47-33-3. Definition of terms.
(1) Terms used in this chapter mean:
(a)"Acquiring person," a person that makes or proposes to make a control share acquisition. If two or more persons act as a partnership, limited partnership, syndicate or other group pursuant to any written or unwritten agreement, arrangement, relationship, understanding or otherwise, for the purposes of acquiring, owning or voting shares of a domestic public corporation, all members of the partnership, syndicate or other group constitute a "person." "Acquiring person" does not include:
(i)A licensed broker/dealer or licensed underwriter who
(A)Purchases shares of a domestic public corporation solely for the purposes of resale to the public; and
(B)Is not acting in concert with an acquiring person; or
(ii)A person who becomes entitled to exercise or direct the exercise of a new range of voting power within any of the ranges specified in subdivision 47-33-9(4) solely as a result of a repurchase of shares by, or recapitalization of, the domestic public corporation or similar action unless:
(A)The repurchase, recapitalization or similar action was proposed by or on behalf of, or pursuant to any written or unwritten agreement, arrangement, relationship, understanding, or otherwise with, the person or any affiliate or associate of the person; or
(B)The person thereafter acquires beneficial ownership, directly or indirectly, of outstanding voting shares of the domestic public corporation and, immediately after the acquisition, is entitled to exercise or direct the exercise of the same or a higher range of voting power under subdivision 47-33-9(4) as the person became entitled to exercise as a result of the repurchase, recapitalization, or similar action;
(b)"Affiliate," a person that directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, a specified person;
(c)"Announcement date," if used in reference to any business combination, means the date of the first public announcement of the final, definitive proposal for the business combination;
(d)"Articles," the original or restated articles of incorporation and all amendments thereto;
(e)"Associate," if used to indicate a relationship with any person, means any of the following:
(i)Any corporation or organization of which the person is an officer or partner or is, directly or indirectly, the beneficial owner of ten percent or more of any class or series of its equity securities;
(ii)Any trust or other estate in which the person has a substantial beneficial interest or as to which the person serves as trustee or in a similar fiduciary capacity;
(iii)Any relative or spouse of the person, or any relative of the spouse residing in the home of the person;
(f)"Beneficial owner," if used with respect to any equity security, means a person:
(i)That, individually or with or through any of its affiliates or associates, beneficially owns an equity security, directly or indirectly;
(ii)That, individually with or through any of its affiliates or associates has:
(A)The right to acquire an equity security, whether that right is exercisable immediately or only after the passage of time, pursuant to any agreement, arrangement, relationship or understanding, whether written or unwritten, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise. However, a person may not be deemed the beneficial owner of shares tendered pursuant to a tender or exchange offer made by that person or any of that person's affiliates or associates until those tendered shares are accepted for purchase or exchange; or
(B)The right to vote an equity security pursuant to any agreement, arrangement, relationship or understanding, whether written or unwritten. However, a person may not be deemed the beneficial owner of any shares under this subparagraph if the agreement, arrangement, relationship or understanding to vote the shares (1) arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made in accordance with the applicable rules and regulations under the Exchange Act, and (2) is not then reportable on a Schedule 13D under the Exchange Act or any comparable or successor report; or
(iii)That has any agreement, arrangement, relationship or understanding, whether written or unwritten, for the purpose of acquiring, holding, voting (except voting under a revocable proxy or consent described in subparagraph (ii)(B) of this subsection), or disposing of an equity security with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, the equity security;
(g)"Board," the board of directors of a corporation;
(h)"Business combination," if used in reference to a domestic public corporation and any interested shareholder of the domestic public corporation, means any of the following:
(i)Any merger or consolidation of the domestic public corporation or any subsidiary of the domestic public corporation with:
(A)The interested shareholder; or
(B)Any other foreign or domestic corporation (whether or not itself an interested shareholder of the domestic public corporation) that is, or after the merger or consolidation would be, an affiliate or associate of the interested shareholder, but excluding (1) the merger of a wholly-owned subsidiary of the domestic public corporation into the domestic public corporation, (2) the merger of two or more wholly-owned subsidiaries of the domestic public corporation, or (3) the merger of a domestic or foreign corporation, other than an interested shareholder or an affiliate or associate of an interested shareholder, with a wholly-owned subsidiary of the domestic public corporation pursuant to which the surviving corporation, immediately after the merger, becomes a wholly-owned subsidiary of the domestic public corporation;
