effective Time into the right to
receive cash in accordance with clause (iii) of Section 8(a) above.
9. Closing of SSI Surgical’s Transfer Books. At the Effective Time, holders of certificates
representing shares of SSI Surgical’s capital stock that were outstanding immediately prior to the
Effective Time will cease to have any rights as stockholders of SSI Surgical, and SSI Surgical shall close
the stock transfer books with respect to all shares of any such capital stock outstanding immediately
before the Effective Time. No further transfer of any such shares of SSI Surgical’s capital stock is to be
made on SSI Surgical’s stock transfer books after the Effective Time. If, after the Effective Time, a valid
certificate previously representing any such shares of the SSI Surgical’s capital stock is presented to TFX
Medical, TFX Medical shall cancel and exchange such certificate in accordance with Section 8 above.
10. Termination. At any time prior to the Effective Time, the Board of Directors of TFX
Medical may, at its election, terminate this Plan of Merger and abandon the Merger.
11. Amendment. At any time prior to the Effective Time, the Board of Directors of TFX
Medical may, at its election, amend this Plan of Merger.
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EXHIBIT B
New York Business Corporation Law Section 623. Procedure To Enforce Shareholder’s Right to Receive
Payment For Shares.
(a) A shareholder intending to enforce his right under a section of this chapter to receive payment for
his shares if the proposed corporate action referred to therein is taken shall file with the corporation, before the
meeting of shareholders at which the action is submitted to a vote, or at such meeting but before the vote, written
objection to the action. The objection shall include a notice of his election to dissent, his name and residence
address, the number and classes of shares as to which he dissents and a demand for payment of the fair value of his
shares if the action is taken. Such objection is not required from any shareholder to whom the corporation did not
give notice of such meeting in accordance with this chapter or where the proposed action is authorized by written
consent of shareholders without a meeting.
(b) Within ten days after the shareholders’ authorization date, which term as used in this section
means the date on which the shareholders’ vote authorizing such action was taken, or the date on which such
consent without a meeting was obtained from the requisite shareholders, the corporation shall give written notice of
such authorization or consent by registered mail to each shareholder who filed written objection or from whom
written objection was not required, excepting any shareholder who voted for or consented in writing to the proposed
action and who thereby is deemed to have elected not to enforce his right to receive payment for his shares.
(c) Within twenty days after the giving of notice to him, any shareholder from whom written
objection was not required and who elects to dissent shall file with the corporation a written notice of such election,
stating his name and residence address, the number and classes of shares as to which he dissents and a demand for
payment of the fair value of his shares. Any shareholder who elects to dissent from a merger under section 905
(Merger of subsidiary corporation) or paragraph (c) of section 907 (Merger or consolidation of domestic and foreign
corporations) or from a share exchange under paragraph (g) of section 913 (Share exchanges) shall file a written
notice of such election to dissent within twenty days after the giving to him of a copy of the plan of merger or
exchange or an outline of the material features thereof under section 905 or 913.
(d) A shareholder may not dissent as to less than all of the shares, as to which he has a right to dissent,
held by him of record, that he owns beneficially. A nominee or fiduciary may not dissent on behalf of any beneficial
owner as to less than all of the shares of such owner, as to which such nominee or fiduciary has a right to dissent,
held of record by such nominee or fiduciary.
(e) Upon consummation of the corporate action, the shareholder shall cease to have any of the rights
of a shareholder except the right to be paid the fair value of his shares and any other rights under this section. A
notice of election may be withdrawn by the shareholder at any time prior to his acceptance in writing of an offer
made by the corporation, as provided in paragraph (g), but in no case later than sixty days from the date of
consummation of the corporate action except that if the corporation fails to make a timely offer, as provided in
paragraph (g), the time for withdrawing a notice of election shall be extended until sixty days from the date an offer
is made. Upon expiration of such time, withdrawal of a notice of election shall require the written consent of the
corporation. In order to be effective, withdrawal of a notice of election must be accompanied by the return to the
corporation of any advance payment made to the shareholder as provided in paragraph (g). If a notice of election is
withdrawn, or the corporate action is rescinded, or a court shall determine that the shareholder is not entitled to
receive payment for his shares, or the shareholder shall otherwise lose his dissenter’s rights, he shall not have the
right to receive payment for his shares and he shall be reinstated to all his rights as a shareholder as of the
consummation of the corporate action, including any intervening preemptive rights and the right to payment of any
intervening dividend or other distribution or, if any such rights have expired or any such dividend or distribution
other than in cash has been completed, in lieu thereof, at the election of the corporation, the fair value thereof in cash
as determined by the board as of the time of such expiration or completion, but without prejudice otherwise to any
corporate proceedings that may have been taken in the interim.
