EXHIBIT NO. 20.1
CHAPTER 92A - MERGERS AND EXCHANGES
OF INTEREST
NRS 92A.005 DEFINITIONS. As used in this chapter, unless the context
otherwise requires, the words and terms defined in NRS 92A.007 to 92A.080,
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inclusive, have the meanings ascribed to them in those sections.
(Added to NRS by 1995, 2079; A 1997, 726; 1999, 1626)
NRS 92A.007 "APPROVAL" AND "VOTE" DEFINED. "Approval" and "vote" as
describing action by directors or stockholders mean the vote by directors in
person or by written consent, or action of stockholders in person, by proxy or
by written consent.
(Added to NRS by 1997, 726)
NRS 92A.008 "BUSINESS TRUST" DEFINED. "Business trust" means:
1. A domestic business trust; or
2. An unincorporated association formed pursuant to, existing under or
governed by the law of a jurisdiction other than this state and generally
described by NRS 88A.030.
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(Added to NRS by 1999, 1626)
NRS 92A.010 "CONSTITUENT DOCUMENT" DEFINED. "Constituent document" means
the articles of incorporation or bylaws of a corporation, whether or not for
profit, the articles of organization or operating agreement of a
limited-liability company or the certificate of limited partnership or
partnership agreement of a limited partnership.
(Added to NRS by 1995, 2079)
NRS 92A.015 "CONSTITUENT ENTITY" DEFINED. "Constituent entity" means, with
respect to a merger, each merging or surviving entity and, with respect to an
exchange, each entity whose owner's interests will be acquired or each entity
acquiring those interests.
(Added to NRS by 1995, 2079)
NRS 92A.020 "DOMESTIC" DEFINED. "Domestic" as applied to an entity means
one organized and existing under the laws of this state.
(Added to NRS by 1995, 2079)
NRS 92A.022 "DOMESTIC BUSINESS TRUST" DEFINED. "Domestic business trust"
means a business trust formed and existing pursuant to the provisions of chapter
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88A of NRS.
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(Added to NRS by 1999, 1626)
NRS 92A.025 "DOMESTIC CORPORATION" DEFINED. "Domestic corporation" means a
corporation organized and existing under chapter 78, 78A or 89 of NRS, or a
nonprofit cooperative corporation organized pursuant to NRS 81.010 to 81.160,
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inclusive.
(Added to NRS by 1995, 2079; A 1997, 726)
NRS 92A.030 "DOMESTIC LIMITED-LIABILITY COMPANY" DEFINED. "Domestic
limited-liability company" means a limited-liability company organized and
existing under chapter 86 of NRS.
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(Added to NRS by 1995, 2079)
NRS 92A.035 "DOMESTIC LIMITED PARTNERSHIP" DEFINED. "Domestic limited
partnership" means a limited partnership organized and existing under chapter 88
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of NRS.
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(Added to NRS by 1995, 2079)
<PAGE>
NRS 92A.040 "DOMESTIC NONPROFIT CORPORATION" DEFINED. "Domestic nonprofit
corporation" means a corporation organized or existing under chapter 82 of NRS,
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including those listed in NRS 82.051.
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(Added to NRS by 1995, 2079)
NRS 92A.045 "ENTITY" DEFINED. "Entity" means a foreign or domestic
corporation, whether or not for profit, limited-liability company, limited
partnership or business trust.
(Added to NRS by 1995, 2079; A 1999, 1626)
NRS 92A.050 "EXCHANGE" DEFINED. "Exchange" means the acquisition by one or
more foreign or domestic entities of all an owner's interests or one or more
classes or series of an owner's interests of one or more foreign or domestic
entities.
(Added to NRS by 1995, 2079)
NRS 92A.055 "FOREIGN" DEFINED. "Foreign" as applied to an entity means one
not organized or existing under the laws of this state.
(Added to NRS by 1995, 2079)
NRS 92A.060 "LIMITED PARTNER" DEFINED. "Limited partner" means a person
who has been admitted to a limited partnership as a limited partner in
accordance with the partnership agreement.
(Added to NRS by 1995, 2079)
NRS 92A.070 "MEMBER" DEFINED. "Member" means:
1. A person who owns an interest in, and has the right to participate in
the management of the business and affairs of a domestic limited-liability
company; or
2. A member of a nonprofit corporation which has members.
(Added to NRS by 1995, 2080)
NRS 92A.075 "OWNER" DEFINED. "Owner" means the holder of an interest
described in NRS 92A.080.
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(Added to NRS by 1995, 2080)
NRS 92A.080 "OWNER'S INTEREST" DEFINED. "Owner's interest" means shares of
stock in a corporation, membership in a nonprofit corporation, the interest of a
member of a limited-liability company or a beneficial owner of a business trust,
or the partnership interest of a general or limited partner of a limited
partnership.
(Added to NRS by 1995, 2080; A 1999, 1626)
AUTHORITY, PROCEDURE AND EFFECT
NRS 92A.100 AUTHORITY FOR MERGER; APPROVAL, CONTENTS AND FORM OF PLAN OF
MERGER.
1. Except as limited by NRS 78.411 to 78.444, inclusive, one or more
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domestic entities may merge into another entity if the plan of merger is
approved pursuant to the provisions of this chapter.
2. The plan of merger must set forth:
(a) The name, address and jurisdiction of organization and governing law of
each constituent entity;
(b) The name, jurisdiction of organization and kind of entity or entities
that will survive the merger;
(c) The terms and conditions of the merger; and
(d) The manner and basis of converting the owner's interests of each
constituent entity into owner's interests, rights to purchase owner's interests,
or other securities of the surviving or other entity or into cash or other
property in whole or in part.
3. The plan of merger may set forth:
(a) Amendments to the constituent documents of the surviving entity; and
(b) Other provisions relating to the merger.
