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WAYNE L. RYAN REVOCABLE TRUST v. RYAN

Cite as 308 Neb. 851

Wayne L. Ryan Revocable Trust et al., appellees, 

v. Constance “Connie” Ryan, appellee, 

and Streck, Inc., appellant.

___ N.W.2d ___

Filed April 9, 2021. No. S-19-951.

1. Equity: Stock: Valuation. A proceeding to determine the fair value of a 

petitioning shareholder’s shares of stock is equitable in nature.

2. Equity: Appeal and Error. An appellate court reviews an equitable 

action de novo on the record and reaches a conclusion independent of 

the factual findings of the trial court; however, where credible evidence 

is in conflict on a material issue of fact, the appellate court considers 

and may give weight to the circumstance that the trial court heard and 

observed the witnesses and accepted one version of the facts rather 

than another.

3. Statutes: Appeal and Error. Statutory interpretation is a matter of law, 

in connection with which an appellate court has an obligation to reach 

an independent, correct conclusion irrespective of the determination 

made by the court below.

4. Prejudgment Interest: Appeal and Error. Awards of prejudgment 

interest are reviewed de novo.

5. Judgments: Evidence. A trial court in a case tried to the court without 

a jury may adopt a party’s proposed findings of fact verbatim provided 

that the findings and conclusions reflect the court’s independent view 

and judgment of the evidence.

6. Judgments: Evidence: Appeal and Error. Although findings drawn by 

the trial court itself are more helpful to the appellate court, findings prepared by counsel and adopted verbatim by the trial judge are formally 

the judge’s and will stand if supported by evidence.

7. Judgments: Appeal and Error. The adoption of a party’s proposed 

findings does not require an appellate court to set aside the deference 

ordinarily given to the trial judge’s factual findings.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

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8. Judgments: Evidence: Appeal and Error. When accepting a party’s 

proposed findings, minor mistakes that do not prejudice a party constitute harmless error; however, a trial court may commit error if the proposed facts or law are unsupported by the evidence and cause prejudice. 

The critical inquiry is whether such findings, as adopted by the court, 

are clearly erroneous.

9. Corporations: Stock: Valuation. A determination of fair value of 

corporate shares in an election-to-purchase proceeding following a 

shareholder’s petition for dissolution of corporation is to be based on all 

material factors and elements that affect value, given to each the weight 

indicated by the circumstances.

10. ____: ____: ____. The real objective in determining the fair value 

of corporate shares is to ascertain the actual worth of that which the 

shareholder loses. Under this analysis, the court may consider the nature 

of the business and its operations, its assets and liabilities, its earning 

capacity, the investment value of its stock, the market value of the stock, 

the price of stocks of like character, the size of the surplus, the amount 

and regularity of dividends, future prospects of the industry and of the 

company, and good will, if any.

11. Expert Witnesses. The determination of the weight that should be given 

expert testimony is uniquely the province of the fact finder.

12. Corporations: Stock: Valuation. The trial court is not required to 

accept any one method of stock valuation as more accurate than another 

accounting procedure.

13. Corporations: Valuation. A trial court’s valuation of a closely held 

corporation is reasonable if it has an acceptable basis in fact and 

principle.

14. Corporations: Stock: Valuation: Expert Witnesses. A judicial valuation of corporate stock presents unique challenges which are complicated by the clash of contrary, and often antagonistic, expert opinions of 

value, prompting the trial court to wade through widely divergent views 

reflecting partisan positions in arriving at its determination of a single 

number for fair value.

15. Corporations: Stock: Valuation: Evidence. While discharging its statutory mandate to value a shareholder’s stock, it is entirely proper for a 

trial court to adopt one expert’s model, methodology, and calculations 

if they are supported by credible evidence and the judge analyzes them 

critically on the record.

16. Corporations: Stock: Valuation: Appeal and Error. As long as they 

are supported by the record, an appellate court may defer to the trial 

court’s factual findings in a statutory corporate stock valuation proceeding, even if the appellate court might independently reach a different conclusion.
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17. Corporations: Stock: Valuation. The valuation of corporate shares is 

to be made without consideration of any increase in value resulting from 

the transaction itself.

18. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

Appeal from the District Court for Sarpy County: Nathan 

B. Cox, Judge. Affirmed.

Thomas H. Dahlk and Victoria H. Buter, of Kutak Rock, 

L.L.P., and Ronald E. Reagan, of Reagan, Melton & Delaney, 

L.L.P., for appellant.

Kamron T.M. Hasan, David A. Lopez, and Marnie A. Jensen, 

of Husch Blackwell, L.L.P., for appellees Wayne L. Ryan 

Revocable Trust et al.

Daniel J. Welch and Damien J. Wright, of Welch Law Firm, 

P.C., for appellee Constance “Connie” Ryan.

Heavican, C.J., Cassel, Funke, Papik, and Freudenberg, 

JJ.

Funke, J.

The sales process implemented by a corporation’s successor president and chief executive officer (CEO) failed to produce an offer acceptable to the majority shareholder. When 

the corporation was not sold, the majority shareholder sued 

the president and CEO, as well as the corporation, alleging shareholder oppression and breach of fiduciary duty. The 

corporation elected to purchase the petitioning shareholder’s 

shares, which initiated a valuation proceeding in district court. 

The court held a 9-day bench trial and determined the fair 

value of the shares to be purchased by the corporation to be 

$467 million. The court awarded the petitioning shareholder 

approximately $256 million in prejudgment interest and, over 
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objection, ordered the corporation to pay the fair value portion 

of the judgment within 10 days.

The corporation, Streck, Inc., appeals the court’s valuation 

of shares, award of prejudgment interest, and order to make 

payment. Based on the record and credibility findings of the 

district court, and the statutory law governing prejudgment 

interest in a proceeding to value a petitioning shareholder’s 

shares, we conclude that Streck’s appeal is without merit. 

Therefore, we affirm.

I. BACKGROUND

1. Parties

(a) Streck

Streck, a closely held, private family business, is a Nebraska 

corporation with its principal place of business in La Vista, 

Sarpy County, Nebraska. Streck is a subchapter S corporation 

under the Internal Revenue Code.

Streck is a worldwide industry leader in developing and 

manufacturing cell stabilization technology for use in hematology, immunology, and molecular diagnostics. Streck’s products 

are used to control and calibrate laboratory instruments that 

analyze blood cells and DNA, and they have a significant 

impact in health care. When Dr. Wayne L. Ryan founded Streck 

in 1971, Streck’s core business was hematology controls. 

Streck was “‘first to market’” with a majority of its products, 

and it maintains approximately three-quarters of the hematology control market in the United States. Dr. Ryan subsequently 

developed a blood collection tube (BCT) product, which allows 

for the preservation and transportation of blood samples. The 

BCT products’ capability to stabilize “DNA and . . . RNA” was 

a significant advancement in the field of molecular diagnostics. 

In addition, Streck’s flow cytometer identifies white blood 

cells, which allows for the diagnosis of diseases, such as AIDS 

and various cancers.

Streck, with its 330 employees and 200,000 square foot 

facility, has a fully integrated business model for its products, 
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with research and development, manufacturing, and distribution. Streck has a strong operational performance, increasing 

sales every year since inception with no product recalls in 

the past 25 years. Streck has deeply entrenched relationships 

with its largest customers that are secured with long-term contracts. Streck has a valuable portfolio of intellectual property, 

with, as of December 2014, 42 patents and 42 pending patent 

applications. Streck has an intellectual property strategy, with 

both offensive and defensive strategies, designed to protect its 

position in the market. For its BCT products, Streck planned 

to apply for broad patent protections for extended periods 

of time.

Streck’s financial performance surged in recent years. From 

2010 to 2014, Streck’s annual net sales went from $73.9 million to $101.8 million, averaging 8 percent growth each year. 

During this time period, Streck’s average gross profit margins 

were 62.6 percent, 64.4 percent, 66.7 percent, 68.6 percent, and 

69.7 percent. Streck’s adjusted earnings before interest, taxes, 

depreciation, and amortization (EBITDA) during this period 

was $33.7 million, $36.1 million, $40.1 million, $49.6 million, 

and $53.6 million. In April 2014, Streck had 10 new products 

in development. In July 2014, Streck set a goal to double sales 

within the next 6 years and set a goal for 2015 to develop and 

execute a growth strategy to achieve $200 million in sales by 

2020. Streck expected continued growth with its BCT products 

and planned to gain one of the largest companies in Streck’s 

industry as a new client.

(b) Ryan Family

Dr. Ryan was Streck’s founder, director of research and 

development, CEO, and chairman of the board. Dr. Ryan and 

his wife, Eileen Ryan, had five children: Constance Ryan 

(Connie), Tim Ryan, Stacy Ryan, Carol Ryan, and Steven Ryan. 

The ownership structure of Streck is comprised of the Wayne 

L. Ryan Revocable Trust (the RRT), which owns 52.275 percent; Eileen’s trust, which owns 39.641 percent; and Connie’s 

trust and the 2014 “Grantor Retained Annuity Trust,” which 
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owns 8.008 percent. In 2014, Dr. Ryan gifted .026 percent of 

Streck’s voting stock to Carol, Steven, and Barry Uphoff, a 

family friend. Uphoff worked in Streck’s laboratory after college and later served on Streck’s board of directors for nearly a 

decade, including a brief period as chairman of the board.

In March 2013, Eileen passed away. Eileen’s estate conveyed her one-third of Streck’s voting shares to Connie, giving 

Connie two-thirds of the company’s voting shares. As a result, 

Connie obtained voting control of Streck, with the power to 

appoint a majority of Streck’s board of directors. In September 

2013, based on her own recommendation to the board, Connie 

replaced her father, Dr. Ryan, as CEO. Connie proposed that 

Streck name a new director of research and development and 

encouraged Dr. Ryan to retire. Dr. Ryan did not object to 

Connie’s becoming CEO so long as the company was sold. 

