Illinois Compiled Statutes
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BUSINESS ORGANIZATIONS805 ILCS 5/Art. 7
(805 ILCS 5/) Business Corporation Act of 1983.
(805 ILCS 5/Art. 7 heading)
805 ILCS 5/7.05
(805 ILCS 5/7.05)
(from Ch. 32, par. 7.05)
Meetings of shareholders.
Meetings of shareholders may be held either within or
this State, as may be provided in the by-laws or in a resolution of the
board of directors pursuant to authority granted in the by-laws. In the
absence of any such provision, all meetings shall be held at the registered
office of the corporation in this State.
An annual meeting of the shareholders shall be held at such time as may
be provided in the by-laws or in a resolution of the board of directors
pursuant to authority granted in the by-laws. Failure to hold the annual
meeting at the designated time shall not work a forfeiture or dissolution
of the corporation nor affect the validity of corporate action. If an annual
meeting has not been held within the earlier of six months after the end
of the corporation's fiscal year or fifteen months after its last annual
meeting and if, after a request in writing directed to the president of
the corporation, a notice of meeting is not given within 60 days of such
request, then any shareholder entitled to vote at an annual meeting may
apply to the circuit court of the county in which the registered office
or principal place of business of the corporation is located for an order
directing that the meeting be held and fixing the time and place of the
meeting. The court may issue such additional orders as may be necessary
or appropriate for the holding of the meeting.
Unless specifically prohibited by the articles of incorporation or by-laws,
a corporation may allow shareholders to participate in and act at any meeting
of the shareholders
through the use of a conference telephone or interactive technology, including
but not limited to electronic transmission, Internet usage, or remote
communication, by means of which all persons participating in the meeting can
communicate with each other. A shareholder entitled to vote at a meeting of the shareholders shall be permitted to attend the meeting where space permits, and subject to the corporation's by-laws and rules governing the conduct of the meeting and the power of the chairman to regulate the orderly conduct of the meeting. Participation in such meeting shall constitute
attendance and presence in person at the meeting of the person or persons so
Special meetings of the shareholders may be called by the president, by
the board of directors, by the holders of not less than one-fifth of all
the outstanding shares entitled to vote on the matter for which the meeting
is called or by such other officers or persons as may be provided in the
articles of incorporation or the by-laws.
(Source: P.A. 94-655, eff. 1-1-06.)
805 ILCS 5/7.10
(805 ILCS 5/7.10)
(from Ch. 32, par. 7.10)
Informal action by shareholders.
(a) Unless otherwise provided
in the articles of incorporation or Section 12.10 of this Act,
any action required by this Act to be taken at any annual or special meeting
of the shareholders of a corporation, or any other action which may be taken at a
meeting of the shareholders, may be taken without a meeting and without
a vote, if a consent in
writing, setting forth the action so taken, shall be signed (i) by the holders
shares having not less than the minimum number of votes that would be necessary
to authorize or take such action at a meeting at which all shares entitled
to vote thereon were present and voting or (ii) by all of the shareholders
entitled to vote with respect to the subject matter thereof.
If such consent is signed by less than all of the shareholders entitled
to vote, then such consent shall become effective only if at least 5 days
prior to the execution of the consent a notice in writing is delivered
to all the shareholders entitled to vote with respect to the subject matter
thereof and, after the effective date of the consent,
prompt notice of the taking of the corporation action
without a meeting
by less than unanimous written consent shall be delivered in
writing to those
shareholders who have not consented in writing.
(b) In the event that the action
which is consented to is such as would have required the filing of a certificate
under any other Section of this Act if such action had been voted on by
the shareholders at a meeting thereof, the certificate filed under such
other Section shall state, in lieu of any statement required by such Section
concerning any vote of shareholders, that written consent has been delivered
in accordance with the provisions of this Section and that written notice
has been delivered as provided in this Section.
(Source: P.A. 84-924.)
805 ILCS 5/7.15
(805 ILCS 5/7.15)
(from Ch. 32, par. 7.15)
Notice of shareholders' meetings.
