Arkansas Administrative Code › Agency 006 - Department of Finance and Administration › Division 06 - Racing Commission › Rule 006.06.19-017 - CGR 17 Publicly Traded Corporations and Public Offerings of Securities

Current through Register Vol. 49, No. 6, June, 2024
GENERAL
17.010
Definitions.
As used in
			 Rule 17:
1. "Acquire control" or "acquiring
			 control" means any act or conduct by a person whereby the person obtains
			 control, whether accomplished through the ownership of equity or voting
			 securities, ownership of rights to acquire equity or voting securities, by
			 management or consulting agreements or other contract, by proxy or power of
			 attorney, by statutory mergers, by consummation of a tender offer, by
			 acquisition of assets, or otherwise.
2. Unless otherwise specified, "Commission"
			 means the Arkansas Racing Commission or the Commission's designee.
3. "Control," when used as a noun, means the
			 possession, direct or indirect, of the power to direct or cause the direction
			 of the management and policies of a person, and when used as a verb, means to
			 possess, directly or indirectly, such power.
4. "Controlling person" with respect to a
			 publicly traded corporation means each person who controls the publicly traded
			 corporation.
5. "Corporate
			 acquisition opposed by management" means an attempt to acquire control of a
			 publicly traded corporation that is an affiliated company by means of a tender
			 offer that is opposed by the board of directors of the affiliated
			 company.
6. "Corporate licensee"
			 means a corporation that is licensed and registered with the
			 Commission.
7. "Current market
			 price" means the average of the daily closing prices for the 20 consecutive
			 trading days immediately preceding the date of a transaction or the closing
			 price on the day immediately preceding the date of such transaction, whichever
			 is higher. For the purpose of this definition, the closing price for each day
			 shall be the last reported sale price, regular way, or in case no such reported
			 sale takes place on such date, the average of the last reported bid and asked
			 prices, regular way, in either case on the principal national securities
			 exchange registered under the Securities Exchange Act of 1934 on which such
			 security is admitted to trading or listed, or if not listed or admitted to
			 trading on any national securities exchange, the closing price of such
			 security, or in case no reported sale takes place, the average of the closing
			 bid and asked prices, on NASDAQ or any comparable system, or if such security
			 is not listed or quoted on NASDAQ or any comparable system, the closing sale
			 price, or in case no reported sale takes place, the average of the closing bid
			 and asked prices, as furnished by any member of the National Association of
			 Securities Dealers, Inc., selected from time to time by the issuer for that
			 purpose.
8. "Debt restructuring"
			 means:
(a) A proceeding under the United
			 States Bankruptcy Code; or
(b) Any
			 out-of-court reorganization of a person that is insolvent or generally unable
			 to pay its debts as they become due.
9. "Exceptional repurchase of securities"
			 means the direct or indirect purchase by a corporation of securities
			 representing beneficial ownership of more than 1 percent of its voting
			 securities, whether in a single transaction or a series of related
			 transactions, at a price more than 10 percent above the current market price of
			 such securities on the date of the agreement to purchase such securities from
			 any person, other than a person who has been an executive officer or a member
			 of the board of directors for at least the past 2 years, who, on the date of
			 the agreement to purchase, is the beneficial owner of more than 3 percent of
			 the voting securities of such corporation and has been the beneficial owner of
			 more than 3 percent of such securities for less than 1 year, unless such
			 purchase has been approved by the affirmative vote of a majority of the holders
			 of voting securities voting on the transaction exclusive of the selling
			 security holder, or is pursuant to the same offer and terms as made to all
			 holders of voting securities of such class, other than holders, if any, who
			 have consented in writing to be excluded from the class of offerees, executive
			 officers, or members of the board of directors. For the purpose of this
			 definition, when determining whether a corporation has purchased more than 1
			 percent of its voting securities, the amount of voting securities of such
			 corporation shall be deemed to include voting securities issuable pursuant to
			 purchase rights where the price of the purchase rights is less than the current
			 market price of such securities on a given determination date provided,
			 however, that in any event, the amount of such voting securities beneficially
			 owned by a selling security holder pursuant to purchase rights shall be
			 included to determine the amount of the corporation's voting securities for
			 purposes of such computation if not otherwise included based on the foregoing
			 provision.
