10-2741. Business combination with interested
shareholder; approval by committee of the directors
A. Except for the provisions of section 10-2743, an issuing public corporation may
not engage in any business combination or vote, consent or otherwise act to authorize a
subsidiary of the issuing public corporation to engage in any business combination with
respect to, proposed by or on behalf of or pursuant to any agreement, arrangement or
understanding, whether or not in writing, with any interested shareholder of the issuing
public corporation or any affiliate or associate of the interested shareholder for a
period of three years after the interested shareholder's share acquisition date, unless
either:
1. The business combination with the interested shareholder is approved by a
committee, formed in accordance with subsection D of this section, of the board of
directors of the issuing public corporation before the interested shareholder's share
acquisition date pursuant to subsection B of this section.
2. The acquisition of shares made by the interested shareholder on the
shareholder's share acquisition date is approved by a committee, formed in accordance
with subsection D of this section, of the board of directors of the issuing public
corporation before the interested shareholder's share acquisition date pursuant to
subsection C of this section.
B. Any approval of a business combination pursuant to subsection A, paragraph 1 of
this section must be given by the committee in writing within forty-five days after
receipt by the committee of a good faith definitive proposal in writing regarding the
business combination, and in the absence of such approval, the proposed business
combination shall be deemed to have been disapproved.
C. Any approval of a share acquisition pursuant to subsection A, paragraph 2 of
this section must be given by the committee in writing within forty-five days after
receipt by the committee of a good faith definitive proposal in writing regarding the
share acquisition, and in the absence of such approval, the proposed share acquisition
shall be deemed to have been disapproved.
D. When a business combination or acquisition of shares is proposed pursuant to
this section, the board of directors shall promptly form a committee composed of all
disinterested directors. The committee shall take action on the proposal by the
affirmative vote of a simple majority of committee members. The committee is not subject
to any direction or control by the board of directors with respect to the committee's
consideration of or any action concerning a proposed business combination or acquisition
of shares pursuant to this section. A committee formed pursuant to this subsection shall
be composed of one or more members. Only disinterested directors may be members of a
committee formed pursuant to this subsection. However, if there are no disinterested
directors, the board of directors shall select three or more disinterested persons to be
committee members. For purposes of this subsection, a director or person is
disinterested if the director or person is not an interested shareholder, an affiliate or
associate of an interested shareholder or a present or former officer or employee of the
issuing public corporation or of an affiliate or associate of the issuing public
corporation or of the interested shareholder or of any affiliate or associate of the
interested shareholder.
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