MCA Chapter 72

in effect

Miss. Code Ann. § 75-72-1 Repealed.

Repealed by Laws, 1980, ch. 418, § 12, eff from and after July 1, 1980. § 75-72-1 through § 75-72-23 . [En, Laws, 1977, ch. 339, §§ 1-12] Editor’s Notes — Former §§ 75-72-1 through 75-72-23 constituted the Mississippi Business Takeover Act of 1977, setting forth procedures to be followed for the takeover of businesses in Mississippi.

Miss. Code Ann. § 75-72-101 Short title.

Sections 75-72-101 through 75-72-121 may be cited as the “Mississippi Business Tender Offer Law of 1980.”

Miss. Code Ann. § 75-72-103 Definitions.

The following words and phrases shall have the meanings ascribed herein, unless the context clearly otherwise requires: “Affiliate” of a person means a person controlling, controlled by, or under common control with that person. “Associate” of a person means a person acting jointly or in concert with that person for the purpose of acquiring, holding, or disposing of, or exercising any voting rights attached to, the equity securities of a subject company. “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 ownership of voting securities, by contract or otherwise. “Equity security” means: Any stock or similar security carrying, at the time of the tender offer, the right to vote on any matter by virtue of the articles of incorporation, bylaws or governing instrument of the subject company or the right to vote for directors or persons performing substantially similar functions by operation of law. Any security convertible into such stock or similar security. Any warrant or right to purchase such stock or similar security. Any security carrying any warrant or right to purchase such stock or similar security. Any other security which for the protection of investors is deemed an equity security pursuant to regulation of the Secretary of State. “Bidder” means a person who makes a tender offer or on whose behalf a tender offer is made, and includes all affiliates and associates of that person. The term does not include a financial institution or broker-dealer lending funds or extending credit in the ordinary course of its business or any accountant, attorney, financial institution, broker-dealer, investment adviser, fiduciary, newspaper or magazine of general circulation, consultant, or other person furnishing information, services, or advice to, or performing ministerial or administrative duties for a person pursuant to the unsolicited request, or a general contract for advice to, such person, and not otherwise participating in the tender offer. “Offeree” means a record of beneficial owner of equity securities which a bidder acquires or offers to acquire in connection with a tender offer. “Person” means an individual, corporation, association, partnership, trust or other entity. “Tender offer” means any offer to acquire or the acquisition of any equity security of a subject company, pursuant to a tender offer or request or invitation for tenders, if after acquisition the bidder would be directly or indirectly a record or beneficial owner of more than five percent (5%) of any class of the outstanding equity securities of the subject company. “Subject company” means a corporation or other issuer of equity securities which has at least twenty percent (20%) of its equity securities beneficially owned by residents of this state and owns or controls assets located in this state which have a fair market value in excess of One Million Dollars ($1,000,000.00), except that subject company shall not include any state or national bank or any savings and loan association. “Securities law” refers to the Mississippi Securities Law, Section 75-71-101 et seq. “Beneficial owner” includes any person who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has shares or has the right to acquire: Voting power which includes the power to vote, or to direct the voting of, an equity security; or Investment power which includes the power to dispose, or to direct the disposition of, an equity security.

Miss. Code Ann. § 75-72-104 Transactions exempted from registration requirements.

The following transactions are exempted from the registration requirements of this chapter. Any offer made by an issuer to purchase its own equity securities or the equity securities of a subsidiary at least two-thirds (2/3) of the equity securities of which are owned either of record or beneficially by the issuer; An offer effected by or through a broker-dealer in the ordinary course of his business without solicitation of offers to sell equity securities of the subject company; An offer made to the owners of equity securities of a subject company with less than fifty (50) owners of record at the time of the offer; An offer or offers to purchase equity securities which, if accepted, will result in the offeror’s purchasing two percent (2%) or less of the outstanding equity securities of the same class during the preceding twelve-month period; An offer in which the consideration consists, in whole or in part, of securities registered under the United States Securities Act of 1933; An offer which the Secretary of State by order, after notice to the offeror and to the subject company and opportunity to respond, shall exempt from the provisions of this law as not being made, or to be made, for the purpose of, and not having the effect of, or to have the effect of, changing or influencing the control of the subject company, or otherwise as not comprehended within the purposes of Sections 75-72-101 through 75-72-121; or An offer which is subject to substantive administrative review of its terms and conditions by a federal or state agency and which the Secretary of State determines by rule, regulation or order has met the purposes of Sections 75-72-101 through 75-72-121.

