CHAPTER 78 - PRIVATE CORPORATIONS

Nevada Companies Act

Nevada - Private Corporations Nevada - Private Corporations Nevada - Private Corporations

ACQUISITION OF CONTROLLING INTEREST

NRS 78.378 Applicability; imposition of stricter requirements; protection of corporation and its stockholders

1. The provisions of NRS 78.378 to 78.3793, inclusive, apply to any acquisition of a controlling interest in an issuing corporation unless the articles of incorporation or bylaws of the corporation in effect on the 10th day following the acquisition of a controlling interest by an acquiring person provide that the provisions of those sections do not apply to the corporation or to an acquisition of a controlling interest specifically by types of existing or future stockholders, whether or not identified.

2. The articles of incorporation, the bylaws or a resolution adopted by the directors of the issuing corporation may impose stricter requirements on the acquisition of a controlling interest in the corporation than the provisions of NRS 78.378 to 78.3793, inclusive.

3. The provisions of NRS 78.378 to 78.3793, inclusive, do not restrict the directors of an issuing corporation from taking action to protect the interests of the corporation and its stockholders, including, but not limited to, adopting or signing plans, arrangements or instruments that deny rights, privileges, power or authority to a holder of a specified number of shares or percentage of share ownership or voting power.

NRS 78.3781 Definitions

As used in NRS 78.378 to 78.3793, inclusive, unless the context otherwise requires, the words and terms defined in NRS 78.3782 to 78.3788, inclusive, have the meanings ascribed to them in those sections.

(Added to NRS by 1987, 756)

NRS 78.3782 "Acquiring person" defined

"Acquiring person" means any person who, individually or in association with others, acquires or offers to acquire, directly or indirectly, a controlling interest in an issuing corporation. The term does not include any person who, in the ordinary course of business and without an intent to avoid the requirements of NRS 78.378 to 78.3793, inclusive, acquires voting shares for the benefit of others, in respect of which he is not specifically authorized to exercise or direct the exercise of voting rights.

(Added to NRS by 1987, 756)

NRS 78.3783 "Acquisition" defined

1. Except as otherwise provided in subsection 2, "acquisition" means the direct or indirect acquisition of a controlling interest.

2. "Acquisition" does not include any acquisition of shares in good faith, and without an intent to avoid the requirements of NRS 78.378 to 78.3793, inclusive:

(a) By an acquiring person authorized pursuant to NRS 78.378 to 78.3793, inclusive, to exercise voting rights, to the extent that the new acquisition does not result in the acquiring person obtaining a controlling interest greater than that previously authorized; or

(b) Pursuant to:

(1) The laws of descent and distribution;

(2) The enforcement of a judgment;

(3) The satisfaction of a pledge or other security interest; or

(4) A merger, exchange, conversion, domestication or reorganization effected in compliance with the provisions of NRS 78.622, 92A.200 to 92A.240, inclusive, or 92A.270 to which the issuing corporation is a party.

NRS 78.3784 "Control shares" defined

"Control shares" means those outstanding voting shares of an issuing corporation which an acquiring person and those persons acting in association with an acquiring person:

1. Acquire in an acquisition or offer to acquire in an acquisition; and

2. Acquire within 90 days immediately preceding the date when the acquiring person became an acquiring person.

(Added to NRS by 1987, 756)

NRS 78.3785 "Controlling interest" defined

"Controlling interest" means the ownership of outstanding voting shares of an issuing corporation sufficient, but for the provisions of NRS 78.378 to 78.3793, inclusive, to enable the acquiring person, directly or indirectly and individually or in association with others, to exercise:

1. One-fifth or more but less than one-third;

2. One-third or more but less than a majority; or

3. A majority or more,

Ê of all the voting power of the corporation in the election of directors.

(Added to NRS by 1987, 756)

NRS 78.3786 "Fair value" defined

"Fair value" means a value not less than the highest price per share paid by the acquiring person in an acquisition.

