§ 12:1-1301 — Definitions

§1-1301. Definitions
In this Part, the following meanings shall apply:
(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 thereof. For purposes of R.S. 12:1-1302(B)(4), an entity is deemed to
be an affiliate of its senior executives.
(2) "Beneficial owner" means any person who, 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. 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 thereby
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.
(3) "Corporation" means the issuer of the shares held by a shareholder demanding
appraisal and, for matters covered in R.S. 12:1-1322 through 1-1331, includes the surviving
entity in a merger.
(3.1) "Excluded shares" means shares acquired pursuant to an offer for all shares
having voting power if the offer was made within one year prior to 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.
(4) "Fair value" means the value of the corporation's shares determined immediately
before the effectuation of the corporate action to which the shareholder objects, using
customary and current valuation concepts and techniques generally employed for similar
businesses in the context of the transaction requiring appraisal, and without discounting for
lack of marketability or minority status except, if appropriate, for amendments to the articles
pursuant to R.S. 12:1-1302(A)(5).
(5) "Interest" means interest from the effective date of the corporate action until the
date of payment, at the rate of judicial interest.
(5.1) "Interested person" means a person, or an affiliate of a person, who at any time
during the one-year period immediately preceding approval by the board of directors of the
corporate action, satisfies any of the following criteria:
(a) Was the beneficial owner of twenty percent or more of the voting power of the
corporation, other than as owner of excluded shares.
(b) 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.
(c) Was a senior executive or director of the corporation or a senior executive of any
affiliate thereof, and that senior executive or director will receive, as a result of the corporate
action, a financial benefit not generally available to other shareholders as such, other than any
of the following:
(i) Employment, consulting, retirement, or similar benefits established separately and
not as part of or in contemplation of the corporate action.
(ii) 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 R.S. 12:1-862.
(iii) 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 such entity or such affiliate.
(5.2) "Interested transaction" means a corporate action described in R.S.
12:1-1302(A) involving an interested person in which any of the shares or assets of the
corporation are being acquired or converted.
(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) [Reserved.]
(8) "Senior executive" means the chief executive officer, chief operating officer,
chief financial officer, and anyone in charge of a principal business unit or function.
(9) "Shareholder" means a record shareholder, a beneficial shareholder, and a voting
trust beneficial owner.

Legislative History

Acts 2014, No. 328, §1, eff. Jan. 1, 2015; Acts 2016, No. 442, §1.