Connie agreed to prepare the company for sale in the next 2 

to 3 years.

In the spring of 2014, Dr. Ryan made Carol the trustee of 

the RRT.

2. Project Blizzard

Connie’s effort to sell Streck was referred to within Streck 

as “Project Blizzard.” In January 2014, prior to the launch of 

Project Blizzard, Streck received interest from potential buyers. A private investor told Connie he would buy Streck for 

$330 million. Mike Morgan, Streck’s former chief financial 

officer (CEO), valued Streck at $285 million for purposes of 

making an offer to purchase 10 percent of Streck. Uphoff, 

who is also the founder and managing partner of a private 

equity firm, Capricorn Healthcare & Special Opportunities 

(Capricorn), submitted an indication that he would purchase 

Streck for $425 million.

During this time, Dr. Ryan engaged Carson Wealth Management Group (Carson) to conduct a valuation. Carson found 

Streck to be a “very high quality business with incredible margins and solid growth prospects.” Two analysts from Carson 

independently valued Streck at approximately $705 million.
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According to the testimony of Carol, based on the interest from prospective buyers in the early part of 2014, Connie 

and Streck’s chairman of the board, Ron Gartlan, believed 

they could conduct a sales process themselves and bring in 

an investment banker at the end of the sales process. Connie 

and Gartlan determined that the sale of Streck would be run 

through Streck’s management, without input from Dr. Ryan 

and Carol. Dr. Ryan and Carol voiced that Streck was going 

blind into the sale as to its true value, and they expressed 

concern about the lack of the involvement of an investment 

banker. Gartlan indicated that he was familiar with an investment banker that Streck could use, and in March 2014, Streck 

engaged the investment banker without interviewing other 

candidates. Thereafter, Dr. Ryan and Carol were excluded from 

the meetings which Streck and its investment banker had with 

potential buyers.

Project Blizzard consisted of three rounds of bidding. In 

the first two rounds, each prospective buyer submitted a 

preliminary indication of interest (IOI). In the third round, 

each buyer submitted a final letter of intent (LOI). The bids 

excluded the approximately $76.5 million of cash held by 

Streck, which would be distributed to the shareholders prior to 

closing. All of the bids submitted through the process agreed 

to Streck’s primary terms, which were to keep the business in 

Omaha, Nebraska; maintain relationships with key customers; 

and retain key employees, including Connie and her management team.

Ten potential buyers, consisting of one diagnostics health 

care company and nine private equity companies, submitted 

an IOI in the first round. Most bids contained a range with 

a low number and high number. The bids were as follows: 

Bio-Techne, Inc., $387 million to $427 million; Water Street, 

$415 million to $430 million; Summit Partners, $425 million; Capricorn, $425 million to $450 million; Bain Capital 

Partners, LLC, $475 million to $525 million; The Carlyle 

Group, $550 million to $600 million; The Jordan Company, 
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$550 million to $600 million; Genstar Capital Management 

LLC, $570 million; GTCR, $575 million to $625 million; and 

Warburg Pincus LLC, $525 million to $625 million. GTCR, a 

private equity firm based in Chicago, Illinois, launched a new 

fund in 2014 and was searching for a platform company in 

molecular diagnostics. GTCR submitted a bid with a midpoint 

of $600 million, which was the highest in the first round.

Connie, with support from the board and Streck’s investment banker, selected 6 of the 10 potential buyers to visit 

Streck to meet with management, tour the facilities, and obtain 

further due diligence from Streck. The four lowest bids from 

round one advanced to round two. GTCR, the highest bidder, 

did not advance to round two. Each potential buyer selected 

for round two submitted a revised IOI. The round two bids 

were as follows: Summit Partners, $350 million to $375 million; Bio-Techne, $432 million to $447 million; Capricorn, 

$490 million to $515 million; Water Street, $505 million to 

$530 million; The Carlyle Group, $565 million to $585 million; and Warburg Pincus, $575 million. Also around this time 

period, in June 2014, Streck’s investment banker valued Streck 

at $558.5 million, exclusive of cash.

At a board meeting held July 11, 2014, Dr. Ryan announced 

that he had lost confidence in the sales process. Dr. Ryan, 

a 52.275 percent shareholder and the income beneficiary of 

Eileen’s trust, stated that he had requested to include Carol 

and the trustee of Eileen’s trust in the process and that it 

was unfair to exclude them. Before leaving the meeting, 

Dr. Ryan stated:

I own now 92% of the stock. Connie owns eight. And 

the Board has zero. You have nothing to lose. I have 

everything to lose in this decision you’re making. . . . The 

decisions about the bidding process and the bidders are 

being made without input from approximately 92% of the 

total votes.

Streck went through the offers, submitted followup questions, and selected the companies which made the four 
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highest bids as finalists and requested that each submit an 

LOI. Streck’s investment banker maintained a dialogue with 

the potential buyers and facilitated further due diligence. 

Streck’s management conducted a second round of meetings 

with the buyers. Following this process, Capricorn elected not 

to submit an LOI.

Streck received three LOI’s in the third and final round. 

Warburg Pincus offered $450 million, plus a $50 million 3-year 

earnout. Water Street offered $530 million. The Carlyle Group 

offered $590 million. On August 19, 2014, the board held a 

meeting to select an LOI to recommend to the shareholders. 

Dr. Ryan announced that he did not find any of the LOI’s 

to be acceptable. Dr. Ryan stated that he was in no position 

to approve a sale, because he did not see what was gained. 

Dr. Ryan expressed that he was not being listened to and that 

the process was a waste of time. After Dr. Ryan exited the 

meeting, the board adopted a resolution to discontinue the sales 

process for at least 2 years before exploring another potential 

sale. Connie stated that she was no longer interested in selling 

the company and that due to her majority voting rights, there 

would be no sale without her agreement.

Following the August 2014 board of directors’ meeting, 

Uphoff submitted an IOI to Dr. Ryan that valued Streck at 

$420 million. In September 2014, Carol, as trustee for the RRT, 

and with approval from the trustee of Eileen’s trust, contacted 

GTCR. GTCR submitted an IOI of $625 million to $675 million. Connie refused Carol’s request to schedule a shareholders’ meeting to consider GTCR’s proposal. Connie stated that 

she had “informed the Board that I do not wish to pursue a 

sale” and that Streck had terminated its engagement with its 

investment banker. Carol convened a shareholders’ meeting to 

discuss GTCR’s offer, which Connie did not attend.

3. Pretrial

In October 2014, the RRT filed suit against Connie and 

Streck in the district court for Sarpy County, alleging shareholder oppression under Neb. Rev. Stat. § 21-20,162 (Reissue 
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2012) and breach of fiduciary duty. The petition requested, 

among other things, judicial dissolution of Streck.

Streck formed a “Special Litigation Committee” (SLC) to 

determine how to respond to the lawsuit. Streck engaged a 

financial advisor, Empire Valuation Consultants, LLC (Empire), 

to conduct an independent valuation of Streck. Empire valued 

the RRT’s shares at a range of approximately $271 million 

to $328 million. After investigating the matter and considering various alternatives, the SLC found that a sale of Streck 

“continues to be an attractive alternative” if the shareholders 

committed to a sale at a reasonable price. However, the SLC 

was not confident that the shareholders would agree to a sale 

despite the advantages. Therefore, the SLC recommended that 

Streck purchase the RRT’s stock. In making this recommendation, the SLC recognized the litigation risk to Streck, including the potential for an extended legal process and a high 

stock value established by the court. But the SLC concluded 

that these “obligations and risks are outweighed by the benefits realized.”

On January 19, 2015, Streck filed an “Election to Purchase” 

the RRT’s shares pursuant to Neb. Rev. Stat. § 21-20,166 

(Reissue 2012). Prior to the repeal of § 21-20,166, made effective January 1, 2017, by 2015 Neb. Laws, L.B. 157, § 10, 

it allowed a corporation in a judicial dissolution action to, 

rather than dissolve, elect to purchase the shares owned by 

the petitioning shareholder. Since the time that Streck filed the 

election to purchase, and prior to this appeal, the Legislature 

repealed § 21-20,166 due to the adoption of the Nebraska 

Model Business Corporation Act (NMBCA), Neb. Rev. Stat. 

§§ 21-201 through 21-2,232 (Cum. Supp. 2016). However, 

§ 21-2,232 of the NMBCA contains a saving provision that 

provides that the repeal of any statute by the NMBCA “does 

not affect” any “dissolution commenced under the statute 

before its repeal, and the . . . dissolution may be completed 

in accordance with the statute as if it had not been repealed.” 

Furthermore, based on the timing of events in this matter, 
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the provisions of § 21-20,166 are applicable. 1 In any event, 

the election provisions under the now-repealed § 21-20,166 are 

substantially similar to those found in the NMBCA. Thus, the 

repeal of § 21-20,166 is not material in this matter.

Under § 21-20,166(3), parties have 60 days from the filing 

of the election to reach an agreement on the fair value and 

terms of purchase of the petitioner’s shares. When an agreement is not reached, under § 21-20,166(4), the court, “upon 

application of any party, shall stay such proceedings and 

determine the fair value of the petitioner’s shares as of the day 

before the date on which the petition [for dissolution] was filed 

or as of such other date as the court deems appropriate under 

the circumstances.”

In February 2015, Streck offered to purchase the RRT’s 

shares for approximately $220 million, which included an 

$80 million discount for lack of control and lack of marketability. On March 23, 2015, Streck filed an application for 

stay, alleging that 60 days had elapsed and that the parties 

could not agree on the value of the RRT’s shares. Streck asked 

the court to determine the fair value of the RRT’s shares as of 

October 29, 2014, the day before the filing of the RRT’s petition. Connie filed a motion also requesting that the court grant 

a stay and determine the fair value of the RRT’s shares. Connie 

did not file her own election to purchase the RRT’s shares. On 

April 28, 2015, the court issued a stay and permitted an additional 90 days for discovery and negotiations on the issue of 

fair value.

