§ 12.02. Sale of assets other than in regular course of business
(a) A sale, lease, exchange, or other disposition of assets, other than a disposition
described in section 12.01 of this title, requires approval of the corporation’s shareholders if the disposition would leave
the corporation without a significant continuing business activity. If a corporation
retains a business activity that represented at least 25 percent of the total assets
at the end of the most recently completed fiscal year and 25 percent of either income
from continuing operations before taxes or revenues from continuing operations for
that fiscal year, in each case of the corporation and its subsidiaries on a consolidated
basis, the corporation will conclusively be deemed to have retained a significant
continuing business activity.
(b) For a transaction to be authorized:
(1) the board of directors must recommend the proposed transaction to the shareholders
unless the board of directors determines that because of conflict of interest or other
special circumstances it should make no recommendation and communicates the basis
for its determination to the shareholders with the submission of the proposed transaction;
and
(2) the shareholders entitled to vote must approve the transaction.
(c) The board of directors may condition its submission of the proposed transaction on
any basis.
(d) The corporation shall notify each shareholder, whether or not entitled to vote, of
the proposed shareholders’ meeting in accordance with section 7.05 of this title. The notice must also state that the purpose, or one of the purposes, of the meeting
is to consider the sale, lease, exchange, or other disposition of all, or substantially
all, the property of the corporation and contain or be accompanied by a description
of the transaction.
(e) Unless the articles of incorporation or the board of directors (acting pursuant to
subsection (c) of this section) require a greater vote or a vote by voting groups,
the transaction to be authorized must be approved by a majority of all the votes entitled
to be cast on the transaction.
(f) After a sale, lease, exchange, or other disposition of property is authorized, the
transaction may be abandoned (subject to any contractual rights) without further shareholder
action.
(g) A transaction that constitutes a distribution is governed by section 6.40 of this title and not by this section. (Added 1993, No. 85, § 2, eff. Jan. 1, 1994; amended 2007, No. 190 (Adj. Sess.), § 99, eff. June 6, 2008.)