17-12,100.Business combinations with interested shareholders; definitions.
As used in this act:
(a) "Affiliate" means a person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with, another person.
(b) "Associate," when used to indicate a relationship with any person, means:
(1) Any corporation or organization of which such person is a director,
officer or partner or is, directly or indirectly, the owner of 20% or more
of any class of voting stock;
(2) any trust or other estate in which such person has at least a 20%
beneficial interest or as to which such person serves as trustee or in a
similar fiduciary capacity; and
(3) any relative or spouse of such person, or any relative of such
spouse, who has the same residence as such person.
(c) "Business combination," when used in reference to any corporation
and any interested stockholder of such corporation, means:
(1) Any merger or consolidation of the corporation or of any direct or
indirect majority-owned subsidiary of the corporation with the interested
stockholder or with any other corporation if the merger or consolidation is
caused by the interested stockholder and as a result of such merger or
consolidation, K.S.A. 17-12,101 and amendments thereto is not
applicable to the surviving corporation;
(2) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition, in one transaction or a series of transactions, except
proportionately as a stockholder of such corporation, to or with the
interested stockholder, whether as part of a dissolution or otherwise, of
assets of the corporation or of any direct or indirect majority-owned
subsidiary of the corporation, which assets have an aggregate market value
equal to 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;
(3) any transaction which results in the issuance or transfer by the
corporation or by any direct or indirect majority-owned subsidiary of the
corporation of any stock of the corporation or of such subsidiary to the
interested stockholder, except:
(A) Pursuant to the exercise, exchange or conversion of securities
exercisable for, exchangeable for or convertible into stock of such
corporation or any such subsidiary, which securities were outstanding prior
to the time that the interested stockholder became such;
(B) pursuant to a dividend or distribution paid or made, or the
exercise, exchange or conversion of securities exercisable for,
exchangeable for or convertible into stock of such corporation or any such
subsidiary, which security is distributed, pro rata to all holders of a
class or series of stock of such corporation subsequent to the time the
interested stockholder became such;
(C) pursuant to an exchange offer by the corporation to purchase stock
made on the same terms to all holders of such stock; or
(D) any issuance or transfer of stock by the corporation, except that in
no case under subsections (c)(3)(B) through (c)(3)(D) of this subsection shall there be an
increase in the interested stockholder's proportionate share of the stock
of any class or series of the corporation or of the voting stock of the corporation;
(4) any transaction involving the corporation or any direct or indirect
majority-owned subsidiary of the corporation which has the effect, directly
or indirectly, of increasing the proportionate share of the stock of any
class or series, or securities convertible into the stock of any class or
series, of the corporation or of any such subsidiary which is 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; or
(5) any receipt by the interested stockholder of the benefit, directly
or indirectly, except proportionately as a stockholder of such corporation,
of any loans, advances, guarantees, pledges, or other financial benefits,
other than those expressly permitted in subsections (c)(1) through (c)(4)
of this subsection provided by or through the corporation or any direct or indirect
majority-owned subsidiary.
(d) "Control," "controlling," "controlled by" and "under common control
with" mean 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 20% or more of a corporation's outstanding voting stock
shall be presumed to have control of such corporation, in the absence of
proof by a preponderance of the evidence to the contrary. 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
this section, as an agent, bank, broker, nominee, custodian or trustee for
one or more owners who do not individually or as a group have control of
such corporation.
(e) (1) "Interested stockholder" means any person, other than the
corporation and any direct or indirect majority-owned subsidiary of the
corporation, that is:
(A) The owner of 15% or more of the outstanding voting stock of the corporation; or
(B) an affiliate or associate of the corporation and was the owner of
15% or more of the outstanding voting stock of the corporation at any time
within the three-year period immediately prior to the date on which it is
sought to be determined whether such person is an interested stockholder
and the affiliates and associates of such person;
(2) the term interested stockholder shall not include:
(A) Any person who:
(i) Owned shares in excess of the 15% limitation as provided in this
subsection as of, or acquired such shares pursuant to a tender offer
commenced prior to, the effective date of this act or pursuant to an
exchange offer announced prior to the effective date of this act and
commenced within 90 days thereafter and continued to own shares in excess
of such 15% limitation or would have but for action by the corporation; or
(ii) acquired such shares from a person described in subsection
(e)(2)(i) by gift, inheritance or in a transaction in which no
consideration was exchanged; or
(B) any person whose ownership of shares in excess of the 15% limitation
as provided in this subsection (e) is the result of action taken solely by
the corporation. Such person shall be an interested stockholder if
thereafter such person acquires additional shares of voting stock of the
corporation, except as a result of further corporate action not caused,
directly or indirectly, by such person;
(3) for the purpose of determining whether a person is an interested
stockholder, the voting stock of the corporation deemed to be outstanding
shall include stock deemed to be owned by the person as provided in
subsection (h), but shall not include any other unissued stock of such
corporation which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or otherwise.
