2018 South Dakota Codified Laws
Title 47 - CORPORATIONS
Chapter 33 - South Dakota Domestic Public Corporation Takeover Act
§ 47-33-18 Required conditions for business combination--Aggregate amount of cash and marked value--Consideration--Beneficial owners.

47-33-18. Required conditions for business combination--Aggregate amount of cash and marked value--Consideration--Beneficial owners. A business combination conforming to subsection 47-33-17(2)(a) and subdivision 47-33-17(4) shall also meet all of the following conditions:

(1) 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 common shares of such domestic public corporation in the business combination is at least equal to the higher of the following:

(a) The highest per share price, including any brokerage commissions, transfer taxes and soliciting dealer's fees, paid by the interested shareholder for any common shares of the same class or series acquired by it: (i) within the three-year period immediately prior to the announcement date with respect to such business combination, or (ii) within the three-year period immediately prior to, or in, the transaction in which the interested shareholder became an interested shareholder, whichever is higher; plus, in either case, interest compounded annually from the earliest date on which the 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 common share since such earliest date, up to the amount of the interest.

(b) The market value per common share on the announcement date with respect to the business combination or on the interested shareholder's share 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 common share since such date, up to the amount of the interest.

(2) 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 shares, other than common shares, of the corporation is at least equal to the highest of the following, whether or not the interested shareholder has previously acquired any shares of such class or series of shares:

(a) The highest per-share price, including any brokerage commissions, transfer taxes and soliciting dealer's fees, paid by the interested shareholder for any shares of such class or series of shares acquired by it: (i) within the three-year period immediately prior to the announcement date with respect to the business combination, or (ii) within the three-year period immediately prior to, or in, the transaction in which the interested shareholder became an interested shareholder, whichever is higher; plus, in either case, interest compounded annually from the earliest date on which the 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 shares since such earliest date, up to the amount of the interest.

(b) The highest preferential amount per share to which the holders of shares of such class or series of shares are entitled in the event of any voluntary liquidation, dissolution or winding up of the 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 shares, unless the aggregate amount of the dividends is included in such preferential amount.

(c) The market value per share of such class or series of shares on the announcement date with respect to the business combination or on the interested shareholder's share 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 shares since such date, up to the amount of the interest.

(3) The consideration to be received by holders of a particular class or series of outstanding shares, including common shares, of the corporation in the 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 shares previously acquired by it, and the consideration shall be distributed promptly.

(4) The holders of all outstanding shares of the corporation not beneficially owned by the interested shareholder immediately prior to the consummation of the business combination are entitled to receive in the business combination cash or other consideration for such shares in compliance with subsections (1), (2), and (3) of this section.

(5) After the interested shareholder's share acquisition date and prior to the consummation date with respect to the business combination, the interested shareholder has not become the beneficial owner of any additional voting shares of such corporation except:

(a) As part of the transaction which resulted in such interested shareholder becoming an interested shareholder;

(b) By virtue of proportionate splits of shares, share dividends, or other distributions of shares in respect of shares not constituting a business combination;

(c) Through a business combination meeting all of the conditions of subsection 47-33-17(1), (2), (3), or (4);

(d) Through purchase by the interested shareholder at any price which, if the 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 subsection (1), (2), and (3) of this section; or

(e) Through purchase required by and pursuant to the provisions of, and at no less than the fair value including interest to the date of payment as determined by the court under § 47-33-15 relating to valuation procedures or, if such fair value was not then so determined, then at a price that would satisfy the conditions in subparagraph (d) of this subsection.
Source: SL 1990, ch 369, § 302.

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