This document includes House Committee Amendments incorporated into the bill on Thu, Jan 26, 2017 at 11:42 AM by ryoung.
This document includes Senate Committee Amendments incorporated into the bill on Fri, Feb 3, 2017 at 10:20 AM by lpoole.
This document includes House Committee Amendments (CORRECTED) incorporated into the bill on Tue, Feb 21, 2017 at 11:20 AM by jeyring.
1     
UTAH REVISED BUSINESS CORPORATION ACT

2     
MODIFICATIONS

3     
2017 GENERAL SESSION

4     
STATE OF UTAH

5     
Chief Sponsor: Val L. Peterson

6     
Senate Sponsor: Curtis S. Bramble

7     

8     LONG TITLE
9     Committee Note:
10          The Business and Labor Interim Committee recommended this bill.
11     General Description:
12          This bill modifies provisions regulating business corporations.
13     Highlighted Provisions:
14          This bill:
15          ▸     amends the provision addressing general standards of conduct for directors and
16     officers;
17          ▸     enacts provisions related to business combinations; and
18          ▸     makes technical changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          None
23     Utah Code Sections Affected:
24     AMENDS:
25          16-10a-840, as last amended by Laws of Utah 1993, Chapter 266
26     ENACTS:
27          16-10a-1801, Utah Code Annotated 1953
28          16-10a-1802, Utah Code Annotated 1953
29          16-10a-1803, Utah Code Annotated 1953
30          16-10a-1804, Utah Code Annotated 1953
31     

32     Be it enacted by the Legislature of the state of Utah:
33          Section 1. Section 16-10a-840 is amended to read:
34          16-10a-840. General standards of conduct for directors and officers.
35          (1) Each director shall discharge [his] the director's duties as a director, including
36     duties as a member of a committee, and each officer with discretionary authority shall
37     discharge [his] the officer's duties under that authority:
38          (a) in good faith;
39          (b) with the care an ordinarily prudent person in a like position would exercise under
40     similar circumstances; and
41          (c) in a manner the director or officer reasonably believes to be in the best interests of
42     the corporation.
43          (2) In discharging [his] the director's or officer's duties, a director or officer is entitled
44     to rely on information, opinions, reports, or statements, including financial statements and
45     other financial data, if prepared or presented by:
46          (a) one or more officers or employees of the corporation, or of any other corporation of
47     which at least 50% of the outstanding shares of stock entitling the holder of the shares to vote
48     in the election of directors is owned directly or indirectly by the corporation, whom the director
49     or officer reasonably believes to be reliable and competent in the matters presented;
50          (b) legal counsel, public accountants, or other persons as to matters the director or
51     officer reasonably believes are within the person's professional or expert competence; or
52          (c) in the case of a director, a committee of the board of directors of which [he] the
53     director is not a member[,]:
54          (i) if the committee is designated in accordance with the articles of incorporation or the
55     bylaws;
56          (ii) if the information, opinion, report, or statement is within the committee's
57     designated authority;
58          (iii) if the director reasonably believes the committee merits confidence[.]; and
59          (iv) subject to Subsection (3), so long as in so relying the director is acting in good
60     faith with the degree of care contemplated by Subsection (1)(b).
61          (3) A director or officer is not acting in good faith if [he] the director or officer has
62     knowledge concerning the matter in question that makes reliance otherwise permitted by
63     Subsection (2) unwarranted.
64          (4) A director or officer is not liable to the corporation, its shareholders, or any
65     conservator or receiver, or any assignee or successor-in-interest thereof, for any action taken, or
66     any failure to take any action, as an officer or director, as the case may be, unless:
67          (a) the director or officer has breached or failed to perform the duties of the office in
68     compliance with this section; and
69          (b) the breach or failure to perform constitutes gross negligence, willful misconduct, or
70     intentional infliction of harm on the corporation or the shareholders.
71          (5) (a) For purposes of this Subsection (5) and notwithstanding Section 16-10a-102,
72     "control" means the possession, directly or indirectly, of the power to direct or cause the
73     direction of the management and policies of the corporation whether through the ownership of
74     voting stock, by contract, or otherwise.
