§ 17-18-102 — Definitions

(a) The definitions used in the Wyoming Business
Corporations Act (W.S. 17-16-101 through 17-16-1810) shall apply
to this act unless inconsistent with the definitions in this
section.
(b) As used in this act:
(i) "Affiliate" means a person that directly, or
indirectly through one (1) or more intermediaries, controls, or
is controlled by, or is under common control with, another
person;
(ii) "Associate," when used to indicate a
relationship with any person, means:
(A) Any entity of which the person is a
director, officer or partner or is, directly or indirectly, the
owner of ten percent (10%) or more of any class of voting stock
or similar securities of the entity;
(B) Any trust or other estate in which the
person has at least a ten percent (10%) beneficial interest or
as to which such person serves as trustee or in a similar
fiduciary capacity; or
(C) Any relative or spouse of the person, or any
relative of the spouse, who has the same residence as the person
or who is a director or officer of the person or any of its
affiliates.
(iii) "Beneficial owner of a security" means any
person who, directly or indirectly, has the power to vote or
direct the voting of all or part of the voting rights of the
security, or has the power to dispose of or direct the
disposition of the security;
(iv) "Business combination," when used in reference
to any corporation and any interested stockholder of that
corporation, means:
(A) Any merger, consolidation or share exchange
of the corporation or any subsidiary with:
(I) The interested stockholder;
(II) A foreign or domestic corporation that
is, or after the merger, consolidation or share exchange would
be, an affiliate or associate of the interested stockholder; or
(III) Another corporation, if the merger,
consolidation or share exchange is caused by an interested
stockholder, and as a result of the merger, consolidation or
share exchange any section of this act does not apply to the
surviving corporation.
(B) Any sale, lease, exchange, mortgage, pledge,
transfer or other disposition, in one (1) transaction or a
series of transactions, except proportionately as a stockholder
of the corporation, to or with the interested stockholder or any
affiliate or associate of the interested stockholder, whether as
part of a dissolution or otherwise, of assets of the corporation
or of any subsidiary which assets:
(I) Have an aggregate market value equal to
ten percent (10%) or more of either the aggregate market value
of all the assets of the corporation determined on a
consolidated basis or the aggregate market value of all the
outstanding stock of the corporation;
(II) Have an aggregate book value equal to
ten percent (10%) or more of either the aggregate book value of
all the assets of the corporation determined on a consolidated
basis or of the aggregate stockholders equity of the
corporation; or
(III) Represent ten percent (10%) or more
of the earning power or net income, determined on a consolidated
basis, of the corporation.
(C) Any transaction or series of transactions
which results in the issuance or transfer by the corporation, or
by any subsidiary, of any stock of the corporation or of the
subsidiary to the interested stockholder except:
(I) Any transaction pursuant to the
exercise, exchange or conversion of securities into stock of the
corporation or any subsidiary, which securities before the
stockholder became an interested stockholder were outstanding
and exercisable for or convertible into the stock; or
(II) Any of the following transactions
provided there is no increase in the interested stockholder's
proportionate share of the corporation's stock of any class or
series or of the corporation's voting stock:
(1) Pursuant to a distribution made,
or the exercise, exchange or conversion of securities into stock
of the corporation or any subsidiary of securities distributed,
pro rata to all holders of a class or series of stock of the
corporation, after the stockholder became an interested
stockholder;
(2) Pursuant to an exchange offer by
the corporation to purchase stock made on the same terms to all
holders of the stock; or
(3) Any issuance or transfer of stock
by the corporation.
(D) Any transaction involving the corporation or
any subsidiary which has the effect, directly or indirectly, of
increasing the proportionate share of the corporation's or a
subsidiary's stock of any class or series, or securities
convertible into the stock of any class or series, owned by the
interested stockholder, except as a result of immaterial changes
due to fractional share adjustments or as a result of any
purchase or redemption of any shares of stock not caused,
directly or indirectly, by the interested stockholder;
(E) Any receipt by the interested stockholder of
the benefit, directly or indirectly, except proportionately as a
stockholder of the corporation, of any loans, advances,
guarantees, pledges or other financial assistance, or a tax
credit or other tax advantage, other than those expressly
permitted in subparagraphs (A) through (D) of this paragraph,
provided by or through the corporation or any subsidiary; or
(F) The adoption of a plan or a proposal for the
liquidation and dissolution of the corporation proposed by, or
pursuant to an agreement, arrangement, or understanding, whether
or not in writing, with an interested stockholder or an
affiliate or associate of the interested stockholder.
