17-18-102. Definitions.

(a) The definitions used in the Wyoming Business Corporations Act (W.S. 17-16-101 through 17-16-1810) shall apply to this act unless inconsistent with the definitions in this section.

(b) As used in this act:

(i) "Affiliate" means a person that directly, or indirectly through one (1) or more intermediaries, controls, or is controlled by, or is under common control with, another person;

(ii) "Associate," when used to indicate a relationship with any person, means:

(A) Any entity of which the person is a director, officer or partner or is, directly or indirectly, the owner of ten percent (10%) or more of any class of voting stock or similar securities of the entity;

(B) Any trust or other estate in which the person has at least a ten percent (10%) beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; or

(C) Any relative or spouse of the person, or any relative of the spouse, who has the same residence as the person or who is a director or officer of the person or any of its affiliates.

(iii) "Beneficial owner of a security" means any person who, directly or indirectly, has the power to vote or direct the voting of all or part of the voting rights of the security, or has the power to dispose of or direct the disposition of the security;

(iv) "Business combination," when used in reference to any corporation and any interested stockholder of that corporation, means:

(A) Any merger, consolidation or share exchange of the corporation or any subsidiary with:

(I) The interested stockholder;

(II) A foreign or domestic corporation that is, or after the merger, consolidation or share exchange would be, an affiliate or associate of the interested stockholder; or

(III) Another corporation, if the merger, consolidation or share exchange is caused by an interested stockholder, and as a result of the merger, consolidation or share exchange any section of this act does not apply to the surviving corporation.

(B) Any sale, lease, exchange, mortgage, pledge, transfer or other disposition, in one (1) transaction or a series of transactions, except proportionately as a stockholder of the corporation, to or with the interested stockholder or any affiliate or associate of the interested stockholder, whether as part of a dissolution or otherwise, of assets of the corporation or of any subsidiary which assets:

(I) Have an aggregate market value equal to ten percent (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;

(II) Have an aggregate book value equal to ten percent (10%) or more of either the aggregate book value of all the assets of the corporation determined on a consolidated basis or of the aggregate stockholders equity of the corporation; or

(III) Represent ten percent (10%) or more of the earning power or net income, determined on a consolidated basis, of the corporation.

(C) Any transaction or series of transactions which results in the issuance or transfer by the corporation, or by any subsidiary, of any stock of the corporation or of the subsidiary to the interested stockholder except:

(I) Any transaction pursuant to the exercise, exchange or conversion of securities into stock of the corporation or any subsidiary, which securities before the stockholder became an interested stockholder were outstanding and exercisable for or convertible into the stock; or

(II) Any of the following transactions provided there is no increase in the interested stockholder's proportionate share of the corporation's stock of any class or series or of the corporation's voting stock:

(1) Pursuant to a distribution made, or the exercise, exchange or conversion of securities into stock of the corporation or any subsidiary of securities distributed, pro rata to all holders of a class or series of stock of the corporation, after the stockholder became an interested stockholder;

(2) Pursuant to an exchange offer by the corporation to purchase stock made on the same terms to all holders of the stock; or

(3) Any issuance or transfer of stock by the corporation.

(D) Any transaction involving the corporation or any subsidiary which has the effect, directly or indirectly, of increasing the proportionate share of the corporation's or a subsidiary's stock of any class or series, or securities convertible into the stock of any class or series, 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;

(E) Any receipt by the interested stockholder of the benefit, directly or indirectly, except proportionately as a stockholder of the corporation, of any loans, advances, guarantees, pledges or other financial assistance, or a tax credit or other tax advantage, other than those expressly permitted in subparagraphs (A) through (D) of this paragraph, provided by or through the corporation or any subsidiary; or

(F) The adoption of a plan or a proposal for the liquidation and dissolution of the corporation proposed by, or pursuant to an agreement, arrangement, or understanding, whether or not in writing, with an interested stockholder or an affiliate or associate of the interested stockholder.

(v) "Control," including the term "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 who is the owner of ten percent (10%) or more of an entity's outstanding voting stock or similar interests shall be presumed to have control of the entity, in the absence of proof by a preponderance of the evidence to the contrary. A presumption of control shall not apply where the person holds voting stock or similar interests, in good faith and not for the purpose of circumventing this act, as an agent, bank, broker, nominee, custodian or trustee for one (1) or more owners who do not individually or as a group have control of the other person;

(vi) "Equity security" means:

(A) Any share or similar security carrying, at the time of the takeover offer, the right to vote on any matter by virtue of the articles of incorporation, bylaws, or governing instrument of the target company or the right to vote for directors or persons performing substantially similar functions by operation of law;

(B) Any security convertible into a security described in subparagraph (A) of this paragraph or any warrant or right to purchase that security; or

(C) Any other security which, for the protection of investors, is an equity security pursuant to regulation of the secretary of state.

(vii) "Interested stockholder":

(A) Means any person and the affiliates and associates of the person, other than the corporation and any subsidiary, that:

(I) Is the owner of fifteen percent (15%) or more of the outstanding voting stock of the corporation; or

(II) Is an affiliate or associate of the corporation and was the owner of fifteen percent (15%) or more of the outstanding voting stock of the corporation at any time within the three (3) year period immediately before it is to be determined whether the person is an interested stockholder.

