16-10a-1804. Scope of part. This part does not apply to:
(1)
a business combination of a domestic corporation that does not have a class of voting stock registered with the Securities and Exchange Commission pursuant to Exchange Act, Sec. 12, 15 U.S.C. § 78l, unless the articles of incorporation provide otherwise;
Terms Used In Utah Code 16-10a-1804
Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
Announcement date: when used in reference to a business combination, means the date of the first public announcement of the final, definitive proposal for the business combination. See Utah Code 16-10a-1802
Articles of incorporation: include :
(a)
amended and restated articles of incorporation;
(b)
articles of merger; and
(c)
a document of a similar import to those described in Subsections (4)(a) and (b). See Utah Code 16-10a-102
Beneficial owner: when used with respect to stock, means a person:
(a)
that, individually or with or through any of its affiliates or associates, beneficially owns the stock, directly or indirectly;
(b)
that, individually or with or through any of its affiliates or associates, has:
(i)
the right to acquire the stock:
(A)
whether the right is exercisable immediately or only after the passage of time, pursuant to an agreement, arrangement, or understanding, whether or not in writing; or
(B)
upon the exercise of conversion rights, exchange rights, warrants, or options, or otherwise, except that a person may not be considered the beneficial owner of stock tendered pursuant to a tender or exchange offer made by the person or an affiliate or associate of the person until the tendered stock is accepted for purchase or exchange; or
(ii)
the right to vote the stock pursuant to an agreement, arrangement, or understanding, whether or not in writing, except that a person may not be considered the beneficial owner of any stock under this Subsection (4)(b)(ii) 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 in accordance with the applicable regulations under the Exchange Act and is not then reportable on a Schedule 13D under the Exchange Act, or any comparable or successor report; or
(c)
that has an agreement, arrangement, or understanding, whether or not in writing, for the purpose of acquiring, holding, voting, except voting pursuant to a revocable proxy or consent as described in Subsection (4)(b)(ii), or disposing of the stock with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, the stock. See Utah Code 16-10a-1802
Business combination: when used in reference to any domestic corporation and an interested shareholder of the corporation, means:
(a)
a merger or consolidation of the corporation or any subsidiary of the corporation with:
(i)
the interested shareholder; or
(ii)
any other corporation, whether or not that corporation is an interested shareholder of the corporation, that is, or after the merger or consolidation would be, an affiliate or associate of the interested shareholder;
(b)
any sale, lease, exchange, mortgage, pledge, transfer, or other disposition, in one transaction or a series of transactions, to or with the interested shareholder or any affiliate or associate of the interested shareholder of assets of the corporation or any subsidiary of the corporation:
(i)
having an aggregate market value equal to 10% or more of the aggregate market value of all the assets, determined on a consolidated basis, of the corporation;
(ii)
having an aggregate market value equal to 10% or more of the aggregate market value of all the outstanding stock of the corporation; or
(iii)
representing 10% or more of the earning power or net income, determined on a consolidated basis, of the corporation;
(c)
the issuance or transfer by the corporation or any subsidiary of the corporation, in one transaction or a series of transactions, of any stock of the corporation or any subsidiary of the corporation that has an aggregate market value equal to 5% or more of the aggregate market value of all the outstanding stock of the corporation to the interested shareholder or any affiliate or associate of the interested shareholder except pursuant to the exercise of warrants or rights to purchase stock offered, or a dividend or distribution paid or made, pro rata to all shareholders of the corporation;
(d)
the adoption of any plan or proposal for the liquidation or dissolution of the corporation proposed by, or pursuant to any agreement, arrangement, or understanding, whether or not in writing, with, the interested shareholder or any affiliate or associate of the interested shareholder;
(e)
any reclassification of securities, including a stock split, stock dividend, or other distribution of stock in respect of stock, or any reverse stock split, or recapitalization of the corporation, or any merger or consolidation of the corporation with any subsidiary of the corporation, or any other transaction, whether or not with, into, or otherwise involving the interested shareholder:
