§ 33-843 — Business combinations. Definitions.

For the purposes of sections 33-843 to 33-845, inclusive: (1) “Affiliate” 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) “Announcement date”, when used in reference to any business combination, 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 any person, means (A) any corporation or organization of which such person is an officer or partner or is, directly or indirectly, the beneficial owner of ten per cent or more of any class of voting stock, (B) any trust or other estate in which such person has at least a ten per cent 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. (4) “Beneficial owner”, when used with respect to any voting stock, means a person: (A) That, individually or with or through any of its affiliates or associates, beneficially owns such stock, directly or indirectly; (B) That, individually or with or through any of its affiliates or associates, has (i) the right to acquire such stock, whether such right is exercisable immediately or only after the passage of time or upon the occurrence of a specified event, pursuant to any agreement, arrangement or understanding whether or not in writing, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, a person shall not be deemed the beneficial owner of stock tendered pursuant to a tender or exchange offer made by such person or any of such person's affiliates or associates until such tendered stock is accepted for purchase or exchange; (ii) the right to vote such stock pursuant to any agreement, arrangement or understanding whether or not in writing; provided, a person shall not be deemed the beneficial owner of any stock under this subparagraph if the agreement, arrangement or understanding to vote such stock 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 is not then reportable on Schedule 13D under the Exchange Act or any comparable or successor report; or (iii) the right to dispose of such stock pursuant to any agreement, arrangement or understanding whether or not in writing; or (C) That, individually or with or through any of its affiliates or associates, has any agreement, arrangement or understanding whether or not in writing for the purpose of acquiring, except pursuant to a tender or exchange offer until such tendered stock is accepted for purchase or exchange as described in subparagraph (B)(i) of this subdivision, holding, voting, except voting pursuant to a revocable proxy or consent as described in subparagraph (B)(ii) of this subdivision, or disposing of such stock with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, such stock. (5) “Business combination”, when used in reference to any resident domestic corporation and any interested shareholder of such resident domestic corporation, means: (A) Any merger or consolidation of such resident domestic corporation or any subsidiary of such resident domestic corporation with or into (i) such interested shareholder or (ii) any other corporation whether or not itself an interested shareholder of such resident domestic corporation which is, or after such merger or consolidation would be, an affiliate or associate of such interested shareholder; (B) Any sale, lease, exchange, mortgage, pledge, transfer or other disposition in one transaction or a series of transactions to or with such interested shareholder or any affiliate or associate of such interested shareholder of assets of such resident domestic corporation or any subsidiary of such resident domestic corporation (i) having an aggregate market value equal to ten per cent or more of the aggregate market value of all the assets, determined on a consolidated basis, of such resident domestic corporation, (ii) having an aggregate market value equal to ten per cent or more of the aggregate market value of all the outstanding stock of such resident domestic corporation, or (iii) representing ten per cent or more of the earning power or net income, determined on a consolidated basis, of such resident domestic corporation, except pursuant to a dividend or distribution paid or made pro rata to all holders of common stock of such resident domestic corporation and to all holders of any other class of stock of such resident domestic corporation entitled to participate with the holders of common stock in the receipt of such dividend or distribution; (C) The issuance or transfer by such resident domestic corporation or any subsidiary of such resident domestic corporation in one transaction or a series of transactions of any stock of such resident domestic corporation or any subsidiary of such resident domestic corporation which has an aggregate market value equal to five per cent or more of the aggregate market value of all the outstanding stock of such resident domestic corporation to such interested shareholder or any affiliate or associate of such interested shareholder, except (i) pursuant to a dividend or distribution paid or made pro rata to all holders of common stock of such resident domestic corporation and to all holders of any other class of stock of such resident domestic corporation entitled to participate with the holders of common stock in the receipt of such dividend or distribution, or (ii) pursuant to the exercise of warrants or rights to purchase stock or pursuant to the conversion of convertible securities; (D) The adoption of any plan or proposal for the complete or partial liquidation or dissolution of such resident domestic corporation or any subsidiary of such resident domestic corporation, or declarations or payments of dividends and distributions to the holders of stock of such resident domestic corporation in any twelve-month period having an aggregate market value of more than five per cent of the aggregate market value of all assets, determined on a consolidated basis, of such resident domestic corporation as of the beginning of such twelve-month period, which plan or proposal is, or declarations or payments are, proposed by, or pursuant to any agreement, arrangement or understanding whether or not in writing with, such interested shareholder or any affiliate or associate of such interested shareholder, at any time following such interested shareholder's stock acquisition date; (E) Any reclassification of securities including, without limitation, any stock split, stock dividend, or other distribution of stock in respect of stock, or any reverse stock split, or recapitalization of such