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SECURITIES AND EXCHANGE COMMISSION
Section 14(c) of the Securities
Exchange Act of 1934 (Amendment No. __)
o | Preliminary Information Statement | |
o | Confidential, for Use of the Commission Only (as permitted by Rule 14c-5(d)(2)) | |
þ | Definitive Information Statement |
þ | No fee required. | |
o | Fee computed on table below per Exchange Act Rules 14c-5(g) and 0-11. |
(1) | Title of each class of securities to which transaction applies: | ||
(2) | Aggregate number of securities to which transaction applies: | ||
(3) | Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (Set forth the amount on which the filing fee is calculated and state how it was determined): | ||
(4) | Proposed maximum aggregate value of transaction: | ||
(5) | Total fee paid: | ||
o | Fee paid previously with preliminary materials. | |
o | Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
(1) | Amount Previously Paid: | ||
(2) | Form, Schedule or Registration Statement No.: | ||
(3) | Filing Party: | ||
(4) | Date Filed: | ||
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2309 Nevada Boulevard
Charlotte, North Carolina 28273
By Order of the Board of Directors, /s/ Brad C. Glosson Brad C. Glosson Chief Executive Officer |
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2309 Nevada Boulevard
Charlotte, North Carolina 28273
HOLDER OF A MAJORITY OF VOTING POWER OF THE COMPANY’S CAPITAL STOCK
• | we will change our domicile to the State of Delaware from the State of Nevada, which means that the surviving corporation will be governed by the laws of the State of Delaware; | ||
• | we will change our corporate name to “DesignLine Corporation” from “Jasper Ventures Inc.” and apply for a new trading symbol to reflect the new name; | ||
• | you will be entitled to receive one share of common stock, par value $0.0001 per share, of DesignLine Corporation, for every one share of Jasper Ventures common stock, par value $0.001 per share, you own as of the effective date of the Reincorporation; | ||
• | the persons presently serving as our executive officers and directors will continue to serve in the same positions with DesignLine Corporation; | ||
• | we will be governed by a new certificate of incorporation under Delaware law; and | ||
• | we will adopt new bylaws under Delaware law. |
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By Order of the Board of Directors, /s/ Brad C. Glosson Brad C. Glosson Chief Executive Officer |
for Action Taken by Written Consent of Stockholders Effective November 9, 2009.
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Appendix B — Proposed Delaware Certificate of Incorporation
Appendix C — Proposed Delaware Bylaws
Appendix D — Nevada Dissenters’ Rights Statutes
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2309 Nevada Boulevard
Charlotte, North Carolina 28273
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• | each person or entity known by us to be the beneficial owner of more than 5% of the outstanding shares of common stock; | ||
• | each director and our named executive officers; and | ||
• | our directors and executive officers as a group. |
Number of | Percentage | |||||||
Shares | of Shares | |||||||
Beneficially | Beneficially | |||||||
Name and Address of Beneficial Owner | Owned(1) | Owned(2) | ||||||
Brad C. Glosson | 4,248,011 | 9.60 | % | |||||
James G. Martin, Ph.D. | 380,001 | * | ||||||
William Cave | 200,000 | * | ||||||
James Dolan | — | — | ||||||
Andrew Green | 100,002 | * | ||||||
K. Wesley M. Jones | 4,125,934 | 9.33 | % | |||||
John Turton | 3,626,427 | 8.20 | % | |||||
Buster Glosson | 3,563,457 | 8.06 | % | |||||
All directors and executive officers as a group: (5 persons) | 4,928,014 | 11.14 | % |
* | Less than 1% of outstanding shares. | |
(1) | Unless otherwise indicated, includes shares owned by a spouse, minor children and relatives sharing the same home, as well as entities owned or controlled by the named person. Also includes shares if the named person has the right to acquire those shares within 60 days after October 6, 2009 by the exercise of any warrant, stock option or other right. Unless otherwise noted, shares are owned of record and beneficially by the named person. | |
(2) | The total number of shares outstanding used in calculating this percentage is 44,235,028, the number of shares outstanding as of October 6, 2009. |
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• | we will change our domicile to the State of Delaware from the State of Nevada, which means that the surviving corporation will be governed by the laws of the State of Delaware; | ||
• | we will change our corporate name to “DesignLine Corporation” from “Jasper Ventures Inc.” and apply for a new trading symbol to reflect the new name; | ||
• | you will be entitled to receive one share of common stock, par value $0.0001 per share, of DesignLine Corporation, for each share of Jasper Ventures common stock, par value $0.001 per share, you own as of the effective date of the Reincorporation; | ||
• | the persons presently serving as our executive officers and directors will continue to serve in the same positions with DesignLine Corporation; | ||
• | we will be governed by a new certificate of incorporation under Delaware law; and | ||