Miss. Code Ann. § 75-72-105 Disclosure statements required for tender offer; amendment of statements.

No person shall make a tender offer involving a subject company unless the tender offer is effective or exempted under Sections 75-72-101 through 75-72-121. A tender offer shall become effective under Sections 75-72-101 through 75-72-121 on the day upon which the bidder (a) files with the Secretary of State a disclosure statement containing the information prescribed in subsection (3) of this section, a consent by the bidder to service of process, and the filing fee specified in Section 75-72-117; (b) delivers a copy of the disclosure statement or any required amendment thereto to the subject company at its principal office; and (c) publicly discloses the material terms of the proposed offer. The disclosure statement shall be filed on Schedule 14D-1, as such schedule is described in the United States Securities Exchange Act of 1934, and shall contain all amendments thereto. If there is any material change in any of the information set forth in any disclosure statement or exhibit filed under this section, the person who filed such disclosure statement shall: Promptly file an amendment of the disclosure statement or exhibit with the Secretary of State; and Not later than the date of filing of such amendment, hand deliver a copy of the amendment to the subject company at its principal office. If the bidder or the subject company is a public utility corporation subject to regulation by the Public Service Commission of the State of Mississippi, the Secretary of State shall forthwith, upon receipt of the filing required under subsection (2) of this section, furnish a copy of such filing to the regulatory body having jurisdiction over the bidder or subject company. If the bidder or subject company is a domestic insurance company subject to regulation by the Commissioner of Insurance of the State of Mississippi, the said commissioner shall, for all purposes of this section, be substituted for the Secretary of State. This section shall not be construed to limit or modify in any way any responsibility, authority, power or jurisdiction of the Secretary of State or the Commissioner of Insurance pursuant to any other section of the Mississippi Code of 1972.

Miss. Code Ann. § 75-72-107 Time for filing and delivery of materials; disclosure statement; misleading or untrue statements prohibited.

Copies of all advertisements, circulars, letters or other materials published by the bidder, the subject company or any person who makes a solicitation or recommendation to any offeree in connection with the tender offer (except a person who the term “bidder” does not include in accordance with Section 75-72-103(e)), soliciting or requesting the acceptance or rejection of the tender offer, with the exception of the initial press release by the bidder to the wire services announcing the intention to make a tender offer as contemplated in Section 75-72-105 shall be filed with the secretary of state and hand delivered to the subject company and the bidder no later than the day (or if such day is not a business day, then on the next succeeding business day) on which copies of the materials are first published or sent or given to any offeree. The person filing materials under this section shall, unless said person shall theretofore have filed a disclosure statement under this or any other section of Sections 75-72-101 through 75-72-121, file with said materials a disclosure statement, and consent by said person to service of process and the filing fee specified in Section 75-72-117. Unless the person filing a disclosure statement under this section shall theretofore have filed a disclosure statement under Section 75-72-105, the form of the disclosure statement filed under this section shall be schedule 14D-9, as said schedule is described in the United States Securities Exchange Act of 1934, and shall contain all exhibits thereto. If there is any material change in any of the information set forth in any disclosure statement or exhibit filed under this section, the person who filed said disclosure statement shall promptly file an amendment of the disclosure statement or exhibit with the secretary of state and, not later than the date of said filing of that amendment, hand deliver a copy of the amendment to the subject company and the bidder. The materials described in subsection (1) of this section shall not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading.

Miss. Code Ann. § 75-72-109 Fraudulent, deceptive and manipulative acts prohibited.