(Added to NRS by 1987, 756)

NRS 78.3787 "Interested stockholder" defined. "Interested stockholder" means a person who directly or indirectly exercises voting rights in the shares of an issuing corporation and who is:

1. An acquiring person;

2. An officer or a director of the corporation; or

3. An employee of the corporation.

NRS 78.3788 "Issuing corporation" defined. "Issuing corporation" means a corporation which is organized in this State and which:

1. Has 200 or more stockholders of record, at least 100 of whom have addresses in this State appearing on the stock ledger of the corporation; and

2. Does business in this State directly or through an affiliated corporation.

(Added to NRS by 1987, 757; A 1989, 877; 1999, 1588)

NRS 78.3789 Delivery of offeror's statement by acquiring person; contents of statement

An acquiring person who has made or offered to make an acquisition of a controlling interest in an issuing corporation may deliver an offeror's statement to the registered office of the corporation. The acquiring person may request in the statement that the directors of the corporation call a special meeting of the stockholders of the corporation, as provided in NRS 78.379. The statement must set forth:

1. A recital that the statement is given pursuant to this section;

2. The name of the acquiring person and of every person associated with him in the acquisition;

3. The number of shares in any class of voting securities owned, as of the date of the statement, by the acquiring person and each person with whom he is associated, or which the acquiring person intends to acquire;

4. The percentage of the voting securities of the corporation owned, as of the date of the statement, by the acquiring person and each person with whom he is associated, or which the acquiring person intends to acquire; and

5. If the acquiring person has not yet acquired the securities of the corporation, a detailed description of:

(a) The terms and conditions of the proposed acquisition; and

(b) The means by which any required consideration, and any indebtedness incurred to consummate the transaction, are to be paid.

(Added to NRS by 1987, 757; A 1993, 966)

NRS 78.379 Voting rights of acquiring person; meeting of stockholders; statements to accompany notice of meeting

1. An acquiring person and those acting in association with an acquiring person obtain only such voting rights in the control shares as are conferred by a resolution of the stockholders of the corporation, approved at a special or annual meeting of the stockholders.

2. If an acquiring person so requests in an offeror's statement delivered pursuant to NRS 78.3789, and if he gives an undertaking to pay the expenses of the meeting, the directors of the corporation shall, within 10 days after delivery of the statement, call a special meeting of the stockholders to determine the voting rights to be accorded the control shares.

3. A notice of any meeting of stockholders at which the question of voting rights is to be determined must be accompanied by:

(a) A complete copy of the offeror's statement; and

(b) A statement of the board of directors of the corporation setting forth the position of the board with respect to the acquisition or, if it is the case, stating that the board makes no recommendation concerning the matter.

4. A special meeting of stockholders called pursuant to this section:

(a) Must not be held before the expiration of 30 days after the delivery of the offeror's statement, unless the statement contains a request that the meeting be held sooner.

(b) Must be held within 50 days after the delivery of the statement, unless the acquiring person otherwise agrees in writing that the meeting may be held after that time.

5. If the offeror's statement does not include a request that a special meeting be called, the question of voting rights must be presented to the next special or annual meeting of the stockholders.

(Added to NRS by 1987, 757)

NRS 78.3791 Approval of voting rights of acquiring person

Except as otherwise provided by the articles of incorporation of the issuing corporation, a resolution of the stockholders granting voting rights to the control shares acquired by an acquiring person must be approved by:

1. The holders of a majority of the voting power of the corporation; and

2. If the acquisition would adversely alter or change any preference or any relative or other right given to any other class or series of outstanding shares, the holders of a majority of each class or series affected,

Ê excluding those shares as to which any interested stockholder exercises voting rights.

NRS 78.3792 Redemption of control shares

1. If so provided in the articles of incorporation or the bylaws of the issuing corporation in effect on the 10th day following the acquisition of a controlling interest by an acquiring person, the issuing corporation may call for redemption of not less than all the control shares at the average price paid for the control shares, if:

(a) An offeror's statement is not delivered with respect to the acquisition as provided in NRS 78.3789 on or before the 10th day after the acquisition of the control shares; or

(b) An offeror's statement is delivered, but the control shares are not accorded full voting rights by the stockholders.

2. The issuing corporation shall call for redemption within 30 days after the occurrence of the event prescribed in paragraph (a) or (b) of subsection 1, and the shares must be redeemed within 60 days after the call.

(Added to NRS by 1987, 758; A 1989, 877)

NRS 78.3793 Rights of dissenting stockholders.

Unless otherwise provided in the articles of incorporation or the bylaws of the issuing corporation in effect on the 10th day following the acquisition of a controlling interest by an acquiring person, if the control shares are accorded full voting rights pursuant to NRS 78.378 to 78.3793, inclusive, and the acquiring person has acquired control shares with a majority or more of all the voting power, any stockholder, as that term is defined in NRS 92A.325, other than the acquiring person, whose shares are not voted in favor of authorizing voting rights for the control shares may dissent in accordance with the provisions of NRS 92A.300 to 92A.500, inclusive, and obtain payment of the fair value of his shares.

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