61-1-14(2)(p) – Merger and Reorganization Transactional Exemption

Exemption

(2) The following transactions are exempted from Sections 61-1-7 and 61-1-15:

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((p) a transaction or series of transactions involving a merger, consolidation, reorganization, recapitalization, reclassification, or sale of assets, if the consideration for which, in whole or in part, is the issuance of securities of a person or persons, and if:

(i) the transaction or series of transactions is incident to a vote of the securities holders of each person involved or by written consent or resolution of some or all of the securities holders of each person involved;

(ii) the vote, consent, or resolution is given under a provision in:

(A) the applicable corporate statute or other controlling statute;

(B) the controlling articles of incorporation, trust indenture, deed of trust, or partnership agreement; or

(C) the controlling agreement among securities holders;

(iii) (A) one person involved in the transaction is required to file proxy or informational materials under Section 14 (a) or (c) of the Securities Exchange Act of 1934 or Section 20 of the Investment Company Act of 1940 and has so filed;

(B) one person involved in the transaction is an insurance company that is exempt from filing under Section 12(g)(2)(G) of the Securities Exchange Act of 1934, and has filed proxy or informational materials with the appropriate regulatory agency or official of its domiciliary state; or

(C) all persons involved in the transaction are exempt from filing under Section 12(g)(1) of the Securities Exchange Act of 1934, and file with the division such proxy or informational material as the division requires by rule;

(iv) the proxy or informational material is filed with the division and distributed to all securities holders entitled to vote in the transaction or series of transactions at least ten working days prior to any necessary vote by the securities holders or action on any necessary consent or resolution; and

(v) the division does not, by order, deny or revoke the exemption within ten working days after filing of the proxy or informational materials;

Division Interpretive Commentary

This exemption requires that certain information be filed with the division at least ten business days prior to a shareholder vote before relying on the exemption.  The Division administers this exemption by rule.  See R164-14-2p

Required Information:
The Proxy or informational materials to be filed with the Division and distributed to all securities holders entitled to vote in the transaction or series of transactions are:

  1. the proxy or informational materials filed under Section 14(a) or (c) of the Securities Exchange Act of 1934 if any person involved in the transaction is required to file proxy or informational materials under Section 14(a) or (c) of the Securities Exchange Act of 1934 and has so filed;
  2. the proxy or informational materials filed with the appropriate regulatory agency or official of its domiciliary state if any person involved in the transaction is an insurance company who is exempt from filing under Section 12(g)(2)(G) of the Securities Exchange Act of 1934; or
  3. Form 14-2p and the information specified in SEC Schedule 14A, Form S-4, or Form F-4 if all persons involved in the transaction are exempt from filing under Section 12(g)(1) of the Securities Exchange Act of 1934.

Filing Requirements:
Confirmation with the Division is required prior to relying on the exemption.  To receive confirmation of this exemption, persons whose security holders are to consent, vote or resolve as to a transaction or series of transactions involving a merger, consolidation, reorganization, recapitalization, reclassification, or sale of assets may claim the exemption by filing with the Division, not less than ten business days prior to any necessary vote or action on any necessary consent or resolution, all of the following:

  1. Email to nnadams@utah.gov  as PDF attachments:
    a. the proxy or informational materials listed above
    b, cover letter on letterhead stating the proxy vote date and a general description of transaction
    c. NASAA Form U2, Uniform Consent to Service of Process
    d. other documents as the Division may request

  2. ACH/Wire payment directly to the Division
    a. $60.00 fee
    b. Email nnadams@utah.gov  for ACH/Wire instructions

Change of Domicile Merger - Under Utah law, a merger or consolidation, in which the sole
purpose of the transaction is to change the issuer's domicile, is not considered to be an offer or sale of a security.  See section 61-1-13(1)(aa)(iii)(G).