On June 29, 2015, the RRT moved for leave to file an 

amended complaint. The RRT’s proposed amended complaint 

requested that the court declare Streck’s election to purchase 

the RRT’s shares invalid. The court held a hearing and denied 

the motion to amend.

1 Dragon v. Cheesecake Factory, 300 Neb. 548, 915 N.W.2d 418 (2018) 

(statutes covering substantive matters in effect at time of transaction or 

event govern, not later enacted statutes).
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In January 2016, the RRT moved for partial summary judgment, seeking an order that discounts for lack of control or lack 

of marketability are not applicable in the determination of the 

“fair value” of the RRT’s shares. Streck filed its own motion 

for partial summary judgment, seeking an order that under 

§ 21-20,166(2), it validly exercised its election to purchase the 

RRT’s shares. On April 25, the court entered an order granting both motions. With respect to the RRT’s motion, the court 

found that, pursuant to our holding in Rigel Corp. v. Cutchall,

 2

discounts for lack of control or lack of marketability are not 

applicable when determining the “fair value” of a petitioning 

shareholder’s corporate stock. With regard to Streck’s motion, 

the court held that Streck was entitled to exercise an election 

to purchase the RRT’s shares, and had validly done so, and 

that therefore, under § 21-20,166, the election was not subject 

to challenge.

On May 13, 2016, Stacy, for the second time, sought to 

intervene in the case. The court sustained Streck’s motion to 

strike Stacy’s complaint in intervention. We affirmed the district court’s denial of leave to intervene. 3 The matter returned 

to the district court.

4. Bench Trial

Dr. Ryan passed away in 2017. Thereafter, Carol stepped 

down as trustee. Steven and a trust company were appointed 

to serve as cotrustees of the RRT. The district court held a 

bench trial from September 24 through October 4, 2018. The 

principal issues before the court were (1) the fair value of the 

RRT’s shares of Streck as of October 29, 2014; (2) whether the 

RRT was entitled to an interest award under § 21-20,166(5)(a); 

and (3) whether to allow Streck to purchase the RRT’s shares 

in installments.

2 Rigel Corp. v. Cutchall, 245 Neb. 118, 511 N.W.2d 519 (1994).

3 Wayne L. Ryan Revocable Trust v. Ryan, 297 Neb. 761, 901 N.W.2d 671 

(2017).
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(a) Valuation Experts Robert Reilly 

and Jeffrey Risius

At trial, the court heard opposing testimony from two experts 

in business valuation. Both experts utilized the discounted 

cashflow (DCF) method, a generally accepted method under 

the income approach. In combination with the DCF method, 

both experts utilized two generally accepted methods under 

the market approach, which were the guideline publicly traded 

company (GPTC) method and the guideline merger and acquisition (GMA) method.

The RRT’s business valuation expert, Robert Reilly, has 

authored 12 textbooks on valuation issues and has testified 

in court over 150 times. Reilly has helped develop valuation standards for professional organizations such as The 

Appraisal Foundation, the American Society of Appraisers, the 

American Institute of Certified Public Accountants, and the 

National Association of Certified Valuation Analysts. Reilly 

opined that the fair value of the shares held by the RRT was 

$467 million.

Streck’s valuation expert, Jeffrey Risius, is a principal in 

an international financial advisory firm and has been in the 

valuation business for almost 30 years. Risius has authored 

a book on valuation for the legal profession published by the 

business law section of the American Bar Association. Risius 

has extensive experience testifying as an expert witness on the 

issue of business valuation. Risius opined that the fair value of 

the shares held by the RRT was $304 million.

(i) DCF Method

The experts described the DCF method as determining 

Streck’s operating cashflow by evaluating financial projections 

and discounting Streck’s anticipated earnings to its present 

value. The experts evaluated financial projections for three 

time periods: 2015 through 2019, 2020 through 2024, and 2025 

into perpetuity. The experts considered several factors in calculating an appropriate discount rate. The higher the discount 

rate, the lower the valuation.
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For the first time period, both experts used the same projections, completed by Streck’s then-CFO, Morgan, in May 

2014 for use in Project Blizzard. Morgan projected that, for 

existing products, Streck’s revenues would grow to $148 million in 2019. According to the report of the SLC, Connie 

expressed confidence that Streck’s financial projections would 

be achieved and indicated they are “deliberately conservative.” For 2013, Streck’s net income exceeded its plan by 

$11.5 million. From 2015 through 2017, Streck’s financial 

performance exceeded its projections. Reilly used the “deliberately conservative” projections for 2015 through 2019 prepared 

by Streck, but Risius used projections that were $10 million lower.

For 2020 through 2024, Reilly projected growth rates of 

8 percent, 8 percent, 7 percent, 6.5 percent, and 4.5 percent, 

respectively. Reilly considered Streck’s historical growth rates 

and projections for publicly traded companies which Reilly 

concluded were comparable to Streck. Reilly assumed Streck’s 

growth rate would decrease on a stairstep basis rather than “fall 

off a cliff.” Reilly then applied a 4.5-percent growth rate from 

2025 into perpetuity. Reilly admitted that his projected growth 

rates were downward assumptions, because Streck’s profits 

had consistently increased. In determining a terminal growth 

rate of 4.5 percent, Reilly considered Streck’s historic growth 

rate and the anticipated industry growth rate, as well as gross 

domestic product growth rates and inflation rates. Reilly’s 

projected growth rate of 4.5 percent was approximately half 

of the industry’s historic growth rates. Reilly explained that a 

terminal growth rate of 4.5 percent assumed that Streck will 

revert from a period of “supernormal growth” to growing at 

the rate of inflation and growth in the economy. Risius applied 

a 3-percent growth rate from 2020 into perpetuity, citing risks 

such as customer concentration, low growth in hematology, 

competition, and patent expirations. The experts’ use of different long-term growth rates resulted in a difference in valuation 

of approximately $65 million.
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Next, the experts calculated a discount rate, or “weighted 

average cost of capital.” Reilly applied a discount rate of 

11 percent. Reilly’s discount rate was based on the averaged 

sum of a 2.8-percent risk-free rate of return, a 5.6-percent 

industry-adjusted general equity risk premium, a 2.4-percent 

company-size risk premium, and a .5-percent company-specific 

risk premium. Reilly applied a company-size risk premium of 

2.4 percent, because that is the premium applied to companies 

in the eighth decile of the “Size Premia Study.” Based upon 

his market analysis, Reilly placed Streck in the eighth decile, 

which includes companies valued between $636 million and 

$1.05 billion. Reilly also calculated the same discount rate of 

11 percent using a buildup model. By applying his projections 

and discount rate under the DCF method, Reilly valued Streck 

at $707 million.

Risius applied a discount rate of 12.4 percent. Risius differed 

from Reilly in his selection of a company-size risk premium. 

Risius testified that because the market capitalization of Streck 

was not available, he could not place Streck in the eighth 

decile. Risius reviewed Streck’s financial figures and arrived 

at a company-size risk premium of 6 percent. Because 6 percent appeared too high, Risius placed Streck in the “‘microcap’ [decile of] the Size Premia-Study,” which has a premium 

of 3.87 percent. The microcap group includes both 9th and 

10th decile companies, which have a market capitalization of 

between $2 million and $663 million. Finally, the experts used 

different company-specific risk premiums, with Risius applying 1 percent as compared to Reilly’s .5 percent. Under the 

DCF method, Risius valued Streck at $456 million.

(ii) GPTC Method

The GPTC method measures the amount that Streck would 

trade for based on a comparison of Streck to publicly traded 

companies of similar size or profitability in the same line 

of business. The measurement of value is based on the multiples of earnings of comparable publicly traded companies. 

For example, if a company’s EBITDA is $10 million and a 
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buyer makes an offer of $100 million, the offer represents 10 

multiples of the company’s EBITDA.

Reilly performed a GPTC analysis of Streck by selecting 

publicly traded companies within the same standard industrial 

classifications (SIC) codes, codes 2835 and 3826. The U.S. 

Department of Labor defines SIC code 2835, entitled “In Vitro 

and In Vivo Diagnostic Substances,” as follows:

Establishments primarily engaged in manufacturing in 

vitro and in vivo diagnostic substances, whether or not 

packaged for retail sale. These materials as chemical, 

biological, or radioactive substances used in diagnosing 

or monitoring the state of human or veterinary health by 

identifying and measuring normal or abnormal constituents of body fluids or tissues.

SIC code 3826, entitled “Laboratory Analytical Instruments,” 

is defined as follows: “Establishments primarily engaged in 

manufacturing laboratory instruments and instrumentation systems for chemical or physical analysis of the composition or 

concentration of samples of solid, fluid, gaseous, or composite material.”

Reilly selected six guideline companies within these SIC 

codes which had operations comparable to Streck. Each of the 

guideline companies Reilly selected were included in valuations conducted by Risius and Empire. Reilly found that Streck 

had been growing at a faster rate than the selected companies. 

To be conservative, Reilly used pricing multiples that were 

approximately 20 percent below the median of the selected 

companies. Reilly applied multiples of earnings of between 

13.5 and 15 EBITDA to Streck’s financial performance as of 

October 2014 and valued Streck under the GPTC method at 

$771 million.

Risius’ GPTC companies had an average EBITDA multiple 

of 17.1. However, Risius concluded that Streck was not truly 

comparable to any of the GPTC companies. Risius therefore 

applied an EBITDA multiple of 9.5 and valued Streck under 

the GPTC method at $487 million.
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The RRT adduced evidence that for tax purposes, separate from the valuation proceedings, Risius’ firm performed 

a valuation of Streck as of July 2014. Risius’ firm applied 

multiples for Streck which, if applied by Risius in this case, 

would increase Risius’ value under the GPTC method by 

$172 million.