4. The plan of merger must be in writing.
(Added to NRS by 1995, 2080; A 1997, 726)
<PAGE>
NRS 92A.110 AUTHORITY FOR EXCHANGE; APPROVAL, CONTENTS AND FORM OF PLAN OF
EXCHANGE.
1. Except as a corporation is limited by NRS 78.411 to 78.444, inclusive,
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one or more domestic entities may acquire all of the outstanding owner's
interests of one or more classes or series of another entity not already owned
by the acquiring entity or an affiliate thereof if the plan of exchange is
approved pursuant to the provisions of this chapter.
2. The plan of exchange must set forth:
(a) The name, address and jurisdiction of organization and governing law of
each constituent entity;
(b) The name, jurisdiction of organization and kind of each entity whose
owner's interests will be acquired by one or more other entities;
(c) The terms and conditions of the exchange; and
(d) The manner and basis of exchanging the owner's interests to be acquired
for owner's interests, rights to purchase owner's interests, or other securities
of the acquiring or any other entity or for cash or other property in whole or
in part.
3. The plan of exchange may set forth other provisions relating to the
exchange.
4. This section does not limit the power of a domestic entity to acquire
all or part of the owner's interests or one or more class or series of owner's
interests of another person through a voluntary exchange or otherwise.
5. The plan of exchange must be in writing.
(Added to NRS by 1995, 2080; A 1997, 726)
NRS 92A.120 APPROVAL OF PLAN OF MERGER OR EXCHANGE FOR DOMESTIC
CORPORATION.
1. After adopting a plan of merger or exchange, the board of directors of
each domestic corporation that is a constituent entity in the merger, or the
board of directors of the domestic corporation whose shares will be acquired in
the exchange, must submit the plan of merger, except as otherwise provided in
NRS 92A.130, or the plan of exchange for approval by its stockholders.
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2. For a plan of merger or exchange to be approved:
(a) The board of directors must recommend the plan of merger or exchange to
the stockholders, unless the board of directors determines that because of a
conflict of interest or other special circumstances it should make no
recommendation and it communicates the basis for its determination to the
stockholders with the plan; and
(b) The stockholders entitled to vote must approve the plan.
3. The board of directors may condition its submission of the proposed
merger or exchange on any basis.
4. The domestic corporation must notify each stockholder, whether or not
he is entitled to vote, of the proposed stockholders' meeting in accordance with
NRS 78.370. The notice must also state that the purpose, or one of the purposes,
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of the meeting is to consider the plan of merger or exchange and must contain or
be accompanied by a copy or summary of the plan.
5. Unless this chapter, the articles of incorporation or the board of
directors acting pursuant to subsection 3 require a greater vote or a vote by
classes of stockholders, the plan of merger or exchange to be authorized must be
approved by a majority of the voting power unless stockholders of a class of
shares are entitled to vote thereon as a class. If stockholders of a class of
shares are so entitled, the plan must be approved by a majority of all votes
entitled to be cast on the plan by each class and representing a majority of all
votes entitled to be voted.
6. Separate voting by a class of stockholders is required:
(a) On a plan of merger if the plan contains a provision that, if contained
in the proposed amendment to the articles of incorporation, would entitle
particular stockholders to vote as a class on the proposed amendment; and
(b) On a plan of exchange by each class or series of shares included in the
exchange, with each class or series constituting a separate voting class.
7. Unless otherwise provided in the articles of incorporation or the
bylaws of the domestic corporation, the plan of merger may be approved by
written consent as provided in NRS 78.320.
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(Added to NRS by 1995, 2081)
<PAGE>
NRS 92A.130 APPROVAL OF PLAN OF MERGER FOR DOMESTIC CORPORATION:
CONDITIONS UNDER WHICH ACTION BY STOCKHOLDERS OF SURVIVING CORPORATION IS NOT
REQUIRED.
1. Action by the stockholders of a surviving domestic corporation on a
plan of merger is not required if:
(a) The articles of incorporation of the surviving domestic corporation
will not differ from its articles before the merger;
(b) Each stockholder of the surviving domestic corporation whose shares
were outstanding immediately before the effective date of the merger will hold
the same number of shares, with identical designations, preferences, limitations
and relative rights immediately after the merger;
(c) The number of voting shares outstanding immediately after the merger,
plus the number of voting shares issued as a result of the merger, either by the
conversion of securities issued pursuant to the merger or the exercise of rights
and warrants issued pursuant to the merger, will not exceed by more than 20
percent the total number of voting shares of the surviving domestic corporation
outstanding immediately before the merger; and
(d) The number of participating shares outstanding immediately after the
merger, plus the number of participating shares issuable as a result of the
merger, either by the conversion of securities issued pursuant to the merger or
the exercise of rights and warrants issued pursuant to the merger, will not
exceed by more than 20 percent the total number of participating shares
outstanding immediately before the merger.
2. As used in this section:
(a) "Participating shares" means shares that entitle their holders to
participate without limitation in distributions.
(b) "Voting shares" means shares that entitle their holders to vote
unconditionally in elections of directors.
(Added to NRS by 1995, 2082)
NRS 92A.140 APPROVAL OF PLAN OF MERGER OR EXCHANGE FOR DOMESTIC LIMITED
PARTNERSHIP; "MAJORITY IN INTEREST OF THE PARTNERSHIP" DEFINED.
1. Unless otherwise provided in the partnership agreement or the
certificate of limited partnership, a plan of merger or exchange involving a
domestic limited partnership must be approved by all general partners and by
limited partners who own a majority in interest of the partnership then owned by
all the limited partners. If the partnership has more than one class of limited
partners, the plan of merger must be approved by those limited partners who own
a majority in interest of the partnership then owned by the limited partners in
each class.