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(f) At the time of filing the notice of election to dissent or within one month thereafter the shareholder
of shares represented by certificates shall submit the certificates representing his shares to the corporation, or to its
transfer agent, which shall forthwith note conspicuously thereon that a notice of election has been filed and shall
return the certificates to the shareholder or other person who submitted them on his behalf. Any shareholder of
shares represented by certificates who fails to submit his certificates for such notation as herein specified shall, at the
option of the corporation exercised by written notice to him within forty-five days from the date of filing of such
notice of election to dissent, lose his dissenter’s rights unless a court, for good cause shown, shall otherwise direct.
Upon transfer of a certificate bearing such notation, each new certificate issued therefor shall bear a similar notation
together with the name of the original dissenting holder of the shares and a transferee shall acquire no rights in the
corporation except those which the original dissenting shareholder had at the time of the transfer.
(g) Within fifteen days after the expiration of the period within which shareholders may file their
notices of election to dissent, or within fifteen days after the proposed corporate action is consummated, whichever
is later (but in no case later than ninety days from the shareholders’ authorization date), the corporation or, in the
case of a merger or consolidation, the surviving or new corporation, shall make a written offer by registered mail to
each shareholder who has filed such notice of election to pay for his shares at a specified price which the corporation
considers to be their fair value. Such offer shall be accompanied by a statement setting forth the aggregate number
of shares with respect to which notices of election to dissent have been received and the aggregate number of
holders of such shares. If the corporate action has been consummated, such offer shall also be accompanied by (1)
advance payment to each such shareholder who has submitted the certificates representing his shares to the
corporation, as provided in paragraph (f), of an amount equal to eighty percent of the amount of such offer, or (2) as
to each shareholder who has not yet submitted his certificates a statement that advance payment to him of an amount
equal to eighty percent of the amount of such offer will be made by the corporation promptly upon submission of his
certificates. If the corporate action has not been consummated at the time of the making of the offer, such advance
payment or statement as to advance payment shall be sent to each shareholder entitled thereto forthwith upon
consummation of the corporate action. Every advance payment or statement as to advance payment shall include
advice to the shareholder to the effect that acceptance of such payment does not constitute a waiver of any
dissenters’ rights. If the corporate action has not been consummated upon the expiration of the ninety day period
after the shareholders’ authorization date, the offer may be conditioned upon the consummation of such action.
Such offer shall be made at the same price per share to all dissenting shareholders of the same class, or if divided
into series, of the same series and shall be accompanied by a balance sheet of the corporation whose shares the
dissenting shareholder holds as of the latest available date, which shall not be earlier than twelve months before the
making of such offer, and a profit and loss statement or statements for not less than a twelve month period ended on
the date of such balance sheet or, if the corporation was not in existence throughout such twelve month period, for
the portion thereof during which it was in existence. Notwithstanding the foregoing, the corporation shall not be
required to furnish a balance sheet or profit and loss statement or statements to any shareholder to whom such
balance sheet or profit and loss statement or statements were previously furnished, nor if in connection with
obtaining the shareholders’ authorization for or consent to the proposed corporate action the shareholders were
furnished with a proxy or information statement, which included financial statements, pursuant to Regulation 14A or
Regulation 14C of the United States Securities and Exchange Commission. If within thirty days after the making of
such offer, the corporation making the offer and any shareholder agree upon the price to be paid for his shares,
payment therefor shall be made within sixty days after the making of such offer or the consummation of the
proposed corporate action, whichever is later, upon the surrender of the certificates for any such shares represented
by certificates.
(h) The following procedure shall apply if the corporation fails to make such offer within such period
of fifteen days, or if it makes the offer and any dissenting shareholder or shareholders fail to agree with it within the
period of thirty days thereafter upon the price to be paid for their shares:
(1) The corporation shall, within twenty days after the expiration of whichever is applicable
of the two periods last mentioned, institute a special proceeding in the supreme court in
the judicial district in which the office of the corporation is located to determine the
rights of dissenting shareholders and to fix the fair value of their shares. If, in the case of
merger or consolidation, the surviving or new corporation is a foreign corporation
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without an office in this state, such proceeding shall be brought in the county where the
office of the domestic corporation, whose shares are to be valued, was located.
(2) If the corporation fails to institute such proceeding within such period of twenty days,
any dissenting shareholder may institute such proceeding for the same purpose not later
than thirty days after the expiration of such twenty day period. If such proceeding is not
instituted within such thirty day period, all dissenter’s rights shall be lost unless the
supreme court, for good cause shown, shall otherwise direct.
(3) All dissenting shareholders, excepting those who, as provided in paragraph (g), have
agreed with the corporation upon the price to be paid for their shares, shall be made
parties to such proceeding, which shall have the effect of an action quasi in rem against
their shares. The corporation shall serve a copy of the petition in such proceeding upon
each dissenting shareholder who is a resident of this state in the manner provided by law
for the service of a summons, and upon each nonresident dissenting shareholder either by
registered mail and publication, or in such other manner as is permitted by law. The
jurisdiction of the court shall be plenary and exclusive.
