(a) The provisions of Section 79-25-5 shall not apply to a business combination involving receipt of consideration in exchange for or in respect of the corporation's stock or assets in the circumstances specified in subsection (b) or (c) of this section or to a corporation meeting one (1) of the requirements of subsection (d) of this section.
(b) The vote required by Section 79-25-5 is not required if each of the following conditions is met:
(i) The aggregate amount of the cash and the market value as of the valuation date of consideration other than cash to be received per share by holders of common stock in such business combination is at least equal to the highest of the following:
(A) The highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the interested shareholder for any shares of common stock of the same class or series acquired by it
(1) Within the two-year period immediately prior to the announcement date of the proposal of the business combination, or
(2) In the transaction in which it became an interested shareholder, whichever is higher; or
(B) The market value per share of common stock of the same class or series on the announcement date or on the determination date, whichever is higher; or
(C) The price per share equal to the market value per share of common stock of the same class or series determined pursuant to subsection (b)(i)(B) of this section, multiplied by the fraction of:
(1) The highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the interested shareholder for any shares of common stock of the same class or series acquired by it within the two-year period prior to the announcement date; over
(2) The market value per share of common stock of the same class or series on the first day in such two-year period on which the interested stockholder acquired his stock.
(ii) The aggregate amount of the cash and the market value as of the valuation date of consideration other than cash to be received per share by holders of shares of any class or series of outstanding stock other than common stock is at least equal to the highest of the following (whether or not the interested shareholder has previously acquired any shares of a particular class or series of stock):
(A) The highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the interested shareholder for any shares of such class of stock acquired by it
(1) Within the two-year period immediately prior to the announcement date of the proposal of the business combination, or
(2) In the transaction in which it became an interested shareholder, whichever is higher; or
(B) The highest preferential amount per share to which the holders of shares of such class of stock are entitled in the event of any voluntary or involuntary liquidation, dissolution or winding up of the corporation; or
(C) The market value per share of such class of stock on the announcement date or on the determination date, whichever is higher; or
(D) The price per share equal to the market value per share of such class of stock determined pursuant to subsection (b)(ii)(c) of this section, multiplied by the fraction of:
(1) The highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the interested shareholder for any shares of any class of voting stock acquired by it within the two-year period immediately prior to the announcement date; over
(2) The market value per share of the same class of voting stock on the first day in such two-year period on which the interested shareholder acquired any shares of the same class of voting stock.
(iii) The consideration to be received by holders of any class or series of outstanding stock is to be in cash or in the same form as the interested shareholder has previously paid for shares of the same class or series of stock. If the interested shareholder has paid for shares of any class of stock with varying forms of consideration, the form of consideration for such class of stock shall be either cash or the form used to acquire the largest number of shares of such class or series of stock previously acquired by it. In making any price calculation under subsection (a) of this section, appropriate adjustments shall be made to reflect any reclassification, stock dividend, stock split, recapitalization or similar transaction which may increase or reduce the number of outstanding shares of any class or series of stock of the corporation.
(iv) After the interested shareholder has become an interested shareholder and prior to the consummation of such business combination:
(A) There shall have been no failure to declare and pay at the regular date therefor any full periodic dividends (whether or not cumulative) on any outstanding preferred stock of the corporation.
(B) There shall have been:
(1) No reduction in the annual rate of dividends paid on any class or series of stock of the corporation that is not preferred stock of the corporation (except as necessary to reflect any subdivision of the stock); and
(2) An increase in such annual rate of dividends as necessary to reflect any reclassification, stock dividend, stock split, recapitalization, reorganization or any similar transaction, which has the effect of reducing the number of outstanding shares of the stock.
(C) The interested shareholder shall not have become the beneficial owner of any additional shares of stock of the corporation except as part of the transaction which resulted in such interested shareholder becoming an interested shareholder or by virtue of proportionate stock splits or stock dividends.
(v) After the interested shareholder has become an interested shareholder, the interested shareholder shall not have received the benefit, directly or indirectly (except proportionately as a shareholder), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages, provided by the corporation or any of its subsidiaries, whether in anticipation of or in connection with such business combination or otherwise.
