14A:10-9 - Acquisition of all the shares, or a class or series of shares, of a corporation
14A:10-9. Acquisition of all the shares, or a class or series of shares, of a corporation (1) Subject to the limitations imposed by any other statute of this State, any domestic corporation may, in the manner provided by this section, acquire, in exchange for its shares, all the shares, or all the shares of any class or series, of any other corporation organized under any statute of this State.
(2) Such acquiring corporation shall submit by first-class mail to all holders of the shares to be acquired a written offer which shall
(a) specify the shares to which such offer relates;
(b) prescribe the terms and conditions of such offer, including the method of acceptance thereof and the manner of exchanging such shares;
(c) contain a statement summarizing the rights of such shareholders as provided in paragraph 14A:10-9(3)(b).
Any such offer may provide for the payment of cash in lieu of the issuance of fractional shares of the acquiring corporation.
(3) If, within 120 days after the date of such mailing, the offer is accepted by the holders of not less than 90% of the shares of each class and series to which the offer relates, other than shares already held at the date of mailing by, or by a nominee for, the acquiring corporation or any subsidiary thereof, the acquiring corporation shall, within 60 days after such acceptance:
(a) execute and file a certificate in the office of the Secretary of State setting forth such acceptance; and
(b) give written notice of such acceptance, by registered or certified mail, return receipt requested, to each holder of such shares to which the offer relates, who has not accepted the offer. Such notice shall include, or be accompanied by, a statement
(i) that such shareholders may elect either to accept the offer or to dissent therefrom and be paid the fair value of their shares provided that they file with the acquiring corporation, not later than 20 days after the mailing of such written notice, a written demand for the fair value of their shares as required by subsection 14A:11-2(5), and otherwise comply with the procedures set forth in Chapter 11 of this act;
(ii) outlining briefly, with particular reference to the time periods within which actions must be taken, the procedures set forth in Chapter 11 of this act with which they must comply; and
(iii) that if such shareholders do not make written demand for the payment of the fair value of their shares within said 20-day period, they shall be deemed to have accepted the offer.
(4) Upon the filing of such certificate in the office of the Secretary of State as required by paragraph 14A:10-9(3)(a)
(a) the acquiring corporation shall cause to be issued to the holders of shares who have accepted or who are deemed to have accepted such offer pursuant to the provisions of paragraph 14A:10-9(3)(b) certificates for shares of the acquiring corporation to which they respectively are entitled;
(b) all shares in exchange for which shares of the acquiring corporation are so issued shall become the property of the acquiring corporation, irrespective of whether the certificates for such shares have been surrendered for exchange, and the acquiring corporation shall be entitled to have new certificates registered in its name as the holder thereof; and
(c) the acquiring corporation, or a corporate fiduciary designated by it, shall hold in trust, for delivery to the persons entitled thereto, certificates for its shares registered in the names of any holders, other than shares of dissenting shareholders, who have not surrendered their shares for exchange in accordance with the offer, and shall hold in trust, for payment to the persons entitled thereto, any cash payable in lieu of fractional shares.
(5) This section shall not be construed to prevent a corporation from making an offer to purchase the shares of another corporation conditioned upon the acceptance of holders of less than 90% of the shares to which such offer relates. Such an offer may be joined as an alternate offer with an offer made pursuant to this section; but in no case shall the acquiring corporation have the right to avail itself of the provisions of this section unless the holders of the percentage of shares to which the offer relates required by subsection 14A:10-9(3) shall accept the offer within the time period required by subsection 14A:10-9(3).
(6) Whenever a corporation whose capital stock is acquired pursuant to this section is a stock insurance company organized under any law of this State (hereinafter called the insurance subsidiary),
(a) the acquiring corporation shall furnish to the Commissioner of Banking and Insurance such information as he may, from time to time, reasonably request in respect to the honesty and trustworthiness of its directors and officers, and
(b) upon a finding by the Commissioner of Banking and Insurance that the acquiring corporation has failed or refused to take such steps as may be necessary to remove from office any of the directors or officers referred to in paragraph 14A:10-9(6)(a) hereof whom the commissioner, after hearing upon notice to such acquiring corporation and such officer or director, has found to be a dishonest or untrustworthy person, the commissioner may forthwith take possession of the property and business of the insurance subsidiary as provided in chapter 30 of Title 17 of the Revised Statutes, and
(c) upon a finding by the Commissioner of Banking and Insurance that access to specified books and records of the acquiring corporation which relate to the condition and affairs of the insurance subsidiary is necessary to the discharge of his regulatory duties with respect to such subsidiary under Title 17 of the Revised Statutes, the commissioner may have access to the books and records which he has so specified and the acquiring corporation shall answer any inquiry by him which is pertinent thereto.
L.1968, c.350; amended by L.1973, c. 366, s. 57, eff. May 1, 1974.