New York Laws
Article 9 - Merger or Consolidation; Guarantee; Disposition of Assets; Share Exchanges
912 - Requirements Relating to Certain Business Combinations.

(a) For the purposes of this section:
(1) "Affiliate" means a person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under
common control with, a specified person.
(2) "Announcement date", when used in reference to any business
combination, means the date of the first public announcement of the
final, definitive proposal for such business combination.
(3) "Associate", when used to indicate a relationship with any person,
means (A) any corporation or organization of which such person is an
officer or partner or is, directly or indirectly, the beneficial owner
of ten percent or more of any class of voting stock, (B) any trust or
other estate in which such person has a substantial beneficial interest
or as to which such person serves as trustee or in a similar fiduciary
capacity, and (C) any relative or spouse of such person, or any relative
of such spouse, who has the same home as such person.
(4) "Beneficial owner", when used with respect to any stock, means a
person:
(A) that, individually or with or through any of its affiliates or
associates, beneficially owns such stock, directly or indirectly; or
(B) that, individually or with or through any of its affiliates or
associates, has (i) 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 (whether or not in
writing), or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise; provided, however, that a person
shall not be deemed the beneficial 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 (ii) the right to vote such stock pursuant to
any agreement, arrangement or understanding (whether or not in writing);
provided, however, that a person shall not be deemed the beneficial
owner of any stock under this item if the agreement, arrangement or
understanding to vote such stock (X) arises solely from a revocable
proxy or consent given in response to a proxy or consent solicitation
made in accordance with the applicable rules and regulations under the
Exchange Act and (Y) is not then reportable on a Schedule 13D under the
Exchange Act (or any comparable or successor report); or
(C) that has any 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 item
(ii) of clause (B) of this subparagraph), or disposing of such stock
with any other person that beneficially owns, or whose affiliates or
associates beneficially own, directly or indirectly, such stock.
(5) "Business combination", when used in reference to any domestic
corporation and any interested shareholder of such corporation, means:
(A) any merger or consolidation of such corporation or any subsidiary
of such corporation with (i) such interested shareholder or (ii) any
other corporation (whether or not itself an interested shareholder of
such corporation) which is, or after such merger or consolidation would
be, an affiliate or associate of such interested shareholder;
(B) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions) to or with
such interested shareholder or any affiliate or associate of such
interested shareholder of assets of such corporation or any subsidiary
of such corporation (i) having an aggregate market value equal to ten
percent or more of the aggregate market value of all the assets,
determined on a consolidated basis, of such corporation, (ii) having an

aggregate market value equal to ten percent or more of the aggregate
market value of all the outstanding stock of such corporation, or (iii)
representing ten percent or more of the earning power or net income
determined on a consolidated basis, of such corporation;
(C) the issuance or transfer by such corporation or any subsidiary of
such corporation (in one transaction or a series of transactions) of any
stock of such corporation or any subsidiary of such corporation which
has an aggregate market value equal to five percent or more of the
aggregate market value of all the outstanding stock of such corporation
to such interested shareholder or any affiliate or associate of such
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 such corporation;
(D) the adoption of any plan or proposal for the liquidation or
dissolution of such corporation proposed by, or pursuant to any
agreement, arrangement or understanding (whether or not in writing)
with, such interested shareholder or any affiliate or associate of such
interested shareholder;
(E) any reclassification of securities (including, without limitation,
any stock split, stock dividend, or other distribution of stock in
respect of stock, or any reverse stock split), or recapitalization of
such corporation, or any merger or consolidation of such corporation
with any subsidiary of such corporation, or any other transaction
(whether or not with or into or otherwise involving such interested
shareholder), proposed by, or pursuant to any agreement, arrangement or
understanding (whether or not in writing) with, such interested
shareholder or any affiliate or associate of such interested
shareholder, which 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 such
corporation or any subsidiary of such corporation which is directly or
indirectly owned by such interested shareholder or any affiliate or
associate of such interested shareholder, except as a result of
immaterial changes due to fractional share adjustments; or
(F) any receipt by such interested shareholder or any affiliate or
associate of such interested shareholder of the benefit, directly or
indirectly (except proportionately as a shareholder of such corporation)
of any loans, advances, guarantees, pledges or other financial
assistance or any tax credits or other tax advantages provided by or
through such corporation.