Written notice stating the place, day, and hour of the
meeting and, in the case of a special meeting, the purpose or purposes for
which the meeting is called, shall be delivered not less than 10 nor more
than 60 days before the date of the meeting, or in the case of a merger,
consolidation, share exchange, dissolution or sale, lease or exchange of
assets not less than 20 nor more than 60 days before the
date of the meeting, either personally or by mail, by or at the direction
of the president, or the secretary, or the officer or persons calling the
meeting, to each shareholder of record entitled to vote at such meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the
United States mail addressed to the shareholder at his or her address as it
appears on the records of the corporation, with postage thereon prepaid.
(Source: P.A. 83-1025.)
805 ILCS 5/7.20
(805 ILCS 5/7.20)
(from Ch. 32, par. 7.20)
Waiver of notice.
Whenever any notice whatever is required to be given under the
provisions of this Act or under the provisions of the articles of
incorporation or by-laws of any corporation, a waiver thereof in writing
signed by the person or persons entitled to such notice, whether before or
after the time stated therein, shall be deemed equivalent to the giving of
such notice. Attendance at any meeting shall constitute waiver of notice
thereof unless the person at the meeting objects to the holding of the meeting
because proper notice was not given.
(Source: P.A. 83-1025.)
805 ILCS 5/7.25
(805 ILCS 5/7.25)
(from Ch. 32, par. 7.25)
Fixing record date.
For the purpose of determining shareholders entitled to notice of or to
vote at any meeting of shareholders, or shareholders entitled to receive
payment of any dividend, or in order to make a determination of
shareholders for any other proper purpose, the board of directors of a
fix in advance a date as the record date for any such determination of
shareholders, such date in any case to be not more than 60 days and, for a
meeting of shareholders, not less than 10 days, or in the case of a merger,
consolidation, share exchange, dissolution or sale, lease or exchange of
assets, not less than 20 days, immediately preceding such meeting.
If no record date is fixed for
the determination of shareholders entitled to notice of or to vote at a
meeting of shareholders, or shareholders entitled to receive payment of a
dividend, the date on which notice of the meeting is mailed or the date on
which the resolution of the board of directors declaring such dividend is
adopted, as the case may be, shall be the record date for such
determination of shareholders. When a determination of shareholders
entitled to vote at any meeting of shareholders has been made as provided
in this Section, such determination shall apply to any adjournment thereof.
In lieu of the board of directors from time to time establishing record
dates, the by-laws of the corporation may establish a mechanism for determining
record dates in all or specified instances.
(Source: P.A. 84-924.)
805 ILCS 5/7.30
(805 ILCS 5/7.30)
(from Ch. 32, par. 7.30)
The officer or agent having charge of the transfer book for shares of a
corporation shall make, within 20 days after the record date for a meeting
of shareholders or 10 days before such meeting, whichever is earlier,
a complete list of the shareholders entitled to vote at such
meeting, arranged in alphabetical order, with the address of and the number
of shares held by each, which list, for a period of 10 days prior to such
meeting, shall be kept on file at the registered office of the corporation
and shall be subject to inspection by any shareholder, and to copying at
the shareholder's expense, at any time during
usual business hours. Such list shall also be produced and kept open at the
time and place of the meeting and shall be subject to the inspection of any
shareholder during the whole time of the meeting. The original share ledger
or transfer book, or a duplicate thereof kept in this State, shall be prima
facie evidence as to who are the shareholders entitled to examine such list
or share ledger or transfer book or to vote at any meeting of shareholders.
Failure to comply with the requirements of this Section shall not affect
the validity of any action taken at such meeting.
An officer or agent having charge of the transfer books who shall fail
to prepare the list of shareholders, or keep the same on file for a period
of 10 days, or produce and keep the same open for inspection at the
meeting, as provided in this Section, shall be liable to any shareholder
suffering damage on account of such failure, to the extent of such damage.
(Source: P.A. 83-1025.)