10. "Executive officer,"
			 with respect to a publicly traded corporation, means the president, secretary,
			 treasurer, any vice president in charge of a principal business function (such
			 as sales, administration or finance) and any other person who performs similar
			 policy-making functions for a publicly traded corporation.
11. "Federal Securities Act" means Title 15
			 United States Code sections 77a-77aa, as amended from time to time, and the
			 rules and regulations of the United States Securities and Exchange Commission
			 now or hereafter promulgated thereunder.
12. "Federal Securities Exchange Act" means
			 Title 15 United States Code sections 78a-78kk, as amended from time to time,
			 and the rules and regulations of the United States Securities and Exchange
			 Commission now or hereafter promulgated thereunder.
13. "Full disclosure" with respect to a
			 transaction or to a series of transactions means a descriptive statement
			 thereof that does not make an untrue statement of a material fact nor 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.
14. "Institutional investor" means:
(a) A bank as defined in Section 3(a)(6) of
			 the Federal Securities Exchange Act;
(b) An insurance company as defined in
			 Section 2(a)(17) of the Investment Company Act of 1940, as amended;
(c) An investment company registered under
			 Section 8 of the Investment Company Act of 1940, as amended;
(d) An investment advisor registered under
			 Section 203 of the Investment Advisors Act of 1940, as amended;
(e) Collective trust funds as defined in
			 Section 3(c)(11) of the Investment Company Act of 1940, amended;
(f) An employee benefit plan or pension fund
			 that is subject to the Employee Retirement Income Security Act of 1974, as
			 amended, excluding an employee benefit plan or pension fund sponsored by a
			 publicly traded corporation registered with the Commission;
(g) A state or federal government pension
			 plan;
(h) A group comprised
			 entirely of persons specified in (a) through (g); or
(i) Such other persons as the Commission may
			 determine for reasons consistent with the policies of these Rules.
To qualify as an institutional investor, a person other than a
				state or federal pension plan must meet the requirements of a "qualified
				institutional buyer" as defined in Rule 144A of the Federal Securities
				Act.
15. "Plan
			 of recapitalization" means a plan proposed by the Commission to the security
			 holders of a publicly traded corporation that is an affiliated company, which
			 plan:
(a) Contains recommended action in
			 response to a corporate acquisition opposed by management, which acquisition
			 cannot be consummated until approval has been obtained pursuant to section
			 16.200, and which acquisition has not been consummated, withdrawn or
			 terminated;
(b) Involves either a
			 cash dividend to voting securities or an exchange of voting securities held by
			 security holders in return for a payment of cash or the issuance of securities
			 of the issuer or a combination of cash and securities of the issuer, with an
			 aggregate value in excess of 50 percent of the aggregate current market price
			 of the voting securities of the company on the day of the public announcement
			 of the plan of recapitalization; and
(c) Is financed in substantial part by
			 borrowings from financial institutions or the issuance of debt
			 securities.
16. "Public
			 offering" means a sale of securities that is subject to the registration
			 requirements of section 5 of the Federal Securities Act, or that is exempt from
			 such requirements solely by reason of an exemption contained in section 3(a)10,
			 3(a)11 or 3(c) of said Act or Regulation A adopted pursuant to section 3(b) of
			 said Act.
17. "Purchase rights"
			 means a security or contractual right in securities issued or issuable on the
			 exercise of options, warrants or other beneficial interest in securities
			 obtained for value upon the issuance of securities, or on conversion of other
			 securities.
18. "Speculative
			 securities" means:
(a) Securities, the value
			 of which depends substantially upon proposed or promised future promotion or
			 development rather than on material existing assets, conditions or operating
			 results; or
(b) Securities, an
			 investment in which involves an extraordinary risk of loss to the
			 investor.
19. "Tender
			 offer" means a public offer by a person other than the issuer to purchase
			 voting securities of a publicly traded corporation that is an affiliated
			 company, made directly to security holders for the purpose of acquiring control
			 of the affiliated company.
20.
			 "Voting security" means a security the holder of which is entitled to vote for
			 the election of a member or members of the board of directors or board of
			 trustees of a corporation or a comparable person or persons in the case of a
			 partnership, trust, or other form of business organization other than a
			 corporation.