(6) "Common stock" means any stock other than preferred stock.
(7) "Consummation date", with respect to any business combination,
means the date of consummation of such business combination, or, in the
case of a business combination as to which a shareholder vote is taken,
the later of the business day prior to the vote or twenty days prior to
the date of consummation of such business combination.
(8) "Control", including the terms "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's beneficial ownership
of ten percent or more of a corporation's outstanding voting stock shall
create a presumption that such person has control of such corporation.
Notwithstanding the foregoing, a person shall not be deemed to have
control of a corporation if such person holds voting stock, in good
faith and not for the the purpose of circumventing this section, as an
agent, bank, broker, nominee, custodian or trustee for one or more

beneficial owners who do not individually or as a group have control of
such corporation.
(9) "Exchange Act" means the Act of Congress known as the Securities
Exchange Act of 1934, as the same has been or hereafter may be amended
from time to time.
(10) "Interested shareholder", when used in reference to any domestic
corporation, means any person (other than such corporation or any
subsidiary of such corporation) that
(A) (i) is the beneficial owner, directly or indirectly, of twenty
percent or more of the outstanding voting stock of such corporation; or
(ii) is an affiliate or associate of such corporation and at any time
within the five-year period immediately prior to the date in question
was the beneficial owner, directly or indirectly, of twenty percent or
more of the then outstanding voting stock of such corporation; provided
that
(B) for the purpose of determining whether a person is an interested
shareholder, the number of shares of voting stock of such corporation
deemed to be outstanding shall include shares deemed to be beneficially
owned by the person through application of subparagraph four of this
paragraph but shall not include any other unissued shares of voting
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.
(11) "Market value", when used in reference to stock or property of
any domestic corporation, means:
(A) in the case of stock, the highest closing sale price during the
thirty-day period immediately preceding the date in question of a share
of such stock on the composite tape for New York stock exchange-listed
stocks, or, if such stock is not quoted on such composite tape or if
such stock is not listed on such exchange, on the principal United
States securities exchange registered under the Exchange Act on which
such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share of
such stock during the thirty-day period preceding the date in question
on the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or if no such quotations
are available, the fair market value on the date in question of a share
of such stock as determined by the board of directors of such
corporation in good faith; and
(B) in the case of property other than cash or stock, the fair market
value of such property on the date in question as determined by the
board of directors of such corporation in good faith.
(12) "Preferred stock" means any class or series of stock of a
domestic corporation which under the by-laws or certificate of
incorporation of such corporation is entitled to receive payment of
dividends prior to any payment of dividends on some other class or
series of stock, or is entitled in the event of any voluntary
liquidation, dissolution or winding up of the corporation to receive
payment or distribution of a preferential amount before any payments or
distributions are received by some other class or series of stock.
(14) "Stock" means:
(A) any stock or similar security, any certificate of interest, any
participation in any profit sharing agreement, any voting trust
certificate, or any certificate of deposit for stock; and
(B) any security convertible, with or without consideration, into
stock, or any warrant, call or other option or privilege of buying stock
without being bound to do so, or any other security carrying any right
to acquire, subscribe to or purchase stock.
(15) "Stock acquisition date", with respect to any person and any
domestic corporation, means the date that such person first becomes an
interested shareholder of such corporation.
(16) "Subsidiary" of any person means any other corporation of which a
majority of the voting stock is owned, directly or indirectly, by such
person.
(17) "Voting stock" means shares of capital stock of a corporation
entitled to vote generally in the election of directors.