75          (b) In taking action, including action that may involve or relate to a change or potential
76     change in the control of the corporation, the director is entitled to consider:
77          (i) both the long-term and the short-term interests of the corporation and the
78     corporation's shareholders; and
79          (ii) the effects that the corporation's actions may have in the long-term or short-term on
80     any of the following:
81          (A) the prospects for potential growth, development, productivity, and profitability of
82     the corporation;
83          (B) the corporation's current employees;
84          (C) the corporation's retired employees and other beneficiaries receiving or entitled to
85     receive retirement, welfare, or similar benefits from or pursuant to any plan sponsored, or
86     agreement entered into, by the corporation;
87          (D) the corporation's customers and creditors; and
88          (E) the ability of the corporation to provide, as a going concern, goods, services,
89     employment opportunities, employment benefits, and otherwise contribute to the communities
90     in which the corporation does business.
91          (c) This Subsection (5) does not create any duty owed by a director to any person to
92     consider or afford any particular weight to any factor listed in Subsection (5)(b) or abrogate any
93     duty of the director, either statutory or recognized by common law or court decisions.
94          Section 2. Section 16-10a-1801 is enacted to read:
95     
Part 18. Business Combinations

96          16-10a-1801. Title.
97          This part is known as "Business Combinations."
98          Section 3. Section 16-10a-1802 is enacted to read:
99          16-10a-1802. Definitions.
100          As used in this part:
101          (1) "Affiliate" means the same as that term is defined in Section 16-10a-102.
102          (2) "Announcement date," when used in reference to a business combination, means
103     the date of the first public announcement of the final, definitive proposal for the business
104     combination.
105          (3) "Associate," when used to indicate a relationship with a person, means:
106          (a) a corporation or organization of which the person is an officer or partner or is,
107     directly or indirectly, the beneficial owner of 10% or more of any class of voting stock;
108          (b) a trust or other estate in which the person has a substantial beneficial interest or as
109     to which the person serves as trustee or in a similar fiduciary capacity; and
110          (c) a relative or spouse of the person, or any relative of the spouse, who has the same
111     home as the person.
112          (4) "Beneficial owner," when used with respect to stock, means a person:
113          (a) that, individually or with or through any of its affiliates or associates, beneficially
114     owns the stock, directly or indirectly;
115          (b) that, individually or with or through any of its affiliates or associates, has:
116          (i) the right to acquire the stock:
117          (A) whether the right is exercisable immediately or only after the passage of time,
118     pursuant to an agreement, arrangement, or understanding, whether or not in writing; or
119          (B) upon the exercise of conversion rights, exchange rights, warrants, or options, or
120     otherwise, except that a person may not be considered the beneficial owner of stock tendered
121     pursuant to a tender or exchange offer made by the person or an affiliate or associate of the
122     person until the tendered stock is accepted for purchase or exchange; or
123          (ii) the right to vote the stock pursuant to an agreement, arrangement, or understanding,
124     whether or not in writing, except that a person may not be considered the beneficial owner of
125     any stock under this Subsection (4)(b)(ii) if the agreement, arrangement, or understanding to
126     vote the stock arises solely from a revocable proxy or consent given in response to a proxy or
127     consent solicitation made in accordance with the applicable regulations under the Exchange
128     Act and is not then reportable on a Schedule 13D under the Exchange Act, or any comparable
129     or successor report; or
130          (c) that has an agreement, arrangement, or understanding, whether or not in writing, for
131     the purpose of acquiring, holding, voting, except voting pursuant to a revocable proxy or
132     consent as described in Subsection (4)(b)(ii), or disposing of the stock with any other person
133     that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly,
134     the stock.