(iii) GMA Method

Under the GMA method, both Reilly and Risius conducted a 

search of publicly available information regarding mergers and 

acquisitions of companies similar to Streck. Reilly selected 10 

mergers and acquisitions involving companies in the same SIC 

codes as Streck, and then selected the median of the multiples 

of earnings reflected in those transactions. Reilly applied those 

multiples to Streck’s financial metrics and valued Streck at 

$704 million. Risius found that given the uniqueness of Streck, 

there are few, if any, comparable sale transactions for consideration. Risius instead primarily relied upon the LOI’s obtained 

during Project Blizzard to determine a value for Streck. Based 

on the median of the three LOI’s, Risius arrived at a value of 

$545 million.

(iv) “S Corp Premium”

Each method employed by the experts measures the value 

of a subchapter C corporation. Because Streck is a subchapter 

S corporation, the experts agreed that applying an “S Corp 

premium” is necessary to reflect the value of the economic 

benefits associated with Streck’s status as an S corporation.

Both experts utilized the S corporation economic adjustment model method. Reilly, after considering other additional 

methods, concluded that the appropriate premium was 14 percent. Risius also concluded that the appropriate premium was 

14 percent. However, due to the risk that Streck could elect to 

become a C corporation in the future, Risius adjusted the premium to 7.1 percent. This adjustment reduced Risius’ valuation 

by $32 million.
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(v) Valuation Conclusions

As a final step to determine fair value, the experts added 

Streck’s $76,495,000 in cash and marketable securities as of 

October 2014. Reilly valued Streck under the three methods at 

$717 million, applied a 14-percent S Corp premium, and added 

Streck’s cash to conclude that the fair value of Streck was 

$893 million. Reilly opined that the fair value of the RRT’s 

52.275 percent ownership interest was $467 million.

Risius applied a 7-percent S Corp premium to only his 

valuation under the DCF method and then synthesized his 

valuations under the three methods to arrive at a value of 

$505 million. After adding Streck’s cash, Risius valued Streck 

at approximately $581 million and found the rounded fair value 

of the shares held by the RRT to be $304 million.

(b) John Riddle

The court heard testimony from the RRT’s expert witness 

John Riddle, an experienced investment banker who specializes in the diagnostic health care industry. Riddle’s experience 

includes developing and evaluating financial projections in 

connection with mergers and acquisitions. Riddle explained 

that as of October 2014, the health care life sciences market 

was growing at or over 7 percent. He testified that Streck was 

growing over the industry’s trend, that Streck had a strong 

profile for growth as compared to the market, and that, due to 

its positioning, Streck had “niche market dominance.” Riddle 

stated that “there is no other company like Streck in America 

certainly, and perhaps in the world.” Utilizing Streck’s projections, Riddle conducted a leveraged buyout analysis which 

valued Streck at between $646 million and $742 million before 

considering an S Corp premium or adding back cash.

Riddle opined that Project Blizzard was a flawed and failed 

process. Riddle stated that he expected to see offers “several hundred million dollars” higher than the LOI’s Streck 

received. Riddle testified that Streck’s growth projections were 

too conservative and were not properly characterized to the 
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prospective buyers during Project Blizzard. Riddle criticized 

Streck’s choice of investment banker given the banker’s lack 

of experience in the diagnostic health care market; Streck’s 

decision to exclude GTCR, the highest bidder in round one; 

and Streck’s instruction of terms in bid instruction letters, such 

as a reverse breakup fee and a preference to use low amounts 

of leverage, which Riddle contended chilled interest and drove 

down the price.

Streck did not rebut Riddle’s testimony with any testimony of comparable expertise. Streck called investment banker 

James Calandra as an expert witness, but due to his lack of 

relevant experience, Calandra was not permitted to offer any 

opinions regarding Streck’s value within the diagnostic health 

care industry.

5. District Court’s Findings

On July 23, 2019, the district court issued its posttrial opinion and order. The court adopted the RRT’s 74-page proposed 

findings verbatim, while adding the statutory definition of 

“[f]air value” under § 21-2,171. Thus, the court adopted the 

valuation and testimony of the RRT’s expert witnesses Reilly 

and Riddle and rejected the testimony of Streck’s expert witness Risius.

(a) Fair Value

The court found that the RRT met its burden of proving 

the fair value of its shares. The court found that (1) Reilly’s 

projections of Streck’s revenue and income were in line with 

Streck’s projections and prospects for growth, (2) Reilly’s 

long-term growth rate of 4.5 percent was reasonable, (3) 

Reilly’s selected company-size risk premium and companyspecific risk premium were reasonable, (4) Reilly’s selected 

multiples of earnings from GPTC companies were reasonable 

and in line with companies in Streck’s industry, and (5) Reilly 

“credibly and convincingly testified” that no rational company 

would convert from an S corporation to a C corporation prior 
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to a sale. The court found that “Riddle credibly testified that 

several aspects of Project Blizzard served to limit the price 

offered for Streck.”

The court found that Risius’ “downward bias” rendered his 

valuation under the DCF method “inherently unreliable.” The 

court found that Risius’ explanations for his projections were 

“misleading and not credible.” The court found that Risius 

“double-counted” the same risks to justify his projections and 

selected company-specific risk premium. The court found that 

Risius’ explanation of his company-size risk premium was not 

credible. The court found Risius’ valuations under the GPTC 

method and the GMA method reflected a downward bias. The 

court found that Risius’ “arbitrary halving of the S Corp premium reflects his downward bias.” The court found that Risius’ 

downward bias “renders his conclusion unreliable.”

The court also found that the equities of the case favored 

Reilly’s valuation, because Dr. Ryan founded Streck and developed the technology upon which the company was built and 

he established Streck’s relationship with its largest customer. 

The court stated that pursuant to Rigel Corp., a fair value 

determination should attempt to measure what Dr. Ryan lost. 4

The court found that Dr. Ryan’s loss of his interest in Streck 

“was substantial, and that is reflected in the fair value of his 

shares as determined by Reilly.” The court found that Dr. Ryan 

was justified in not agreeing to a sale during Project Blizzard, 

because Dr. Ryan was shut out of the process and had warned 

that he was not supporting Project Blizzard. Thus, the court 

found that it was “not a surprise that Dr. Ryan would not 

approve a sale to the Project Blizzard buyers.”

(b) Prejudgment Interest

The court found that the RRT was entitled to an award 

of prejudgment interest pursuant to § 21-20,166(5)(a), which 

states in part:

4 See Rigel Corp., supra note 2.
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Interest may be allowed at the rate specified in section 45-104, [12 percent per annum,] as such rate may 

from time to time be adjusted by the Legislature, and 

from the date determined by the court to be equitable, 

but if the court finds that the refusal of the petitioning 

shareholder to accept an offer of payment was arbitrary or 

otherwise not in good faith, no interest shall be allowed.

The court found that, under § 21-20,166(5)(a), there was 

no evidence that the RRT refused an offer of payment arbitrarily or in bad faith. The court found that the RRT should 

be awarded prejudgment interest commencing on the date 

Streck filed its election to purchase, January 19, 2015, through 

the time of Streck’s purchase. In so ruling, the court rejected 

Streck’s arguments opposing a prejudgment interest award.

Streck argued that the award of prejudgment interest was 

controlled by Neb. Rev. Stat. § 45-103.2 (Reissue 2010) and 

that the RRT failed to satisfy the procedural requirements of 

§ 45-103.2. Streck argued the court was precluded from awarding prejudgment interest on an unliquidated amount. The court 

found Streck’s arguments to be without merit, because in a 

fair value proceeding regarding the petitioning shareholder’s 

shares, the award of prejudgment interest is governed by 

§ 21-20,166(5)(a), which specifically references Neb. Rev. 

Stat. § 45-104 (Reissue 2010), not § 45-103.2. The court found 

“the procedural requirements set forth in § 45-103.02, when 

viewed in the context of § 21-20,166, do not make sense and 

are clearly not applicable.” The court found the amount at issue 

in a fair value proceeding is contested and therefore will be 

unliquidated. Lastly, the court found no merit to Streck’s arguments that prejudgment interest should not be awarded due to 

the RRT’s challenge of Streck’s election to purchase and due 

to the RRT’s lack of objection to Stacy’s attempt to intervene 

in the case.

6. Posttrial

Following trial, the RRT moved for a final order directing Streck’s purchase pursuant to § 21-20,166(5)(a), which 
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states that “[u]pon determining the fair value of the shares, 

the court shall enter an order directing the purchase upon such 

terms and conditions as the court deems appropriate . . . .” 

The court held a hearing on the motion on August 12, 2019, 

at which Streck requested to make installment payments. On 

September 13, the court granted the RRT’s motion and ordered 

Streck to pay the fair value portion of the judgment within 

10 days.

The court found that Streck represented at an August 2018 

hearing that it was ready to purchase the RRT’s shares. The 

court found that Streck’s SLC considered the affordability of 

the judgment in its January 2015 report when it recommended 

that Streck purchase Dr. Ryan’s shares. The court found the 

SLC report contained assurances from Streck’s CEO and 

then-CFO that Streck could afford the entire judgment through 

a combination of cash, borrowing, and, if necessary, private 

equity investment. The court found the evidence demonstrated 

that Streck had secured the ability to pay for the fair value 

of the RRT’s shares in full as of January 2015 and that there 

was no credible evidence Streck could not purchase the RRT’s 

shares. The court found it “particularly troublesome” that, if 

Streck’s argument were accepted, Streck would not be able to 

afford even the valuation of its own expert. The court found 

that this alone demonstrated that Streck had come before it 

“with unclean hands.” The court awarded the RRT prejudgment interest in the amount of approximately $256 million for 

the period of January 19, 2015, through August 12, 2019. The 

court dismissed the RRT’s petition for dissolution.

Streck moved for a new trial. Connie moved for a new trial 

and moved to alter or amend. The court denied the motions. 