(f) "Person" means any individual, corporation, partnership,
unincorporated association or other entity.
(g) "Voting stock" means stock of any class or series entitled to vote
generally in the election of director.
(h) "Owner," "own" and "owned" when used with respect to any stock, mean
a person that individually or with or through any of its affiliates or associates:
(1) Beneficially owns such stock, directly or indirectly;
(2) (A) has the right to acquire such stock, whether such 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 such person or any of such person's affiliates or associates
until such tendered stock is accepted for purchase or exchange; or
(B) the right to vote such stock pursuant to any agreement, arrangement
or understanding. A person shall not be deemed the owner of any stock
because of such person's right to vote such stock 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 to 10 or more persons; or
(3) has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting, except voting pursuant to a revocable proxy or
consent as provided in subsection (h)(2)(B) of this subsection, or disposing of such stock
with any other person that beneficially owns, or whose affiliates or
associates beneficially own, directly or indirectly, such stock.
17-12,100.Business combinations with interested shareholders; definitions.
As used in this act:
(a) "Affiliate" means a person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with, another person.
(b) "Associate," when used to indicate a relationship with any person, means:
(1) Any corporation or organization of which such person is a director,
officer or partner or is, directly or indirectly, the owner of 20% or more
of any class of voting stock;
(2) any trust or other estate in which such person has at least a 20%
beneficial interest or as to which such person serves as trustee or in a
similar fiduciary capacity; and
(3) any relative or spouse of such person, or any relative of such
spouse, who has the same residence as such person.
(c) "Business combination," when used in reference to any corporation
and any interested stockholder of such corporation, means:
(1) Any merger or consolidation of the corporation or of any direct or
indirect majority-owned subsidiary of the corporation with the interested
stockholder or with any other corporation if the merger or consolidation is
caused by the interested stockholder and as a result of such merger or
consolidation, K.S.A. 17-12,101 and amendments thereto is not
applicable to the surviving corporation;
(2) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition, in one transaction or a series of transactions, except
proportionately as a stockholder of such corporation, to or with the
interested stockholder, whether as part of a dissolution or otherwise, of
assets of the corporation or of any direct or indirect majority-owned
subsidiary of the corporation, which assets have an aggregate market value
equal to 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;
(3) any transaction which results in the issuance or transfer by the
corporation or by any direct or indirect majority-owned subsidiary of the
corporation of any stock of the corporation or of such subsidiary to the
interested stockholder, except:
(A) Pursuant to the exercise, exchange or conversion of securities
exercisable for, exchangeable for or convertible into stock of such
corporation or any such subsidiary, which securities were outstanding prior
to the time that the interested stockholder became such;
(B) pursuant to a dividend or distribution paid or made, or the
exercise, exchange or conversion of securities exercisable for,
exchangeable for or convertible into stock of such corporation or any such
subsidiary, which security is distributed, pro rata to all holders of a
class or series of stock of such corporation subsequent to the time the
interested stockholder became such;
(C) pursuant to an exchange offer by the corporation to purchase stock
made on the same terms to all holders of such stock; or
(D) any issuance or transfer of stock by the corporation, except that in
no case under subsections (c)(3)(B) through (c)(3)(D) of this subsection shall there be an
increase in the interested stockholder's proportionate share of the stock
of any class or series of the corporation or of the voting stock of the corporation;
(4) any transaction involving the corporation or any direct or indirect
majority-owned subsidiary of the corporation which has the effect, directly
or indirectly, of increasing the proportionate share of the stock of any
class or series, or securities convertible into the stock of any class or
series, of the corporation or of any such subsidiary which is 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; or
(5) any receipt by the interested stockholder of the benefit, directly
or indirectly, except proportionately as a stockholder of such corporation,
of any loans, advances, guarantees, pledges, or other financial benefits,
other than those expressly permitted in subsections (c)(1) through (c)(4)
of this subsection provided by or through the corporation or any direct or indirect
majority-owned subsidiary.