135          (5) "Business combination," when used in reference to any domestic corporation and
136     an interested shareholder of the corporation, means:
137          (a) a merger or consolidation of the corporation or any subsidiary of the corporation
138     with:
139          (i) the interested shareholder; or
140          (ii) any other corporation, whether or not that corporation is an interested shareholder
141     of the corporation, that is, or after the merger or consolidation would be, an affiliate or
142     associate of the interested shareholder;
143          (b) any sale, lease, exchange, mortgage, pledge, transfer, or other disposition, in one
144     transaction or a series of transactions, to or with the interested shareholder or any affiliate or
145     associate of the interested shareholder of assets of the corporation or any subsidiary of the
146     corporation:
147          (i) having an aggregate market value equal to 10% or more of the aggregate market
148     value of all the assets, determined on a consolidated basis, of the corporation;
149          (ii) having an aggregate market value equal to 10% or more of the aggregate market
150     value of all the outstanding stock of the corporation; or
151          (iii) representing 10% or more of the earning power or net income, determined on a
152     consolidated basis, of the corporation;
153          (c) the issuance or transfer by the corporation or any subsidiary of the corporation, in
154     one transaction or a series of transactions, of any stock of the corporation or any subsidiary of
155     the corporation that has an aggregate market value equal to 5% or more of the aggregate market
156     value of all the outstanding stock of the corporation to the interested shareholder or any
157     affiliate or associate of the interested shareholder except pursuant to the exercise of warrants or
158     rights to purchase stock offered, or a dividend or distribution paid or made, pro rata to all
159     shareholders of the corporation;
160          (d) the adoption of any plan or proposal for the liquidation or dissolution of the
161     corporation proposed by, or pursuant to any agreement, arrangement, or understanding,
162     whether or not in writing, with, the interested shareholder or any affiliate or associate of the
163     interested shareholder;
164          (e) any reclassification of securities, including a stock split, stock dividend, or other
165     distribution of stock in respect of stock, or any reverse stock split, or recapitalization of the
166     corporation, or any merger or consolidation of the corporation with any subsidiary of the
167     corporation, or any other transaction, whether or not with, into, or otherwise involving the
168     interested shareholder:
169          (i) proposed by, or pursuant to any agreement, arrangement, or understanding, whether
170     or not in writing, with, the interested shareholder or any affiliate or associate of the interested
171     shareholder; and
172          (ii) that has the effect, directly or indirectly, of increasing the proportionate share of the
173     outstanding shares of any class or series of voting stock or securities convertible into voting
174     stock of the corporation or any subsidiary of the corporation that is directly or indirectly owned
175     by the interested shareholder or any affiliate or associate of the interested shareholder, except
176     as a result of immaterial changes due to fractional share adjustments; or
177          (f) a receipt by the interested shareholder or an affiliate or associate of the interested
178     shareholder of the benefit, directly or indirectly, except proportionately as a shareholder of the
179     corporation, of a loan, advance, guarantee, pledge, or other financial assistance or any tax credit
180     or other tax advantage provided by or through the corporation.
181          (6) "Common stock" means stock other than preferred stock.
182          (7) "Consummation date," with respect to a business combination, means:
183          (a) the date of consummation of the business combination; or
184          (b) in the case of a business combination as to which a shareholder vote is taken, the
185     later of:
186          (i) the business day before the vote; or
187          (ii) 20 days before the date of consummation of the business combination.
188          (8) (a) "Control," including the terms "controlling," "controlled by," and "under
189     common control with," means the same as that term is defined in Section 16-10a-102.
190          (b) A person's beneficial ownership of 10% or more of a corporation's outstanding
191     voting stock creates a presumption that the person has control of the corporation.
192          (c) Notwithstanding the other provisions of this Subsection (8), a person may not be
193     considered to have control of a corporation if the person holds voting stock, in good faith and
194     not for the purpose of circumventing this part, as an agent, bank, broker, nominee, custodian, or
195     trustee for one or more beneficial owners that do not individually or as a group have control of
196     the corporation.
197          (9) "Exchange Act" means the Securities Exchange Act of 1934, 15 U.S.C. Sec. 78a et
198     seq. as amended.
199          (10) (a) "Interested shareholder," when used in reference to a domestic corporation,
200     means a person, other than the corporation or a subsidiary of the corporation, that:
201          (i) is the beneficial owner, directly or indirectly, of 20% or more of the outstanding
202     voting stock of the corporation; or
203          (ii) is an affiliate or associate of the corporation and at any time within the five-year
204     period immediately before the date in question was the beneficial owner, directly or indirectly,
205     of 20% or more of the then outstanding voting stock of the corporation.
206          (b) For the purpose of determining whether a person is an interested shareholder, the
207     number of shares of voting stock of the corporation considered to be outstanding shall include
208     shares considered to be beneficially owned by the person through application of Subsection (4),
209     but may not include any other unissued shares of voting stock of the corporation that may be
210     issuable pursuant to any agreement, arrangement, or understanding, or upon exercise of
211     conversion rights, warrants, or options, or otherwise.