Streck filed an appeal, and we granted the parties’ request 

for bypass.

II. ASSIGNMENTS OF ERROR

Streck assigns, restated and summarized, that the district 

court erred in (1) adopting the RRT’s proposed findings, 
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(2) valuing the RRT’s shares, (3) awarding prejudgment 

interest, and (4) refusing Streck’s request to make installment payments.

Connie filed a brief asserting assignments of error which 

overlap with and reiterate Streck’s arguments regarding the 

court’s valuation and order directing purchase. However, 

although Connie was the principal defendant in the RRT’s petition and she filed a motion requesting that the court determine 

the fair value of the RRT’s shares, Connie did not file an election to purchase any shares under § 21-2,201(d). Therefore, 

Connie, in her individual capacity, is not a proper party to 

these proceedings. 5

III. STANDARD OF REVIEW

[1,2] A proceeding to determine the fair value of a petitioning shareholder’s shares of stock is equitable in nature. 6 An 

appellate court reviews an equitable action de novo on the 

record and reaches a conclusion independent of the factual 

findings of the trial court; however, where credible evidence 

is in conflict on a material issue of fact, the appellate court 

considers and may give weight to the circumstance that the 

trial court heard and observed the witnesses and accepted one 

version of the facts rather than another. 7

[3] Statutory interpretation is a matter of law, in connection 

with which an appellate court has an obligation to reach an 

independent, correct conclusion irrespective of the determination made by the court below. 8

[4] Awards of prejudgment interest are reviewed de novo. 9

5 See Anderson v. A & R Ag Spraying & Trucking, 306 Neb. 484, 946 

N.W.2d 435 (2020).

6 See, id.; Rigel Corp., supra note 2.

7 Id.

8 Id.

9 AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212 

(2020); Weyh v. Gottsch, 303 Neb. 280, 929 N.W.2d 40 (2019).
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IV. ANALYSIS

1. Adoption of Proposed Findings

As a threshold matter, Streck argues that by adopting the 

RRT’s posttrial proposed findings nearly verbatim, the court 

erred because it failed to independently review all of the relevant evidence. In response, the RRT argues that where one 

party’s submission credibly establishes the merits of the case, 

and the other party’s does not, the court may adopt the credible submission.

[5-8] A trial court in a case tried to the court without a 

jury may adopt a party’s proposed findings of fact verbatim 

provided that the findings and conclusions reflect the court’s 

independent view and judgment of the evidence. 10 Although 

findings drawn by the trial court itself are more helpful to 

the appellate court, findings prepared by counsel and adopted 

verbatim by the trial judge are formally the judge’s and will 

stand if supported by evidence. 11 The adoption of a party’s 

proposed findings does not require an appellate court to set 

aside the deference ordinarily given to the trial judge’s factual 

findings. 12 When accepting a party’s proposed findings, minor 

mistakes that do not prejudice a party constitute harmless error; 

however, a trial court may commit error if the proposed facts 

or law are unsupported by the evidence and cause prejudice. 13

The critical inquiry is whether such findings, as adopted by the 

court, are clearly erroneous. 14

10 89 C.J.S. Trial § 1261 (2012).

11 See United States v. El Paso Gas Co., 376 U.S. 651, 84 S. Ct. 1044, 12 L. 

Ed. 2d 12 (1964); 75B Am. Jur. 2d Trial § 1596 (2018). See, also, In re 

Estate of Lane, 39 Kan. App. 2d 1062, 188 P.3d 23 (2008).

12 See, In re Estate of Lane, supra note 11; Indiana Industries, Inc. v. Wedge 

Products, 430 N.E.2d 419 (Ind. App. 1982).

13 In re H.M., 2014 Ohio 755, 9 N.E.3d 470 (2014). See In re M.B., 709 

N.W.2d 11 (N.D. 2006).

14 See, In re M.B., supra note 13; Bluford v. Wells Fargo Fin. Ohio 1, Inc., 

176 Ohio App. 3d 500, 892 N.E.2d 920 (2008).
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In one of the leading state court cases on this issue, Uptime 

Corp. v Colorado Research Corp.,

 15 the Supreme Court of 

Colorado held that when a trial judge signs findings prepared 

by counsel for the prevailing party, the correctness of the findings becomes the judge’s responsibility, and the appellate court 

will presume that the trial judge examined the proposed findings and agreed that they correctly stated the facts as the judge 

found them to be. Moreover, independent of any presumption, appellate courts have remarked that when a trial court 

makes changes to the proposed findings, that is an indication 

the trial court considered the findings before adopting them 

and read, analyzed, and agreed with the findings that were 

left unchanged. 16

Here, we find no merit to Streck’s assertion that the court 

did not exercise independent judgment as the finder of fact. 

The record demonstrates that the court carefully considered the 

issues and provided thorough reasons for its decision. Although 

Streck identifies certain isolated findings which it claims are 

not correct, a court errs in adopting a party’s proposed findings 

only if the findings are unsupported by the evidence and cause 

prejudice. 17 Streck’s assignment of error here fails because, 

even if Streck has identified mistakes in the court’s findings, 

when the trial record regarding valuation is considered as a 

whole, Streck has failed to demonstrate that it suffered any 

prejudice as a result of any erroneous findings.

Streck claims the court should not have referenced Riddle’s 

testimony that at the time of trial, Streck was valued at over 

$1 billion. Streck is correct that the relevant valuation date 

is October 29, 2014, and not the 2018 trial date. However, 

the court’s findings made this clear by stating that “the Court 

fixed the valuation date as October 29, 2014.” The court 

15 Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 

(1966).

16 See, Harris v. AHTNA, Inc., 193 P.3d 300 (Alaska 2008); Stevens v. 

Humana of Delaware, Inc., 832 P.2d 1076 (Colo. App. 1992).

17 See In re H.M., supra note 13.
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was merely referencing the RRT’s argument for a different 

valuation date.

Streck claims the court erred by referencing the valuation 

conducted by Carson. In its posttrial findings, the court listed 

the Carson valuation as an indication of value obtained prior to 

the commencement of Project Blizzard. We agree with Streck 

that in this isolated finding, the court misstated the amount of 

the Carson valuation. Based on our review of the evidence, 

Carson valued Streck at $705 million rather than $850 million 

as stated by the court. However, we find the court’s error to 

be harmless, because it is undisputed that the court received 

Carson’s valuation for the limited purpose of showing Carol’s 

state of mind early in the sales process. Additionally, the record 

indicates that the court considered the Carson valuation for the 

sole and limited purpose of an indication of value which Carol 

became aware of in early 2014. Therefore, even if Streck has 

identified a mistake in the court’s adopted findings, there is 

no evidence that this particular finding played a material role 

in the court’s valuation analysis such that Streck suffered any 

unfair prejudice.

Additionally, Streck assigns that the court erred by denying 

its request to include the RRT’s posttrial proposed findings 

in the record for purposes of appeal. While the court did not 

receive the RRT’s findings as substantive evidence for purposes of considering Streck’s motion for a new trial, Streck 

did mark the RRT’s proposed findings as an exhibit and that 

exhibit does appear in our record on appeal. This assignment 

of error is without merit.

2. Fair Value of the RRT’s Shares

Streck argues that the court erred in determining the fair 

value of the RRT’s shares to be $467 million. All of Streck’s 

arguments on the issue of fair value are based upon the testimony of Risius or the Project Blizzard LOI’s, which Streck 

argues are the best indicia of value in the record. Streck 

argues that the court erred in adopting Reilly’s valuation, 

because Reilly improperly assumed synergies; Reilly did not 
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consider the Project Blizzard LOI’s; and at one point in his 

testimony, Reilly discussed fair market value rather than fair 

value. Streck claims that it has identified errors in Reilly’s calculations, as adopted by the court, with respect to each valuation method and the application of the S Corp premium.

[9,10] This court has previously stated that in determining 

the fair value of a petitioning shareholder’s stock, the “‘real 

objective is to ascertain the actual worth of that which the 

[shareholder] loses.’” 18 Such a determination is to be based 

on all material factors and elements that affect value, given to 

each the weight indicated by the circumstances. 19 Under this 

analysis, the court may consider the nature of the business and 

its operations, its assets and liabilities, its earning capacity, the 

investment value of its stock, the market value of the stock, 

the price of stocks of like character, the size of the surplus, 

the amount and regularity of dividends, future prospects of the 

industry and of the company, and good will, if any. 20

[11-13] The determination of the weight that should be given 

expert testimony is uniquely the province of the fact finder. 21

The trial court is not required to accept any one method 

of stock valuation as more accurate than another accounting procedure. 22 A trial court’s valuation of a closely held 

corporation is reasonable if it has an acceptable basis in fact 

and principle. 23

18 Rigel Corp., supra note 2, 245 Neb. at 127, 511 N.W.2d at 524 (quoting 

Warren v. Balto. Transit Co., 220 Md. 478, 154 A.2d 796 (1959)). See 

Anderson, supra note 5.

19 See, id. See, also, Athlon Sports Communications v. Duggan, 549 S.W.3d 

107 (Tenn. 2018); Belk of Spartanburg, S.C. v. Thompson, 337 S.C. 109, 

522 S.E.2d 357 (S.C. App. 1999); Walter S. Cheesman Realty Co. v. 

Moore, 770 P.2d 1308 (Colo. App. 1988).

20 See id.

21 Anderson, supra note 5; Fredericks Peebles v. Assam, 300 Neb. 670, 915 

N.W.2d 770 (2018).