resident domestic corporation, or any merger or consolidation of such resident domestic corporation with any subsidiary of such resident domestic corporation, or any other transaction whether or not with or into or otherwise involving such interested shareholder, which reclassification, merger, consolidation or other transaction (i) has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class or series of voting stock or securities convertible into voting stock of such resident domestic corporation or any subsidiary of such resident domestic corporation which is directly or indirectly owned by such interested shareholder or any affiliate or associate of such interested shareholder, except as a result of immaterial changes due to fractional share adjustments, and (ii) is proposed by, or pursuant to any agreement, arrangement or understanding whether or not in writing with, such interested shareholder or any affiliate or associate of such interested shareholder at any time following such interested shareholder's stock acquisition date; or (F) Any receipt by such interested shareholder or any affiliate or associate of such interested shareholder of the benefit, directly or indirectly, except proportionately as a shareholder of such resident domestic corporation, of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by or through such resident domestic corporation or any subsidiary of such resident domestic corporation; provided, for purposes of subparagraphs (A), (B) and (C) of this subdivision, a corporation, hereinafter referred to as the “other corporation”, which has entered into a definitive agreement or an agreement in principle or has an arrangement or understanding, whether formal or informal, in writing or not, with such resident domestic corporation or any subsidiary of such resident domestic corporation providing for any of the transactions contemplated by subparagraphs (A), (B) and (C) of this subdivision between such resident domestic corporation or any subsidiary of such resident domestic corporation and the other corporation or any subsidiary of the other corporation shall not be deemed to be an associate of such interested shareholder solely by reason of the fact that, after the date of such definitive agreement or agreement in principle or arrangement or understanding or the date of the first public announcement or disclosure of such transaction, whichever is earlier, such interested shareholder becomes, or after such transaction would become, directly or indirectly, the beneficial owner of ten per cent or more of any class of voting stock of the other corporation. (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 management and policies of a person, whether through the ownership of voting stock, by contract or otherwise. A person's beneficial ownership of ten per cent or more of the voting power of a corporation's outstanding voting stock shall create a presumption that such person has control of such corporation. Notwithstanding the foregoing, a presumption of control shall not apply where such person holds voting stock, in good faith and not for the purpose of circumventing sections 33-843 to 33-845 , inclusive, 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 such corporation. (7) “Corporation” means any corporation, whether domestic or foreign. (8) “Exchange Act” means the Act of Congress known as the Securities Exchange Act of 1934, as the same has been or hereafter may be amended from time to time. (9) “Interested shareholder”, when used in reference to any resident domestic corporation, means any person, other than such resident domestic corporation or any subsidiary of such resident domestic corporation, that: (A) Is the beneficial owner, directly or indirectly, of ten per cent or more of the voting power of the outstanding voting stock of such resident domestic corporation; or (B) is an affiliate or associate of such resident domestic corporation and at any time within the five-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 voting stock of such resident domestic corporation; provided for the purpose of determining whether a person is an interested shareholder, the number of shares of voting stock of such resident domestic corporation deemed to be outstanding shall include shares deemed to be beneficially owned by the person but shall not include any other unissued shares of voting stock of such resident domestic corporation which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise. (10) “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, joint venture or other formal or informal group for the purpose of acquiring, holding, voting or disposing of securities of an issuer. (11) “Resident domestic corporation” means an issuer of voting stock which: (A) Is organized under the laws of this state; and (B) has its principal executive offices or significant business operations located in this state or has a significant financial relationship with one or more businesses located in this state; provided no resident domestic corporation shall cease to be a resident domestic corporation by reason of events occurring or actions taken while such resident domestic corporation is subject to the provisions of sections 33-843 to 33-845 , inclusive. (12) “Stock” means: (A) Any stock or similar security, any certificate of interest, any participation in any profit-sharing agreement, any voting trust certificate or any certificate of deposit for stock; and (B) any security convertible, with or without consideration, into stock, or any warrant, call or other option or privilege of buying stock without being bound to do so, or any other security carrying any right to acquire, subscribe to or purchase stock. (13) “Stock acquisition date”, with respect to any person and any resident domestic corporation, means the date that such person first becomes an interested shareholder of such resident domestic corporation. (14) “Subsidiary” of any resident domestic corporation means any other corporation of which voting stock, having a majority of the voting power of the outstanding voting stock of such other corporation, is owned, directly or indirectly, by such resident domestic corporation. (15) “Voting stock” means shares of capital stock of a corporation entitled to vote generally in the election of directors.

Legislative History

(P.A. 94-186, S. 144, 215; P.A. 95-79, S. 127, 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.