2. For the purposes of this section, "majority in interest of the
partnership" means a majority of the interests in capital and profits of the
limited partners of a domestic limited partnership which:
(a) In the case of capital, is determined as of the date of the approval of
the plan of merger or exchange.
(b) In the case of profits, is based on any reasonable estimate of profits
for the period beginning on the date of the approval of the plan of merger or
exchange and ending on the anticipated date of the termination of the domestic
limited partnership, including any present or future division of profits
distributed pursuant to the partnership agreement.
(Added to NRS by 1995, 2082; A 1997, 727)
NRS 92A.150 APPROVAL OF PLAN OF MERGER OR EXCHANGE FOR DOMESTIC
LIMITED-LIABILITY COMPANY. Unless otherwise provided in the articles of
organization or an operating agreement:
1. A plan of merger or exchange involving a domestic limited-liability
company must be approved by members who own a majority of the interests in the
current profits of the company then owned by all of the members; and
2. If the company has more than one class of members, the plan of merger
must be approved by those members who own a majority of the interests in the
current profits of the company then owned by the members in each class.
(Added to NRS by 1995, 2082; A 1997, 727; 1999, 1627)
NRS 92A.160 APPROVAL OF PLAN OF MERGER OR EXCHANGE FOR DOMESTIC NONPROFIT
CORPORATION.
1. A plan of merger or exchange involving a domestic nonprofit corporation
must be adopted by the board of directors. The plan must also be approved by
each public officer or other person whose approval of a plan of merger or
exchange is required by the articles of incorporation of the domestic nonprofit
corporation.
2. If the domestic nonprofit corporation has members entitled to vote on
plans of merger or exchange, the board of directors of the domestic nonprofit
corporation must recommend the plan of merger or exchange to the members, unless
the board of directors determines that because of a conflict of interest or
other special circumstances it should make no recommendation and it communicates
the basis for its determination to the members with the plan.
<PAGE>
3. The board of directors may condition its submission of the proposed
merger or exchange on any basis.
4. The members entitled to vote on a plan of merger or exchange must
approve the plan at a meeting of members called for that purpose, by written
consent pursuant to NRS 82.276, or by a vote by written ballot pursuant to NRS
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82.326.
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5. The corporation must notify, in the manner required by NRS 82.336, each
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nonprofit member of the time and place of the meeting of members at which the
plan of merger or exchange will be submitted for a vote.
6. Unless the articles of incorporation of the domestic nonprofit
corporation or the board of directors acting pursuant to subsection 3 require a
greater vote or a vote by classes of members, the plan of merger or exchange to
be authorized must be approved by a majority of a quorum of the members unless a
class of members is entitled to vote thereon as a class. If a class of members
is so entitled, the plan must be approved by a majority of a quorum of the votes
entitled to be cast on the plan by each class.
7. Separate voting by a class of members is required:
(a) On a plan of merger if the plan contains a provision that, if contained
in the proposed amendment to articles of incorporation, would entitle particular
members to vote as a class on the proposed amendment; and
(b) On a plan of exchange by each class or series of memberships included
in the exchange, with each class or series constituting a separate voting class.
(Added to NRS by 1995, 2082)
NRS 92A.165 APPROVAL OF MERGER BY TRUSTEES AND BENEFICIAL OWNERS OF
CERTAIN BUSINESS TRUSTS. Unless otherwise provided in the certificate of trust
or governing instrument of a business trust, a merger must be approved by all
the trustees and beneficial owners of each business trust that is a constituent
entity in the merger.
(Added to NRS by 1999, 1626)
NRS 92A.170 ABANDONMENT OF PLANNED MERGER OR EXCHANGE BEFORE ARTICLES OF
MERGER OR EXCHANGE ARE FILED. After a merger or exchange is approved, and at any
time before the articles of merger or exchange are filed, the planned merger or
exchange may be abandoned, subject to any contractual rights, without further
action, in accordance with the procedure set forth in the plan of merger or
exchange or, if none is set forth, in the case of:
1. A domestic corporation, whether or not for profit, by the board of
directors;
2. A domestic limited partnership, unless otherwise provided in the
partnership agreement or certificate of limited partnership, by all general
partners;
3. A domestic limited-liability company, unless otherwise provided in the
articles of organization or an operating agreement, by members who own a
majority in interest of the company then owned by all of the members or, if the
company has more than one class of members, by members who own a majority in
interest of the company then owned by the members in each class; and
4. A domestic business trust, unless otherwise provided in the certificate
of trust or governing instrument, by all the trustees.
(Added to NRS by 1995, 2083; A 1999, 1627)
NRS 92A.175 TERMINATION OF PLANNED MERGER OR EXCHANGE AFTER ARTICLES OF
MERGER OR EXCHANGE ARE FILED. After a merger or exchange is approved, at any
time after the articles of merger or exchange are filed but before an effective
date specified in the articles which is later than the date of filing the
articles, the planned merger or exchange may be terminated in accordance with a
procedure set forth in the plan of merger or exchange by filing articles of
termination pursuant to the provisions of NRS 92A.240.
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(Added to NRS by 1999, 1626)
<PAGE>
NRS 92A.180 MERGER OF SUBSIDIARY INTO PARENT.
1. A parent domestic corporation, whether or not for profit, parent
domestic limited-liability company or parent domestic limited partnership owning
at least 90 percent of the outstanding shares of each class of a subsidiary
corporation, 90 percent of the percentage or other interest in the capital and
profits of a subsidiary limited partnership then owned by both the general and
each class of limited partners or 90 percent of the percentage or other interest
in the capital and profits of a subsidiary limited-liability company then owned
by each class of members may merge the subsidiary into itself without approval
of the owners of the owner's interests of the parent domestic corporation,
domestic limited-liability company or domestic limited partnership or the owners
of the owner's interests of a subsidiary domestic corporation, subsidiary
domestic limited-liability company or subsidiary domestic limited partnership.
