2018 South Dakota Codified Laws
Title 47 - CORPORATIONS
Chapter 33 - South Dakota Domestic Public Corporation Takeover Act
§ 47-33-19 Conditions making § 47-33-17 inapplicable--Effect of corporation changes after acquisition date.

47-33-19. Conditions making § 47-33-17 inapplicable--Effect of corporation changes after acquisition date. (1) Section 47-33-17 shall not apply to any business combination of a domestic public corporation:

(a) If the articles of the domestic public corporation provide that this article shall not be applicable to the domestic public corporation:

(i) By a provision included in the original articles expressly electing not to be subject to § 47-33-17; or

(ii) By an article amendment approved by the holders of two-thirds of its outstanding voting shares, excluding the voting shares of interested shareholders and their affiliates and associates, expressly electing not to be subject to § 47-33-17, and the amendment provides that it is not to be effective until eighteen months after the vote of the shareholders and provides that it does not apply to any business combination of the domestic public corporation with an interested shareholder whose share acquisition date is on or before the effective date of the amendment.

(b) If the business combination was consummated before, or if a binding agreement for the business combination was entered into before, February 21, 1990.

(c) With an interested shareholder which became an interested shareholder inadvertently, if such interested shareholder, (i) as soon as practicable, divests itself of a sufficient amount of the voting shares of such domestic public corporations so that it is no longer the beneficial owner, directly or indirectly, of ten percent or more of the outstanding voting shares of such domestic public corporation, and (ii) would not at any time within the three-year period preceding the announcement date with respect to such business combination have been an interested shareholder but for such inadvertent acquisition.

(d) With an interested shareholder who was an interested shareholder on February 21, 1990, and remains so continuously thereafter, unless subsequent to that date the interested shareholder increased its beneficial ownership of the outstanding voting shares of the domestic public corporation to a proportion in excess of the voting shares that the interested shareholder beneficially owned on February 21, 1990, excluding an increase approved by the board of the domestic public corporation before the increase occurred.

(e) With an interested shareholder who was an interested shareholder on February 21, 1990, and subsequent to that date inadvertently increased its beneficial ownership of the outstanding voting shares of the domestic public corporation to a proportion in excess of the proportion of voting shares that the interested shareholder beneficially owned immediately before that date, if the interested shareholder divests itself of a sufficient amount of voting shares so that the interested shareholder is no longer the beneficial owner of a proportion of the outstanding voting shares in excess of the proportion of the outstanding voting shares that the interested shareholder beneficially owned on February 21, 1990.

(2) If a corporation is a domestic public corporation as of the interested shareholder's share acquisition date, this chapter shall continue to apply to such corporation with respect to such interested shareholder and its affiliates and associates, regardless of any changes in the corporation which occur on or after that date which would otherwise result in the corporation ceasing to be a domestic public corporation, if such changes result, directly or indirectly, from action taken or proposed by or on behalf of, or pursuant to any written or unwritten agreement, arrangement, relationship, understanding or otherwise with, the interested shareholder or any affiliate or associate of the interested shareholder or from the transactions by which the person became an interested shareholder.

(3) In addition to domestic public corporations, §§ 47-33-17 to 47-33-19, inclusive, shall apply to any business combination of other domestic corporations that meet the requirements of a domestic public corporation except that the corporation is not a publicly held corporation, if an express provision electing to be subject to §§ 47-33-17 to 47-33-19, inclusive, is contained in the articles of such domestic corporation, in which event the term "domestic public corporation" as used in §§ 47-33-1 to 47-33-7, inclusive, and §§ 47-33-17 to 47-33-19, inclusive, shall be deemed to include such electing domestic corporation.

Source: SL 1990, ch 369, § 303.

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