351.459. Definitions--business combinations, requirements--permitted combinations--exceptions.
Definitions--business combinations, requirements--permittedcombinations--exceptions.
351.459. 1. For the purposes of this section, the following termsmean:
(1) "Affiliate", a person that directly, or indirectly through one ormore intermediaries, controls, or is controlled by, or is under commoncontrol with, a specified person;
(2) "Announcement date", when used in reference to any businesscombination, means the date of the first public announcement of the final,definitive proposal for such business combination;
(3) "Associate", when used to indicate a relationship with anyperson, means any corporation or organization of which such person is anofficer or partner or is, directly or indirectly, the beneficial owner often percent or more of any class of voting stock, any trust or other estatein which such person has a substantial beneficial interest or as to whichsuch person serves as trustee or in a similar fiduciary capacity, and anyrelative or spouse of such person, or any relative of such spouse, who hasthe same home as such person;
(4) "Beneficial owner", when used with respect to any stock, means aperson that:
(a) Individually or with or through any of its affiliates orassociates, beneficially owns such stock, directly or indirectly; or
(b) Individually or with or through any of its affiliates orassociates, has the right to acquire such stock, whether such right isexercisable immediately or only after the passage of time, pursuant to anyagreement, arrangement or understanding, whether or not in writing, or uponthe exercise of conversion rights, exchange rights, warrants or options, orotherwise; provided, however, that a person shall not be deemed thebeneficial owner of stock tendered pursuant to a tender or exchange offermade by such person or any of such person's affiliates or associates untilsuch tendered stock is accepted for purchase or exchange; or the right tovote such stock pursuant to any agreement, arrangement or understanding,whether or not in writing; provided, however, that a person shall not bedeemed the beneficial owner of any stock under this item if the agreement,arrangement or understanding to vote such stock arises solely from arevocable proxy or consent given in response to a proxy or consentsolicitation made in accordance with the applicable rules and regulationsunder the Exchange Act and is not then reportable on a Schedule 13D underthe Exchange Act, or any comparable or successor report; or
(c) Has any agreement, arrangement or understanding, whether or notin writing, for the purpose of acquiring, holding, voting, except votingpursuant to a revocable proxy or consent as described in paragraph (b) ofthis subdivision, or disposing of such stock with any other person thatbeneficially owns, or whose affiliates or associates beneficially own,directly or indirectly, such stock;
(5) "Business combination", when used in reference to any domesticcorporation and any interested shareholder of such domestic corporation,means:
(a) Any merger or consolidation of such domestic corporation or anysubsidiary of such domestic corporation with such interested shareholder orany other corporation, whether or not itself an interested shareholder ofsuch domestic corporation, which is, or after such merger or consolidationwould be, an affiliate or associate of such interested shareholder;
(b) Any sale, lease, exchange, mortgage, pledge, transfer or otherdisposition, in one transaction or a series of transactions to or with suchinterested shareholder or any affiliate or associate of such interestedshareholder of assets of such domestic corporation or any subsidiary ofsuch domestic corporation having an aggregate market value equal to tenpercent or more of the aggregate market value of all the assets, determinedon a consolidated basis, of such domestic corporation, having an aggregatemarket value equal to ten percent or more of the aggregate market value ofall the outstanding stock of such domestic corporation, or representing tenpercent or more of the earning power or net income, determined on aconsolidated basis, of such domestic corporation;
(c) The issuance or transfer by such domestic corporation or anysubsidiary of such domestic corporation, in one transaction or a series oftransactions, of any stock of such domestic corporation or any subsidiaryof such domestic corporation which has an aggregate market value equal tofive percent or more of the aggregate market value of all the outstandingstock of such domestic corporation to such interested shareholder or anyaffiliate or associate of such interested shareholder except pursuant tothe exercise of warrants or rights to purchase stock offered, or a dividendor distribution paid or made, pro rata to all shareholders of such domesticcorporation;
(d) The adoption of any plan or proposal for the liquidation ordissolution of such domestic corporation proposed by, or pursuant to anyagreement, arrangement or understanding, whether or not in writing, withsuch interested shareholder or any affiliate or associate of suchinterested shareholder;
(e) Any reclassification of securities, including, withoutlimitation, any stock split, stock dividend, or other distributions ofstock in respect of stock, or any reverse stock split, or recapitalizationof such domestic corporation, or any merger or consolidation of suchdomestic corporation with any subsidiary of such domestic corporation, orany other transaction, whether or not with or into or otherwise involvingsuch interested shareholder, proposed by, or pursuant to any agreement,arrangement or understanding, whether or not in writing, with suchinterested shareholder or any affiliate or associate of such interestedshareholder, which has the effect, directly or indirectly, of increasingthe proportionate share of the outstanding shares of any class or series ofvoting stock or securities convertible into voting stock of such domesticcorporation or any subsidiary of such domestic corporation which isdirectly or indirectly owned by such interested shareholder or anyaffiliate or associate of such interested shareholder, except as a resultof immaterial changes due to fractional share adjustments; or