(d) "Control," "controlling," "controlled by" and "under common control
with" mean 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 20% or more of a corporation's outstanding voting stock
shall be presumed to have control of such corporation, in the absence of
proof by a preponderance of the evidence to the contrary. 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
this section, as an agent, bank, broker, nominee, custodian or trustee for
one or more owners who do not individually or as a group have control of
such corporation.
(e) (1) "Interested stockholder" means any person, other than the
corporation and any direct or indirect majority-owned subsidiary of the
corporation, that is:
(A) The owner of 15% or more of the outstanding voting stock of the corporation; or
(B) an affiliate or associate of the corporation and was the owner of
15% or more of the outstanding voting stock of the corporation at any time
within the three-year period immediately prior to the date on which it is
sought to be determined whether such person is an interested stockholder
and the affiliates and associates of such person;
(2) the term interested stockholder shall not include:
(A) Any person who:
(i) Owned shares in excess of the 15% limitation as provided in this
subsection as of, or acquired such shares pursuant to a tender offer
commenced prior to, the effective date of this act or pursuant to an
exchange offer announced prior to the effective date of this act and
commenced within 90 days thereafter and continued to own shares in excess
of such 15% limitation or would have but for action by the corporation; or
(ii) acquired such shares from a person described in subsection
(e)(2)(i) by gift, inheritance or in a transaction in which no
consideration was exchanged; or
(B) any person whose ownership of shares in excess of the 15% limitation
as provided in this subsection (e) is the result of action taken solely by
the corporation. Such person shall be an interested stockholder if
thereafter such person acquires additional shares of voting stock of the
corporation, except as a result of further corporate action not caused,
directly or indirectly, by such person;
(3) for the purpose of determining whether a person is an interested
stockholder, the voting stock of the corporation deemed to be outstanding
shall include stock deemed to be owned by the person as provided in
subsection (h), but shall not include any other unissued stock of such
corporation which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or otherwise.
(f) "Person" means any individual, corporation, partnership,
unincorporated association or other entity.
(g) "Voting stock" means stock of any class or series entitled to vote
generally in the election of director.
(h) "Owner," "own" and "owned" when used with respect to any stock, mean
a person that individually or with or through any of its affiliates or associates:
(1) Beneficially owns such stock, directly or indirectly;
(2) (A) has the right to acquire such stock, whether such 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 such person or any of such person's affiliates or associates
until such tendered stock is accepted for purchase or exchange; or
(B) the right to vote such stock pursuant to any agreement, arrangement
or understanding. A person shall not be deemed the owner of any stock
because of such person's right to vote such stock 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 to 10 or more persons; or
(3) has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting, except voting pursuant to a revocable proxy or
consent as provided in subsection (h)(2)(B) of this subsection, or disposing of such stock
with any other person that beneficially owns, or whose affiliates or
associates beneficially own, directly or indirectly, such stock.
17-12,100.Business combinations with interested shareholders; definitions.
As used in this act:
(a) "Affiliate" means a person that directly, or indirectly through one
or more intermediaries, controls, or is controlled by, or is under common
control with, another person.
(b) "Associate," when used to indicate a relationship with any person, means:
(1) Any corporation or organization of which such person is a director,
officer or partner or is, directly or indirectly, the owner of 20% or more
of any class of voting stock;
(2) any trust or other estate in which such person has at least a 20%
beneficial interest or as to which such person serves as trustee or in a
similar fiduciary capacity; and
(3) any relative or spouse of such person, or any relative of such
spouse, who has the same residence as such person.