805 ILCS 5/7.35
(805 ILCS 5/7.35)
(from Ch. 32, par. 7.35)
At any meeting of shareholders, the chairman of the meeting may, or upon
the request of any shareholder shall, appoint one or more persons as
inspectors for such meeting, unless an inspector or inspectors shall have
been previously appointed for such meeting in the manner provided by the
by-laws of the corporation.
Such inspectors shall ascertain and report the number of shares
represented at the meeting, based upon their determination of the validity
and effect of proxies; count all votes and report the results; and do such
other acts as are proper to conduct the election and voting with
impartiality and fairness to all the shareholders.
Each report of an inspector shall be in writing and signed by him or her or by
a majority of them if there be more than one inspector acting at such
meeting. If there is more than one inspector, the report of a majority
shall be the report of the inspectors. The report of the inspector or
inspectors on the number of shares represented at the meeting and the
results of the voting shall be prima facie evidence thereof.
(Source: P.A. 83-1025.)
805 ILCS 5/7.40
(805 ILCS 5/7.40)
(from Ch. 32, par. 7.40)
Voting of shares.
(a) Subject to subsections (b), (c), and (d)
of this Section 7.40, each outstanding share, regardless of class, shall
be entitled to one vote in each matter submitted to a vote at a meeting
of shareholders, and except as specifically provided in Section 8.30,
in all elections for directors, every shareholder shall have the right to
vote the number of shares owned by such shareholder for as many persons
as there are directors to be elected, or to cumulate such votes and give
one candidate as many votes as shall equal the number of directors multiplied
by the number of such shares or to distribute such cumulative votes in any
proportion among any number of candidates. A shareholder may vote either
in person or by proxy subject to the provisions of Section 7.50.
(b) The articles of incorporation of any corporation incorporated after
December 31, 1981, may limit or eliminate cumulative voting rights in all
or specified circumstances, or may limit or deny voting rights or may provide
special voting rights as to any class or classes or series of shares of
(c) A corporation may amend its articles of incorporation
to limit or eliminate cumulative voting rights in all or
specified circumstances, or to limit or deny voting rights or to provide
voting rights as to any class or classes or series of shares of such
(d) If the articles of incorporation provide for more or less than one
vote for any share on any matter, every reference in this Act to a majority or
other proportion greater than a majority of shares shall refer to that majority
or other proportion greater than a majority of the votes of the shares.
(Source: P.A. 89-48, eff. 6-23-95.)
805 ILCS 5/7.45
(805 ILCS 5/7.45)
(from Ch. 32, par. 7.45)
Voting of shares by certain holders.
a corporation held by the corporation in a fiduciary capacity may be voted
and shall be counted in determining the total number of outstanding shares
entitled to vote at any given time.
Shares registered in the name of another corporation, domestic or foreign,
may be voted by any officer agent, proxy or other legal representative authorized
to vote such shares under the law of incorporation of such corporation.
A corporation may treat the president or other person holding the position
of chief executive officer of such other corporation as authorized to vote
such shares, together with any other person indicated and any other holder
of an office indicated by the corporate shareholder to the corporation as
a person or an office authorized to vote such shares. Such persons and
offices indicated shall be registered by the corporation on the transfer
books for shares and included in any voting list prepared in accordance
with Section 7.30 of this Act.
Shares registered in the name of a deceased person, a minor ward or
a person under legal disability may be voted by his or her administrator,
executor, or court
appointed guardian, either in person or by proxy without a
transfer of such shares into the name of such administrator, executor,
or court appointed guardian. Shares registered in the name of a
trustee may be voted by him or her, either in person or by proxy.
Shares registered in the name of a receiver may be voted by such receiver,
and shares held by or under the control of a receiver may be voted by such
receiver without the transfer thereof into his or her name if authority
so to do is contained in an appropriate order of the court by which such receiver
A shareholder whose shares are pledged shall be entitled to vote such
shares until the shares have been transferred into the name of the pledgee,
and thereafter the pledgee shall be entitled to vote the shares so
(Source: P.A. 83-1025.)
