[§414-175]  Dismissal.  (a)  Aderivative proceeding shall be dismissed by the court on motion by thecorporation if one of the groups specified in subsection (b) or (f) hasdetermined in good faith after conducting a reasonable inquiry upon which itsconclusions are based that the maintenance of the derivative proceeding is notin the best interests of the corporation.

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

(1)  A majority vote of independent directors presentat a meeting of the board of directors if the independent directors constitutea quorum; or

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

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

(1)  The nomination or election of the director bypersons who are defendants in the derivative proceeding or against whom actionis demanded;

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

(3)  The approval by the director of the act beingchallenged in the derivative proceeding or demand if the act resulted in nopersonal benefit to the director.

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

(1)  That a majority of the board of directors did notconsist of independent directors at the time the determination was made; or

(2)  That the requirements of subsection (a) have notbeen met.

(e)  If a majority of the board of directorsdoes not consist of independent directors at the time the determination ismade, the corporation shall have the burden of proving that the requirements ofsubsection (a) have been met.  If a majority of the board of directors consistsof independent directors at the time the determination is made, the plaintiffshall have the burden of proving that the requirements of subsection (a) havenot been met.

(f)  The court may appoint a panel of one ormore independent persons upon motion by the corporation to make a determinationwhether the maintenance of the derivative proceeding is in the best interestsof the corporation.  In the case, the plaintiff shall have the burden of provingthat the requirements of subsection (a) have not been met. [L 2000, c 244, ptof §1]