212          (11) "Market value," when used in reference to stock or property of a domestic
213     corporation, means:
214          (a) in the case of stock:
215          (i) the highest closing sale price during the 30-day period immediately preceding the
216     date in question of a share of the stock on the composite tape for New York stock
217     exchange-listed stocks;
218          (ii) if the stock is not quoted on the composite tape or listed on the exchange described
219     in Subsection (11)(a)(i), the highest closing sale price during the 30-day period immediately
220     preceding the date in question on the principal United States securities exchange registered
221     under the Exchange Act on which the stock is listed; Ĥ→ or
222          [(iii) if the stock is not quoted on the composite tape or listed on the exchange described
223     in Subsection (11)(a)(i) and is not listed on an exchange described in Subsection (11)(a)(ii), the
224     highest closing bid quotation with respect to a share of the stock during the 30-day period
225     preceding the date in question on the National Association of Securities Dealers, Inc.,
226     Automated Quotations System, or any system then in use; or]
227          [(iv)] (iii) ←Ĥ if no quotation is available under Subsections (11)(a)(i) Ĥ→ [through (iii)]
227a     or (ii) ←Ĥ , the fair
228     market value on the date in question of a share of the stock as determined by the board of
229     directors of the corporation in good faith; and
230          (b) in the case of property other than cash or stock, the fair market value of the property
231     on the date in question as determined by the board of directors of the corporation in good faith.
232          (12) "Preferred stock" means a class or series of stock of a domestic corporation that
233     under the bylaws or articles of incorporation of the corporation:
234          (a) is entitled to receive payment of dividends before any payment of dividends on
235     some other class or series of stock; or
236          (b) is entitled in the event of a voluntary liquidation, dissolution, or winding up of the
237     corporation to receive payment or distribution of a preferential amount before a payment or
238     distribution is received by some other class or series of stock.
239          (13) "Stock" means:
240          (a) a stock or similar security, a certificate of interest, any participation in a profit
241     sharing agreement, a voting trust certificate, or a certificate of deposit for stock;
242          (b) a security convertible, with or without consideration, into stock;
243          (c) a warrant, call, or other option or privilege of buying stock without being bound to
244     do so; or
245          (d) any other security carrying a right to acquire, subscribe to, or purchase stock.
246          (14) "Stock acquisition date," with respect to a person and a domestic corporation,
247     means the date that the person first becomes an interested shareholder of the corporation.
248          (15) "Subsidiary" of a person means any other corporation of which a majority of the
249     voting stock is owned, directly or indirectly, by the person.
250          (16) "Voting stock" means shares of capital stock of a corporation entitled to vote
251     generally in the election of directors.
252          Section 4. Section 16-10a-1803 is enacted to read:
253          16-10a-1803. Business combinations.
254          (1) Notwithstanding anything to the contrary in this chapter, except Section
255     16-10a-1804, a domestic corporation may not engage in a business combination with an
256     interested shareholder of the corporation for a period of five years following the interested
257     shareholder's stock acquisition date unless the business combination or the purchase of stock
258     made by the interested shareholder on the interested shareholder's stock acquisition date is
259     approved by the board of directors of the corporation before the interested shareholder's stock
260     acquisition date.
261          (2) (a) If a good faith proposal is made in writing to the board of directors of the
262     corporation regarding a business combination, the board of directors shall respond in writing,
263     within 30 days or such shorter period, if any, as may be required by the Exchange Act, setting
264     forth the board of directors' reasons for the board of directors' decision regarding the proposal.
265          (b) If a good faith proposal to purchase stock is made in writing to the board of
266     directors of the corporation, unless the board of directors responds affirmatively in writing
267     within 30 days or such shorter period, if any, as may be required by the Exchange Act, the
268     board of directors is considered to have disapproved the proposal.
269          (3) Notwithstanding anything to the contrary in this chapter, except Subsection (2) and
270     Section 16-10a-1804, a domestic corporation may not engage at any time in any business
271     combination with an interested shareholder of the corporation other than a business
272     combination specified in Subsection (4), (5), or (6).
273          (4) A domestic corporation may engage in a business combination with an interested
274     shareholder of the corporation if:
275          (a) the business combination is approved by the board of directors of the corporation
276     before the interested shareholder's stock acquisition date; or
277          (b) the purchase of stock made by the interested shareholder on the interested
278     shareholder's stock acquisition date is approved by the board of directors of the corporation
279     before the interested shareholder's stock acquisition date.