805 ILCS 5/7.50
(805 ILCS 5/7.50)
(from Ch. 32, par. 7.50)
(a) A shareholder may appoint a proxy to vote or
otherwise act for him or her by
delivering a valid appointment form to the person so appointed or to a proxy
solicitation firm, proxy support service organization, or like agent duly
authorized by the person or persons to receive the transmission. Without
limiting the manner in which a shareholder may appoint such a proxy
pursuant to this Section 7.50, the following shall constitute valid means by
which a shareholder may make such an appointment:
(1) A shareholder may sign a proxy appointment form.
The shareholder's signature may be affixed by any reasonable means, including, but not limited to, by facsimile signature.
(2) A shareholder may transmit or authorize the
transmission of a telegram, cablegram, or other means of electronic transmission; provided that any such transmission must either set forth or be submitted with information from which it can be determined that the telegram, cablegram, or other electronic transmission was authorized by the shareholder. If it is determined that the telegram, cablegram, or other electronic transmission is valid, the inspectors or, if there are no inspectors, such other persons making that determination shall specify the information upon which they relied.
Any copy, facsimile telecommunication, or other reliable reproduction
of the writing or transmission may be substituted or used in lieu of the
original writing or transmission for any and all purposes for which the
original writing or transmission could be used, provided that the copy,
telecommunication, or other reproduction shall be a complete reproduction
of the entire original writing or transmission.
(b) No proxy shall be valid after the expiration of 11 months from the
date thereof unless otherwise provided in the proxy. Every proxy continues
in full force and effect until revoked by the person executing it prior
to the vote pursuant thereto, except as otherwise provided in this Section.
Such revocation may be effected by a writing delivered to the corporation
stating that the proxy is revoked or by a subsequent proxy executed by,
or by attendance at the meeting and voting in person by, the person executing
the proxy. The dates contained on the forms of proxy presumptively determine
the order of execution, regardless of the postmark dates on the envelopes
in which they are mailed.
(c) An appointment of a proxy is revocable by the shareholder unless the
appointment form conspicuously states that it is irrevocable and the
is coupled with an interest in the shares or in the corporation generally.
By way of example and without limiting the generality of the foregoing,
a proxy is coupled with an interest when the proxy appointed is one of the
(1) a pledgee;
(2) a person who has purchased or has agreed to
(3) a creditor of the corporation who has extended it
credit under terms requiring the appointment, if the appointment states the purpose for which it was given, the name of the creditor, and the amount of credit extended;
(4) an employee of the corporation whose employment
contract requires the appointment, if the appointment states the purpose for which it was given, the name of the employee, and the period of employment; or
(5) a party to a voting agreement created under
(d) The death or incapacity of the shareholder appointing a proxy does
not revoke the proxy's authority unless notice of the death or incapacity
is received by the officer or agent who maintains the corporation's share
transfer book before the proxy exercises his or her authority under the
(e) An appointment made irrevocable under subsection (c) becomes revocable
when the interest in the proxy terminates such as when the pledge is redeemed,
the shares are registered in the purchaser's name, the creditor's debt is
paid, the employment contract ends, or the voting agreement expires.
(f) A transferee for value of shares subject to an irrevocable appointment
may revoke the appointment if the transferee was ignorant of its existence
when the shares were acquired and both the existence of the appointment
and its irrevocability were not noted conspicuously on the certificate (or
information statement for shares without certificates) representing the shares.
(g) Unless the appointment of a proxy contains an express limitation on
the proxy's authority, a corporation may accept the proxy's vote or other
action as that of the shareholder making the appointment. If the proxy
appointed fails to vote or otherwise act in accordance with the appointment,
the shareholder is entitled to such legal or equitable relief as is appropriate
in the circumstances.
(Source: P.A. 90-666, eff. 7-30-98.)
805 ILCS 5/7.55
(805 ILCS 5/7.55)
(from Ch. 32, par. 7.55)
No proxy shall be solicited by means
of any communication containing a statement which, at the time and in the
light of the circumstances under which it is made, is false or misleading
with respect to any material fact, or which omits to state any material
fact necessary in order that the statements made not be false or misleading.