2. The board of directors of the parent corporation, the managers of a
parent limited-liability company with managers unless otherwise provided in the
operating agreement, all the members of a parent limited-liability company
without managers unless otherwise provided in the operating agreement, or all
the general partners of the parent limited partnership shall adopt a plan of
merger that sets forth:
(a) The names of the parent and subsidiary; and
(b) The manner and basis of converting the owner's interests of the
disappearing entity into the owner's interests, obligations or other securities
of the surviving or any other entity or into cash or other property in whole or
in part.
3. The parent shall mail a copy or summary of the plan of merger to each
owner of the subsidiary who does not waive the mailing requirement in writing.
4. The parent may not deliver articles of merger to the secretary of state
for filing until at least 30 days after the date the parent mailed a copy of the
plan of merger to each owner of the subsidiary who did not waive the requirement
of mailing.
5. Articles of merger under this section may not contain amendments to the
constituent documents of the surviving entity.
(Added to NRS by 1995, 2083; A 1997, 727; 1999, 1627)
NRS 92A.190 MERGER OR EXCHANGE WITH FOREIGN ENTITY.
1. One or more foreign entities may merge or enter into an exchange of
owner's interests with one or more domestic entities if:
(a) In a merger, the merger is permitted by the law of the jurisdiction
under whose law each foreign entity is organized and governed and each foreign
entity complies with that law in effecting the merger;
(b) In an exchange, the entity whose owner's interests will be acquired is
a domestic entity, whether or not an exchange of owner's interests is permitted
by the law of the jurisdiction under whose law the acquiring entity is
organized;
(c) The foreign entity complies with NRS 92A.200 to 92A.240, inclusive, if
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it is the surviving entity in the merger or acquiring entity in the exchange and
sets forth in the articles of merger or exchange its address where copies of
process may be sent by the secretary of state; and
(d) Each domestic entity complies with the applicable provisions of NRS
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92A.100 to 92A.180, inclusive, and, if it is the surviving entity in the merger
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or acquiring entity in the exchange, with NRS 92A.200 to 92A.240, inclusive.
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2. When the merger or exchange takes effect, the surviving foreign entity
in a merger and the acquiring foreign entity in an exchange shall be deemed:
(a) To appoint the secretary of state as its agent for service of process
in a proceeding to enforce any obligation or the rights of dissenting owners of
each domestic entity that was a party to the merger or exchange. Service of such
process must be made by personally delivering to and leaving with the secretary
of state duplicate copies of the process and the payment of a fee of $25 for
accepting and transmitting the process. The secretary of state shall forthwith
send by registered or certified mail one of the copies to the surviving or
acquiring entity at its specified address, unless the surviving or acquiring
entity has designated in writing to the secretary of state a different address
for that purpose, in which case it must be mailed to the last address so
designated.
(b) To agree that it will promptly pay to the dissenting owners of each
domestic entity that is a party to the merger or exchange the amount, if any, to
which they are entitled under or created pursuant to NRS 92A.300 to 92A.500,
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inclusive.
3. This section does not limit the power of a foreign entity to acquire
all or part of the owner's interests of one or more classes or series of a
domestic entity through a voluntary exchange or otherwise.
(Added to NRS by 1995, 2086; A 1997, 728; 1999, 1628)
<PAGE>
NRS 92A.200 ARTICLES OF MERGER OR EXCHANGE: FILING AND CONTENTS. After a
plan of merger or exchange is approved as required by this chapter, the
surviving or acquiring entity shall deliver to the secretary of state for filing
articles of merger or exchange setting forth:
1. The name and jurisdiction of organization of each constituent entity;
2. That a plan of merger or exchange has been adopted by each constituent
entity;
3. If approval of the owners of one or more constituent entities was not
required, a statement to that effect and the name of each entity;
4. If approval of owners of one or more constituent entities was required,
the name of each entity and a statement for each entity that:
(a) The plan was approved by the unanimous consent of the owners; or
(b) A plan was submitted to the owners pursuant to this chapter including:
(1) The designation, percentage of total vote or number of votes
entitled to be cast by each class of owner's interests entitled to vote
separately on the plan; and
(2) Either the total number of votes or percentage of owner's
interests cast for and against the plan by the owners of each class of interests
entitled to vote separately on the plan or the total number of undisputed votes
or undisputed total percentage of owner's interests cast for the plan separately
by the owners of each class,
and the number of votes or percentage of owner's interests cast for the plan by
the owners of each class of interests was sufficient for approval by the owners
of that class;
5. In the case of a merger, the amendment to the articles of
incorporation, articles of organization, certificate of limited partnership or
certificate of trust of the surviving entity; and
6. If the entire plan of merger or exchange is not set forth, a statement
that the complete executed plan of merger or plan of exchange is on file at the
registered office if a corporation, limited-liability company or business trust,
or office described in paragraph (a) of subsection 1 of NRS 88.330 if a limited
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partnership, or other place of business of the surviving entity or the acquiring
entity, respectively.
(Added to NRS by 1995, 2084; A 1997, 729; 1999, 1629)
NRS 92A.210 ARTICLES OF MERGER, EXCHANGE OR TERMINATION: FEE FOR FILING.
The fee for filing articles of merger, articles of exchange or articles of
termination is $125.
(Added to NRS by 1995, 2085; A 1999, 1629)
NRS 92A.220 ARTICLES OF MERGER OR EXCHANGE: DUTY WHEN ENTIRE PLAN OF
MERGER OR EXCHANGE IS NOT SET FORTH. If the entire plan of merger or exchange is
not set forth, a copy of the plan of merger or exchange must be furnished by the
surviving or acquiring entity, on request and without cost, to any owner of any
entity which is a party to the merger or exchange.