(ii)Any exchange, pursuant to a plan of exchange under the laws of this state or a comparable statute of any other state or jurisdiction, of shares of the domestic public corporation or any subsidiary of the domestic public corporation for equity securities of either (i) the interested shareholder; or (ii) any other domestic or foreign corporation, whether or not itself an interested shareholder of the domestic public corporation, that is, or after the exchange would be, an affiliate or associate of the interested shareholder;
(iii)Any sale, lease, exchange, mortgage, pledge, transfer, or other disposition, in one transaction or a series of transactions, to or with the interested shareholder or any affiliate or associate of the interested shareholder, of assets of the domestic public corporation or any subsidiary of the domestic public corporation to which any of the following applies;
(A)Having an aggregate market value equal to ten percent or more of the aggregate market value of all the assets, determined on a consolidated basis, of the domestic public corporation;
(B)Having an aggregate market value equal to ten percent or more of the aggregate market value of all the outstanding shares of the domestic public corporation; or
(C)Representing ten percent or more of the earning power or net income, determined on a consolidated basis, of the domestic public corporation;
(iv)The issuance or transfer by the domestic public corporation or any subsidiary of the domestic public corporation, in one transaction or a series of transactions, of any shares of the domestic public corporation or any subsidiary of the domestic public corporation that have an aggregate market value equal to five percent or more of the aggregate market value of all the outstanding shares of the domestic public corporation to the interested shareholder or any affiliate or associate of the interested shareholder, except pursuant to the exercise of rights or options to purchase shares offered, or a dividend or distribution paid or made, pro rata to all shareholders of the domestic public corporation other than for the purpose, directly or indirectly, of facilitating or effecting a subsequent transaction that would have been a business combination if the dividend or distribution had not been made;
(v)The adoption of any plan or proposal for the liquidation or dissolution of the domestic public corporation, or any reincorporation of the domestic public corporation in another state or jurisdiction, proposed by or on behalf of, or pursuant to any written or unwritten agreement, arrangement, relationship, understanding or otherwise with, the interested shareholder or any affiliate or associate of the interested shareholder;
(vi)Any reclassification of securities, including any share dividend or split, reverse share split, or other distribution of shares in respect of shares, any recapitalization of the domestic public corporation, any merger or consolidation of the domestic public corporation with any subsidiary of the domestic public corporation, or any other transaction, whether or not with or into or otherwise involving the interested shareholder, proposed by, on behalf of, or pursuant to any written or unwritten agreement, arrangement, relationship, understanding or otherwise with, the interested shareholder or any affiliate or associate of the interested shareholder, that has the effect, directly or indirectly, of increasing the proportionate amount of the outstanding voting shares of any class or series, or securities that are exchangeable for or convertible into, or carry the right to acquire voting shares, of the domestic public corporation or any subsidiary of the domestic public corporation that is, directly or indirectly, owned by the interested shareholder or any affiliate or associate of the interested shareholder, except as a result of immaterial changes due to fractional share adjustments; or
(vii)Any receipt by the interested shareholder or any affiliate or associate of the interested shareholder of the benefit, directly or indirectly, except proportionately as a shareholder of the domestic public corporation, of any loans, advances, guarantees, pledges or other financial assistance, or any tax credits or other tax advantages provided by or through the domestic public corporation. However, the term "business combination" may not be deemed to include the receipt of any of the foregoing benefits by that domestic public corporation or any of that corporation's subsidiaries arising from transactions, such as intercompany loans or tax sharing arrangements, between that domestic public corporation and its subsidiaries in the ordinary course of business;
(i)"Common shares," any shares other than preferred shares;
(j)"Consummation date," with respect to any business combination, the date of consummation of the business combination or, in the case of a business combination as to which a shareholder vote is taken, the later of:
(i)The business day before the vote; or
(ii)Twenty days before the date of consummation of business combination;
(k)"Control," including the terms "controlling," "controlled by," and "under common control with," means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting shares, by contract, or otherwise. A person's beneficial ownership of ten percent or more of the voting power of a corporation's outstanding voting shares creates a presumption that the person has control of the corporation. Notwithstanding the foregoing, a person is not considered to have control of a corporation if the person holds voting shares, in good faith and not for the purpose of circumventing this chapter, as an agent, bank, broker, nominee, custodian or trustee for one or more beneficial owners who do not individually or as a group have control of the corporation;
