N.Y. Comp. Codes R. & Regs. tit. 13 § 12.3

Current through Register Vol. 46, No. 45, November 2, 2024

Section 12.3 - Definitions

As used in article 16 of the Business Corporation Law, the following terms shall have the following meanings:

(a)Person means an individual (natural person), partnership, limited partnership, syndicate, corporation, joint-stock company, unincorporated organization, trust, association, affiliate and/or associate of a person, or other entity. When two or more persons act as a partnership, limited partnership, syndicate or other group for the purpose of making a takeover bid, such group shall be deemed to be a single person for the purpose of section 1601(b). A single registration statement may be filed on behalf of such a group required to file the statement under section 1602.

(b)Affiliate of a person means any person controlling, controlled by, or under common control with such person. Control, including the terms controlling, controlled by, and under common control with, means the possession of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract, or otherwise.

(c)Associate of a person means:

(1) any corporation or other organization in which the person is an executive officer, director or partner, or is, directly or indirectly, the beneficial owner of 10 percent or more of any class of equity securities;

(2) any person who is, directly or indirectly, the beneficial owner of 10 percent or more of any class of equity securities of the person;

(3) any trust or estate in which the person has a substantial beneficial interest or as to which the person serves as trustee or in a similar fiduciary capacity; or

(4) the spouse of the person, or any relative of the person or of such spouse who has the same home as the person.

(d)Beneficial owner of equity securities means any person who directly or indirectly through any contract, arrangement, understanding or relationship has or shares the power to direct the voting of such securities; provided, however, that:

(1) a person shall be deemed to be a beneficial owner of all securities beneficially owned by all individuals who are related by blood, marriage or adoption to such person and who have the same home as such person;

(2) a person shall be deemed to be a beneficial owner of securities which such person has the right to acquire:

(i) through the exercise of an option, warrant or right exercisable within 60 days;

(ii) through the conversion of securities convertible within 60 days; or

(iii) pursuant to the power to revoke within 60 days a trust or similar arrangement. Any securities not outstanding which are subject to such option, warrants, rights or conversion privileges shall be deemed to be outstanding for the purpose of computing the percentage of outstanding securities of the class owned by such person but shall not be deemed to be outstanding for the purpose of computing the percentage of the class owned by any other person.

(e)Bank means:

(1) a banking institution organized under the laws of the United States;

(2) a member bank of the Federal Reserve System; and

(3) any other banking institution, whether incorporated or not, doing business under the laws of any state or of the United States, a substantial portion of the business of which consists of receiving deposits or exercising a fiduciary power similar to those permitted to national banks under section 11(k) of the Federal Reserve Act, as amended, and which is supervised and examined by the State or Federal authority having supervision over banks.

(f) A person participates or aids in making a takeover bid within the meaning of section 1601, if:

(1) that person is involved in a takeover bid as principal, for or on whose behalf a takeover bid is being made;

(2) as a result of the takeover bid, that person may acquire, directly or indirectly, the right to exercise any voting rights attached to the equity securities which are the subject of the takeover bid or any other beneficial interest in the equity securities which are the subject of the takeover bid; or

(3) that person is an associate or an affiliate of a person who participates or aids in making a takeover bid. The term participates or aids in making a takeover bid, does not include the following activities, provided that the actor does not otherwise acquire a direct or indirect voting or other beneficial interest in equity securities of the target company as a result of the takeover bid:

(i) soliciting tenders under a takeover bid, or soliciting others to solicit such tenders, or otherwise furnishing the usual and customary services of a dealer manager, soliciting dealer or soliciting agent;

(ii) receiving and processing tenders of securities from security holders of the target company, arranging or making payment therefor on behalf of or for the offeror, or otherwise furnishing the usual and customary services of a depository, exchange agent or forwarding agent;

(iii) receiving, holding in safekeeping or acting as a nominee or record owner of equity securities which are the subject of a takeover bid, or otherwise furnishing the usual and customary services of a custodian, nominee or record holder of securities for or on behalf of an offeror;

(iv) transferring or registering equity securities which are the subject of a takeover bid, or otherwise furnishing the usual and customary services of a transfer agent, or registrar of securities; and

(v) publishing or assisting in the publication of any prospectus, brochure, advertisement, circular, letter or other written or oral statement relating to a takeover bid, or otherwise furnishing the usual and customary services of a newspaper, printer, typesetter, composer, mailing agent, public relations advisor, advertising agency or similar publicity function.

(g) Securities of an issuer are or are to be the subject of a takeover bid within the meaning of section 1601(b) at any time after an offeror has filed a registration statement pursuant to section 1602 concerning a takeover bid for such issuer and while such takeover bid is still pending for such issuer.

N.Y. Comp. Codes R. & Regs. Tit. 13 § 12.3

Amended New York State Register July 3, 2018/Volume XL, Issue 27, eff. 7/3/2018