(Added to NRS by 1995, 2085)
NRS 92A.230 ARTICLES OF MERGER OR EXCHANGE: EXECUTION.
1. Articles of merger or exchange must be signed by each domestic
constituent entity as follows:
(a) By the president or a vice president of a domestic corporation, whether
or not for profit;
(b) By all the general partners of a domestic limited partnership;
(c) By a manager of a domestic limited-liability company with managers or
by all the members of a domestic limited-liability company without managers; and
(d) By a trustee of a domestic business trust.
2. If the domestic entity is a corporation, the articles must also be
signed by the secretary or an assistant secretary.
3. Articles of merger or exchange must be signed by each foreign
constituent entity in the manner provided by the law governing it.
4. As used in this section, "signed" means to have executed or adopted a
name, word or mark, including, without limitation, a digital signature as
defined in NRS 720.060, with the present intention to authenticate a document.
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(Added to NRS by 1995, 2085; A 1997, 730; 1999, 1630)
NRS 92A.240 EFFECTIVE DATE OF MERGER OR EXCHANGE; FILING OF ARTICLES OF
TERMINATION BEFORE EFFECTIVE DATE.
<PAGE>
1. A merger or exchange takes effect upon filing the articles of merger or
exchange or upon a later date as specified in the articles, which must not be
more than 90 days after the articles are filed.
2. If the filed articles of merger or exchange specify such a later
effective date, the constituent may file articles of termination before the
effective date, setting forth:
(a) The name of each constituent entity; and
(b) That the merger or exchange has been terminated pursuant to the plan of
merger or exchange.
3. The articles of termination must be executed in the manner provided in
NRS 92A.230.
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(Added to NRS by 1995, 2085; A 1999, 1630)
NRS 92A.250 EFFECT OF MERGER OR EXCHANGE.
1. When a merger takes effect:
(a) Every other entity that is a constituent entity merges into the
surviving entity and the separate existence of every entity except the surviving
entity ceases;
(b) The title to all real estate and other property owned by each merging
constituent entity is vested in the surviving entity without reversion or
impairment;
(c) The surviving entity has all of the liabilities of each other
constituent entity;
(d) A proceeding pending against any constituent entity may be continued as
if the merger had not occurred or the surviving entity may be substituted in the
proceeding for the entity whose existence has ceased;
(e) The articles of incorporation, articles of organization, certificate of
limited partnership or certificate of trust of the surviving entity are amended
to the extent provided in the plan of merger; and
(f) The owner's interests of each constituent entity that are to be
converted into owner's interests, obligations or other securities of the
surviving or any other entity or into cash or other property are converted, and
the former holders of the owner's interests are entitled only to the rights
provided in the articles of merger or any created pursuant to NRS 92A.300 to
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92A.500, inclusive.
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2. When an exchange takes effect, the owner's interests of each acquired
entity are exchanged as provided in the plan, and the former holders of the
owner's interests are entitled only to the rights provided in the articles of
exchange or any rights created pursuant to NRS 92A.300 to 92A.500, inclusive.
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(Added to NRS by 1995, 2085; A 1999, 1630)
NRS 92A.260 LIABILITY OF OWNER. An owner that is not personally liable for
the debts, liabilities or obligations of the entity pursuant to the laws and
constituent documents under which the entity was organized does not become
personally liable for the debts, liabilities or obligations of the surviving
entity or entities of the merger or exchange unless the owner consents to
becoming personally liable by action taken in connection with the plan of merger
or exchange.
(Added to NRS by 1995, 2081)
RIGHTS OF DISSENTING OWNERS
NRS 92A.300 DEFINITIONS. As used in NRS 92A.300 to 92A.500, inclusive,
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unless the context otherwise requires, the words and terms defined in NRS
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92A.305 to 92A.335, inclusive, have the meanings ascribed to them in those
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sections.
(Added to NRS by 1995, 2086)
NRS 92A.305 "BENEFICIAL STOCKHOLDER" DEFINED. "Beneficial stockholder"
means a person who is a beneficial owner of shares held in a voting trust or by
a nominee as the stockholder of record.
(Added to NRS by 1995, 2087)
NRS 92A.310 "CORPORATE ACTION" DEFINED. "Corporate action" means the
action of a domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.315 "DISSENTER" DEFINED. "Dissenter" means a stockholder who is
entitled to dissent from a domestic corporation's action under NRS 92A.380 and
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who exercises that right when and in the manner required by NRS 92A.400 to
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92A.480, inclusive.
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(Added to NRS by 1995, 2087; A 1999, 1631)
<PAGE>
NRS 92A.320 "FAIR VALUE" DEFINED. "Fair value," with respect to a
dissenter's shares, means the value of the shares immediately before the
effectuation of the corporate action to which he objects, excluding any
appreciation or depreciation in anticipation of the corporate action unless
exclusion would be inequitable.
(Added to NRS by 1995, 2087)
NRS 92A.325 "STOCKHOLDER" DEFINED. "Stockholder" means a stockholder of
record or a beneficial stockholder of a domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.330 "STOCKHOLDER OF RECORD" DEFINED. "Stockholder of record" means
the person in whose name shares are registered in the records of a domestic
corporation or the beneficial owner of shares to the extent of the rights
granted by a nominee's certificate on file with the domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.335 "SUBJECT CORPORATION" DEFINED. "Subject corporation" means the
domestic corporation which is the issuer of the shares held by a dissenter
before the corporate action creating the dissenter's rights becomes effective or
the surviving or acquiring entity of that issuer after the corporate action
becomes effective.