(l)"Control share acquisition," an acquisition, directly or indirectly, by an acquiring person of beneficial ownership of shares of a domestic public corporation that, except for §47-33-8, would, if added to all other shares of the domestic public corporation beneficially owned by the acquiring person, entitle the acquiring person, immediately after the acquisition, to exercise or direct the exercise of a new range of voting power within any of the ranges specified in subdivision 47-33-9(4) but does not include any of the following:
(i)An acquisition before, or pursuant to a contract entered into before, February 21, 1990;
(ii)An acquisition by a donee pursuant to an inter vivos gift not made to avoid this chapter or by any person who acquires the shares of a decedent from the representative of the decedent's estate other than as a creditor or purchaser; or
(iii)An acquisition pursuant to the satisfaction of a pledge or other security interest created in good faith and not for the purpose of circumventing this chapter;
(iv)An acquisition pursuant to a merger, consolidation or share exchange effected under §§47-1A-1101 to 47-1A-1108, inclusive, if the domestic public corporation is a party to the transaction;
(v)An acquisition for the benefit of others by a person acting in good faith and not made to avoid this chapter, to the extent that the person may not exercise or direct the exercise of the voting power or disposition of the shares except upon the instruction of others;
(vi)The acquisition of shares of a domestic public corporation, in good faith, and not for the purpose of circumventing this chapter, by or from any person whose voting rights had previously been authorized by shareholders in compliance with this chapter, or any person whose previous acquisition of shares of a domestic public corporation would have constituted a control share acquisition but for one or more of the exceptions stated in subparagraphs (i) through (v) of this definition, unless the acquisition entitles the acquiring person, directly or indirectly, alone or as part of a group, to exercise or direct the exercise of voting power of the domestic public corporation in the election of directors in excess of the range of voting power previously authorized by the shareholders pursuant to §47-33-12.
All shares the beneficial ownership of which is acquired within a ninety- day period, and all shares the beneficial ownership of which is acquired pursuant to a plan to make a control share acquisition, shall be deemed to have been acquired in the same acquisition;
(m)"Corporation" and "domestic corporation," a corporation for profit incorporated under the laws of this state;
(n)"Domestic public corporation," a corporation organized under the laws of this state that is a publicly held corporation, has more than fifty shareholders, and which:
(i)Has either its principal place of business or its principal executive office located in this state, and owns or controls assets located in this state having a fair market value of at least one million dollars and has more than one hundred employees in this state; or
(ii)Has more than five percent of its shareholders resident in this state, has more than five percent of its shares owned by residents in this state, or has more than two hundred fifty shareholders resident in this state.
For the purpose of subparagraph (ii) of this subsection, the residence of each shareholder is the address of the shareholder which appears on the records of the domestic public corporation;
(o)"Equity security,":
(i)Any share or similar security, any certificate of interest, any participation in any profit sharing agreement, any voting trust certificate, or any certificate of deposit for an equity security; and
(ii)Any security convertible, with or without consideration, into an equity security, or any warrant, call or other option or privilege of buying an equity security without being bound to do so, or any other security carrying any right to acquire, subscribe to, or purchase an equity security;
(p)"Exchange Act," the Securities Exchange Act of 1934, (48 Stat. 881, 15 U.S.C. §78a et seq.) as amended;
(q)"Interested shareholder," if used in reference to any domestic public corporation, any person, other than the domestic public corporation or any subsidiary of the domestic public corporation, that is either:
(i)The beneficial owner, directly or indirectly, of ten percent or more of the outstanding voting shares of the domestic public corporation; or
(ii)Is an affiliate or associate of the domestic public corporation and at any time within the four-year period immediately before the date in question was the beneficial owner, directly or indirectly, of ten percent or more of the then outstanding voting shares of the domestic public corporation;
For the purposes of determining whether a person is an interested shareholder, the number of voting shares of the domestic public corporation considered to be outstanding includes shares considered to be beneficially owned by the person through the application of subsection (f) of this section, but does not include any other unissued voting shares of the domestic public corporation which may be issuable pursuant to any agreement, arrangement, or understanding, or upon the exercise of rights, options, conversion rights, or otherwise;
(r)"Interested shares," the shares of a domestic public corporation owned by any of the following persons:
(1)The acquiring person or its affiliates or associates;