(i)
proposed by, or pursuant to any agreement, arrangement, or understanding, whether or not in writing, with, the interested shareholder or any affiliate or associate of the interested shareholder; and
(ii)
that has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class or series of voting stock or securities convertible into voting stock of the corporation or any subsidiary of the corporation that is directly or indirectly owned by the interested shareholder or any affiliate or associate of the interested shareholder, except as a result of immaterial changes due to fractional share adjustments; or
(f)
a receipt by the interested shareholder or an affiliate or associate of the interested shareholder of the benefit, directly or indirectly, except proportionately as a shareholder of the corporation, of a loan, advance, guarantee, pledge, or other financial assistance or any tax credit or other tax advantage provided by or through the corporation. See Utah Code 16-10a-1802
Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
domestic corporation: means a corporation for profit that:
Interested shareholder: when used in reference to a domestic corporation, means a person, other than the corporation or a subsidiary of the corporation, that:
(i)
is the beneficial owner, directly or indirectly, of 20% or more of the outstanding voting stock of the corporation; or
(ii)
is an affiliate or associate of the corporation and at any time within the five-year period immediately before the date in question was the beneficial owner, directly or indirectly, of 20% or more of the then outstanding voting stock of the corporation. See Utah Code 16-10a-1802
Shareholder: means :
(i)
the person in whose name a share is registered in the records of a corporation; or
a stock or similar security, a certificate of interest, any participation in a profit sharing agreement, a voting trust certificate, or a certificate of deposit for stock;
(b)
a security convertible, with or without consideration, into stock;
(c)
a warrant, call, or other option or privilege of buying stock without being bound to do so; or
(d)
any other security carrying a right to acquire, subscribe to, or purchase stock. See Utah Code 16-10a-1802
Voting stock: means shares of capital stock of a corporation entitled to vote generally in the election of directors. See Utah Code 16-10a-1802
(2)
a business combination of a domestic corporation whose articles of incorporation are amended to provide that the domestic corporation is subject to this part that:
(a)
did not have a class of voting stock registered with the Securities and Exchange Commission pursuant to Exchange Act, Sec. 12, 15 U.S.C. § 78l, on the effective date of the amendment; and
(b)
is a business combination with an interested shareholder whose stock acquisition date is before the effective date of the amendment;
(3)
a business combination of a domestic corporation:
(a)
the original articles of incorporation of which contain a provision expressly electing not to be governed by this part;
(b)
that adopts an amendment to the corporation’s bylaws before December 31, 2017, expressly electing not to be governed by this part; or
(c)
that adopts an amendment to the corporation’s bylaws, approved by the affirmative vote of a majority of votes of the outstanding voting stock of the corporation, excluding the voting stock of interested shareholders and the interested shareholders’ affiliates and associates, expressly electing not to be governed by this part, provided that the amendment to the bylaws:
(i)
may not be effective until 18 months after the vote of the corporation’s shareholders; and
(ii)
may not apply to a business combination of the corporation with an interested shareholder whose stock acquisition date is on or before the effective date of the amendment;
(4)
a domestic corporation in the mineral extractive industry, including exploration, development, sand and gravel, mining, smelting, or refining of mineral properties;
(5)
any business combination of a domestic corporation with an interested shareholder of the corporation that became an interested shareholder inadvertently, if the interested shareholder:
(a)
as soon as practicable, divests itself of a sufficient amount of the voting stock of the corporation so that it no longer is the beneficial owner, directly or indirectly, of 20% or more of the outstanding voting stock of the corporation; and
(b)
would not at any time within the five-year period preceding the announcement date with respect to the business combination have been an interested shareholder but for the inadvertent acquisition; or
(6)
any business combination with an interested shareholder who was the beneficial owner, directly or indirectly, of 5% or more of the outstanding voting stock of the corporation on May 9, 2017, and remained so to the interested shareholder’s stock acquisition date.