(Added to NRS by 1995, 2087)
NRS 92A.340 COMPUTATION OF INTEREST. Interest payable pursuant to NRS
---
92A.300 to 92A.500, inclusive, must be computed from the effective date of the
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action until the date of payment, at the average rate currently paid by the
entity on its principal bank loans or, if it has no bank loans, at a rate that
is fair and equitable under all of the circumstances.
(Added to NRS by 1995, 2087)
NRS 92A.350 RIGHTS OF DISSENTING PARTNER OF DOMESTIC LIMITED PARTNERSHIP.
A partnership agreement of a domestic limited partnership or, unless otherwise
provided in the partnership agreement, an agreement of merger or exchange, may
provide that contractual rights with respect to the partnership interest of a
dissenting general or limited partner of a domestic limited partnership are
available for any class or group of partnership interests in connection with any
merger or exchange in which the domestic limited partnership is a constituent
entity.
(Added to NRS by 1995, 2088)
NRS 92A.360 RIGHTS OF DISSENTING MEMBER OF DOMESTIC LIMITED-LIABILITY
COMPANY. The articles of organization or operating agreement of a domestic
limited-liability company or, unless otherwise provided in the articles of
organization or operating agreement, an agreement of merger or exchange, may
provide that contractual rights with respect to the interest of a dissenting
member are available in connection with any merger or exchange in which the
domestic limited-liability company is a constituent entity.
(Added to NRS by 1995, 2088)
NRS 92A.370 RIGHTS OF DISSENTING MEMBER OF DOMESTIC NONPROFIT CORPORATION.
1. Except as otherwise provided in subsection 2, and unless otherwise
provided in the articles or bylaws, any member of any constituent domestic
nonprofit corporation who voted against the merger may, without prior notice,
but within 30 days after the effective date of the merger, resign from
membership and is thereby excused from all contractual obligations to the
constituent or surviving corporations which did not occur before his resignation
and is thereby entitled to those rights, if any, which would have existed if
there had been no merger and the membership had been terminated or the member
had been expelled.
2. Unless otherwise provided in its articles of incorporation or bylaws,
no member of a domestic nonprofit corporation, including, but not limited to, a
cooperative corporation, which supplies services described in chapter 704 of NRS
------------------
to its members only, and no person who is a member of a domestic nonprofit
corporation as a condition of or by reason of the ownership of an interest in
real property, may resign and dissent pursuant to subsection 1.
(Added to NRS by 1995, 2088)
NRS 92A.380 RIGHT OF STOCKHOLDER TO DISSENT FROM CERTAIN CORPORATE ACTIONS
AND TO OBTAIN PAYMENT FOR SHARES.
<PAGE>
1. Except as otherwise provided in NRS 92A.370 and 92A.390, a stockholder
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is entitled to dissent from, and obtain payment of the fair value of his shares
in the event of any of the following corporate actions:
(a) Consummation of a plan of merger to which the domestic corporation is a
party:
(1) If approval by the stockholders is required for the merger by NRS
---
92A.120 to 92A.160, inclusive, or the articles of incorporation and he is
------- -------
entitled to vote on the merger; or
(2) If the domestic corporation is a subsidiary and is merged with its
parent under NRS 92A.180.
------------
(b) Consummation of a plan of exchange to which the domestic corporation is
a party as the corporation whose subject owner's interests will be acquired, if
he is entitled to vote on the plan.
(c) Any corporate action taken pursuant to a vote of the stockholders to
the event that the articles of incorporation, bylaws or a resolution of the
board of directors provides that voting or nonvoting stockholders are entitled
to dissent and obtain payment for their shares.
2. A stockholder who is entitled to dissent and obtain payment under NRS
---
92A.300 to 92A.500, inclusive, may not challenge the corporate action creating
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his entitlement unless the action is unlawful or fraudulent with respect to him
or the domestic corporation.
(Added to NRS by 1995, 2087)
NRS 92A.390 LIMITATIONS ON RIGHT OF DISSENT: STOCKHOLDERS OF CERTAIN
CLASSES OR SERIES; ACTION OF STOCKHOLDERS NOT REQUIRED FOR PLAN OF MERGER.
1. There is no right of dissent with respect to a plan of merger or
exchange in favor of stockholders of any class or series which, at the record
date fixed to determine the stockholders entitled to receive notice of and to
vote at the meeting at which the plan of merger or exchange is to be acted on,
were either listed on a national securities exchange, included in the national
market system by the National Association of Securities Dealers, Inc., or held
by at least 2,000 stockholders of record, unless:
(a) The articles of incorporation of the corporation issuing the shares
provide otherwise; or
(b) The holders of the class or series are required under the plan of
merger or exchange to accept for the shares anything except:
(1) Cash, owner's interests or owner's interests and cash in lieu of
fractional owner's interests of:
(I) The surviving or acquiring entity; or
(II) Any other entity which, at the effective date of the plan of
merger or exchange, were either listed on a national securities exchange,
included in the national market system by the National Association of Securities
Dealers, Inc., or held of record by a least 2,000 holders of owner's interests
of record; or
(2) A combination of cash and owner's interests of the kind described
in sub-subparagraphs (I) and (II) of subparagraph (1) of paragraph (b).
2. There is no right of dissent for any holders of stock of the surviving
domestic corporation if the plan of merger does not require action of the
stockholders of the surviving domestic corporation under NRS 92A.130.
------------
(Added to NRS by 1995, 2088)
NRS 92A.400 LIMITATIONS ON RIGHT OF DISSENT: ASSERTION AS TO PORTIONS ONLY
TO SHARES REGISTERED TO STOCKHOLDER; ASSERTION BY BENEFICIAL STOCKHOLDER.