22 Anderson, supra note 5.

23 Id.
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[14-16] A judicial valuation of corporate stock presents 

unique challenges which are “complicated by ‘the clash of 

contrary, and often antagonistic, expert opinions of value,’ 

prompting the trial court to wade through ‘widely divergent 

views reflecting partisan positions’ in arriving at its determination of a single number for fair value.” 24 While discharging its 

statutory mandate to value a shareholder’s stock, it is entirely 

proper for a trial court to adopt one expert’s model, methodology, and calculations if they are supported by credible evidence 

and the judge analyzes them critically on the record. 25 As long 

as they are supported by the record, an appellate court may 

defer to the trial court’s factual findings in a statutory corporate 

stock valuation proceeding, even if the appellate court might 

independently reach a different conclusion. 26

Upon our de novo review of the record and considering Streck’s arguments on appeal, we conclude that the trial 

court’s valuation is reasonable and has an acceptable basis in 

fact and principle. We conclude the court did not err in finding Reilly’s valuation testimony to be reasonable and credible, 

in finding that Risius’ testimony was not credible or reliable, 

and in giving weight to Riddle’s unrefuted testimony that 

the Project Blizzard LOI’s were not a reliable indication of 

Streck’s value.

In our valuation analysis, we discuss the experts’ valuations, 

the court’s credibility findings, and the expert and lay testimony regarding the dysfunctional nature of Project Blizzard.

(a) Reilly and Risius

Reilly and Risius used the same valuation methods and 

approaches. Both experts found it appropriate to perform the 

DCF method, the GPTC method, and the GMA method and 

to apply an S Corp premium and add back Streck’s cash. The 

24 Dell v. Magnetar Global Master Fund, 177 A.3d 1, 22 (Del. 2017), 

quoting Matter of Shell Oil Co., 607 A.2d 1213 (Del. 1992).

25 Golden Telecom, Inc. v. Global GT LP, 11 A.3d 214 (Del. 2010).

26 Id.
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experts disagreed in their selection of data. A comparison of 

the experts’ financial projections under the DCF method demonstrates the nature and extent of the experts’ disagreements.

Reilly used Streck’s projections for 2015 through 2019, 

which showed approximately 10 percent growth each year. 

Reilly observed that in actual performance during this period, 

Streck’s revenue grew approximately 15 percent each year. 

Noting Connie’s statement that Streck’s projections were 

“deliberately conservative,” Reilly stated that Streck is “a lot 

more profitable than the projections indicate.” During trial, 

the court specifically noted that “it’s been established through 

the evidence that the projections that this company has made 

historically up to the valuation date were extremely conservative.” Conversely, Risius used short-term projections that were 

$10 million lower than Streck’s projections.

Regarding the experts’ selected long-term projections, Reilly 

opined that Streck’s growth rate would gradually decline over 

5 years until it reached 4.5 percent. Reilly’s projections were 

similar to those used by Empire in its valuation for the SLC. 

Reilly explained that this figure was less than half of Streck’s 

historic growth rate and less than half of the industry’s growth 

rate. Reilly stated that by using lower projections, he accounted 

for risks such as competition and patent expirations.

Risius selected a long-term growth rate of 3 percent. Part of 

Risius’ reasoning for using lower projections was to account 

for risks such as customer concentration, new competition, patent expirations, and Streck’s already dominant position in the 

hematology market.

[17] Streck claims that the court erred by crediting Reilly’s 

projections, because Reilly improperly assumed that Streck 

would overcome risks due to synergies created by the transaction. The valuation of corporate shares is to be made without 

consideration of any increase in value resulting from the 

transaction itself. 27 We disagree with Streck’s characterization 

27 See, Dell, supra note 24; Union Illinois v. Union Financial Group, 847 

A.2d 340 (Del. Ch. 2004).
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of Reilly’s testimony and the trial court’s findings. The court 

did not factor synergies into its valuation, and further, there is 

no evidence that Reilly considered synergies in his testimony. 

The court merely found that Risius did not credibly value risks 

and that his projections were “misleading.” Reilly’s projections accounted for risks by using growth rates lower than 

the historic rates of Streck and Streck’s industry. Moreover, 

contrary to Streck’s argument that Reilly assumed synergies, 

there is evidence that Reilly was conservative in his valuation. 

Reilly based his first 5 years of his DCF analysis, and portions of his GPTC analysis, on Streck’s “deliberately conservative” projections. Additionally, Streck’s projections did not 

include anticipated growth from BCT sales. There is no merit 

to Streck’s claim that the court increased its valuation based 

on synergies.

Streck argues that Reilly’s valuation is an outlier and that 

according to the Supreme Court of Delaware’s decision in Dell 

v. Magnetar Global Master Fund,

 28 the district court erred by 

not giving greater weight to the Project Blizzard LOI’s. Streck 

argues that the court should have given greater weight to the 

post-Project Blizzard IOI’s as well.

In Dell, after a company’s board approved a merger, stockholders demanded a court-conducted appraisal. The court 

found that the evidence regarding the sales process failed to 

establish a reliable indication of fair value, because the investors myopically accepted a low offer due to their focus on 

short-term profits. The court stated that it could not quantify 

how the process affected the price, and therefore, it gave 

the transaction price no weight when determining fair value 

and rendered a valuation exclusively based on its own DCF 

analysis. While recognizing that an appraisal is “‘by design, 

a flexible process,’” 29 and that there is no presumption in 

favor of the deal price, 30 the appellate court reversed, finding 

28 Dell, supra note 24.

29 Id. at 24, quoting Golden Telecom, Inc., supra note 25.

30 See Dell, supra note 24.
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that the trial court’s reasoning was not grounded in the record. 

The appellate court found that the record showed the market 

analysts in the merger process understood the company’s longterm outlook and that based on the evidence, the transaction 

price was entitled to heavy, if not overriding, weight in establishing fair value. The appellate court endorsed the efficient 

market hypothesis, which “teaches that the price produced by 

an efficient market is generally a more reliable assessment 

of fair value than the view of a single analyst, especially an 

expert witness who caters her valuation to the litigation imperatives of a well-heeled client.” 31 The court noted, however, in 

the scenario in which there is reason to suspect that market 

forces cannot be relied upon, a DCF analysis provides the 

court with helpful data about the price a sales process would 

have produced. 32

The circumstances in Dell are much different than those 

in the present case. As Streck acknowledges, rather than 

affording the LOI’s no weight, the court here found that the 

LOI’s created a floor for its valuation analysis. The record 

shows the court considered the highest LOI, submitted by 

The Carlyle Group, in the amount of $590 million. This LOI, 

after applying an S Corp premium and adding Streck’s cash, 

represented a value of $749 million. The record further shows 

that the court similarly considered and weighed the postProject Blizzard IOI submitted by GTCR. This IOI, taking 

the high number in the range, $675 million, and applying an 

S Corp premium and adding Streck’s cash, represented a value 

of $846 million. Thus, while Reilly’s valuation of Streck at 

$893 million is higher, Reilly’s valuation is not as much of 

an outlier as Streck argues. Reilly measured Streck’s value 

using reasonable GPTC companies, also selected by Risius 

and Empire. Reilly’s valuation reflects Streck’s status as a 

market leader and innovator with tremendous prospects for 

31 Id. at 24.

32 See, Dell, supra note 24; M.P.M. Enterprises, Inc. v. Gilbert, 731 A.2d 790 

(Del. 1999).
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continued financial growth. By contrast, Risius used multiples 

that were inconsistent with a recent valuation of Streck conducted by Risius’ firm, which reduced Risius’ valuation under 

the GPTC method by $172 million. The court considered and 

weighed Reilly’s valuation, Risius’ valuation, and the Project 

Blizzard LOI’s. Streck has failed to prove that the court erred 

in not affording greater weight to the Project Blizzard LOI’s. 

Streck’s reliance on Dell is misplaced.

Additionally, as Reilly explained regarding the Project 

Blizzard LOI’s, “[t]here were no completed transactions, nor 

[was] there anything, in my opinion, close to completed transactions for which I could actually extract pricing evidence.” 

Streck planned to wait to begin the process of drafting a stock 

purchase agreement until after it received an acceptable LOI. 

Had a Project Blizzard LOI been accepted, there was confirmatory diligence and closing yet to be completed. More important 

though, there is extensive evidence in the record that Project 

Blizzard was defective and did not reliably reflect the market’s 

view regarding Streck’s value.

As illustrated below through witness testimony, the sales 

process was flawed due to the use of tempered financials and 

restricting the majority shareholder’s information and participation. Among the reasons for Project Blizzard’s failure, Reilly 

noted in his report that Project Blizzard “may have been halfheartedly undertaken by Streck” and that Streck’s engagement 

of an investment banker may have been “just a charade.” Not 

even Risius credited the LOI’s with the value Streck contends 

they should have. Streck has failed to show that the LOI’s 

deserve greater consideration.

Streck also claims that Reilly failed to testify as to fair 

value, because at one point he referenced the standard for fair 

market value. The record is clear that the court’s valuation 

did not rely upon this fleeting testimony. Streck’s argument is 

without merit.

Streck further claims that Reilly’s testimony contains several identifiable errors. As previously mentioned, in addition 

to their disagreement regarding Streck’s financial projections, 
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the experts disagreed on their calculation of a discount rate 

under the DCF method, their valuations under the GPTC 

method and the GMA method, and their application of an 

S Corp premium.

Regarding the DCF method, Streck argued that the court 

erred by adopting Reilly’s 4.5 percent terminal growth rate 

instead of Risius’ 3 percent and by adopting Reilly’s 2.36 percent company-size risk premium instead of Risius’ 3.87 percent. Streck argued that Reilly’s GPTC analysis was flawed 

because of Reilly’s use of higher multiples; selection of companies significantly larger than Streck; and giving equal weight 

to the GPTC method and the DCF and GMA methods, when 

there are no companies which are truly comparable to Streck. 

Streck argued that Reilly’s GMA analysis ignored the LOI’s 

and that Reilly’s application of the full 14 percent S Corp premiums ignored risks specific to Streck.

