As used in this article 113, unless the context
otherwise requires:
(1) Affiliate means a person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with another
person or is a senior executive of the other person. For purposes of section 7-113-102 (2)(d), a person is deemed to be an affiliate of its senior executives.
(2) Corporation means the issuer of the shares held by a shareholder
demanding appraisal and, for matters covered in sections 7-113-203 to 7-113-401,
includes the surviving entity in a merger.
(3) Fair value means the value of the corporation's shares determined:
(a) Immediately before the effectuation of the corporate action to which the
shareholder objects;
(b) Using customary and current valuation concepts and techniques
generally employed for similar businesses in the context of the transaction
requiring appraisal; and
(c) Without discounting for lack of marketability or minority status except, if
appropriate, for amendments to the articles pursuant to section 7-113-102 (1)(e).
(4) Interest means interest, from the effective date of the corporate action
until the date of payment, at the legal rate as specified in section 5-12-101.
(5) Interested transaction means a corporate action described in section 7-113-102 (1), other than a merger pursuant to section 7-111-104, involving an
interested person in which any of the shares or assets of the corporation are being
acquired or converted. As used only in this subsection (5):
(a) (I) Beneficial owner means any person that, directly or indirectly,
through any contract, arrangement, or understanding, other than a revocable proxy,
has or shares the power to vote, or to direct the voting of, shares; except that a
member of a national securities exchange is not deemed to be a beneficial owner of
securities held directly or indirectly by it on behalf of another person solely
because the member is the record holder of the securities if the member is
precluded by the rules of the exchange from voting without instruction on
contested matters or matters that may affect substantially the rights or privileges
of the holders of the securities to be voted.
(II) When two or more persons agree to act together for the purpose of
voting their shares of the corporation, each member of the group formed by the
agreement is deemed to have acquired beneficial ownership, as of the date of the
agreement, of all voting shares of the corporation beneficially owned by any
member of the group.
(b) Excluded shares means shares acquired pursuant to an offer for all
shares having voting power if the offer was made within one year before the
corporate action for consideration of the same kind and of a value equal to or less
than that paid in connection with the corporate action.
(c) Interested person means a person, or an affiliate of a person, that, at
any time during the one-year period immediately preceding approval by the board
of directors of the corporate action:
(I) Was the beneficial owner of twenty percent or more of the voting power
of the corporation, other than as owner of excluded shares;
(II) Had the power, contractually or otherwise, other than as owner of
excluded shares, to cause the appointment or election of twenty-five percent or
more of the directors to the board of directors of the corporation; or
(III) Was a senior executive or director of the corporation or a senior
executive of any affiliate of the corporation and will receive, as a result of the
corporate action, a financial benefit not generally available to other shareholders as
such, other than:
(A) Employment, consulting, retirement, or similar benefits established
separately, and not as part of, or in contemplation of, the corporate action; or
(B) Employment, consulting, retirement, or similar benefits established in
contemplation of, or as part of, the corporate action that are not more favorable
than those existing before the corporate action or, if more favorable, that have been
approved on behalf of the corporation in the same manner as is provided in section
7-108-501; or
(C) In the case of a director of the corporation who will, in the corporate
action, become a director of the acquiring entity in the corporate action or one of its
affiliates, rights and benefits as a director that are provided on the same basis as
those afforded by the acquiring entity generally to other directors of the entity or
affiliate.
(6) Preferred shares means a class or series of shares whose holders have
preference over any other class or series with respect to distributions.
(7) Senior executive means the chief executive officer, chief operating
officer, chief financial officer, and anyone in charge of a principal business unit or
function.