• | we will be governed by new bylaws under Delaware law. |
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• | the contract is between the corporation and a director of the corporation or an entity in which a director or officer of the corporation has a financial interest; | ||
• | an interested director or officer is present at the meeting of the board of directors that authorizes or approves the contract or transaction; or | ||
• | the vote or votes of the interested director are counted for purposes of authorizing or approving the contract or transaction involving the interested transaction. |
• | the common directorship, office or financial interest is known to the board of directors and the board of directors authorizes, approves, or ratifies the contract or transaction in good faith by a vote without counting the vote of the interested director; | ||
• | the common directorship, office or financial interest is made known to the stockholders and they authorize, approve or ratify the contract or transaction in good faith by a majority vote of the outstanding shares entitled to vote, including the votes, if any, of the interested director; | ||
• | the common directorship, office or financial interest is unknown to the interested director at the time it is brought before the board of directors; or | ||
• | the contract or transaction is fair as to the corporation at the time it is authorized or approved. |
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• | our balance sheet as of the end of a fiscal year ended not more than 16 months before the date of payment, an income statement for that year, a statement of changes in stockholders’ equity for that year, and the latest available interim financial statements, if any; | ||
• | an explanation of how we estimated the fair value of the shares and how the interest was calculated; | ||
• | information regarding your right to challenge the estimated fair value; and | ||
• | a copy of the Nevada’s dissenters’ rights statutes. |
• | the amount of the fair value of the shares, plus interest, in excess of the amount we paid; or |
• | the fair value, plus accrued interest, of the after-acquired shares for which we withheld payment. |
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Appendix A
PLAN OF MERGER
THIS PLAN OF MERGER is between Jasper Ventures Inc., a Nevada corporation (the “Corporation”) and DesignLine Corporation, a Delaware corporation (“DesignLine”).
1. The Corporation is a corporation duly organized and validly existing under the laws of the State of Nevada. DesignLine is a corporation duly organized and validly existing under the laws of the State of Delaware. The Corporation holds all of the issued and outstanding shares of common stock of DesignLine.
2. At the Effective Time (as defined below), the Corporation will merge with and into DesignLine (the “Merger”), whereupon the separate existence of the Corporation shall cease and DesignLine shall be the surviving entity (the “Surviving Entity”) and will continue its existence as a Delaware corporation.
3. The effective date and time of the Merger (the “Effective Time”) shall be the date and time of filing of the certificate of ownership and merger in Delaware and the articles of merger in Nevada or such other date and time specified therein.
4. At the Effective Time, the effect of the Merger shall be as provided in Section 259 of the General Corporation Law of the State of Delaware and Section 92A.250 of the Nevada Revised Statutes.
5. From and after the Effective Time, (i) the Board of Directors of DesignLine at the Effective Time will be and remain the Board of Directors of the Surviving Entity; (ii) the officers of DesignLine at the Effective Time will be and remain the officers of the Surviving Entity; (iii) the Certificate of Incorporation of DesignLine will be and remain the Certificate of Incorporation of the Surviving Entity, until amended in accordance with applicable law and the terms thereof; and (iv) the Amended and Restated Bylaws of DesignLine in effect at the Effective Time will be and remain the Amended and Restated Bylaws of the Surviving Entity, until amended or repealed in accordance with applicable law and the terms thereof.
6. At the Effective Time, the Corporation’s stockholders will receive one issued and outstanding share of common stock, par value $0.0001, of DesignLine for each issued and outstanding share of Corporation common stock held by each of them.
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Appendix B
CERTIFICATE OF INCORPORATION OF
DESIGNLINE CORPORATION
ARTICLE I
NAME
The name of the corporation is Designline Corporation (the “Corporation”).
ARTICLE II
REGISTERED OFFICE AND AGENT
The address of the Corporation’s registered office in the State of Delaware is 2711 Centerville Road, Suite 400, Wilmington, County of New Castle, 19808. The name of the registered agent at such address is Corporation Service Company.
ARTICLE III
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware as the same exists or may hereafter be amended.
ARTICLE IV
CAPITAL STOCK
The total number of shares of stock which the Corporation shall have authority to issue is Seventy-Five Million (75,000,000) shares of Common Stock, par value $0.0001 per share (the “Common Stock”).