1. A stockholder of record may assert dissenter's rights as to fewer than
all of the shares registered in his name only if he dissents with respect to all
shares beneficially owned by any one person and notifies the subject corporation
in writing of the name and address of each person on whose behalf he asserts
dissenter's rights. The rights of a partial dissenter under this subsection are
determined as if the shares as to which he dissents and his other shares were
registered in the names of different stockholders.
2. A beneficial stockholder may assert dissenter's rights as to shares
held on his behalf only if:
(a) He submits to the subject corporation the written consent of the
stockholder of record to the dissent not later than the time the beneficial
stockholder asserts dissenter's rights; and
(b) He does so with respect to all shares of which he is the beneficial
stockholder or over which he has power to direct the vote.
(Added to NRS by 1995, 2089)
NRS 92A.410 NOTIFICATION OF STOCKHOLDERS REGARDING RIGHT OF DISSENT.
<PAGE>
1. If a proposed corporate action creating dissenters' rights is submitted
to a vote at a stockholders' meeting, the notice of the meeting must state that
stockholders are or may be entitled to assert dissenters' rights under NRS
---
92A.300 to 92A.500, inclusive, and be accompanied by a copy of those sections.
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2. If the corporate action creating dissenters' rights is taken by written
consent of the stockholders or without a vote of the stockholders, the domestic
corporation shall notify in writing all stockholders entitled to assert
dissenters' rights that the action was taken and send them the dissenter's
notice described in NRS 92A.430.
------------
(Added to NRS by 1995, 2089; A 1997, 730)
NRS 92A.420 PREREQUISITES TO DEMAND FOR PAYMENT FOR SHARES.
1. If a proposed corporate action creating dissenters' rights is submitted
to a vote at a stockholders' meeting, a stockholder who wishes to assert
dissenter's rights:
(a) Must deliver to the subject corporation, before the vote is taken,
written notice of his intent to demand payment for his shares if the proposed
action is effectuated; and
(b) Must not vote his shares in favor of the proposed action.
2. A stockholder who does not satisfy the requirements of subsection 1 and
NRS 92A.400 is not entitled to payment for his shares under this chapter.
------------
(Added to NRS by 1995, 2089; 1999, 1631)
NRS 92A.430 DISSENTER'S NOTICE: DELIVERY TO STOCKHOLDERS ENTITLED TO
ASSERT RIGHTS; CONTENTS.
1. If a proposed corporate action creating dissenters' rights is
authorized at a stockholders' meeting, the subject corporation shall deliver a
written dissenter's notice to all stockholders who satisfied the requirements to
assert those rights.
2. The dissenter's notice must be sent no later than 10 days after the
effectuation of the corporate action, and must:
(a) State where the demand for payment must be sent and where and when
certificates, if any, for shares must be deposited;
(b) Inform the holders of shares not represented by certificates to what
extent the transfer of the shares will be restricted after the demand for
payment is received;
(c) Supply a form for demanding payment that includes the date of the first
announcement to the news media or to the stockholders of the terms of the
proposed action and requires that the person asserting dissenter's rights
certify whether or not he acquired beneficial ownership of the shares before
that date;
(d) Set a date by which the subject corporation must receive the demand for
payment, which may not be less than 30 nor more than 60 days after the date the
notice is delivered; and
(e) Be accompanied by a copy of NRS 92A.300 to 92A.500, inclusive.
------------ -------
(Added to NRS by 1995, 2089)
NRS 92A.440 DEMAND FOR PAYMENT AND DEPOSIT OF CERTIFICATES; RETENTION OF
RIGHTS OF STOCKHOLDER.
1. A stockholder to whom a dissenter's notice is sent must:
(a) Demand payment;
(b) Certify whether he acquired beneficial ownership of the shares before
the date required to be set forth in the dissenter's notice for this
certification; and
(c) Deposit his certificates, if any, in accordance with the terms of the
notice.
2. The stockholder who demands payment and deposits his certificates, if
any, before the proposed corporate action is taken retains all other rights of a
stockholder until those rights are canceled or modified by the taking of the
proposed corporate action.
3. The stockholder who does not demand payment or deposit his certificates
where required, each by the date set forth in the dissenter's notice, is not
entitled to payment for his shares under this chapter.
(Added to NRS by 1995, 2090; A 1997, 730)
NRS 92A.450 UNCERTIFICATED SHARES: AUTHORITY TO RESTRICT TRANSFER AFTER
DEMAND FOR PAYMENT; RETENTION OF RIGHTS OF STOCKHOLDER.
1. The subject corporation may restrict the transfer of shares not
represented by a certificate from the date the demand for their payment is
received.
<PAGE>
2. The person for whom dissenter's rights are asserted as to shares not
represented by a certificate retains all other rights of a stockholder until
those rights are canceled or modified by the taking of the proposed corporate
action.
(Added to NRS by 1995, 2090)
NRS 92A.460 PAYMENT FOR SHARES: GENERAL REQUIREMENTS.
1. Except as otherwise provided in NRS 92A.470, within 30 days after
------------
receipt of a demand for payment, the subject corporation shall pay each
dissenter who complied with NRS 92A.440 the amount the subject corporation
------------
estimates to be the fair value of his shares, plus accrued interest. The
obligation of the subject corporation under this subsection may be enforced by
the district court:
(a) Of the county where the corporation's registered office is located; or
(b) At the election of any dissenter residing or having its registered
office in this state, of the county where the dissenter resides or has its
registered office. The court shall dispose of the complaint promptly.
2. The payment must be accompanied by:
(a) The subject corporation's balance sheet as of the end of a fiscal year
ending not more than 16 months before the date of payment, a statement of income
for that year, a statement of changes in the stockholders' equity for that year
and the latest available interim financial statements, if any;
(b) A statement of the subject corporation's estimate of the fair value of
the shares;
(c) An explanation of how the interest was calculated;
(d) A statement of the dissenter's rights to demand payment under NRS
---
92A.480; and
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(e) A copy of NRS 92A.300 to 92A.500, inclusive.