(b) Notwithstanding anything to the contrary contained in this chapter
(except the provisions of paragraph (d) of this section), no domestic
corporation shall engage in any business combination with any interested
shareholder of such corporation for a period of five years following
such interested shareholder's stock acquisition date unless such
business combination or the purchase of stock made by such interested
shareholder on such interested shareholder's stock acquisition date is
approved by the board of directors of such corporation prior to such
interested shareholder's stock acquisition date. If a good faith
proposal is made in writing to the board of directors of such
corporation regarding a business combination, the board of directors
shall respond, in writing, within thirty days or such shorter period, if
any, as may be required by the Exchange Act, setting forth its reasons
for its decision regarding such proposal. If a good faith proposal to
purchase stock is made in writing to the board of directors of such
corporation, the board of directors, unless it responds affirmatively in
writing within thirty days or such shorter period, if any, as may be
required by the Exchange Act, shall be deemed to have disapproved such
stock purchase.
(c) Notwithstanding anything to the contrary contained in this chapter
(except the provisions of paragraphs (b) and (d) of this section), no
domestic corporation shall engage at any time in any business
combination with any interested shareholder of such corporation other
than a business combination specified in any one of subparagraph (1),
(2) or (3):
(1) A business combination approved by the board of directors of such
corporation prior to such interested shareholder's stock acquisition
date, or where the purchase of stock made by such interested shareholder
on such interested shareholder's stock acquisition date had been
approved by the board of directors of such corporation prior to such
interested shareholder's stock acquisition date.
(2) A business combination approved by the affirmative vote of the
holders of a majority of the outstanding voting stock not beneficially
owned by such interested shareholder or any affiliate or associate of
such interested shareholder at a meeting called for such purpose no
earlier than five years after such interested shareholder's stock
acquisition date.
(3) A business combination that meets all of the following conditions:
(A) The aggregate amount of the cash and the market value as of the
consummation date of consideration other than cash to be received per
share by holders of outstanding shares of common stock of such
corporation in such business combination is at least equal to the higher
of the following:
(i) the highest per share price paid by such interested shareholder at
a time when he was the beneficial owner, directly or indirectly, of five
percent or more of the outstanding voting stock of such corporation, for
any shares of common stock of the same class or series acquired by it
(X) within the five-year period immediately prior to the announcement
date with respect to such business combination, or (Y) within the
five-year period immediately prior to, or in, the transaction in which

such interested shareholder became an interested shareholder, whichever
is higher; plus, in either case, interest compounded annually from the
earliest date on which such highest per share acquisition price was paid
through the consummation date at the rate for one-year United States
treasury obligations from time to time in effect; less the aggregate
amount of any cash dividends paid, and the market value of any dividends
paid other than in cash, per share of common stock since such earliest
date, up to the amount of such interest; and
(ii) the market value per share of common stock on the announcement
date with respect to such business combination or on such interested
shareholder's stock acquisition date, whichever is higher; plus interest
compounded annually from such date through the consummation date at the
rate for one-year United States treasury obligations from time to time
in effect; less the aggregate amount of any cash dividends paid, and the
market value of any dividends paid other than in cash, per share of
common stock since such date, up to the amount of such interest.
(B) The aggregate amount of the cash and the market value as of the
consummation date of consideration other than cash to be received per
share by holders of outstanding shares of any class or series of stock,
other than common stock, of such corporation is at least equal to the
highest of the following (whether or not such interested shareholder has
previously acquired any shares of such class or series of stock):
(i) the highest per share price paid by such interested shareholder at
a time when he was the beneficial owner, directly or indirectly, of five
percent or more of the outstanding voting stock of such corporation, for
any shares of such class or series of stock acquired by it (X) within
the five-year period immediately prior to the announcement date with
respect to such business combination, or (Y) within the five-year period
immediately prior to, or in, the transaction in which such interested
shareholder became an interested shareholder, whichever is higher; plus,
in either case, interest compounded annually from the earliest date on
which such highest per share acquisition price was paid through the
consummation date at the rate for one-year United States treasury
obligations from time to time in effect; less the aggregate amount of
any cash dividends paid, and the market value of any dividends paid
other than in cash, per share of such class or series of stock since
such earliest date, up to the amount of such interest;
(ii) the highest preferential amount per share to which the holders of
shares of such class or series of stock are entitled in the event of any
voluntary liquidation, dissolution or winding up of such corporation,
plus the aggregate amount of any dividends declared or due as to which
such holders are entitled prior to payment of dividends on some other
class or series of stock (unless the aggregate amount of such dividends
is included in such preferential amount); and
(iii) the market value per share of such class or series of stock on
the announcement date with respect to such business combination or on
such interested shareholder's stock acquisition date, whichever is
higher; plus interest compounded annually from such date through the
consummation date at the rate for one-year United States treasury
obligations from time to time in effect; less the aggregate amount of
any cash dividends paid, and the market value of any dividends paid
other than in cash, per share of such class or series of stock since
such date, up to the amount of such interest.