The court considered each area of disagreement between the 

valuation experts and found Reilly’s valuation to be reasonable 

and supported by the evidence. The court found that each part 

of Risius’ analysis in his valuation, including his projections 

and calculation of a discount rate under the DCF method, his 

GPTC and GMA methods, and his “arbitrary halving of the 

S Corp premium,” reflected a downward bias which rendered 

his conclusions unreliable. Here, we find the expert testimony 

raised evidence in conflict on material issues of fact regarding the valuation of Streck’s stock. Where credible evidence 

is in conflict on material issues of fact, the reviewing court 

may consider and give weight to the fact that the trial court 

observed the witnesses and accepted one version of the facts 

over another. 33 Therefore, although Streck devoted much of its 

brief to identifying errors in Reilly’s testimony, Streck’s arguments lack merit because they are based on Risius’ testimony, 

and the court made detailed findings that Risius’ testimony 

lacked credibility. Upon de novo review, giving weight to 

33 See Anderson, supra note 5; Assam, supra note 21.
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the trial court’s judgment as to credibility, we find that the 

record supports the district court’s findings regarding valuation. Again, we are not persuaded by Streck’s reassertion of 

Risius’ discredited testimony.

Having discussed the testimony of Risius, Streck’s only 

remaining source of evidence regarding valuation is the Project 

Blizzard LOI’s. We discuss the unrefuted testimony of the 

RRT’s expert Riddle and lay witness testimony to demonstrate 

that the Project Blizzard LOI’s are not reliable indications of 

fair value.

(b) Riddle

Riddle, an investment banker who specializes in the diagnostic health care industry, evaluated Streck’s projections and 

the Project Blizzard sales process. Riddle opined that Streck’s 

growth was described too conservatively to buyers and that 

the sales process was flawed and yielded a flawed result. 

Apart from stating the obvious that Project Blizzard did not 

result in a successful sale, Riddle criticized Project Blizzard 

in the following areas: (i) Streck’s partnership with its investment banker, (ii) Streck’s decision to exclude GTCR, and (iii) 

Streck’s depression of value through bid instruction terms. The 

court found that Riddle credibly testified that several aspects of 

Project Blizzard limited the price offered for Streck.

(i) Streck’s Partnership With 

Investment Banker

Streck’s investment banker contacted 14 prospective buyers 

for Project Blizzard. Ten buyers submitted IOI’s. Streck and its 

investment banker met with six buyers, all of which submitted second round IOI’s. The third round yielded three LOI’s. 

There is evidence that Connie and Dr. Ryan both thought the 

process was not run well and lacked confidence in the result. 

At a June 2014 board of directors’ meeting, Connie addressed 

the board regarding the performance of Streck’s investment 

banker as an advisor and partner. Connie announced that 

the investment banker’s managing director is a “very poor 
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communicator.” She stated that the investment banker has not 

been a partner in the sales process and has not provided reasons why Streck should choose one buyer over another. Connie 

stated that she did not find the investment banker to be helpful or knowledgeable within Streck’s industry, even though it 

claimed to be an expert in health care. Connie stated, regarding 

the investment banker, that “as an advisor, I feel we have been 

left completely on our own.” While acknowledging Connie’s 

concerns, Gartlan stated that the board was “too far into it to 

do anything different.” The board then ratified the investment 

banker’s engagement letter. In doing so, the board discussed 

and considered the possible outcome that Streck would not 

be sold, and it confirmed that if a sale did not occur, Streck 

would owe the investment banker a fee of $200,000, plus commission rights up to 1 year from termination.

Based on this evidence, Riddle opined that the statements 

of Streck’s founder and CEO showed that Streck was disappointed with its investment banker and the strength of the sales 

process. Riddle stated that therefore, “it was almost predictable that [Project Blizzard] did not yield the kind of results 

necessary to get to and the kind of value necessary to get to 

a transaction.”

Riddle opined that the termination of Project Blizzard did 

not have to end the sales process. As an investment banker, 

Riddle stated that Streck did not get a fair assessment of the 

market and could do better if exposed to more buyers.

(ii) GTCR

Of the Project Blizzard buyers, Riddle viewed GTCR as 

the company which offered the best price and was in the best 

position to succeed with Streck. In 2014, immediately prior 

to Project Blizzard, GTCR launched a new 10-year fund of 

nearly $4 billion and was looking to invest in a platform 

company. Riddle stated that the long investment window fit 

well with Streck’s needs as a closely held family company, 

because there would be less pressure to sell with the opportunity to grow the investment over time. Riddle stated that, at 
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minimum, as the highest bidder in round one with an IOI of 

$575 million to $625 million, GTCR should have advanced in 

the process if only to drive up the other bids. The record shows 

that the midpoint of GTCR’s bid in round one was $600 million and that after Project Blizzard, GTCR increased its offer 

to $625 million to $675 million. The exclusion of GTCR from 

Project Blizzard reveals the arbitrary nature of the decisionmaking process.

(iii) Bid Instruction Terms

Riddle opined that the inclusion of a reverse breakup fee and 

a preference for low leverage in Project Blizzard bid instructions chilled interest and repressed price. According to the 

testimony of Riddle, as well as Uphoff, a breakup fee is money 

damages one party pays to another in the event the transaction 

is not completed. A reverse breakup fee places responsibility 

for money damages with the prospective buyer. Each of the 

final LOI’s included reverse breakup fees of $20 million to 

$30 million. Riddle testified that based on his experience, such 

a fee is not customary in this type of sales process. Riddle did 

not focus on the amount of the fee, but stated that the fact that 

the fee was included at all chilled interest and depressed value, 

because it increased financial risk to the prospective buyers. 

Riddle stated that in this case, the prospective buyers still 

had substantial due diligence to be completed, and that such 

unknowns can cause buyers to bid conservatively.

Riddle testified that Streck further created a chilling effect 

by requesting bids which limited leverage to four times 

EBITDA. The final LOI’s agreed to limit leverage to five 

times EBITDA. Riddle testified that, in and of itself, a preference for less leverage is not necessarily a problem, but it does 

send a message to prospective buyers that financing will be 

constrained and that bids using higher amounts of leverage will 

not be well received. Both Streck’s then-CFO, Morgan, and 

Streck’s investment banker acknowledged that a higher amount 

of leverage correlates with a higher bidding price. Based on 

his experience, Riddle opined that a company with the level 
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of Streck’s profitability can take on and support a tremendous 

amount of debt.

The district court found that Riddle credibly testified that 

several aspects of the sales process limited the price offered 

for Streck. Streck has not refuted Riddle’s testimony with a 

witness of comparable experience and expertise. Therefore, we 

conclude that the court did not err in giving weight to Riddle’s 

testimony and in giving limited weight to the LOI’s.

Additionally, Streck in effect considered only financial buyers. Project Blizzard included only one strategic buyer in the 

diagnostic health care industry. No strategic buyers advanced 

beyond the second round. In his report, Reilly raised the point 

that there are active strategic buyers which could have acquired 

Streck. Reilly provided an example transaction from 2016 in 

which a strategic buyer acquired one of the GPTC companies for $1.11 billion. The acquired company’s 2015 EBITDA 

was $44.5 million, as compared to Streck’s $63.8 million. 

The record indicates the preferences of management affected 

Streck’s value in the sales process.

(c) Lay Witness Testimony

Lay witnesses produced evidence indicating that the prospects for a successful sale of Streck were bleak and that the 

sales process was run in an adversarial manner. Carol testified 

that once Connie became CEO, Dr. Ryan began to receive 

incomplete financial information and then stopped receiving 

any of Streck’s financial information. Additionally, Carol testified that throughout Project Blizzard, she and Dr. Ryan were 

prohibited from attending sales meetings with prospective buyers. Carol explained she needed the information Streck was 

providing to the buyers. Carol testified, “I don’t know what 

Streck is saying, what they’re offering. All I see is numbers 

going down.” In response to Carol and Dr. Ryan’s request 

to receive Streck’s financials, Connie and Gartlan stated that 

Carol and Dr. Ryan would receive only the information provided under Nebraska law.
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Uphoff, a long-time friend of the Ryan family, served on 

Streck’s board and then resigned from the board once he 

decided to participate in Project Blizzard as a prospective 

buyer. Uphoff’s firm Capricorn advanced through rounds one 

and two, but decided not to submit an LOI. Uphoff described 

his experience in meeting with Streck’s management regarding 

his first IOI. Uphoff found it odd that Dr. Ryan, the company’s 

founder, scientist, and largest owner, was not present at the 

meeting. Uphoff stated that typically the seller will want to 

highlight that person. Noting Streck’s tempered financials, 

Uphoff stated that overall there was not a lot of enthusiasm in 

Streck’s presentation. Uphoff admitted this may have in part 

been due to the deterioration of his relationship with Connie 

after she became CEO.

Prior to Uphoff’s meeting with Streck’s management, Streck 

sent written questions to Uphoff, which Uphoff stated were 

atypical, not relevant to a potential sale, and “certainly insulting.” One of Streck’s questions stated:

Barry Uphoff appears to continue to have ongoing communications with Carol Ryan, Wayne Ryan and Steven Ryan. 

Please document all communication that has occurred 

with any Ryan family member or Streck employee since 

you submitted your offer letter. Please provide copies of 

all emails sent to or from Barry Uphoff and any Ryan 

family member or Streck employee since Jan[.] 13, 2014. 

Please disclose any information related to other offers 

for Streck shared with Barry Uphoff by Carol, Steve 

or Wayne Ryan at the Creighton basketball game they 

attended together on Jan[.] 17, 2014. Please provide a 

summary of any phone calls exchanged between Barry 

Uphoff and Dr. Ryan since Jan[.] 13, 2014.

There is evidence that Streck’s advancement of Capricorn 

through the sales process may have been a pretense. Morgan 

did not think Capricorn should advance to round two. Connie 

agreed that “[Uphoff] will never be on our list” but stated 

that “how best to manage is the question.” Connie advanced 

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now.” Morgan speculated that Connie kept Uphoff in the process in order to keep Dr. Ryan engaged. If Capricorn was not 

a good fit from Streck’s perspective, then the sales process 

could have benefited from including GTCR in round two rather 

than Capricorn.