(Source: P.A. 83-1025.)
805 ILCS 5/7.60
(805 ILCS 5/7.60)
(from Ch. 32, par. 7.60)
Quorum of shareholders.
Unless otherwise provided in the articles of incorporation, a majority
of votes of the shares, entitled to vote on a matter,
person or by proxy, shall
constitute a quorum for consideration of such matter at a meeting of
but in no event shall a
quorum consist of less than one-third of the votes of the
so to vote. If a
quorum is present, the affirmative vote of the majority of the votes of the
represented at the meeting and entitled to vote on a matter shall be the
act of the shareholders, unless a greater number of votes or voting by classes
is required by
this Act or
the articles of incorporation. The articles of incorporation may require
any number or percent greater than a majority of votes up to and including
of unanimity to constitute a quorum.
(Source: P.A. 89-48, eff. 6-23-95.)
805 ILCS 5/7.65
(805 ILCS 5/7.65)
(from Ch. 32, par. 7.65)
(a) One or more shareholders may create a voting trust for the purpose of conferring upon
a trustee or trustees the right to
vote or otherwise represent their shares
for a stated duration, which may be perpetual or for a fixed period or may be
determined by the occurrence of a stated condition or conditions, by entering into a written voting trust agreement specifying the
terms and conditions of the voting trust, and by transferring the subject shares
to such trustee or trustees pursuant to the
If the agreement or any amendment thereto does not contain a stated duration,
the trust shall terminate 10 years after the agreement first became
(b) No voting trust agreement shall be
effective until a counterpart of the
agreement is deposited at the corporation's registered office. The
counterpart of the voting trust agreement so deposited
shall be subject to examination as provided in
Section 7.75 by any
holder of a beneficial interest in the voting trust as if that holder were a
(c) The rule against perpetuities does not apply to any voting trust
created in accordance with this Section.
(d) Every voting trust agreement entered into pursuant to this Section is
specifically enforceable in accordance with the principles of equity.
(e) The changes made by this amendatory Act of the 91st General Assembly
apply only to voting trust agreements that are:
(1) entered into after the effective date of this
amendatory Act of the 91st General Assembly; or
(2) amended after the effective date of this
amendatory Act of the 91st General Assembly to include a stated duration in accordance with subsection (a).
(Source: P.A. 91-527, eff. 1-1-00.)
805 ILCS 5/7.70
(805 ILCS 5/7.70)
(from Ch. 32, par. 7.70)
(a) Shareholders may provide for the
voting of their shares by signing an agreement for that purpose. A voting
agreement created under this Section is not subject to the provisions of Section 7.65.
(b) A voting agreement created under this Section is specifically enforceable
in accordance with the principles of equity.
(Source: P.A. 83-1025.)
805 ILCS 5/7.71
(805 ILCS 5/7.71)
(from Ch. 32, par. 7.71)
(a) Shareholders may unanimously agree in writing as to matters
concerning the management of a corporation provided no fraud or apparent
injury to the public or creditors is present, and no clearly prohibitory
statutory language is violated.
(b) An agreement created pursuant to this Section is ineffective against
any shareholder not a party to the agreement unless:
(1) such shareholder had actual knowledge of the
agreement at the time of becoming a shareholder; or
(2) the existence of the agreement is conspicuously
referred to (i) on the certificate representing the security; or (ii) on the notice sent pursuant to Section 6.35 in the case of any uncertificated security.
(c) No agreement created pursuant to this Section shall be invalid as
between the parties thereto, or shall subject employees, officers,
directors or shareholders to personal liability for corporation
liabilities, on the basis that the agreement:
(1) is an attempt to treat the corporation as if it
were a partnership or to arrange the shareholders' relationship in a manner that would be appropriate only between partners; or
(2) so relates to the conduct of the affairs of the
corporation as to interfere with the discretion of the board of directors.
(d) Any agreement created pursuant to this Section is specifically
enforceable in accordance with the principles of equity.