(f) Any receipt by such interested shareholder or any affiliate orassociate of such interested shareholder of the benefit, directly orindirectly, except proportionately as a shareholder of such domesticcorporation, of any loans, advances, guarantees, pledges or other financialassistance or any tax credits or other tax advantages provided by orthrough such domestic corporation;
(6) "Common stock", any stock other than preferred stock;
(7) "Consummation date", with respect to any business combination,means the date of consummation of such business combination, or, in thecase of a business combination as to which a shareholder vote is taken, thelater of the business day prior to the vote or twenty days prior to thedate of consummation of such business combination;
(8) "Control", including the terms "controlling", "controlled by" and"under common control with", the possession, directly or indirectly, of thepower to direct or cause the direction of the management and policies of aperson, whether through the ownership of voting stock, by contract, orotherwise. A person's beneficial ownership of ten percent or more of acorporation's outstanding voting stock shall create a presumption that suchperson has control of such corporation. Notwithstanding the foregoing, aperson shall not be deemed to have control of a corporation if such personholds voting stock, in good faith and not for the purpose of circumventingthis section, as an agent, bank, broker, nominee, custodian or trustee forone or more beneficial owners who do not individually or as a group havecontrol of such corporation;
(9) "Domestic corporation", a corporation incorporated under the lawsof the state of Missouri;
(10) "Exchange Act", the act of Congress known as the "SecuritiesExchange Act of 1934", as the same has been or hereafter may be amendedfrom time to time;
(11) "Interested shareholder", when used in reference to any domesticcorporation, any person, other than such domestic corporation or anysubsidiary of such domestic corporation, that:
(a) Is the beneficial owner, directly or indirectly, of twentypercent or more of the outstanding voting stock of such domesticcorporation; or
(b) Is an affiliate or associate of such domestic corporation and atany time within the five-year period immediately prior to the date inquestion was the beneficial owner, directly or indirectly, of twentypercent or more of the then outstanding voting stock of such domesticcorporation; provided that, for the purpose of determining whether a personis an interested shareholder, the number of shares of voting stock of suchdomestic corporation deemed to be outstanding shall include shares deemedto be beneficially owned by the person through application of subdivision(4) of this subsection but shall not include any other unissued shares ofvoting stock of such domestic corporation which may be issuable pursuant toany agreement, arrangement or understanding, or upon exercise of conversionrights, warrants or options, or otherwise;
(12) "Market value", when used in reference to stock or property ofany domestic corporation, means:
(a) In the case of stock, the highest closing sale price during thethirty-day period immediately preceding the date in question of a share ofsuch stock on the composite tape for New York stock exchange listed stocks,or, if such stock is not quoted on such composite tape or if such stock isnot listed on such exchange, on the principal United States securitiesexchange registered under the Exchange Act on which such stock is listed,or, if such stock is not listed on any such exchange, the highest closingbid quotation with respect to a share of such stock during the thirty-dayperiod preceding the date in question on the National Association ofSecurities Dealers, Inc., Automated Quotations System or any system then inuse, or if no such quotations are available, the fair market value on thedate in question of a share of such stock as determined by the board ofdirectors of such domestic corporation in good faith; and
(b) In the case of property other than cash or stock, the fair marketvalue of such property on the date in question as determined by the boardof directors of such domestic corporation in good faith;
(13) "Preferred stock", any class or series of stock of a domesticcorporation which under the bylaws or articles of incorporation of suchdomestic corporation is entitled to receive payment of dividends prior toany payment of dividends on some other class or series of stock, or isentitled in the event of any voluntary liquidation, dissolution or windingup of the domestic corporation to receive payment or distribution of apreferential amount before any payments or distributions are received bysome other class or series of stock;
(14) "Stock" means:
(a) Any stock or similar security, any certificate of interest, anyparticipation in any profit-sharing agreement, any voting trustcertificate, or any certificate of deposit for stock; and
(b) Any security convertible, with or without consideration, intostock, or any warrant, call or other option or privilege of buying stockwithout being bound to do so, or any other security carrying any right toacquire, subscribe to or purchase stock;
(15) "Stock acquisition date", with respect to any person and anydomestic corporation, means the date that such person first becomes aninterested shareholder of such domestic corporation;
(16) "Subsidiary" of any domestic corporation means any othercorporation of which voting stock, having a majority of the outstandingvoting stock of such other corporation, is owned, directly or indirectly,by such domestic corporation;
(17) "Voting stock", shares of capital stock of a corporationentitled to vote generally in the election of directors.
