§ 92A.133 — Circumstances under which vote of stockholders of domestic corporation not required to authorize merger in which domestic corporation is constituent entity

1. Unless otherwise expressly required by the articles of incorporation, no vote of the stockholders of a domestic corporation is necessary to authorize a merger in which the domestic corporation is a constituent entity if the plan of merger expressly permits or requires the merger to be effected under this section and:
(a) The ownership threshold requirement is satisfied without any offer, subject to the provisions of subsection 2; or
(b) The ownership threshold requirement is satisfied in whole or in part by way of an offer and:
(1) The domestic corporation has been a publicly traded corporation at all times during the period between:
(I) The date of the commencement of the offer or the date of the adoption of the plan of merger by the board of directors of the domestic corporation, whichever is earlier; and
(II) The effective date of the merger; and
(2) The plan of merger requires that:
(I) The merger must be effected as soon as practicable following the consummation of the offer if the merger is effected under this section; and
(II) Each outstanding share of each class or series of stock of the domestic corporation that is the subject of, and not irrevocably accepted for purchase or exchange in, the offer must be converted in such merger into, or into the right to receive, the same amount and kind of cash, property, rights or securities to be paid for shares of such class or series of stock of the domestic corporation irrevocably accepted for purchase or exchange in the offer. The plan of merger may expressly provide that the requirements of this sub-subparagraph must not apply to specified categories of excluded shares.
2. If a merger pursuant to this section is to be effectuated without any offer:
(a) The ownership threshold requirement must be satisfied without counting the voting power of any shares of the stock of the domestic corporation acquired from the domestic corporation, or any of the directors, officers, affiliates or associates thereof, within the 6 months immediately preceding the adoption of the plan of merger by the board of directors of the domestic corporation;
(b) The domestic corporation must provide notice of the merger to all of its stockholders not less than 30 days before the effective date of the merger; and
(c) The domestic corporation must have been a publicly traded corporation at all times during the period between the date of the adoption of the plan of merger by the board of directors of the domestic corporation and the effective date of the merger.
3. This section does not apply to circumvent or contravene the provisions of NRS 78.378 to 78.3793 , inclusive, or NRS 78.411 to 78.444 , inclusive.
4. As used in this section:
(a) “Affiliate” has the meaning ascribed to it in NRS 78.412 .
(b) “Associate” has the meaning ascribed to it in NRS 78.413 .
(c) “Consummation” means the irrevocable acceptance for purchase or exchange of shares tendered pursuant to an offer.
(d) “Excluded shares” means:
(1) Rollover shares; and
(2) Shares of the domestic corporation that are owned beneficially or of record at the commencement of an offer by:
(I) The domestic corporation;
(II) The constituent entity making the offer;
(III) Any person who owns, directly or indirectly, all of the outstanding equity interests of the constituent entity making the offer; or
(IV) Any direct or indirect wholly owned subsidiary of any of the foregoing.
(e) “Offer” means an offer made by the other constituent entity in the merger for all of the outstanding shares of each class or series of stock of the domestic corporation listed on a national securities exchange, on the terms provided in the plan of merger that, absent this section, would be entitled to vote on the approval of the plan of merger. The other constituent entity in the merger may, but is not required to, engage in the consummation of separate offers for separate classes or series of the stock of the domestic corporation. An offer may, but is not required to:
(1) Exclude any excluded shares; and
(2) Be conditioned on the tender of a minimum number or proportion of shares of any class or series of the stock of the domestic corporation.
(f) “Owned affiliate” means, with respect to a constituent entity, any other person who owns, directly or indirectly, all of the outstanding equity interests of the constituent entity, or any direct or indirect wholly owned subsidiary of the constituent entity or other person.
(g) “Ownership threshold requirement” means that the voting power of the stock of the domestic corporation otherwise owned beneficially or of record by the other constituent entity in the merger or any of the owned affiliates of the other constituent entity, together with the voting power of any rollover shares and any shares irrevocably accepted for purchase or exchange pursuant to any offer and received before the expiration of the offer by the agent or depositary appointed to facilitate the consummation of the offer, equals at least that proportion of the voting power of the stock, and of each class or series thereof, of the domestic corporation that, absent this section, would be required to approve the plan of merger under this chapter and the articles of incorporation and bylaws of the domestic corporation. For the purposes of this paragraph, shares are received:
(1) If the shares are certificated shares, upon physical receipt by the agent or depositary of a stock certificate with an executed letter of transmittal or other instrument of transfer;
(2) If the shares are uncertificated shares held of record by a clearing corporation as nominee, upon transfer into the account of the agent or depositary by way of an agent’s message; and
(3) If the shares are uncertificated shares held of record by a person other than a clearing corporation as nominee, upon physical receipt by the agent or depositary of an executed letter of transmittal or other instrument of transfer.
(h) “Publicly traded corporation” means a domestic corporation that has a class or series of voting shares which is a covered security under section 18(b)(1)(A) or (B) of the Securities Act of 1933, 15 U.S.C. § 77r(b)(1)(A) or (B), as amended.
(i) “Rollover shares” means any shares of any class or series of the capital stock of the domestic corporation that are the subject of a written agreement requiring such shares to be contributed or otherwise transferred to the other constituent entity in the merger or any of the owned affiliates of the other constituent entity in exchange for shares or other equity interest in the other constituent entity or any of its owned affiliates. Shares must cease to be rollover shares if, as of the effective time of the merger, the shares have not been contributed or otherwise transferred pursuant to the written agreement.

Legislative History

(Added to NRS by 2019, 107 ; A 2021, 1518 )