(c) Whether or not such business combinations are consummated in whole or in part after July 1, 1985, or after the interested shareholder became an interested shareholder, the requirements of Section 79-25-5, do not apply to business combinations that specifically, generally, or generally by types, as to specifically identified or unidentified existing or future interested stockholders or their affiliates, have been approved or exempted therefrom by resolution approved by at least eighty percent (80%) of the continuing directors of the corporation.
(d) Unless the certificate of incorporation of the corporation provides otherwise, the requirements of subsection (2) of this section do not apply to any business combination of:
(i) A corporation having fewer than five hundred (500) beneficial owners of its stock; or
(ii) A corporation which elects not to be governed by the requirements of Section 79-25-5 by the adoption, upon a majority vote of its shareholders, of an amendment to its certificate of incorporation within one (1) year from and after July 1, 1985, for existing corporations, or within one (1) year from and after the date of incorporation for corporations organized after July 1, 1985; or
(iii) An investment company registered under the Investment Company Act of 1940; or
(iv) Any state or national bank or any bank holding company or any affiliate thereof authorized by the appropriate regulatory authority to be owned by any of the above; or
(v) Any state or federal savings and loan association, savings bank or similar savings institution, and any holding company or other affiliate of any state or federal savings and loan association, savings bank or similar savings institution.
Sources: Laws, 1985, ch. 449, § 2(3), eff from and after July 1, 1985.
(a) The provisions of Section 79-25-5 shall not apply to a business combination involving receipt of consideration in exchange for or in respect of the corporation's stock or assets in the circumstances specified in subsection (b) or (c) of this section or to a corporation meeting one (1) of the requirements of subsection (d) of this section.
(b) The vote required by Section 79-25-5 is not required if each of the following conditions is met:
(i) The aggregate amount of the cash and the market value as of the valuation date of consideration other than cash to be received per share by holders of common stock in such business combination is at least equal to the highest of the following:
(A) The highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the interested shareholder for any shares of common stock of the same class or series acquired by it
(1) Within the two-year period immediately prior to the announcement date of the proposal of the business combination, or
(2) In the transaction in which it became an interested shareholder, whichever is higher; or
(B) The market value per share of common stock of the same class or series on the announcement date or on the determination date, whichever is higher; or
(C) The price per share equal to the market value per share of common stock of the same class or series determined pursuant to subsection (b)(i)(B) of this section, multiplied by the fraction of:
(1) The highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the interested shareholder for any shares of common stock of the same class or series acquired by it within the two-year period prior to the announcement date; over
(2) The market value per share of common stock of the same class or series on the first day in such two-year period on which the interested stockholder acquired his stock.
(ii) The aggregate amount of the cash and the market value as of the valuation date of consideration other than cash to be received per share by holders of shares of any class or series of outstanding stock other than common stock is at least equal to the highest of the following (whether or not the interested shareholder has previously acquired any shares of a particular class or series of stock):
(A) The highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the interested shareholder for any shares of such class of stock acquired by it
(1) Within the two-year period immediately prior to the announcement date of the proposal of the business combination, or
(2) In the transaction in which it became an interested shareholder, whichever is higher; or
(B) The highest preferential amount per share to which the holders of shares of such class of stock are entitled in the event of any voluntary or involuntary liquidation, dissolution or winding up of the corporation; or
(C) The market value per share of such class of stock on the announcement date or on the determination date, whichever is higher; or
(D) The price per share equal to the market value per share of such class of stock determined pursuant to subsection (b)(ii)(c) of this section, multiplied by the fraction of:
(1) The highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the interested shareholder for any shares of any class of voting stock acquired by it within the two-year period immediately prior to the announcement date; over
(2) The market value per share of the same class of voting stock on the first day in such two-year period on which the interested shareholder acquired any shares of the same class of voting stock.
(iii) The consideration to be received by holders of any class or series of outstanding stock is to be in cash or in the same form as the interested shareholder has previously paid for shares of the same class or series of stock. If the interested shareholder has paid for shares of any class of stock with varying forms of consideration, the form of consideration for such class of stock shall be either cash or the form used to acquire the largest number of shares of such class or series of stock previously acquired by it. In making any price calculation under subsection (a) of this section, appropriate adjustments shall be made to reflect any reclassification, stock dividend, stock split, recapitalization or similar transaction which may increase or reduce the number of outstanding shares of any class or series of stock of the corporation.
