Print Print
  • PART I ADMINISTRATION OF THE GOVERNMENT
  • TITLE XV REGULATION OF TRADE
  • CHAPTER 110C REGULATION OF TAKE-OVER BIDS IN THE ACQUISITION OF CORPORATIONS
  • Section 9 Civil liability of violators; rights and remedies; criminal provisions; injunctions

Section 9. (a) Any offeror who purchases a security in connection with a take-over offer in violation of this chapter shall be liable to the person selling the security to him who may sue either at law or in equity. In an action for rescission the seller shall be entitled to recover the security, plus any income received by the purchaser thereon, upon tender of the consideration received. Tender requires only notice of willingness to pay the amount specified in exchange for the security. Any notice may be given by service as in civil actions or by certified mail to the last known address of the person liable. Damages are the excess of either the value of the security on the date of purchase or its present value, whichever is greater, over the present value of the consideration received for the security.

(b) Every associate and affiliate of a person liable under paragraph (a), every partner, principal executive officer or director of such person, every person occupying a similar status or performing similar functions, every employee of such person who materially aids in the act or transaction constituting the violation, and every broker-dealer or agent who materially aids in the act or transaction constituting the violation, is also liable jointly or severally with and to the same extent as such person, unless the person who would otherwise be so liable proves that he did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist. There is contribution as in cases of contract among the several persons so liable.

(c) No action may be maintained under paragraph (a) or (b) unless commenced before the expiration of three years after the act or transaction constituting the violation or the expiration of one year after the discovery of the facts constituting the violation, whichever first expires.

(d) The rights and remedies under this chapter are in addition to any other rights or remedies that may exist at law or in equity.

(e) Whenever it appears to the secretary that any person has engaged or is about to engage in any act or practice constituting a violation of this chapter, or any rule or order hereunder, (1) he may issue and cause to be served upon any person violating any of the provisions of this chapter, an order requiring the person guilty thereof to cease and desist therefrom; and (2) he may bring an action in the superior court division of the appropriate county to enjoin the acts or practices and to enforce compliance with this chapter, or any rule or order hereunder, or he may refer the matter to the attorney general or the district attorney of the appropriate county.

(f) Any person, who violates section two or any rule thereunder, or any order of which he has notice, or who willfully violates section seven or any rule or order thereunder, may be fined not more than five thousand dollars or imprisoned for not more than three years or both. Each of the acts specified shall constitute a separate offense and a prosecution or conviction for any one of such offenses shall not bar prosecution or conviction for any other offense. No indictment or information may be returned under sections two and seven more than six years after the alleged violation.

(g) The secretary may refer such evidence as is available concerning violations of this chapter or of any rule or order hereunder to the attorney general or the district attorney of the appropriate county who may, with or without any reference, institute the appropriate criminal proceedings under this chapter. If referred to a district attorney, he shall within ninety days file with the secretary a statement concerning any action taken or, if no action has been taken, the reasons therefor.

(h) Nothing in this chapter limits the power of the state to punish any person for any conduct which constitutes a crime under any other statute.

(i) Whenever any person has engaged or is about to engage in any act or practice constituting a violation of this chapter or any rule or order hereunder, the offeror, target company or any offeree may bring an action in the superior court division of the appropriate county to enjoin that person from continuing or doing any act in violation of this chapter.

(j) Upon an appropriate showing in any action brought under paragraph (e) or (i), the court may grant a permanent or temporary injunction or restraining order and may order rescission of any sales or purchases of securities determined to be unlawful under this chapter, or any rule or order hereunder.