(4) The court shall determine whether each dissenting shareholder, as to whom the
corporation requests the court to make such determination, is entitled to receive payment
for his shares. If the corporation does not request any such determination or if the court
finds that any dissenting shareholder is so entitled, it shall proceed to fix the value of the
shares, which, for the purposes of this section, shall be the fair value as of the close of
business on the day prior to the shareholders’ authorization date. In fixing the fair value
of the shares, the court shall consider the nature of the transaction giving rise to the
shareholder’s right to receive payment for shares and its effects on the corporation and its
shareholders, the concepts and methods then customary in the relevant securities and
financial markets for determining fair value of shares of a corporation engaging in a
similar transaction under comparable circumstances and all other relevant factors. The
court shall determine the fair value of the shares without a jury and without referral to an
appraiser or referee. Upon application by the corporation or by any shareholder who is a
party to the proceeding, the court may, in its discretion, permit pretrial disclosure,
including, but not limited to, disclosure of any expert’s reports relating to the fair value of
the shares whether or not intended for use at the trial in the proceeding and
notwithstanding subdivision (d) of section 3101 of the civil practice law and rules.
(5) The final order in the proceeding shall be entered against the corporation in favor of each
dissenting shareholder who is a party to the proceeding and is entitled thereto for the
value of his shares so determined.
(6) The final order shall include an allowance for interest at such rate as the court finds to be
equitable, from the date the corporate action was consummated to the date of payment.
In determining the rate of interest, the court shall consider all relevant factors, including
the rate of interest which the corporation would have had to pay to borrow money during
the pendency of the proceeding. If the court finds that the refusal of any shareholder to
accept the corporate offer of payment for his shares was arbitrary, vexatious or otherwise
not in good faith, no interest shall be allowed to him.
(7) Each party to such proceeding shall bear its own costs and expenses, including the fees
and expenses of its counsel and of any experts employed by it. Notwithstanding the
foregoing, the court may, in its discretion, apportion and assess all or any part of the
costs, expenses and fees incurred by the corporation against any or all of the dissenting
shareholders who are parties to the proceeding, including any who have withdrawn their
notices of election as provided in paragraph (e), if the court finds that their refusal to
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accept the corporate offer was arbitrary, vexatious or otherwise not in good faith. The
court may, in its discretion, apportion and assess all or any part of the costs, expenses and
fees incurred by any or all of the dissenting shareholders who are parties to the
proceeding against the corporation if the court finds any of the following: (A) that the fair
value of the shares as determined materially exceeds the amount which the corporation
offered to pay; (B) that no offer or required advance payment was made by the
corporation; (C) that the corporation failed to institute the special proceeding within the
period specified therefor; or (D) that the action of the corporation in complying with its
obligations as provided in this section was arbitrary, vexatious or otherwise not in good
faith. In making any determination as provided in clause (A), the court may consider the
dollar amount or the percentage, or both, by which the fair value of the shares as
determined exceeds the corporate offer.
(8) Within sixty days after final determination of the proceeding, the corporation shall pay to
each dissenting shareholder the amount found to be due him, upon surrender of the
certificates for any such shares represented by certificates.
(i) Shares acquired by the corporation upon the payment of the agreed value therefor or of the amount
due under the final order, as provided in this section, shall become treasury shares or be cancelled as provided in
section 515 (Reacquired shares), except that, in the case of a merger or consolidation, they may be held and disposed
of as the plan of merger or consolidation may otherwise provide.
(j) No payment shall be made to a dissenting shareholder under this section at a time when the
corporation is insolvent or when such payment would make it insolvent. In such event, the dissenting shareholder
shall, at his option:
(1) Withdraw his notice of election, which shall in such event be deemed withdrawn with the
written consent of the corporation; or
(2) Retain his status as a claimant against the corporation and, if it is liquidated, be
subordinated to the rights of creditors of the corporation, but have rights superior to the
non-dissenting shareholders, and if it is not liquidated, retain his right to be paid for his
shares, which right the corporation shall be obliged to satisfy when the restrictions of this
paragraph do not apply.
(3) The dissenting shareholder shall exercise such option under subparagraph (1) or (2) by
written notice filed with the corporation within thirty days after the corporation has given
him written notice that payment for his shares cannot be made because of the restrictions
of this paragraph. If the dissenting shareholder fails to exercise such option as provided,
the corporation shall exercise the option by written notice given to him within twenty
days after the expiration of such period of thirty days.
(k) The enforcement by a shareholder of his right to receive payment for his shares in the manner
provided herein shall exclude the enforcement by such shareholder of any other right to which he might otherwise
be entitled by virtue of share ownership, except as provided in paragraph (e), and except that this section shall not
exclude the right of such shareholder to bring or maintain an appropriate action to obtain relief on the ground that
such corporate action will be or is unlawful or fraudulent as to him.
(l) Except as otherwise expressly provided in this section, any notice to be given by a corporation to a
shareholder under this section shall be given in the manner provided in section 605 (Notice of meetings of
shareholders).
(m) This section shall not apply to foreign corporations except as provided in subparagraph (e)(2) of
section 907 (Merger or consolidation of domestic and foreign corporations).