2017 Mississippi Code
Title 79 - Corporations, Associations, and Partnerships
Chapter 27 - Mississippi Control Share Act
§ 79-27-9. Disclosure requirements when acquiring control shares; special meeting of shareholders; notice; proxies; voting on resolution in disclosure statement; competing control share acquisition

Universal Citation: MS Code § 79-27-9 (2017)

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(1) Any acquiring person who proposes to make a control share acquisition may, and any acquiring person who has made a control share acquisition shall, publish in a newspaper of general circulation and deliver to the issuing public corporation at its principal office a disclosure statement. To be regarded as a disclosure statement, the document must set forth all of the following:
- (a) The identity of the acquiring person;
- (b) A statement that the disclosure statement is delivered pursuant to this chapter;
- (c) The number of shares of the issuing public corporation owned (directly or indirectly) by the acquiring person, the acquisition dates and the prices at which such shares were acquired;
- (d) The voting power to which the acquiring person, except for Section 79-27-7, would be entitled;
- (e) A form of the resolution to be considered by the shareholders hereunder; and
- (f) If the control share acquisition has not yet occurred:
  - (i) A description in reasonable detail of the terms of the proposed control share acquisition; and
  - (ii) Representations of the acquiring person, together with a statement in reasonable detail of the facts upon which they are based, that the proposed control share acquisition, if consummated, will not be contrary to law, and that the acquiring person has the financial capacity to make the proposed control share acquisition.

(2) If the directors of the issuing public corporation so order, or if the acquiring person so requests at the time of delivery of a disclosure statement and gives an undertaking to pay the issuing public corporation's expenses in connection therewith, a special meeting of shareholders of the issuing public corporation must be called within ten (10) days after delivery of the disclosure statement for the purpose of considering the resolution relating to the voting rights to be accorded the shares acquired or to be acquired in the control share acquisition. Unless both the acquiring person and the issuing public corporation agree in writing to another date, the special meeting of shareholders must be held not sooner than thirty (30) days nor later than fifty (50) days after receipt by the issuing public corporation of the request or order for a special meeting.

(3) If no special meeting of shareholders is called pursuant to subsection (2) of this section, the resolution relating to the voting rights to be accorded the shares acquired in the control share acquisition must be presented to the next special or annual meeting of shareholders.

(4) If a special meeting is called, notice of the special meeting of shareholders must be given as promptly as reasonably practicable by the issuing public corporation to all shareholders of record as of the record date set for the meeting. If the special meeting was requested by the acquiring person, the directors shall set the record date on a date not later than fifteen (15) days after the request was received by the issuing public corporation.

(5) Notice of the special meeting, or the annual meeting if no special meeting is called, must include or be accompanied by:
- (a) A copy of the disclosure statement;
- (b) A statement by the board of directors of its position or recommendation, or that it is taking no position or making no recommendation, with respect to the resolution contained in the disclosure statement; and
- (c) A description of any dissent and appraisal rights or any redemption procedure that may accompany or result from the vote of shareholders.

(6) Any other provisions of this chapter notwithstanding, a proxy relating to a meeting of shareholders to be held pursuant to this section must be solicited separately from the offer to purchase or solicitation of an offer to sell shares of the issuing public corporation.

(7) All votes cast at the meeting for or against the resolution contained in the disclosure statement must be identified as noninterested shares. To be approved, the resolution must receive the affirmative votes of a majority of all voting power, excluding all interested shares. If the resolution is not approved, the acquiring person, not sooner than six (6) months thereafter, may present a new resolution for a vote of shareholders in accordance with this section at any subsequent shareholder meeting as long as the voting power of the control shares described in the resolution is reduced.

(8) (a) For purposes of this subsection, a "competing control share acquisition" means a control share acquisition that is the subject of a disclosure statement delivered to the issuing public corporation under subsection (1) of this section before a shareholder vote has been held under subsection (7) of this section with respect to a pending control share acquisition.
- (b) A resolution relating to the voting rights of control shares that are the subject of a pending control share acquisition is not effective unless it receives approval pursuant to subsection (7) of this section and a resolution relating to the voting rights of control shares that are the subject of a competing control share acquisition does not receive such approval. If a resolution applicable to the competing control share acquisition is approved pursuant to subsection (7) of this section, only that resolution is effective.
- (c) If a resolution relating to a pending control share acquisition has been approved pursuant to subsection (7) of this section before a disclosure statement with respect to another control share acquisition is delivered, the resolution is effective in restoring the voting rights of control shares that are the subject of the pending control share acquisition.
- (d) If resolutions relating to two (2) or more control share acquisitions are subject to shareholder vote under subsection (7) of this section, shares held by an acquiring person are not considered interested shares with respect to a vote on a resolution relating to a competing control share acquisition.

(9) All provisions of the Mississippi Business Corporation Act, Section 79-4-1.01 et seq., Mississippi Code of 1972, that are not inconsistent with the procedures set forth in this section shall apply to the meeting of shareholders of the issuing public corporation.

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