280          (5) A domestic corporation may engage in a business combination with an interested
281     shareholder of the corporation if the business combination is approved by the affirmative vote
282     of the holders of a majority of the outstanding voting stock not beneficially owned by the
283     interested shareholder or an affiliate or associate of the interested shareholder at a meeting
284     called for that purpose no earlier than five years after the interested shareholder's stock
285     acquisition date.
286          (6) A domestic corporation may engage in a business combination with an interested
287     shareholder of the corporation if the business combination meets all of the following
288     conditions:
289          (a) the aggregate amount of the cash and the market value as of the consummation date
290     of consideration, other than cash to be received per share by holders of outstanding shares of
291     common stock of the corporation in the business combination, is at least equal to the higher of
292     the following:
293          (i) the sum of:
294          (A) the highest per share price paid by the interested shareholder at a time when the
295     interested shareholder was the beneficial owner, directly or indirectly, of 5% or more of the
296     outstanding voting stock of the corporation, for any shares of common stock of the same class
297     or series acquired by the interested shareholder within the five-year period immediately before
298     the announcement date with respect to the business combination, or within the five-year period
299     immediately before, or in, the transaction in which the interested shareholder became an
300     interested shareholder, whichever is higher; and
301          (B) interest compounded annually from the earliest date on which the highest per share
302     acquisition price was paid through the consummation date at the rate for one-year United States
303     treasury obligations from time to time in effect, less the aggregate amount of any cash
304     dividends paid, and the market value of any dividends paid other than in cash, per share of
305     common stock since the earliest date, up to the amount of the interest; and
306          (ii) the sum of:
307          (A) the higher of the market value per share of common stock on the announcement
308     date with respect to the business combination or on the interested shareholder's stock
309     acquisition date; and
310          (B) interest compounded annually from the acquisition date through the consummation
311     date at the rate for one-year United States treasury obligations from time to time in effect, less
312     the aggregate amount of any cash dividends paid, and the market value of any dividends paid
313     other than in cash, per share of common stock since the acquisition date, up to the amount of
314     the interest;
315          (b) the aggregate amount of the cash and the market value as of the consummation date
316     of consideration other than cash to be received per share by holders of outstanding shares of
317     any class or series of stock, other than common stock, of the corporation is at least equal to the
318     highest of the following, whether or not the interested shareholder has previously acquired any
319     shares of the class or series of stock:
320          (i) the sum of:
321          (A) the higher of the highest per share price paid by the interested shareholder at a time
322     when the interested shareholder was the beneficial owner, directly or indirectly, of 5% or more
323     of the outstanding voting stock of the corporation, for any shares of the class or series of stock
324     acquired by the interested shareholder within the five-year period immediately before the
325     announcement date with respect to the business combination, or within the five-year period
326     immediately before, or in, the transaction in which the interested shareholder became an
327     interested shareholder, whichever is higher; and
328          (B) interest compounded annually from the earliest date on which the highest per share
329     acquisition price was paid through the consummation date at the rate for one-year United States
330     treasury obligations from time to time in effect, less the aggregate amount of any cash
331     dividends paid, and the market value of any dividends paid other than in cash, per share of the
332     class or series of stock since the earliest date, up to the amount of the interest;
333          (ii) the sum of:
334          (A) the highest preferential amount per share to which the holders of shares of the class
335     or series of stock are entitled in the event of a voluntary liquidation, dissolution, or winding up
336     of the corporation; and
337          (B) the aggregate amount of any dividends declared or due as to which the holders are
338     entitled before payment of dividends on some other class or series of stock, unless the
339     aggregate amount of the dividends is included in the preferential amount; and
340          (iii) the sum of:
341          (A) the market value per share of the class or series of stock on the announcement date
342     with respect to the business combination or on the interested shareholder's stock acquisition
343     date, whichever is higher; and
344          (B) interest compounded annually from the acquisition date through the consummation
345     date at the rate for one-year United States treasury obligations from time to time in effect, less