From Uphoff’s perspective as a potential buyer, he stated 

Streck’s preference for less debt was atypical. As an analogy, 

Uphoff stated, “if you’re selling a house, you really don’t care 

where that money comes from, whether it’s out of someone’s 

bank account or the bank they’re borrowing it from, you 

just want that total dollar amount.” Uphoff found the reverse 

breakup fee to be atypical. In explaining why he chose not 

to submit an LOI, he stated that it was “death by a thousand 

cuts.” Uphoff stated that if everything was added up, a potential buyer would begin to wonder whether Streck was “really 

serious about transacting. . . . [I]s this just a waste of time trying to get something done?” In this way, Uphoff’s testimony 

echoed much of the substance of Riddle’s testimony.

We conclude that as a result of the dysfunctional nature of 

Project Blizzard, evidence of which was established by witness testimony, the LOI’s are not entitled to significant weight 

in valuing Streck, and we further conclude that the trial court 

did not err in determining the LOI’s represented a floor as 

to valuation.

3. Prejudgment Interest

The court awarded the RRT prejudgment interest pursuant 

to § 21-20,166(5)(a), which states: “Interest may be allowed at 

the rate specified in section 45-104, . . . but if the court finds 

that the refusal of the petitioning shareholder to accept an 

offer of payment was arbitrary or otherwise not in good faith, 

no interest shall be allowed.” In doing so, the court found 

no evidence that the RRT refused an offer of payment arbitrarily or not in good faith. The court determined the RRT was 

entitled to interest on the fair value of its shares from January 

19, 2015, the date of Streck’s election to purchase, through 

August 12, 2019. The court applied the statutory interest rate 
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of 12 percent per annum set out in § 45-104 and awarded interest in the amount of approximately $256 million.

Streck argues that the court erred in awarding prejudgment 

interest, because the RRT did not comply with the requirements 

of § 45-103.02(1). Section 45-103.02(1) provides:

Except as provided in section 45-103.04, interest as provided in section 45-103 shall accrue on the unpaid balance 

of unliquidated claims from the date of the plaintiff’s first 

offer of settlement which is exceeded by the judgment 

until the entry of judgment if all of the following conditions are met:

(a) The offer is made in writing upon the defendant by 

certified mail, return receipt requested, to allow judgment 

to be taken in accordance with the terms and conditions 

stated in the offer;

(b) The offer is made not less than ten days prior to the 

commencement of the trial;

(c) A copy of the offer and proof of delivery to the 

defendant in the form of a receipt signed by the party or 

his or her attorney is filed with the clerk of the court in 

which the action is pending; and

(d) The offer is not accepted prior to trial or within 

thirty days of the date of the offer, whichever occurs first.

[18] Streck contends that the RRT is not entitled to prejudgment interest, because the claim was unliquidated, the 

RRT did not make a demand prior to trial, and the RRT did 

not plead a request for prejudgment interest. Though Streck 

is correct that the requirements of § 45-103.02 have not been 

met, we disagree with Streck that an award of prejudgment 

interest in this case is controlled by § 45-103.02(1). Statutory 

language is to be given its plain and ordinary meaning, and 

an appellate court will not resort to interpretation to ascertain 

the meaning of statutory words which are plain, direct, and 

unambiguous. 34

34 In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653 (2019).
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Section 21-20,166(5)(a) is an independent statute authorizing the recovery of prejudgment interest. The sequence contemplated by the plain and unambiguous terms of the statute 

is that, under § 21-20,166(1), the corporation may elect or, if 

the corporation fails to elect, one or more shareholders may 

elect to purchase the petitioning shareholder’s shares at fair 

value. Under § 21-20,166(3), if the parties reach an agreement, the court shall enter an order directing the purchase of 

the petitioner’s shares upon the terms and conditions agreed to 

by the parties. If the parties are unable to reach an agreement, 

then under § 21-20,166(4), the court shall determine the fair 

value of the petitioner’s shares, and under § 21-20,166(5)(a), 

the court shall enter an order directing the purchase upon such 

terms and conditions as the court deems appropriate. Under 

§ 21-20,166(5)(a), “[i]nterest may be allowed,” subject to one 

exception that “if the court finds that the refusal of the petitioning shareholder to accept an offer of payment was arbitrary or 

otherwise not in good faith, no interest shall be allowed.” The 

word “may” when used in a statute will be given its ordinary, 

permissive, and discretionary meaning unless it would manifestly defeat the statutory objective. 35 Section 21-20,166(5)(a) 

means what it says. Under § 21-20,166(5)(a), the court is 

authorized but is not required to award interest. But if the 

court finds that the petitioning shareholder refused an offer 

arbitrarily or otherwise not in good faith, the court is not 

authorized to award interest.

Section 45-103.02(1) is inapplicable, because it contemplates different procedures and a different interest rate. Streck’s 

argument that the RRT’s claim must be liquidated to recover 

prejudgment interest is immaterial. 36 A claim is liquidated for 

purposes of prejudgment interest when there is no reasonable controversy as to both the amount due and the plaintiff’s 

35 Brumbaugh v. Bendorf, 306 Neb. 250, 945 N.W.2d 116 (2020).

36 See, e.g., AVG Partners I, supra note 9; Weyh, supra note 9.
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right to recover. 37 We agree with the RRT’s interpretation that 

§ 21-20,166(5)(a) provides for an interest award despite the 

fact that, under the procedures established by the Legislature 

for a proceeding to purchase a petitioning shareholder’s shares, 

the amount due is in controversy, making the petitioner’s claim 

by definition unliquidated.

Nothing within § 21-20,166 requires the petitioning shareholder to make a demand for payment before trial or include 

a request for interest in its pleadings. Section 21-20,166(1) is 

unique in that the proceedings are initiated by the purchasing party’s filing of an election. Section 21-20,166 does not 

require that the petitioning shareholder file a responsive pleading. While notice of a request to recover prejudgment interest 

is encouraged, compliance with Neb. Ct. R. Pldg. § 6-1108(a) 

is not determinative where entitlement to interest is based on 

statute and the adverse party had notice and an opportunity to 

be heard prior to judgment. 38 It is clear that Streck had notice 

of potential liability for prejudgment interest prior to electing 

to purchase the RRT’s shares.

Having rejected Streck’s prejudgment interest arguments 

based upon § 45-103.02(1), the only remaining issue that we 

must determine is whether the RRT refused an offer of payment arbitrarily or otherwise not in good faith. We note that 

Streck has not argued that interest should commence on a different date.

The only evidence of an offer made by Streck is its February 

2015 offer of approximately $220 million, which included an 

$80 million discount for lack of control and lack of marketability. Streck argues that the RRT should be precluded from 

an interest award, because the RRT never responded to the 

February 2015 offer and the RRT delayed the litigation by 

challenging Streck’s election and would not agree to go forward with trial during the pendency of Stacy’s appeal.

37 Brook Valley Ltd. Part. v. Mutual of Omaha Bank, 285 Neb. 157, 825 

N.W.2d 779 (2013).

38 AVG Partners I, supra note 9.
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We have not been presented with evidence that Streck made 

a realistic offer; as such, we cannot conclude that the RRT’s 

failure to accept an offer was arbitrary or not in good faith. 

Allegedly vexatious litigation conduct is not relevant to an 

award of prejudgment interest when the issue is good faith 

rejection of an offer. 39 As such, Streck’s arguments are unconvincing. This assignment of error is without merit.

4. Payment Order

Streck assigns that the district court erred in refusing to 

allow Streck to make installment payments to satisfy the judgment. Section 21-20,166(5)(a) states that “[u]pon determining the fair value of the shares, the court shall enter an order 

directing the purchase upon such terms and conditions as the 

court deems appropriate, which may include payment of the 

purchase price in installments when necessary in the interest of 

equity . . . .” The district court ordered Streck to purchase the 

RRT’s shares within 10 days and overruled Streck’s request to 

make installment payments.

Streck’s request was based on an affidavit from its CFO, 

which stated that due to the size of the judgment, Streck would 

be unable to obtain the necessary funds within 10 days. In 

rejecting Streck’s request, the court found that Streck’s evidence lacked credibility and was contrary to representations 

Streck previously made to the court, as well as assurances 

made by Streck in the SLC report that it would be able to 

pay the purchase price. The court found that Streck had an 

extended period to plan for the payment and that Streck had 

come to the court with unclean hands.

For purposes of disposing of Streck’s assignment of error 

regarding the court’s payment order, we need not decide 

whether Streck’s representations to the trial court rose to the 

level of unclean hands. Suffice it to say that the trial court was 

not swayed by Streck’s stated need for installment payments.

39 See, e.g., Matter of Carolina Gardens v. Menowitz, 238 A.D.2d 189, 655 

N.Y.S.2d 536 (1997).
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The South Dakota Supreme Court interpreted a statute similar to § 21-20,166(5)(a) and determined that the language permits a trial court discretion in requiring a lump-sum payment or 

installment payments. 40 The South Dakota court then employed 

an abuse of discretion standard of review to determine whether 

the trial court erred in ordering installment payments. 41

Here, the trial court found that Streck’s request was not in 

the interests of equity. The court, having conducted the bench 

trial and presided over the case for an extended period of time, 

was in the best position to determine the appropriate terms and 

condition of payment. We give significant weight to the court’s 

credibility determination. 42 Nothing within our record supports 

Streck’s contention that the trial court abused its discretion 

in ordering a lump-sum payment. This assignment of error is 

without merit.

V. CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirmed.

Miller-Lerman and Stacy, JJ., not participating.

40 Link v. L.S.I., Inc., 793 N.W.2d 44 (S.D. 2010).

41 Id.

42 See Anderson, supra note 5.