No person shall engage in any fraudulent, deceptive or manipulative acts or practices in connection with a tender offer. Fraudulent, deceptive and manipulative acts or practices include, without limitation: Solicitation of any offeree for acceptance or rejection of a tender offer, or acquisition of any equity security of a subject company pursuant to a tender offer, that is not effective or exempt under Sections 75-72-101 through 75-72-121. Publication or use in connection with the tender offer of any untrue statement of a material fact or omitting to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading, but not including the mailing by a subject company to the record or beneficial owners of its equity securities or solicitation materials published and furnished to the subject company for transmittal to its security holders by the bidder. The direct or indirect purchase, or the making of any arrangement to purchase, any security that is the subject of a tender offer (or any other security which is immediately convertible into or exchangeable for such security), otherwise than pursuant to such tender offer, from the date such tender offer is first published or sent or given to security holders until the expiration of the period, including any extensions thereof, during which securities tendered pursuant to such tender offer may, by the terms of such offer, be accepted or rejected; provided, however, that if such person is the owner of another security which is immediately convertible into or exchangeable for the security which is the subject of the offer, his subsequent exercise of his right of conversion or exchange with respect to such other security shall not be prohibited and this section shall not prohibit the purchase of any security pursuant to a stock option plan approved by security holders. Hold such tender offer open for less than twenty (20) business days from the date such tender offer is first published or sent or given to security holders; provided, however, that a tender offer by the issuer of the class of equity securities being sought, or by an affiliate of such issuer, which is not made in anticipation of or in response to another person’s tender offer for securities of the same class, shall be held open for not less than fifteen (15) business days from the date such tender offer is first published or sent or given to security holders. Failure to offer the same or substantially equivalent consideration to all offerees pursuant to a tender offer. Failure to make the offer available to all holders of the class of equity securities subject to the tender offer, except that a bidder shall not be prohibited from making a tender offer which is not extended to security holders residing in jurisdictions having laws which render such tender offer unlawful or which the bidder in good faith determines may render such tender offer unlawful.

Miss. Code Ann. § 75-72-111 Withdrawals or variations of offers.

A bidder shall provide that any equity securities of a subject company deposited or tendered pursuant to a tender offer may be withdrawn by or on behalf of any person who has deposited securities pursuant to the tender offer: (a) at any time until the expiration of fifteen (15) business days from the date of such tender offer was first published or sent or given to security holders; and (b) on the date and until the expiration of ten (10) business days following the date of another bidder’s tender offer is first published or sent or given to security holders for securities of the same class, provided that the bidder has received notice or otherwise has knowledge of the commencement of such other tender offer and, provided further, that withdrawal may only be effected with respect to securities which have not been accepted for payment in the manner set forth in the bidder’s tender offer prior to the date such other tender offer is first published or sent or given to security holders; and (c) at any time after sixty (60) days from the date the original tender offer was first published or sent or given to security holders. The time periods for withdrawal rights pursuant to this section shall be computed on a concurrent, as opposed to a consecutive, basis. If a bidder makes a tender offer for less than all the outstanding equity securities of any class, and if the number of securities deposited or tendered pursuant thereto, within ten (10) days after the offer is first published or sent or given to security holders, or at the written election of the bidder any period which exceeds such ten (10) days and/or any period which exceeds ten (10) days from the date that notice of an increase in the consideration offered is first published or sent or given to offerees, is greater than the number the offeror has offered to accept and pay for, the securities shall be accepted pro rata, disregarding fractions, according to the number of securities deposited or tendered by each offeree. If a bidder varies the terms of a tender’s offer before its expiration date by increasing the consideration offered to the offerees, the bidder shall pay the increased consideration for all equity securities accepted whether the securities have been accepted by the bidder before or after the variation in the terms of the offer. No bidder shall make a tender offer at any time when an injunctive proceeding that has not been finally determined has been brought by the secretary of state against the bidder for violation of Sections 75-72-101 through 75-72-121 unless the bidder shall disclose the pendency of that proceeding in the bidder’s disclosure statement filed under Section 75-72-101 through 75-72-121 and in the tender offer materials first published or sent or given to offerees.

Miss. Code Ann. § 75-72-113 Repealed.

Repealed by Laws, 1987, ch. 478, § 5, eff from and after July 1, 1987. [En Laws, 1980, ch. 418, § 7]

Miss. Code Ann. § 75-72-115 Administration; rules and regulations.

Sections 75-72-101 through 75-72-121 shall be administered by the secretary of state, who may promulgate regulations necessary to carry out the purposes of Sections 75-72-101 through 75-72-121, and shall promulgate such rules as may be necessary to ensure that the application and administration of Sections 75-72-101 through 75-72-121 is not inconsistent with the regulation of tender offers under the United States Securities Exchange Act of 1934.