(c) "Business combination," when used in reference to any corporation
and any interested stockholder of such corporation, means:
(1) Any merger or consolidation of the corporation or of any direct or
indirect majority-owned subsidiary of the corporation with the interested
stockholder or with any other corporation if the merger or consolidation is
caused by the interested stockholder and as a result of such merger or
consolidation, K.S.A. 17-12,101 and amendments thereto is not
applicable to the surviving corporation;
(2) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition, in one transaction or a series of transactions, except
proportionately as a stockholder of such corporation, to or with the
interested stockholder, whether as part of a dissolution or otherwise, of
assets of the corporation or of any direct or indirect majority-owned
subsidiary of the corporation, which assets have an aggregate market value
equal to 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;
(3) any transaction which results in the issuance or transfer by the
corporation or by any direct or indirect majority-owned subsidiary of the
corporation of any stock of the corporation or of such subsidiary to the
interested stockholder, except:
(A) Pursuant to the exercise, exchange or conversion of securities
exercisable for, exchangeable for or convertible into stock of such
corporation or any such subsidiary, which securities were outstanding prior
to the time that the interested stockholder became such;
(B) pursuant to a dividend or distribution paid or made, or the
exercise, exchange or conversion of securities exercisable for,
exchangeable for or convertible into stock of such corporation or any such
subsidiary, which security is distributed, pro rata to all holders of a
class or series of stock of such corporation subsequent to the time the
interested stockholder became such;
(C) pursuant to an exchange offer by the corporation to purchase stock
made on the same terms to all holders of such stock; or
(D) any issuance or transfer of stock by the corporation, except that in
no case under subsections (c)(3)(B) through (c)(3)(D) of this subsection shall there be an
increase in the interested stockholder's proportionate share of the stock
of any class or series of the corporation or of the voting stock of the corporation;
(4) any transaction involving the corporation or any direct or indirect
majority-owned subsidiary of the corporation which has the effect, directly
or indirectly, of increasing the proportionate share of the stock of any
class or series, or securities convertible into the stock of any class or
series, of the corporation or of any such subsidiary which is 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; or
(5) any receipt by the interested stockholder of the benefit, directly
or indirectly, except proportionately as a stockholder of such corporation,
of any loans, advances, guarantees, pledges, or other financial benefits,
other than those expressly permitted in subsections (c)(1) through (c)(4)
of this subsection provided by or through the corporation or any direct or indirect
majority-owned subsidiary.
(d) "Control," "controlling," "controlled by" and "under common control
with" mean 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 20% or more of a corporation's outstanding voting stock
shall be presumed to have control of such corporation, in the absence of
proof by a preponderance of the evidence to the contrary. 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
this section, as an agent, bank, broker, nominee, custodian or trustee for
one or more owners who do not individually or as a group have control of
such corporation.
(e) (1) "Interested stockholder" means any person, other than the
corporation and any direct or indirect majority-owned subsidiary of the
corporation, that is:
(A) The owner of 15% or more of the outstanding voting stock of the corporation; or
(B) an affiliate or associate of the corporation and was the owner of
15% or more of the outstanding voting stock of the corporation at any time
within the three-year period immediately prior to the date on which it is
sought to be determined whether such person is an interested stockholder
and the affiliates and associates of such person;
(2) the term interested stockholder shall not include:
(A) Any person who:
(i) Owned shares in excess of the 15% limitation as provided in this
subsection as of, or acquired such shares pursuant to a tender offer
commenced prior to, the effective date of this act or pursuant to an
exchange offer announced prior to the effective date of this act and
commenced within 90 days thereafter and continued to own shares in excess
of such 15% limitation or would have but for action by the corporation; or
(ii) acquired such shares from a person described in subsection
(e)(2)(i) by gift, inheritance or in a transaction in which no
consideration was exchanged; or
(B) any person whose ownership of shares in excess of the 15% limitation
as provided in this subsection (e) is the result of action taken solely by
the corporation. Such person shall be an interested stockholder if
thereafter such person acquires additional shares of voting stock of the
corporation, except as a result of further corporate action not caused,
directly or indirectly, by such person;
(3) for the purpose of determining whether a person is an interested
stockholder, the voting stock of the corporation deemed to be outstanding
shall include stock deemed to be owned by the person as provided in
subsection (h), but shall not include any other unissued stock of such
corporation which may be issuable pursuant to any agreement, arrangement or
understanding, or upon exercise of conversion rights, warrants or options, or otherwise.
(f) "Person" means any individual, corporation, partnership,
unincorporated association or other entity.
(g) "Voting stock" means stock of any class or series entitled to vote
generally in the election of director.
(h) "Owner," "own" and "owned" when used with respect to any stock, mean
a person that individually or with or through any of its affiliates or associates:
(1) Beneficially owns such stock, directly or indirectly;
(2) (A) has the right to acquire such stock, whether such 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 such person or any of such person's affiliates or associates
until such tendered stock is accepted for purchase or exchange; or
(B) the right to vote such stock pursuant to any agreement, arrangement
or understanding. A person shall not be deemed the owner of any stock
because of such person's right to vote such stock 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 to 10 or more persons; or
(3) has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting, except voting pursuant to a revocable proxy or
consent as provided in subsection (h)(2)(B) of this subsection, or disposing of such stock
with any other person that beneficially owns, or whose affiliates or
associates beneficially own, directly or indirectly, such stock.