2. Notwithstanding anything to the contrary contained in thissection, except the provisions of subsection 4 of this section, no domesticcorporation shall engage in any business combination with any interestedshareholder of such domestic corporation for a period of five yearsfollowing such interested shareholder's stock acquisition date unless suchbusiness combination or the purchase of stock made by such interestedshareholder on such interested shareholder's stock acquisition date isapproved by the board of directors of such domestic corporation on or priorto such stock acquisition date. If a good faith proposal is made inwriting to the board of directors of such domestic corporation regarding abusiness combination, the board of directors shall respond, in writing,within sixty days or such shorter period, if any, as may be required by theExchange Act, setting forth its reasons for its decision regarding suchproposal. If a good faith proposal to purchase stock is made in writing tothe board of directors of such domestic corporation, the board ofdirectors, unless it responds affirmatively in writing within sixty days orsuch shorter period, if any, as may be required by the Exchange Act, shallbe deemed to have disapproved such stock purchase.
3. Notwithstanding anything to the contrary contained in thissection, except the provisions of subsections 2 and 4 of this section, nodomestic corporation shall engage at any time in any business combinationwith any interested shareholder of such domestic corporation other than anyof the following business combinations:
(1) A business combination approved by the board of directors of suchdomestic corporation prior to such interested shareholder's stockacquisition date, or where the purchase of stock made by such interestedshareholder on such interested shareholder's stock acquisition date hadbeen approved by the board of directors of such domestic corporation priorto such interested shareholder's stock acquisition date;
(2) A business combination approved by the affirmative vote of theholders of a majority of the outstanding voting stock not beneficiallyowned by such interested shareholder or any affiliate or associate of suchinterested shareholder at a meeting called for such purpose no earlier thanfive years after such interested shareholder's stock acquisition date;
(3) A business combination that meets all of the followingconditions:
(a) The aggregate amount of the cash and the market value as of theconsummation date of consideration other than cash to be received per shareby holders of outstanding shares of common stock of such domesticcorporation in such business combination is at least equal to the higher ofthe following:
a. The highest per-share price paid by such interested shareholder ata time when he was the beneficial owner, directly or indirectly, of fivepercent or more of the outstanding voting stock of such domesticcorporation, for any shares of common stock of the same class or seriesacquired by it within the five-year period immediately prior to theannouncement date with respect to such business combination, or within thefive-year period immediately prior to, or in, the transaction in which suchinterested shareholder became an interested shareholder, whichever ishigher; plus, in either case, interest compounded annually from theearliest date on which such highest per-share acquisition price was paidthrough the consummation date at the rate for one-year United Statestreasury obligations from time to time in effect; less the aggregate amountof any cash dividends paid, and the market value of any dividends paidother than in cash, per share of common stock since such earliest date, upto the amount of such interest; and
b. The market value per share of common stock on the announcementdate with respect to such business combination or on such interestedshareholder's stock acquisition date, whichever is higher; plus interestcompounded annually from such date through the consummation date at therate for one-year United States treasury obligations from time to time ineffect; less the aggregate amount of any cash dividends paid, and themarket value of any dividends paid other than in cash, per share of commonstock since such date, up to the amount of such interest;
(b) The aggregate amount of the cash and the market value as of theconsummation date of consideration other than cash to be received per shareby holders of outstanding shares of any class or series of stock, otherthan common stock, of such domestic corporation is at least equal to thehighest of the following, whether or not such interested shareholder haspreviously acquired any shares of such class or series of stock:
a. The highest per-share price paid by such interested shareholder ata time when he was the beneficial owner, directly or indirectly, of fivepercent or more of the outstanding voting stock of such domesticcorporation, for any shares of such class or series of stock acquired byhim within the five-year period immediately prior to the announcement datewith respect to such business combination, or within the five-year periodimmediately prior to, or in, the transaction in which such interestedshareholder became an interested shareholder, whichever is higher; plus, ineither case, interest compounded annually from the earliest date on whichsuch highest per-share acquisition price was paid through the consummationdate at the rate for one-year United States treasury obligations from timeto time in effect; less the aggregate amount of any cash dividends paid,and the market value of any dividends paid other than in cash, per share ofsuch class or series of stock since such earliest date, up to the amount ofsuch interest;
b. The highest preferential amount per share to which the holders ofshares of such class or series of stock are entitled in the event of anyvoluntary liquidation, dissolution or winding up of such domesticcorporation, plus the aggregate amount of any dividends declared or due asto which such holders are entitled prior to payment of dividends on someother class or series of stock, unless the aggregate amount of suchdividends is included in such preferential amount; and
