Title 7
Corporations, Associations, and Partnerships

Chapter 5.2
Business Combination Act

§ 7-5.2-5. Exemptions.

The provisions of this chapter do not apply:

(1) To any business combination of a resident domestic corporation that does not have a class of voting stock registered with the Securities and Exchange Commission pursuant to § 12 of the Securities Exchange Act of 1934, 15 U.S.C. § 78l, unless the articles of incorporation provide otherwise;

(2) To any business combination of a resident domestic corporation whose articles of incorporation have been amended to provide that the resident domestic corporation is subject to the provisions of this chapter, that did not have a class of voting stock registered with the Securities and Exchange Commission pursuant to § 12 of the Securities Exchange Act of 1934, 15 U.S.C. § 78l, on the effective date of the amendment, and that is a business combination with an interested shareholder whose stock acquisition date is prior to the effective date of the amendment;

(3) To any business combination of a resident domestic corporation:

(i) The original articles of incorporation of which contain a provision expressly electing not to be governed by this chapter;

(ii) That adopts an amendment to the resident domestic corporation’s bylaws prior to March 31, 1991, expressly electing not to be governed by this chapter; or

(iii) That adopts an amendment to the resident domestic corporation’s articles of incorporation, approved by the affirmative vote of the holders, other than interested shareholders and their affiliates and associates, of two-thirds (⅔) of the outstanding voting stock of the resident domestic corporation, excluding the voting stock of interested shareholders and their affiliates and associates, expressly electing not to be governed by this chapter, provided that the amendment to the articles of incorporation is not effective until twelve (12) months after the vote of the resident domestic corporation’s shareholders and does not apply to any business combination of the resident domestic corporation with an interested shareholder whose stock acquisition date is on or prior to the effective date of the amendment; or

(4) To any business combination of a resident domestic corporation with an interested shareholder of the resident domestic corporation that became an interested shareholder inadvertently, if the interested shareholder:

(i) As soon as practicable, divests itself of a sufficient amount of the voting stock of the resident domestic corporation that it no longer is the beneficial owner, directly or indirectly, of ten percent (10%) or more of the outstanding voting stock of the resident domestic corporation; and

(ii) Would not at any time within the five-year (5) period preceding the announcement date with respect to the business combination have been an interested shareholder but for the inadvertent acquisition.