Sec. 33-840. Business combinations. Definitions.
Sec. 33-840. Business combinations. Definitions. The terms used in sections 33-840 to 33-842, inclusive, shall be defined as follows:
(1) "Affiliate", including the term "affiliated person", means a person that directly
or indirectly through one or more intermediaries, controls, or is controlled by, or is under
common control with, a specified person.
(2) "Associate", when used to indicate a relationship with any person, means: (A)
Any domestic or foreign corporation or organization, other than a corporation or a subsidiary of the corporation, of which such person is an officer, director, or partner or is,
directly or indirectly, the beneficial owner of ten per cent or more of any class of equity
securities; (B) any trust or other estate in which such person has a substantial beneficial
interest or as to which such person serves as trustee or in a similar fiduciary capacity;
and (C) any relative or spouse of such person, or any relative of such spouse, who has
the same home as such person or who is a director or officer of the corporation or any
of its affiliates.
(3) "Beneficial owner", when used with respect to any voting stock, means a person:
(A) That, individually or with any of its affiliates or associates, beneficially owns voting
stock directly or indirectly; or (B) that, individually or with any of its affiliates or associates, has: (i) The right to acquire voting stock, whether such right is exercisable immediately or only after the passage of time, pursuant to any agreement, arrangement or understanding or upon the exercise of conversion rights, exchange rights, warrants or options,
or otherwise; or (ii) the right to vote or direct the voting stock pursuant to any agreement,
arrangement or understanding; or (iii) the right to dispose of or to direct the disposition
of voting stock pursuant to any agreement, arrangement or understanding; or (C) that,
individually or with any of its affiliates or associates, has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting or disposing of voting
stock with any other person that beneficially owns, or whose affiliates or associates
beneficially own, directly or indirectly, such shares of voting stock.
(4) "Business combination", when used with respect to any corporation, means:
(A) Any merger, consolidation or share exchange of the corporation or any subsidiary
with (i) any interested shareholder or (ii) any other domestic or foreign corporation,
whether or not itself an interested shareholder, which is, or after the merger, consolidation or share exchange would be, an affiliate or associate of an interested shareholder
that was an interested shareholder prior to the transaction; (B) any sale, lease, exchange,
mortgage pledge, transfer or other disposition, other than in the usual and regular course
of business, in one transaction or a series of transactions in any twelve-month period,
to any interested shareholder or any affiliate or associate of any interested shareholder,
other than the corporation or any of its subsidiaries, of any assets of the corporation or
any subsidiary having, measured at the time the transaction or transactions are approved
by the board of directors of the corporation, an aggregate book value as of the end of
the corporation's most recent fiscal quarter of ten per cent or more of the total market
value of the outstanding shares of the corporation or of its net worth as of the end of its
most recent fiscal quarter; (C) the issuance or transfer by the corporation, or any subsidiary, in one transaction or a series of transactions, of any equity securities of the corporation or any subsidiary which have an aggregate market value of five per cent or more
of the total market value of the outstanding shares of the corporation to any interested
shareholder or any affiliate or associate of any interested shareholder, other than the
corporation or any of its subsidiaries, except pursuant to the exercise of warrants, rights
or options to subscribe to or purchase securities offered, issued or granted pro rata to all
holders of the voting stock of the corporation or any other method affording substantially
proportionate treatment to the holders of voting stock; (D) the adoption of any resolution
for the liquidation or dissolution of the corporation or any subsidiary proposed by or
on behalf of an interested shareholder or any affiliate or associate of any interested
shareholder, other than the corporation or any of its subsidiaries; or (E) any reclassification of securities, including any reverse stock split, or recapitalization of the corporation,
or any merger, consolidation or share exchange of the corporation with any of its subsidiaries which has the effect, directly or indirectly, in one transaction or a series of transactions, of increasing by five per cent or more of the total number of outstanding shares,
the proportionate amount of the outstanding shares of any class of equity securities of
the corporation or any subsidiary which is directly or indirectly owned by any interested
shareholder or any affiliate or associate of any interested shareholder, other than the
corporation or any of its subsidiaries.
(5) "Common stock" means any shares other than preferred shares.
(6) "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 board of directors, the management or the policies of a
person, whether through the ownership of voting securities, by contract, or otherwise,
and the beneficial ownership of ten per cent or more of the voting power of the voting
stock of a corporation creates a presumption of control.
(7) "Corporation" or "domestic corporation" means any corporation with capital
stock formed under the laws of this state before or after January 1, 1961, including a
real estate investment trust.
(8) "Equity security" means: (A) Any share or similar security, certificate of interest, or participation in any profit-sharing agreement, voting trust certificate or certificate
of deposit for a share of the corporation; (B) any security convertible, with or without
consideration, into any share of the corporation, or any warrant, right or option to subscribe to or purchase any share of the corporation; or (C) any put, call, straddle or other
option or privilege of buying any share of the corporation from or selling any share of
the corporation to another without being bound to do so.
(9) "Interested shareholder" means any person, other than the corporation or any
of its subsidiaries, that is the beneficial owner, directly or indirectly, of ten per cent or
more of the voting power of the outstanding shares of voting stock of the corporation,
or is an affiliate of the corporation and at any time within the two-year period immediately prior to the date in question was the beneficial owner, directly or indirectly, of ten
per cent or more of the voting power of the then outstanding shares of voting stock
of the corporation. For the purpose of determining whether a person is an interested
shareholder, the number of shares of voting stock deemed to be outstanding shall include
shares deemed owned by the person through application of subdivision (3) of this section
but shall not include any other shares of voting stock which may be issuable to persons
other than the person in question pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, exchange rights, warrants or options, or
otherwise.
(10) "Market value" as of any date means: (A) In the case of shares of stock of a
corporation, the highest closing sale price during the thirty-day period immediately
preceding the date in question of a share of such stock on the composite tape for New-York-Stock-Exchange-listed stocks, or, if such stock is not quoted on the composite
tape, on the New York Stock Exchange, or if such stock is not listed on such exchange,
on the principal United States securities exchange registered under the Securities Exchange Act of 1934 on which such stock is listed, or, if such stock is not listed on any
such exchange, the highest closing bid quotation with respect to a share of such stock
during the thirty-day period immediately 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 of such stock as determined by the board of directors of the corporation in
good faith; and (B) in the case of property other than cash or stock, the fair market value
of such property on the date in question as determined by the board of directors of the
corporation in good faith.
(11) "Person" means a natural person, company, partnership, foreign or domestic
corporation, limited liability company, trust, unincorporated organization, government
or any other entity or political subdivision, agency or instrumentality of a government.
The term also includes two or more of the foregoing acting as a partnership, limited
partnership, syndicate or other group for the purpose of acquiring, holding, voting or
disposing of securities of an issuer.
(12) "Share exchange" means an exchange offer or any other exchange of securities
of a person for the voting stock of a corporation.
(13) "Subsidiary" means any corporation of which voting stock having a majority
of the votes entitled to be cast is owned, directly or indirectly, by the corporation.
(14) "Voting stock" means shares of capital stock of a corporation entitled to vote
generally in the election of directors.
(P.A. 94-186, S. 141, 215; P.A. 95-79, S. 126, 189.)
History: P.A. 94-186 effective January 1, 1997; P.A. 95-79 redefined "person" to include a limited liability company,
effective January 1, 1997.