(e) This Section is cumulative and does not limit any statute or rule
of common law that is otherwise applicable to any corporation, whenever formed.
(Source: P.A. 86-1328.)
805 ILCS 5/7.75
(805 ILCS 5/7.75)
(from Ch. 32, par. 7.75)
Corporate records - Examination by shareholders.
Each corporation shall keep correct and complete books and records of
account and shall also keep minutes of the proceedings of its
shareholders and board of directors and committees thereof; and shall keep
at its registered
office or principal place of business in this State, or at the office of
a transfer agent or registrar in this State, a record of its
shareholders, giving the names and addresses of all shareholders and the
number and class of the shares held by each.
A record of shareholders certified by an officer or transfer agent shall
be competent evidence in all courts of this State.
(b) Any person who is a shareholder of record shall have the right to
examine, in person or by agent, at any reasonable time or times, the corporation's
books and records of account, minutes,
voting trust agreements filed with the corporation and record of shareholders,
and to make extracts therefrom, but only for a proper purpose. In order
to exercise this right, a shareholder must make written demand upon the
corporation, stating with particularity the records sought to be examined
and the purpose therefor.
(c) If the corporation refuses examination, the shareholder may file suit
in the circuit court of the county in which either the registered agent
or principal office of the corporation is located to compel by mandamus
or otherwise such examination as may be proper. If a shareholder seeks
to examine books or records of account the burden of proof is upon the shareholder
to establish a proper purpose. If the purpose is to examine minutes or
the record of shareholders or a voting trust agreement, the burden of proof
is upon the corporation to establish that the shareholder does not have
a proper purpose.
(d) Any officer, or agent, or a corporation which shall refuse to allow
any shareholder or his or her agent so to examine and make extracts from
its books and records of accounts, minutes and records
of shareholders, for any proper purpose, shall be liable to such shareholder,
in a penalty of up to ten per cent of the value of the shares owned by such
shareholder, in addition to any other damages or remedy afforded him or
her by law. It shall be a defense to any action for penalties under this Section
that the person suing therefor has within two years sold or offered for
sale any list of shareholders of such corporation or any other corporation
or has aided or abetted any person in procuring any list of shareholders for any such
purpose, or has improperly used any information secured through any prior
examination of the books and records of account, or minutes, or records of
shareholders of such corporation or any other corporation.
(e) Upon the written request of any shareholder of a corporation, the
corporation shall mail to such shareholder within 14 days after
receipt of such request a balance sheet as of the close of its latest
fiscal year and a profit and loss statement for such fiscal year;
provided that if such request is received by the corporation before such
financial statements are available, the corporation shall mail such
financial statements within 14 days after they become available,
but in any event within 120 days after the close of its
latest fiscal year.
(Source: P.A. 84-924.)
805 ILCS 5/7.80
(805 ILCS 5/7.80)
(from Ch. 32, par. 7.80)
Provisions relating to actions by shareholders.
action shall be brought in this State by a shareholder in the right of a
domestic or foreign corporation unless the plaintiff was a shareholder of
record at the time of the transaction of which
he or she complains, or his or her shares or voting trust certificates thereafter
devolved upon him or her by operation of law from a person who was a holder
at such time; provided, however, that a shareholder who does not meet such
requirement may nevertheless be allowed in the discretion of the court to
bring such action on a preliminary showing to and determination by the court,
upon motion and after a hearing at which the court may consider such evidence
by affidavit or testimony as it deems material, that plaintiff acquired
the shares before there was disclosure to the public or to the plaintiff
of the wrongdoing of which plaintiff complains.
(b) A complaint in a proceeding brought in the right of a corporation
must allege with particularity the demand made, if any,
to obtain action by the directors and either why the complainant could not
obtain the action or why he or she did not make the demand. If a demand
for action was made and the corporation's investigation of the demand is
in progress when the proceeding is filed, the court may stay the suit for
thirty days or until the investigation is completed, whichever is less.
(c) A proceeding commenced under this Section may not be discontinued
or settled without the court's approval. If the court determines that a
proposed discontinuance or settlement will substantially affect the interest
of the corporation's shareholders or a class of shareholders, the court
may direct that notice be given the shareholders affected.
