[§414-175]  Dismissal.  (a)  A
derivative proceeding shall be dismissed by the court on motion by the
corporation if one of the groups specified in subsection (b) or (f) has
determined in good faith after conducting a reasonable inquiry upon which its
conclusions are based that the maintenance of the derivative proceeding is not
in the best interests of the corporation.



(b)  Unless a panel is appointed pursuant to
subsection (f), the determination in subsection (a) shall be made by:



(1)  A majority vote of independent directors present
at a meeting of the board of directors if the independent directors constitute
a quorum; or



(2)  A majority vote of a committee consisting of two
or more independent directors appointed by majority vote of independent directors
present at a meeting of the board of directors, whether or not the independent
directors constituted a quorum.



(c)  None of the following by itself shall
cause a director to be considered not independent for purposes of this section:



(1)  The nomination or election of the director by
persons who are defendants in the derivative proceeding or against whom action
is demanded;



(2)  The naming of the director as a defendant in the
derivative proceeding or as a person against whom action is demanded; or



(3)  The approval by the director of the act being
challenged in the derivative proceeding or demand if the act resulted in no
personal benefit to the director.



(d)  If a derivative proceeding is commenced
after a determination has been made rejecting a demand by a shareholder, the
complaint shall allege with particularity facts establishing either:



(1)  That a majority of the board of directors did not
consist of independent directors at the time the determination was made; or



(2)  That the requirements of subsection (a) have not
been met.



(e)  If a majority of the board of directors
does not consist of independent directors at the time the determination is
made, the corporation shall have the burden of proving that the requirements of
subsection (a) have been met.  If a majority of the board of directors consists
of independent directors at the time the determination is made, the plaintiff
shall have the burden of proving that the requirements of subsection (a) have
not been met.



(f)  The court may appoint a panel of one or
more independent persons upon motion by the corporation to make a determination
whether the maintenance of the derivative proceeding is in the best interests
of the corporation.  In the case, the plaintiff shall have the burden of proving
that the requirements of subsection (a) have not been met. [L 2000, c 244, pt
of §1]