(iv) After the interested shareholder has become an interested shareholder and prior to the consummation of such business combination:
(A) There shall have been no failure to declare and pay at the regular date therefor any full periodic dividends (whether or not cumulative) on any outstanding preferred stock of the corporation.
(B) There shall have been:
(1) No reduction in the annual rate of dividends paid on any class or series of stock of the corporation that is not preferred stock of the corporation (except as necessary to reflect any subdivision of the stock); and
(2) An increase in such annual rate of dividends as necessary to reflect any reclassification, stock dividend, stock split, recapitalization, reorganization or any similar transaction, which has the effect of reducing the number of outstanding shares of the stock.
(C) The interested shareholder shall not have become the beneficial owner of any additional shares of stock of the corporation except as part of the transaction which resulted in such interested shareholder becoming an interested shareholder or by virtue of proportionate stock splits or stock dividends.
(v) After the interested shareholder has become an interested shareholder, the interested shareholder shall not have received the benefit, directly or indirectly (except proportionately as a shareholder), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages, provided by the corporation or any of its subsidiaries, whether in anticipation of or in connection with such business combination or otherwise.
(c) Whether or not such business combinations are consummated in whole or in part after July 1, 1985, or after the interested shareholder became an interested shareholder, the requirements of Section 79-25-5, do not apply to business combinations that specifically, generally, or generally by types, as to specifically identified or unidentified existing or future interested stockholders or their affiliates, have been approved or exempted therefrom by resolution approved by at least eighty percent (80%) of the continuing directors of the corporation.
(d) Unless the certificate of incorporation of the corporation provides otherwise, the requirements of subsection (2) of this section do not apply to any business combination of:
(i) A corporation having fewer than five hundred (500) beneficial owners of its stock; or
(ii) A corporation which elects not to be governed by the requirements of Section 79-25-5 by the adoption, upon a majority vote of its shareholders, of an amendment to its certificate of incorporation within one (1) year from and after July 1, 1985, for existing corporations, or within one (1) year from and after the date of incorporation for corporations organized after July 1, 1985; or
(iii) An investment company registered under the Investment Company Act of 1940; or
(iv) Any state or national bank or any bank holding company or any affiliate thereof authorized by the appropriate regulatory authority to be owned by any of the above; or
(v) Any state or federal savings and loan association, savings bank or similar savings institution, and any holding company or other affiliate of any state or federal savings and loan association, savings bank or similar savings institution.
Sources: Laws, 1985, ch. 449, § 2(3), eff from and after July 1, 1985.
(a) The provisions of Section 79-25-5 shall not apply to a business combination involving receipt of consideration in exchange for or in respect of the corporation's stock or assets in the circumstances specified in subsection (b) or (c) of this section or to a corporation meeting one (1) of the requirements of subsection (d) of this section.
(b) The vote required by Section 79-25-5 is not required if each of the following conditions is met:
(i) The aggregate amount of the cash and the market value as of the valuation date of consideration other than cash to be received per share by holders of common stock in such business combination is at least equal to the highest of the following:
(A) The highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the interested shareholder for any shares of common stock of the same class or series acquired by it
(1) Within the two-year period immediately prior to the announcement date of the proposal of the business combination, or
(2) In the transaction in which it became an interested shareholder, whichever is higher; or
(B) The market value per share of common stock of the same class or series on the announcement date or on the determination date, whichever is higher; or
(C) The price per share equal to the market value per share of common stock of the same class or series determined pursuant to subsection (b)(i)(B) of this section, multiplied by the fraction of:
(1) The highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the interested shareholder for any shares of common stock of the same class or series acquired by it within the two-year period prior to the announcement date; over
(2) The market value per share of common stock of the same class or series on the first day in such two-year period on which the interested stockholder acquired his stock.