ARTICLE V
INCORPORATOR
The name and mailing address of the incorporator are as follows:
Brad Glosson
2309 Nevada Boulevard
Charlotte, NC 28273
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ARTICLE VI
DIRECTORS, STOCKHOLDERS AND MANAGEMENT OF THE COMPANY
(a) In furtherance and not in limitation of the powers conferred by statute, the Board of Directors of the Corporation (the “Board”) is expressly authorized to make, alter, amend or repeal the bylaws of the Corporation (the “Bylaws”).
(b) Subject to any additional vote required by this Certificate of Incorporation, the number of directors of the Corporation shall be determined in the manner set forth in the Bylaws of the Corporation. Elections of directors need not be by written ballot unless otherwise provided in the Bylaws.
(c) Meetings of stockholders may be held within or without the state of Delaware, as the Bylaws of the Corporation may provide. The books of the Corporation may be kept outside the State of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation.
(d) To the fullest extent permitted by the Delaware General Corporation Law (the “DGCL”), or any other applicable law, as the same exists or may hereafter be amended, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for any action taken, or any failure to take any action, as a director.
(e) To the fullest extent permitted by applicable law, the Corporation is authorized to provide indemnification of (and advancement of expenses to) directors, officers and agents of the Corporation (and any other persons to which the DGCL permits the Corporation to provide indemnification) through Bylaw provisions, agreements with such agents or other persons, vote of stockholders or disinterested directors or otherwise, in excess of the indemnification and advancement otherwise permitted by Section 145 of the DGCL.
(f) Any amendment, repeal or modification of the foregoing provisions of thisArticle VI shall not adversely affect any right or protection of any director, officer or other agent of the Corporation existing at the time of such amendment, repeal or modification.
(g) The following indemnification provisions shall apply to the persons enumerated below.
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i.Right to Indemnification of Directors and Officers. The Corporation shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (an “Indemnified Person”) who was or is made or is threatened to be made a party to or is otherwise involved (as a witness or otherwise) in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”), by reason of the fact that such person, or a person for whom such person is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, limited liability company, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Indemnified Person in such Proceeding. Notwithstanding the preceding sentence, except as otherwise provided inSection (g)(iii) of thisArticle VI, the Corporation shall be required to indemnify an Indemnified Person in connection with a Proceeding (or part thereof) commenced by such Indemnified Person only if the commencement of such Proceeding (or part thereof) by the Indemnified Person was authorized in advance by the Board of Directors.
ii.Prepayment of Expenses of Directors and Officers. The Corporation shall pay the expenses (including attorneys’ fees) reasonably incurred by an Indemnified Person in defending any Proceeding in advance of its final disposition,provided,however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the Indemnified Person to repay all amounts advanced if it should be ultimately determined that the Indemnified Person is not entitled to be indemnified under thisArticle VI or otherwise.
iii.Claims by Directors and Officers. If a claim for indemnification or advancement of expenses under thisArticle VI is not paid in full within 30 days after a written claim therefor by the Indemnified Person has been received by the Corporation, the Indemnified Person may file suit to recover the unpaid amount of such claim and, if successful in whole or in part, shall be entitled to be paid the expense of prosecuting such claim. In any such action the Corporation shall have the burden of proving that the Indemnified Person is not entitled to the requested indemnification or advancement of expenses under applicable law.
iv.Indemnification of Employees and Agents. The Corporation may indemnify and advance expenses to any person who was or is made or is threatened to be made a party to or is otherwise involved (as a witness or otherwise) in any Proceeding by reason of the fact that such person, or a person for whom such person is the legal representative, is or was an employee or agent of the Corporation or, while an employee or agent of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, limited liability company, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such person in connection with such Proceeding. The ultimate determination of entitlement to indemnification of persons who are non-director or officer employees or agents shall be made in such manner as is determined by the Board of Directors in its sole discretion. Notwithstanding the foregoing sentence, the Corporation shall not be required to indemnify a person in connection with a Proceeding initiated by such person if the Proceeding was not authorized in advance by the Board of Directors.