(C) The consideration to be received by holders of a particular class
or series of outstanding stock (including common stock) of such
corporation in such business combination is in cash or in the same form
as the interested shareholder has used to acquire the largest number of

shares of such class or series of stock previously acquired by it, and
such consideration shall be distributed promptly.
(D) The holders of all outstanding shares of stock of such corporation
not beneficially owned by such interested shareholder immediately prior
to the consummation of such business combination are entitled to receive
in such business combination cash or other consideration for such shares
in compliance with clauses (A), (B) and (C) of this subparagraph.
(E) After such interested shareholder's stock acquisition date and
prior to the consummation date with respect to such business
combination, such interested shareholder has not become the beneficial
owner of any additional shares of voting stock of such corporation
except:
(i) as part of the transaction which resulted in such interested
shareholder becoming an interested shareholder;
(ii) by virtue of proportionate stock splits, stock dividends or other
distributions of stock in respect of stock not constituting a business
combination under clause (E) of subparagraph five of paragraph (a) of
this section;
(iii) through a business combination meeting all of the conditions of
paragraph (b) of this section and this paragraph; or
(iv) through purchase by such interested shareholder at any price
which, if such price had been paid in an otherwise permissible business
combination the announcement date and consummation date of which were
the date of such purchase, would have satisfied the requirements of
clauses (A), (B) and (C) of this subparagraph.
(d) The provisions of this section shall not apply:
(1) to any business combination of a domestic corporation that does
not have a class of voting stock registered with the Securities and
Exchange Commission pursuant to section twelve of the Exchange Act,
unless the certificate of incorporation provides otherwise; or
(2) to any business combination of a domestic corporation whose
certificate of incorporation has been amended to provide that such
corporation shall be subject to the provisions of this section, which
did not have a class of voting stock registered with the Securities and
Exchange Commission pursuant to section twelve of the Exchange Act on
the effective date of such amendment, and which is a business
combination with an interested shareholder whose stock acquisition date
is prior to the effective date of such amendment; or
(3) to any business combination of a domestic corporation (i) the
original certificate of incorporation of which contains a provision
expressly electing not to be governed by this section, or (ii) which
adopts an amendment to such corporation's by-laws prior to March
thirty-first, nineteen hundred eighty-six, expressly electing not to be
governed by this section, or (iii) which adopts an amendment to such
corporation's by-laws, approved by the affirmative vote of a majority of
votes of the outstanding voting stock of such corporation, excluding the
voting stock of interested shareholders and their affiliates and
associates, expressly electing not to be governed by this section,
provided that such amendment to the by-laws shall not be effective until
eighteen months after such vote of such corporation's shareholders and
shall not apply to any business combination of such corporation with an
interested shareholder whose stock acquisition date is on or prior to
the effective date of such amendment; or
(4) to any business combination of a domestic corporation with an
interested shareholder of such corporation which became an interested
shareholder inadvertently, if such interested shareholder (i) as soon as
practicable, divests itself of a sufficient amount of the voting stock
of such corporation so that it no longer is the beneficial owner,

directly or indirectly, of twenty percent or more of the outstanding
voting stock of such corporation, and (ii) would not at any time within
the five-year period preceding the announcement date with respect to
such business combination have been an interested shareholder but for
such inadvertent acquisition; or
(5) to any business combination with an interested shareholder who was
the beneficial owner, directly or indirectly, of five percent or more of
the outstanding voting stock of such corporation on October thirtieth,
nineteen hundred eighty-five, and remained so to such interested
shareholder's stock acquisition date.