(2)Any officer of the domestic public corporation; or
(3)Any employee of the domestic public corporation who is also a director of the domestic public corporation;
(s)"Market value," if used in reference to shares or property of any domestic public corporation, the following:
(i)In the case of shares, the highest closing sale price of a share during the thirty-day period immediately preceding the date in question on the composite tape for New York Stock Exchange listed shares, or, if the shares are not quoted on the composite tape or not listed on the New York Stock Exchange, on the principal United States securities exchange registered under the Exchange Act on which the shares are listed, or, if the shares are not listed on any such exchange, the highest closing bid quotation with respect to a share during the thirty-day period preceding the date in question on the National Association of Securities Dealers, Inc. Automated Quotations System or any system then in use, or if no such quotations are available, the fair market value on the date in question of a share as determined by the board of the domestic public corporation in good faith; and
(ii)In the case of property other than cash or shares, the fair market value of the property on the date in question as determined in good faith by the board of the domestic public corporation;
(t)"Person," an individual, corporation, limited liability company, partnership, unincorporated association, organization or other entity;
(u)"Preferred shares," any class or series of shares of a domestic public corporation that under the bylaws or articles of incorporation of the domestic public corporation:
(i)Is entitled to receive payment of dividends before any payment of dividends on some other class or series of shares; or
(ii)Is entitled in the event of any voluntary liquidation, dissolution or winding up of the corporation to receive payment or distribution of a preferential amount before any payments or distributions are received by some other class or series of shares;
(v)"Publicly held corporation," a corporation that has a class of equity securities registered pursuant to §12 of the Exchange Act, or subject to §15(d) of the Exchange Act;
(w)"Share," one of the units, however designated, into which the shareholders' proprietary interests in the corporation are divided;
(x)"Share acquisition date," with respect to any person and any domestic public corporation, the date that the person first becomes an interested shareholder of the domestic public corporation;
(y)"Shareholder," one who is a holder of record of shares in a corporation;
(z)"Subsidiary," of a specified corporation, any other corporation of which a majority of the outstanding voting shares entitled to be cast is owned, directly or indirectly, by the specified corporation;
(aa)"Voting shares," shares of a corporation entitled to vote generally in the election of directors;
(2) Terms in this chapter mean:
(a)"Board," the board of directors of a corporation;
(b)"Class," if used with reference to shares, means a category of shares that differs in designation or one or more rights or preferences from another category of shares of the corporation;
(c)"Director," a member of the board;
(d)"Good faith," honesty in fact in the conduct of the act or transaction concerned;
(e)"Intentionally," that the person referred to either has a purpose to do or fail to do the act or cause the result specified or believes that the act or failure to act, if successful, will cause that result. A person intentionally violates a statute if the person intentionally does the act or causes the result prohibited by the statute, or if the person intentionally fails to do the act or cause the result required by the statutes, even though the person may not know of the existence or constitutionality of the statute or the scope or meaning of the term used in the statute;
(f)"Knows," or has "knowledge," has actual knowledge of it. A person does not know of a fact merely because the person has reason to know of the fact;
(g)"Notice," is given by a corporation to a person when mailed to the person at the last known address of the person, when communicated to the person orally, when handed to the person, when left at the office of the person with a clerk or other person in charge of the office, or if there is no one in charge, when left in a conspicuous place in the office, or if the office is closed or the person to be notified has no office, or when left at the dwelling house or usual place of abode of the person with some person of suitable age and discretion then residing therein. Notice is given to a corporation when mailed or delivered to it at its registered office. Notice by mail is given when deposited in the United States mail with sufficient postage affixed;
(h)"Officer," a person elected, appointed, authorized, or otherwise designated as an officer by the board, and any other person considered elected as an officer;
(i)"Organization," a domestic or foreign corporation partnership, limited partnership, joint venture, association, business trust, estate, trust, enterprise and any other legal or commercial entity;
(j)"Outstanding shares," all shares duly issued and not reacquired by a corporation;
(k)"Series," a category of shares, within a class of shares authorized or issued by a corporation by or pursuant to its articles, that have some of the same rights and preferences as other shares within the same class, but that differ in designation or one or more rights and preferences from another category of shares within that class.
Source: SL 1990, ch 369, §103; SL 1994, ch 351, §128; SL 2005, ch 202, §7.