346     the aggregate amount of any cash dividends paid, and the market value of any dividends paid
347     other than in cash, per share of the class or series of stock since the acquisition date, up to the
348     amount of the interest;
349          (c) the consideration to be received by holders of a particular class or series of
350     outstanding stock, including common stock of the corporation, in the business combination is
351     in cash or in the same form as the interested shareholder has used to acquire the largest number
352     of shares of the class or series of stock previously acquired by the interested shareholder, and
353     the consideration shall be distributed promptly;
354          (d) the holders of all outstanding shares of stock of the corporation not beneficially
355     owned by the interested shareholder immediately before the consummation of the business
356     combination are entitled to receive in the business combination cash or other consideration for
357     the shares in compliance with Subsections (6)(a), (b), and (c); and
358          (e) after the interested shareholder's stock acquisition date and before the
359     consummation date with respect to the business combination, the interested shareholder has not
360     become the beneficial owner of any additional shares of voting stock of the corporation except:
361          (i) as part of the transaction that resulted in the interested shareholder becoming an
362     interested shareholder;
363          (ii) by virtue of proportionate stock splits, stock dividends, or other distributions of
364     stock in respect of stock not constituting a business combination under Subsection
365     16-10a-1802(5)(e);
366          (iii) through a business combination meeting the conditions of Subsection (5); or
367          (iv) through purchase by the interested shareholder at any price that, if the price is paid
368     in an otherwise permissible business combination the announcement date and consummation
369     date of which were the date of the purchase, would have satisfied the requirements of
370     Subsections (4) and (5) and this Subsection (6).
371          Section 5. Section 16-10a-1804 is enacted to read:
372          16-10a-1804. Scope of part.
373          This part does not apply to:
374          (1) a business combination of a domestic corporation that does not have a class of
375     voting stock registered with the Securities and Exchange Commission pursuant to Exchange
376     Act, Sec. 12, 15 U.S.C. Sec. 78l, unless the articles of incorporation provide otherwise;
377          (2) a business combination of a domestic corporation whose articles of incorporation
378     are amended to provide that the domestic corporation is subject to this part that:
379          (a) did not have a class of voting stock registered with the Securities and Exchange
380     Commission pursuant to Exchange Act, Sec. 12, 15 U.S.C. Sec. 78l, on the effective date of the
381     amendment; and
382          (b) is a business combination with an interested shareholder whose stock acquisition
383     date is before the effective date of the amendment;
384          (3) a business combination of a domestic corporation:
385          (a) the original articles of incorporation of which contain a provision expressly electing
386     not to be governed by this part;
387          (b) that adopts an amendment to the corporation's bylaws before Ŝ→ [May 9]
387a      December 31 ←Ŝ , 2017,
388     expressly electing not to be governed by this part; or
389          (c) that adopts an amendment to the corporation's bylaws, approved by the affirmative
390     vote of a majority of votes of the outstanding voting stock of the corporation, excluding the
391     voting stock of interested shareholders and the interested shareholders' affiliates and associates,
392     expressly electing not to be governed by this part, provided that the amendment to the bylaws:
393          (i) may not be effective until 18 months after the vote of the corporation's shareholders;
394     and
395          (ii) may not apply to a business combination of the corporation with an interested
396     shareholder whose stock acquisition date is on or before the effective date of the amendment;
396a      Ĥ→ (4) a domestic corporation in the mineral extractive industry, including exploration,
396b     development, sand and gravel, mining, smelting, or refining of mineral properties;
397          [(4)] (5) ←Ĥ any business combination of a domestic corporation with an interested
397a     shareholder
398     of the corporation that became an interested shareholder inadvertently, if the interested
399     shareholder:
400          (a) as soon as practicable, divests itself of a sufficient amount of the voting stock of the
401     corporation so that it no longer is the beneficial owner, directly or indirectly, of 20% or more of
402     the outstanding voting stock of the corporation; and
403          (b) would not at any time within the five-year period preceding the announcement date
404     with respect to the business combination have been an interested shareholder but for the
405     inadvertent acquisition; or
406          Ĥ→ [(5)] (6) ←Ĥ any business combination with an interested shareholder who was the
406a     beneficial
407     owner, directly or indirectly, of 5% or more of the outstanding voting stock of the corporation
408     on May 9, 2017, and remained so to the interested shareholder's stock acquisition date.




Legislative Review Note
Office of Legislative Research and General Counsel