(v) "Control," including the term "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 who is the owner of ten percent (10%) or
more of an entity's outstanding voting stock or similar
interests shall be presumed to have control of the entity, in
the absence of proof by a preponderance of the evidence to the
contrary. A presumption of control shall not apply where the
person holds voting stock or similar interests, in good faith
and not for the purpose of circumventing this act, as an agent,
bank, broker, nominee, custodian or trustee for one (1) or more
owners who do not individually or as a group have control of the
other person;
(vi) "Equity security" means:
(A) Any share or similar security carrying, at
the time of the takeover offer, the right to vote on any matter
by virtue of the articles of incorporation, bylaws, or governing
instrument of the target company or the right to vote for
directors or persons performing substantially similar functions
by operation of law;
(B) Any security convertible into a security
described in subparagraph (A) of this paragraph or any warrant
or right to purchase that security; or
(C) Any other security which, for the protection
of investors, is an equity security pursuant to regulation of
the secretary of state.
(vii) "Interested stockholder":
(A) Means any person and the affiliates and
associates of the person, other than the corporation and any
subsidiary, that:
(I) Is the owner of fifteen percent (15%)
or more of the outstanding voting stock of the corporation; or
(II) Is an affiliate or associate of the
corporation and was the owner of fifteen percent (15%) or more
of the outstanding voting stock of the corporation at any time
within the three (3) year period immediately before it is to be
determined whether the person is an interested stockholder.
(B) But does not mean:
(I) Any person who:
(1) Owned shares in excess of the
fifteen percent (15%) limitation as of January 1, 1990, acquired
shares pursuant to a tender offer commenced prior to January 1,
1989, or owned shares pursuant to an exchange offer announced
prior to January 1, 1989 and commenced within ninety (90) days;
and
(2) Continued to own shares in excess
of the fifteen percent (15%) limitation or would have but for
action by the corporation.
(II) Any person who acquired the shares
from a person described in subdivision (B)(I) of this paragraph
by gift, inheritance or in a transaction in which no
consideration was exchanged; or
(III) Any person whose ownership of shares
in excess of the fifteen percent (15%) limitation is the result
of action taken solely by the corporation provided that the
person shall be an interested stockholder if, after the
corporate action, he acquires additional voting stock of the
corporation, except as a result of further corporate action not
caused, directly or indirectly, by that person.
(viii) "Large publicly traded corporation" means a
corporation which had assets at the end of its most recent
fiscal year of at least ten million dollars ($10,000,000.00)
according to generally accepted accounting principles and which:
(A) Has a class of voting stock listed on a
national securities exchange;
(B) Has a class of voting stock authorized for
quotation on an inter dealer quotation system of a registered
national securities association; or
(C) Has a class of voting stock held of record
by more than one thousand (1,000) stockholders.