(B) But does not mean:

(I) Any person who:

(1) Owned shares in excess of the fifteen percent (15%) limitation as of January 1, 1990, acquired shares pursuant to a tender offer commenced prior to January 1, 1989, or owned shares pursuant to an exchange offer announced prior to January 1, 1989 and commenced within ninety (90) days; and

(2) Continued to own shares in excess of the fifteen percent (15%) limitation or would have but for action by the corporation.

(II) Any person who acquired the shares from a person described in subdivision (B)(I) of this paragraph by gift, inheritance or in a transaction in which no consideration was exchanged; or

(III) Any person whose ownership of shares in excess of the fifteen percent (15%) limitation is the result of action taken solely by the corporation provided that the person shall be an interested stockholder if, after the corporate action, he acquires additional voting stock of the corporation, except as a result of further corporate action not caused, directly or indirectly, by that person.

(viii) "Large publicly traded corporation" means a corporation which had assets at the end of its most recent fiscal year of at least ten million dollars ($10,000,000.00) according to generally accepted accounting principles and which:

(A) Has a class of voting stock listed on a national securities exchange;

(B) Has a class of voting stock authorized for quotation on an inter dealer quotation system of a registered national securities association; or

(C) Has a class of voting stock held of record by more than one thousand (1,000) stockholders.

(ix) "Offeree" means a record or beneficial owner of equity securities of the class which an offeror acquires or offers to acquire in connection with a takeover offer;

(x) "Offeror" means a person who makes or in any way participates in making a takeover offer. The term includes all affiliates of that person and all persons who act jointly or in concert with that person for the purpose of acquiring, holding or disposing of, or exercising any voting rights attached to, the equity securities of a target company. It also includes the target company with respect to acquisitions of its own equity securities and with respect to periods of time when it is controlled by or under common control with the offeror. It does not include a financial institution or broker-dealer loaning funds or extending credit to any offeror in the ordinary course of its business, or any accountant, attorney, financial institution, broker-dealer, newspaper or magazine of general circulation, consultant, or other person furnishing information, services, or advice to or performing ministerial or administrative duties for an offeror and not otherwise participating in the takeover offer;

(xi) "Owner" including the terms "own" and "owned" when used with respect to any stock means a person that individually or with or through any of its affiliates or associates:

(A) Beneficially owns the stock, directly or indirectly;

(B) Has the right to acquire the stock, whether the 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 that person or any of that person's affiliates or associates until the tendered stock is accepted for purchase or exchange;

(C) Has the right to vote the stock pursuant to any agreement, arrangement or understanding. A person shall not be deemed the owner of any stock because of the person's right to vote the stock 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 to ten (10) or more persons; or

(D) Has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting, except voting pursuant to a revocable proxy or consent as described in subparagraph (C) of this paragraph, or disposing of that stock with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, that stock.

(xii) "Qualified corporation" means any large publicly traded corporation, incorporated in Wyoming, and which has substantial business operations within Wyoming;

(xiii) "Stockholder" means "shareholder" as defined by W.S. 17-16-140(a)(xxxix);

(xiv) "Subsidiary" means a corporation or other person of which a majority of the outstanding voting stock or similar securities are owned, directly or indirectly, by the corporation;

(xv) "Substantial business operations within the state of Wyoming" means:

(A) At least ten percent (10%) of the corporation's full-time permanent employees are employed within the state;

(B) At least one hundred (100) full-time permanent employees are employed within the state;

(C) At least ten million dollars ($10,000,000.00) in fair market value of the corporation's assets are deposited within Wyoming financial institutions;

(D) The principal operating headquarters and the primary offices of the chief executive officer are within Wyoming; or

(E) The corporation has a combination of assets deposited within Wyoming financial institutions, assets assessed for ad valorem taxation within Wyoming, and assets within Wyoming not subject to ad valorem taxation which are sufficient to cause the corporation to pay the tax required by W.S. 17-16-1630(a). The payment of the tax required by W.S. 17-16-1630(a) shall be deemed conclusive evidence of substantial business operations within Wyoming.

(xvi) "Substantially equivalent terms" means terms under which the fair market value of the consideration offered any offeree of a class of equity securities of the target company, determined on a per share or a per unit basis, are equal to the highest consideration offered in connection with a takeover offer to any other offeree of that class, determined on a per share or per unit basis;

(xvii) "Takeover offer" means an offer to acquire or an acquisition of any equity security of a target company pursuant to a tender offer or request or invitation for tenders, if, after the acquisition, the offeror is or will be directly or indirectly a record or beneficial owner of more than ten percent (10%) of any class of the outstanding equity securities of the target company;

(xviii) "Target company" means a qualified corporation other than:

(A) A financial institution subject to regulation by the state banking commissioner, if the takeover offer is subject to approval by the state banking commissioner;

(B) A corporation subject to regulation by the public service commission, if the takeover offer is subject to approval of the public service commission; or

(C) A public utility, public utility holding company, bank holding company, or savings and loan association subject to regulation by a federal agency if the takeover offer is subject to the approval by that federal agency.

(xix) "Voting stock" means:

(A) For purposes other than determining whether a person is an interested stockholder, stock of any class or series entitled to vote generally in the election of directors;

(B) For purposes of determining whether a person is an interested stockholder, stock deemed to be owned by the person but shall not include any other unissued stock of the corporation which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.

(xx) "This act" means W.S. 17-18-101 through 17-18-403.

(c) For the purpose of determining whether a person is an interested stockholder as defined in paragraph (b)(vii) of this section, the number of voting stock of the corporation considered outstanding includes stock considered owned by that person, but does not include other unissued voting stock of the qualified corporation that may be issuable pursuant to an agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.