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v.Advancement of Expenses of Employees and Agents. The Corporation may pay the expenses (including attorneys’ fees) reasonably incurred by an employee or agent in defending any Proceeding in advance of its final disposition on such terms and conditions as may be determined by the Board of Directors.
vi.Non-Exclusivity of Rights. The rights conferred on any person by thisArticle VI shall not be exclusive of any other rights which such person may have or hereafter acquire under any statute, provision of this Certificate of Incorporation, Bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
vii.Other Indemnification. The Corporation’s obligation, if any, to indemnify any person who was or is serving at its request as a director, officer or employee of another corporation, partnership, limited liability company, joint venture, trust, organization or other enterprise shall be reduced by any amount such person may collect as indemnification from such other corporation, partnership, limited liability company, joint venture, trust, organization or other enterprise.
viii.Insurance. The Board of Directors may, to the fullest extent permitted by applicable law as it presently exists, or may hereafter be amended from time to time, authorize an appropriate officer or officers to purchase and maintain at the Corporation’s expense insurance: (a) to indemnify the Corporation for any obligation which it incurs as a result of the indemnification of directors, officers and employees under the provisions of thisArticle VI; and (b) to indemnify or insure directors, officers and employees against liability in instances in which they may not otherwise be indemnified by the Corporation under the provisions of thisArticle VI.
ix.Amendment or Repeal. Any repeal or modification of the foregoing provisions of thisArticle VI shall not adversely affect any right or protection hereunder of any person in respect of any act or omission occurring prior to the time of such repeal or modification. The rights provided hereunder shall inure to the benefit of any Indemnified Person and such person’s heirs, executors and administrators.
(h) The Corporation hereby elects not to be governed by Section 203 of the DGCL.
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ARTICLE VII
CREDITORS MEETINGS
Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholder of this Corporation, as the case may be, and also on this Corporation.
[Signature Page Follows]
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I, the undersigned, as the sole incorporator of the Corporation, have signed this Certificate of Incorporation on • , 2009.
Brad Glosson
Incorporator
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1. OFFICES | 1 | |||
1.1 Registered Office | 1 | |||
1.2 Other Offices | 1 | |||
2. MEETINGS OF STOCKHOLDERS | 1 | |||
2.1 Place of Meetings | 1 | |||
2.2 Annual Meetings | 1 | |||
2.3 Special Meetings | 3 | |||
2.4 Notice of Meetings | 3 | |||
2.5 Waiver of Notice | 3 | |||
2.6 List of Stockholders | 4 | |||
2.7 Quorum at Meetings | 4 | |||
2.8 Adjournment of Meetings | 4 | |||
2.9 Voting and Proxies | 4 | |||
2.10 Required Vote | 5 | |||
2.11 Joint Owners of Stock | 5 | |||
2.12 Action Without a Meeting | 5 | |||
2.13 Organization | 5 | |||
3. DIRECTORS | 6 | |||
3.1 Powers | 6 | |||
3.2 Number and Election | 6 | |||
3.3 Classes of Directors | 6 | |||
3.4 Resignations; Removal; Vacancies and Newly Created Directorships | 7 | |||
3.5 Meetings | 7 | |||
3.5.1 Regular Meetings | 7 | |||
3.5.2 Special Meetings | 7 | |||
3.5.3 Telephone Meetings | 8 | |||
3.5.4 Action Without Meeting | 8 | |||
3.5.5 Waiver of Notice of Meeting | 8 | |||
3.5.6 Quorum and Vote at Meetings | 8 | |||
3.5.7 Adjournment of Meetings; Notice | 8 | |||
3.6 Committees of Directors | 8 | |||
3.7 Compensation of Directors | 9 | |||
3.8 Organization | 10 |
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4. OFFICERS | 10 | |||
4.1 Officers Designated | 10 | |||
4.2 Tenure and Duties of Officers | 10 | |||
4.3 Delegation of Authority | 11 | |||
4.4 Resignations | 11 | |||
4.5 Removal | 11 | |||
4.6 Compensation | 12 | |||
4.7 Fidelity Bonds | 12 | |||
5. CAPITAL STOCK AND OTHER INSTRUMENTS | 12 | |||
5.1 Certificate of Stock; Uncertificated Shares | 12 | |||
5.2 Duty of Corporation to Register Transfers of Shares | 13 | |||
5.3 Lost Certificates | 13 | |||
5.4 Record Date | 14 | |||
5.4.1 Actions by Stockholders | 14 | |||
5.4.2 Payments to Stockholders | 14 | |||
5.5 Stockholders of Record | 14 | |||
5.6 Execution of Other Securities | 15 | |||
6. INDEMNIFICATION | 15 | |||
6.1 Indemnification of Directors, Executive Officers, Other Officers, Employees and Other Agents | 15 | |||
6.2 Certain Definitions | 17 | |||
7. NOTICE BY ELECTRONIC TRANSMISSION | 17 | |||
7.1 Notice by Electronic Transmission | 17 | |||
7.2 Definition of Electronic Transmission | 18 | |||
7.3 Inapplicability | 18 | |||
8. GENERAL PROVISIONS | 18 | |||
8.1 Inspection of Books and Records | 18 | |||
8.2 Dividends | 19 | |||
8.3 Reserves | 19 | |||
8.4 Execution of Instruments | 19 | |||
8.5 Fiscal Year | 19 | |||
8.6 Seal | 19 | |||
8.7 Amendment of Bylaws | 19 |
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Appendix D
Rights of Dissenting Owners
NRS 92A.300 through NRS 92A.500
NRS 92A.300 Definitions.As used in NRS 92A.300 to 92A.500, inclusive, unless the context otherwise requires, the words and terms defined in NRS 92A.305 to 92A.335, inclusive, have the meanings ascribed to them in those sections.