Miss. Code Ann. § 75-72-117 Filing fee for disclosure statements.

The secretary of state shall charge a filing fee of five hundred dollars ($500.00) for each disclosure statement filed under Sections 75-72-101 through 75-72-121.

Miss. Code Ann. § 75-72-119 Investigation of violations; enforcement.

Whenever it appears to the secretary of state that any person has engaged or is about to engage in any act or practice constituting a violation of any provision of Sections 75-72-101 through 75-72-121 or any regulation adopted under Sections 75-72-101 through 75-72-121, the secretary of state may investigate and, in connection with such investigation, shall have the same powers to compel the production of books, papers and other documents and to administer oaths and conduct examinations as are granted to the secretary of state under the securities law. He may bring an action in any chancery court in the name and on behalf of the state against any person or persons participating in a violation, seeking such relief as the court may grant, including, without limitation, to enjoin those persons from continuing or doing any act in violation of Sections 75-72-101 through 75-72-121, to enforce compliance, to grant a permanent or preliminary injunction or temporary restraining order, or to order rescission of any sales, tenders for sale, purchases or tenders for purchase of equity securities determined to be unlawful under Sections 75-72-101 through 75-72-121 or any regulation of the secretary of state. Whenever any person has engaged in or is about to engage in any act or practice constituting a violation of Sections 75-72-101 through 75-72-121 or any regulation or order adopted thereunder, the bidder, subject company, or any record or beneficial owner of an equity security of the subject company may bring an action in the county where the subject company has its executive offices or a material portion of its total assets in the state seeking such relief as the court may grant, including, without limitation, to enjoin that person from continuing or doing any act in violation of Sections 75-72-101 through 75-72-121, to enforce compliance, to grant a permanent or preliminary injunction or temporary restraining order, to order rescission of any sales, tenders for sale, purchases, or tenders for purchase of equity securities determined to be unlawful under Sections 75-72-101 through 75-72-121 or any regulation of the secretary of state, or, in the case of record or beneficial owners of equity securities, damages. Every person who directly or indirectly controls a person liable under subsection (2) of this section is also liable jointly or severally with and to the same extent as that person, unless he did not know of the existence of the facts by reason of which the liability is alleged to exist. No action may be maintained under this section unless commenced before the expiration of three (3) years after the discovery of the facts constituting the violation. The rights and remedies under Sections 75-72-101 through 75-72-121 are in addition to any other rights or remedies that may exist at law or in equity.

Miss. Code Ann. § 75-72-121 Penalties.

Any person who makes a tender offer involving a subject company without filing a disclosure statement required under Section 75-72-105 may be imprisoned for a period not to exceed one (1) year, or fined an amount not to exceed five thousand dollars ($5,000.00) per day, while the unlawful tender offer is in effect, or both. Any person who, in connection with a tender offer, knowingly makes or causes to be made to the secretary of state any representation of a material fact which he knows to be false, or knowingly withholds or causes to be withheld from the secretary of state any information the disclosure of which he knows is necessary, in light of the circumstances, to make not misleading other representations of material facts made or caused to be made by him to the secretary of state, may be imprisoned for a period of not less than one (1) nor more than five (5) years, or fined an amount not to exceed twenty-five thousand dollars ($25,000.00) or both. Any person who, in connection with a tender offer, knowingly publishes or sends or gives, or causes to be published, or sends or gives any representation of a material fact which he knows to be false, or knowingly omits to publish information which he knows is necessary, in light of the circumstances, to make not misleading other representations of material facts published, or sends or gives or causes to be published, or sends or gives by him, may be imprisoned for a period of not less than one (1) nor more than five (5) years, or fined an amount not to exceed twenty-five thousand dollars ($25,000.00), or both; provided, however, that this subsection shall not apply to the mailing by a subject company to the record or beneficial owners of its equity securities of solicitation material published and furnished to the subject company for transmittal to its security holders by the bidder. Any person who knowingly violates any provision of Sections 75-72-101 through 75-72-121 for which a specific criminal penalty is not otherwise provided may be imprisoned for a period not to exceed one (1) year, or fined an amount not to exceed five thousand dollars ($5,000.00), or both. Nothing herein limits the power of the state to punish any person for conduct which constitutes a crime under any other statute.