(ii) The aggregate amount of the cash and the market value as of the valuation date of consideration other than cash to be received per share by holders of shares of any class or series of outstanding stock other than common stock is at least equal to the highest of the following (whether or not the interested shareholder has previously acquired any shares of a particular class or series of stock):
(A) The highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the interested shareholder for any shares of such class of stock acquired by it
(1) Within the two-year period immediately prior to the announcement date of the proposal of the business combination, or
(2) In the transaction in which it became an interested shareholder, whichever is higher; or
(B) The highest preferential amount per share to which the holders of shares of such class of stock are entitled in the event of any voluntary or involuntary liquidation, dissolution or winding up of the corporation; or
(C) The market value per share of such class of stock on the announcement date or on the determination date, whichever is higher; or
(D) The price per share equal to the market value per share of such class of stock determined pursuant to subsection (b)(ii)(c) of this section, multiplied by the fraction of:
(1) The highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the interested shareholder for any shares of any class of voting stock acquired by it within the two-year period immediately prior to the announcement date; over
(2) The market value per share of the same class of voting stock on the first day in such two-year period on which the interested shareholder acquired any shares of the same class of voting stock.
(iii) The consideration to be received by holders of any class or series of outstanding stock is to be in cash or in the same form as the interested shareholder has previously paid for shares of the same class or series of stock. If the interested shareholder has paid for shares of any class of stock with varying forms of consideration, the form of consideration for such class of stock shall be either cash or the form used to acquire the largest number of shares of such class or series of stock previously acquired by it. In making any price calculation under subsection (a) of this section, appropriate adjustments shall be made to reflect any reclassification, stock dividend, stock split, recapitalization or similar transaction which may increase or reduce the number of outstanding shares of any class or series of stock of the corporation.
(iv) After the interested shareholder has become an interested shareholder and prior to the consummation of such business combination:
(A) There shall have been no failure to declare and pay at the regular date therefor any full periodic dividends (whether or not cumulative) on any outstanding preferred stock of the corporation.
(B) There shall have been:
(1) No reduction in the annual rate of dividends paid on any class or series of stock of the corporation that is not preferred stock of the corporation (except as necessary to reflect any subdivision of the stock); and
(2) An increase in such annual rate of dividends as necessary to reflect any reclassification, stock dividend, stock split, recapitalization, reorganization or any similar transaction, which has the effect of reducing the number of outstanding shares of the stock.
(C) The interested shareholder shall not have become the beneficial owner of any additional shares of stock of the corporation except as part of the transaction which resulted in such interested shareholder becoming an interested shareholder or by virtue of proportionate stock splits or stock dividends.
(v) After the interested shareholder has become an interested shareholder, the interested shareholder shall not have received the benefit, directly or indirectly (except proportionately as a shareholder), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages, provided by the corporation or any of its subsidiaries, whether in anticipation of or in connection with such business combination or otherwise.
(c) Whether or not such business combinations are consummated in whole or in part after July 1, 1985, or after the interested shareholder became an interested shareholder, the requirements of Section 79-25-5, do not apply to business combinations that specifically, generally, or generally by types, as to specifically identified or unidentified existing or future interested stockholders or their affiliates, have been approved or exempted therefrom by resolution approved by at least eighty percent (80%) of the continuing directors of the corporation.
(d) Unless the certificate of incorporation of the corporation provides otherwise, the requirements of subsection (2) of this section do not apply to any business combination of:
(i) A corporation having fewer than five hundred (500) beneficial owners of its stock; or
(ii) A corporation which elects not to be governed by the requirements of Section 79-25-5 by the adoption, upon a majority vote of its shareholders, of an amendment to its certificate of incorporation within one (1) year from and after July 1, 1985, for existing corporations, or within one (1) year from and after the date of incorporation for corporations organized after July 1, 1985; or
(iii) An investment company registered under the Investment Company Act of 1940; or
(iv) Any state or national bank or any bank holding company or any affiliate thereof authorized by the appropriate regulatory authority to be owned by any of the above; or
(v) Any state or federal savings and loan association, savings bank or similar savings institution, and any holding company or other affiliate of any state or federal savings and loan association, savings bank or similar savings institution.
Sources: Laws, 1985, ch. 449, § 2(3), eff from and after July 1, 1985.