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.
NRS 92A.310 “Corporate action” defined.“Corporate action” means the action of a domestic corporation.
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 who exercises that right when and in the manner required by NRS 92A.400 to 92A.480, inclusive.
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.
NRS 92A.325 “Stockholder” defined.“Stockholder” means a stockholder of record or a beneficial stockholder of a domestic corporation.
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.
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.
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 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.
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.
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.
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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.
NRS 92A.380 Right of stockholder to dissent from certain corporate actions and to obtain payment for shares.
1. Except as otherwise provided in NRS 92A.370 and 92A.390, any stockholder 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 conversion or plan of merger to which the domestic corporation is a constituent entity:
(1) If approval by the stockholders is required for the conversion or merger by NRS 92A.120 to 92A.160, inclusive, or the articles of incorporation, regardless of whether the stockholder is entitled to vote on the conversion or plan of merger; or
(2) If the domestic corporation is a subsidiary and is merged with its parent pursuant to NRS 92A.180.
(b) Consummation of a plan of exchange to which the domestic corporation is a constituent entity as the corporation whose subject owner’s interests will be acquired, if his shares are to be acquired in the plan of exchange.
(c) Any corporate action taken pursuant to a vote of the stockholders to the extent 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.
(d) Any corporate action not described in paragraph (a), (b) or (c) that will result in the stockholder receiving money or scrip instead of fractional shares except where the stockholder would not be entitled to receive such payment pursuant to NRS 78.205, 78.2055 or 78.207.
2. A stockholder who is entitled to dissent and obtain payment pursuant to NRS 92A.300 to 92A.500, inclusive, may not challenge the corporate action creating his entitlement unless the action is unlawful or fraudulent with respect to him or the domestic corporation.
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3. From and after the effective date of any corporate action described in subsection 1, no stockholder who has exercised his right to dissent pursuant to NRS 92A.300 to 92A.500, inclusive, is entitled to vote his shares for any purpose or to receive payment of dividends or any other distributions on shares. This subsection does not apply to dividends or other distributions payable to stockholders on a date before the effective date of any corporate action from which the stockholder has dissented.
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.
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.
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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.
NRS 92A.410 Notification of stockholders regarding right of dissent.
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.
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.
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. If a proposed corporate action creating dissenters’ rights is taken by written consent of the stockholders, a stockholder who wishes to assert dissenters’ rights must not consent to or approve the proposed corporate action.
3. A stockholder who does not satisfy the requirements of subsection 1 or 2 and NRS 92A.400 is not entitled to payment for his shares under this chapter.
NRS 92A.430 Dissenter’s notice: Delivery to stockholders entitled to assert rights; contents.
1. The subject corporation shall deliver a written dissenter’s notice to all stockholders entitled to assert dissenters’ 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;
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(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.
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 or the beneficial owner on whose behalf he is dissenting, as the case may be, 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 cancelled 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.
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.
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 cancelled or modified by the taking of the proposed corporate action.
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:
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(a) Of the county where the corporation’s principal office is located;
(b) If the corporation’s principal office is not located in this State, in Carson City; or
(c) At the election of any dissenter residing or having its principal office in this State, of the county where the dissenter resides or has its principal 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
(e) A copy of NRS 92A.300 to 92A.500, inclusive.
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.
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.
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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.
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 principal office is located. If the principal office of the subject corporation is not located in the State, it shall commence the proceeding in the county where the principal office of the domestic corporation merged with or whose shares were acquired by the foreign entity was located. If the principal office of the subject corporation and the domestic corporation merged with or whose shares were acquired is not located in this State, the subject corporation shall commence the proceeding in the district court in Carson City.
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.
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:
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(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.
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