------------ -------
(Added to NRS by 1995, 2090)
NRS 92A.470 PAYMENT FOR SHARES: SHARES ACQUIRED ON OR AFTER DATE OF
DISSENTER'S NOTICE.
1. A subject corporation may elect to withhold payment from a dissenter
unless he was the beneficial owner of the shares before the date set forth in
the dissenter's notice as the date of the first announcement to the news media
or to the stockholders of the terms of the proposed action.
2. To the extent the subject corporation elects to withhold payment, after
taking the proposed action, it shall estimate the fair value of the shares, plus
accrued interest, and shall offer to pay this amount to each dissenter who
agrees to accept it in full satisfaction of his demand. The subject corporation
shall send with its offer a statement of its estimate of the fair value of the
shares, an explanation of how the interest was calculated, and a statement of
the dissenters' right to demand payment pursuant to NRS 92A.480.
------------
(Added to NRS by 1995, 2091)
NRS 92A.480 DISSENTER'S ESTIMATE OF FAIR VALUE: NOTIFICATION OF SUBJECT
CORPORATION; DEMAND FOR PAYMENT OF ESTIMATE.
1. A dissenter may notify the subject corporation in writing of his own
estimate of the fair value of his shares and the amount of interest due, and
demand payment of his estimate, less any payment pursuant to NRS 92A.460, or
-----------
reject the offer pursuant to NRS 92A.470 and demand payment of the fair value of
-----------
his shares and interest due, if he believes that the amount paid pursuant to NRS
---
92A.460 or offered pursuant to NRS 92A.470 is less than the fair value of his
------- -----------
shares or that the interest due is incorrectly calculated.
2. A dissenter waives his right to demand payment pursuant to this section
unless he notifies the subject corporation of his demand in writing within 30
days after the subject corporation made or offered payment for his shares.
(Added to NRS by 1995, 2091)
NRS 92A.490 LEGAL PROCEEDING TO DETERMINE FAIR VALUE: DUTIES OF SUBJECT
CORPORATION; POWERS OF COURT; RIGHTS OF DISSENTER.
1. If a demand for payment remains unsettled, the subject corporation
shall commence a proceeding within 60 days after receiving the demand and
petition the court to determine the fair value of the shares and accrued
interest. If the subject corporation does not commence the proceeding within the
60-day period, it shall pay each dissenter whose demand remains unsettled the
amount demanded.
2. A subject corporation shall commence the proceeding in the district
court of the county where its registered office is located. If the subject
corporation is a foreign entity without a resident agent in the state, it shall
commence the proceeding in the county where the registered office of the
domestic corporation merged with or whose shares were acquired by the foreign
entity was located.
<PAGE>
3. The subject corporation shall make all dissenters, whether or not
residents of Nevada, whose demands remain unsettled, parties to the proceeding
as in an action against their shares. All parties must be served with a copy of
the petition. Nonresidents may be served by registered or certified mail or by
publication as provided by law.
4. The jurisdiction of the court in which the proceeding is commenced
under subsection 2 is plenary and exclusive. The court may appoint one or more
persons as appraisers to receive evidence and recommend a decision on the
question of fair value. The appraisers have the powers described in the order
appointing them, or any amendment thereto. The dissenters are entitled to the
same discovery rights as parties in other civil proceedings.
5. Each dissenter who is made a party to the proceeding is entitled to a
judgment:
(a) For the amount, if any, by which the court finds the fair value of his
shares, plus interest, exceeds the amount paid by the subject corporation; or
(b) For the fair value, plus accrued interest, of his after-acquired shares
for which the subject corporation elected to withhold payment pursuant to NRS
---
92A.470.
-------
(Added to NRS by 1995, 2091)
NRS 92A.500 LEGAL PROCEEDING TO DETERMINE FAIR VALUE: ASSESSMENT OF COSTS
AND FEES.
1. The court in a proceeding to determine fair value shall determine all
of the costs of the proceeding, including the reasonable compensation and
expenses of any appraisers appointed by the court. The court shall assess the
costs against the subject corporation, except that the court may assess costs
against all or some of the dissenters, in amounts the court finds equitable, to
the extent the court finds the dissenters acted arbitrarily, vexatiously or not
in good faith in demanding payment.
2. The court may also assess the fees and expenses of the counsel and
experts for the respective parties, in amounts the court finds equitable:
(a) Against the subject corporation and in favor of all dissenters if the
court finds the subject corporation did not substantially comply with the
requirements of NRS 92A.300 to 92A.500, inclusive; or
------------ -------
(b) Against either the subject corporation or a dissenter in favor of any
other party, if the court finds that the party against whom the fees and
expenses are assessed acted arbitrarily, vexatiously or not in good faith with
respect to the rights provided by NRS 92A.300 to 92A.500, inclusive.
------------ -------
3. If the court finds that the services of counsel for any dissenter were
of substantial benefit to other dissenters similarly situated, and that the fees
for those services should not be assessed against the subject corporation, the
court may award to those counsel reasonable fees to be paid out of the amounts
awarded to the dissenters who were benefited.
4. In a proceeding commenced pursuant to NRS 92A.460, the court may assess
-----------
the costs against the subject corporation, except that the court may assess
costs against all or some of the dissenters who are parties to the proceeding,
in amounts the court finds equitable, to the extent the court finds that such
parties did not act in good faith in instituting the proceeding.
5. This section does not preclude any party in a proceeding commenced
pursuant to NRS 92A.460 or 92A.490 from applying the provisions of N.R.C.P. 68
----------- ------- -----------
or NRS 17.115.
-----------
(Added to NRS by 1995, 2092)
<PAGE>