c. The market value per share of such class or series of stock on theannouncement date with respect to such business combination or on suchinterested shareholder's stock acquisition date, whichever is higher; plusinterest compounded annually from such date through the consummation dateat the rate for one-year United States treasury obligations from time totime in effect; less the aggregate amount of any cash dividends paid, andthe market value of any dividends paid other than in cash, per share ofsuch class or series of stock since such date, up to the amount of suchinterest;
(c) The consideration to be received by holders of a particular classor series of outstanding stock, including common stock, of such domesticcorporation in such business combination is in cash or in the same form asthe interested shareholder has used to acquire the largest number of sharesof such class or series of stock previously acquired by it, and suchconsideration shall be distributed promptly;
(d) The holders of all outstanding shares of stock of such domesticcorporation not beneficially owned by such interested shareholderimmediately prior to the consummation of such business combination areentitled to receive in such business combination cash or otherconsideration for such shares in compliance with paragraphs (a), (b) and(c) of this subdivision;
(e) After such interested shareholder's stock acquisition date andprior to the consummation date with respect to such business combination,such interested shareholder has not become the beneficial owner of anyadditional shares of voting stock of such domestic corporation except:
a. As part of the transaction which resulted in such interestedshareholder becoming an interested shareholder;
b. By virtue of proportionate stock splits, stock dividends or otherdistributions of stock in respect of stock not constituting a businesscombination under paragraph (e) of subdivision (5) of subsection 1 of thissection;
c. Through a business combination meeting all of the conditions ofsubsection 2 of this section and this subsection; or
d. Through purchase by such interested shareholder at any pricewhich, if such price had been paid in an otherwise permissible businesscombination the announcement date and consummation date of which were thedate of such purchase, would have satisfied the requirements of paragraphs(a), (b) and (c) of this subdivision.
4. The provisions of this section shall not apply to:
(1) Any business combination of a domestic corporation that does nothave a class of voting stock registered with the securities and exchangecommission pursuant to Section 12 of the Exchange Act, unless the articlesof incorporation provide otherwise; or
(2) Any business combination of a domestic corporation whose articlesof incorporation have been amended to provide that such domesticcorporation shall be subject to the provisions of this section, which didnot have a class of voting stock registered with the securities andexchange commission pursuant to Section 12 of the Exchange Act on theeffective date of such amendment, and which is a business combination withan interested shareholder whose stock acquisition date is prior to theeffective date of such amendment; or
(3) Any business combination of a domestic corporation the originalarticles of incorporation of which contain a provision expressly electingnot to be governed by this section, or which adopts an amendment to suchdomestic corporation's bylaws prior to August 1, 1986, expressly electingnot to be governed by this section, or which adopts an amendment to suchdomestic corporation's bylaws, approved by the affirmative vote of theholders, other than interested shareholders and their affiliates andassociates, expressly electing not to be governed by this section, providedthat such amendment to the bylaws shall not be effective until eighteenmonths after such vote of such domestic corporation's shareholders andshall not apply to any business combination of such domestic corporationwith an interested shareholder whose stock acquisition date is on or priorto the effective date of such amendment; or
(4) Any business combination of a domestic corporation with aninterested shareholder of such domestic corporation which became aninterested shareholder inadvertently, if such interested shareholder assoon as practicable, divests itself of a sufficient amount of the votingstock of such domestic corporation so that it no longer is the beneficialowner, directly or indirectly, of twenty percent or more of the outstandingvoting stock of such domestic corporation, and would not at any time withinthe five-year period preceding the announcement date with respect to suchbusiness combination have been an interested shareholder but for suchinadvertent acquisition;
(5) Any business combination with an interested shareholder who wasthe beneficial owner, directly or indirectly, of five percent or more ofthe outstanding voting stock of such domestic corporation on December 1,1985, and remained so to such interested shareholder's stock acquisitiondate;
(6) Any business combination with an interested shareholder or any ofits affiliates or associates, provided that such interested shareholderbecame an interested shareholder at a time when the restrictions containedin this section did not apply by reason of:
(a) Any of subdivisions (1) through (5) of this subsection; or
(b) The fact that the corporation was not then a domesticcorporation, provided, however, that this subdivision shall not apply if,at the time such interested shareholder became an interested shareholder,the corporation's articles of incorporation contained a provisionauthorized by the last sentence of this subsection. This subdivision shallapply regardless of whether the stock acquisition date of such interestedshareholder occurred prior to August 28, 1999.Notwithstanding subdivisions (1), (2), (3), (4) and (5) of this subsection,a corporation, whether or not a domestic corporation, may elect by aprovision of its original articles of incorporation or any amendmentthereto to be governed by this section; provided that any such amendment tothe articles of incorporation shall not apply to restrict a businesscombination between the corporation and an interested shareholder of thecorporation or any of its affiliates or associates if the interestedshareholder became such prior to the effective date of the amendment.
(L. 1986 H.B. 1667, A.L. 1989 S.B. 141, A.L. 1999 S.B. 278, A.L. 2007 H.B. 431)