(ix) "Offeree" means a record or beneficial owner of
equity securities of the class which an offeror acquires or
offers to acquire in connection with a takeover offer;
(x) "Offeror" means a person who makes or in any way
participates in making a takeover offer. The term includes all
affiliates of that person and all persons who act jointly or in
concert with that person for the purpose of acquiring, holding
or disposing of, or exercising any voting rights attached to,
the equity securities of a target company. It also includes the
target company with respect to acquisitions of its own equity
securities and with respect to periods of time when it is
controlled by or under common control with the offeror. It does
not include a financial institution or broker-dealer loaning
funds or extending credit to any offeror in the ordinary course
of its business, or any accountant, attorney, financial
institution, broker-dealer, newspaper or magazine of general
circulation, consultant, or other person furnishing information,
services, or advice to or performing ministerial or
administrative duties for an offeror and not otherwise
participating in the takeover offer;
(xi) "Owner" including the terms "own" and "owned"
when used with respect to any stock means a person that
individually or with or through any of its affiliates or
associates:
(A) Beneficially owns the stock, directly or
indirectly;
(B) Has the right to acquire the stock, whether
the right is exercisable immediately or only after the passage
of time, pursuant to any agreement, arrangement or
understanding, or upon the exercise of conversion rights,
exchange rights, warrants or options, or otherwise. A person
shall not be deemed the owner of stock tendered pursuant to a
tender or exchange offer made by that person or any of that
person's affiliates or associates until the tendered stock is
accepted for purchase or exchange;
(C) Has the right to vote the stock pursuant to
any agreement, arrangement or understanding. A person shall not
be deemed the owner of any stock because of the person's right
to vote the stock if the agreement, arrangement or understanding
to vote the stock arises solely from a revocable proxy or
consent given in response to a proxy or consent solicitation
made to ten (10) or more persons; or
(D) Has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting,
except voting pursuant to a revocable proxy or consent as
described in subparagraph (C) of this paragraph, or disposing of
that stock with any other person that beneficially owns, or
whose affiliates or associates beneficially own, directly or
indirectly, that stock.
(xii) "Qualified corporation" means any large
publicly traded corporation, incorporated in Wyoming, and which
has substantial business operations within Wyoming;
(xiii) "Stockholder" means "shareholder" as defined
by W.S. 17-16-140(a)(xxxix);
(xiv) "Subsidiary" means a corporation or other
person of which a majority of the outstanding voting stock or
similar securities are owned, directly or indirectly, by the
corporation;
(xv) "Substantial business operations within the
state of Wyoming" means:
(A) At least ten percent (10%) of the
corporation's full-time permanent employees are employed within
the state;
(B) At least one hundred (100) full-time
permanent employees are employed within the state;
(C) At least ten million dollars
($10,000,000.00) in fair market value of the corporation's
assets are deposited within Wyoming financial institutions;
(D) The principal operating headquarters and the
primary offices of the chief executive officer are within
Wyoming; or
(E) The corporation has a combination of assets
deposited within Wyoming financial institutions, assets assessed
for ad valorem taxation within Wyoming, and assets within
Wyoming not subject to ad valorem taxation which are sufficient
to cause the corporation to pay the tax required by W.S.
17-16-1630(a). The payment of the tax required by W.S.
17-16-1630(a) shall be deemed conclusive evidence of substantial
business operations within Wyoming.
(xvi) "Substantially equivalent terms" means terms
under which the fair market value of the consideration offered
any offeree of a class of equity securities of the target
company, determined on a per share or a per unit basis, are
equal to the highest consideration offered in connection with a
takeover offer to any other offeree of that class, determined on
a per share or per unit basis;
(xvii) "Takeover offer" means an offer to acquire or
an acquisition of any equity security of a target company
pursuant to a tender offer or request or invitation for tenders,
if, after the acquisition, the offeror is or will be directly or
indirectly a record or beneficial owner of more than ten percent
(10%) of any class of the outstanding equity securities of the
target company;
(xviii) "Target company" means a qualified
corporation other than:
(A) A financial institution subject to
regulation by the state banking commissioner, if the takeover
offer is subject to approval by the state banking commissioner;
(B) A corporation subject to regulation by the
public service commission, if the takeover offer is subject to
approval of the public service commission; or
(C) A public utility, public utility holding
company, bank holding company, or savings and loan association
subject to regulation by a federal agency if the takeover offer
is subject to the approval by that federal agency.
(xix) "Voting stock" means:
(A) For purposes other than determining whether
a person is an interested stockholder, stock of any class or
series entitled to vote generally in the election of directors;
(B) For purposes of determining whether a person
is an interested stockholder, stock deemed to be owned by the
person but shall not include any other unissued stock of the
corporation which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
(xx) "This act" means W.S. 17-18-101 through