(Source: P.A. 83-1025.)
805 ILCS 5/7.85
(805 ILCS 5/7.85)
(from Ch. 32, par. 7.85)
Vote required for certain business combinations.
Section shall apply to any domestic corporation that (i) has
equity securities registered under Section 12 of the Securities Exchange
Act of 1934 or is subject to Section 15(d) of that Act (a "reporting
company") and (ii) any domestic
corporation other than one described in (i) that either
this Section 7.85 in its original articles of incorporation or amends its
articles of incorporation to specifically adopt this Section 7.85, however,
the restrictions contained in this Section shall not apply in the event of any
of the following:
(1) In case of a reporting company, the corporation's
articles of incorporation immediately prior to the time it becomes a reporting company contains a provision expressly electing not to be governed by this Section.
(2) The corporation, by action of its board of
directors, adopts an amendment to its by-laws within 90 days after the effective date of this amendatory Act of 1997 expressly electing not to be governed by this Section, which amendment shall not be further amended by the board of directors.
(3) In the case of a reporting company, the
corporation, by action of its shareholders, adopts an amendment to its articles of incorporation or by-laws expressly electing not to be governed by this Section, provided that, in addition to any other vote required by law, such amendment to the articles of incorporation or by-laws must be approved by the affirmative vote of a majority of the voting shares (as defined in paragraph B of this Section 7.85). An amendment adopted under this paragraph shall not be effective until 12 months after the adoption of the amendment and shall not apply to a business combination between the corporation and a person who became an interested shareholder of the corporation at the same time as or before the adoption of the amendment. A by-law amendment adopted under this paragraph shall not be further amended by the board of directors.
(4) A shareholder becomes an interested shareholder
inadvertently and (i) as soon as practical divests sufficient shares so that the shareholder ceases to be an interested shareholder and (ii) would not, at any time within the 3 year period immediately before a business combination between the corporation and the shareholder, have been an interested shareholder but for the inadvertent acquisition.
In the case of circumstances described in subparagraphs (1), (2), and (3) of
paragraph A, the election not to be governed may be in whole or in part,
generally, or generally by types, or as to specifically identified or
unidentified interested shareholders.
B. Higher vote for certain business combinations. In addition
affirmative vote required by law or the articles of incorporation, except
as otherwise expressly provided in paragraph C of this Section
7.85, any business combination
shall require (i) the affirmative vote of the holders of at least 80% of
the combined voting power of the then outstanding shares of all classes and
series of the corporation entitled to vote generally in the election of
directors, voting together as a single class (the
"voting shares") (it
being understood that, for the purposes of this Section 7.85, each voting
share shall have the number of votes granted to it pursuant to the
corporation's articles of incorporation) and (ii) the
affirmative vote of a
majority of the voting shares
held by disinterested shareholders.
C. When higher vote is not required. The provisions of paragraph B of this
Section 7.85 shall not be applicable to any
particular business combination, and such business combination shall
require only such affirmative vote as is required by law and any other
provision of the corporation's article of incorporation and any
resolutions of the board of directors adopted pursuant to Section 6.10 if
all of the conditions specified in either of the following subparagraphs
(1) and (2) of this paragraph C are met:
(1) Approval by disinterested directors. The
business combination shall have been approved by two-thirds of the disinterested directors (as hereinafter defined).
(2) Price and procedure requirements. All of the
following conditions shall have been met:
(a) The business combination shall provide for
consideration to be received by all holders of common shares in exchange for all their shares, and the aggregate amount of the cash and the fair market value as of the date of consummation of the business combination of consideration other than cash to be received per share by holders of common shares in such business combination shall be at least equal to the higher of the following:
(i) (if applicable) the highest per share
price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the interested shareholder or any affiliate or associate of the interested shareholder to acquire any common shares beneficially owned by the interested shareholder which were acquired (a) within the two year period immediately prior to the first public announcement of the proposal of the business combination (the "announcement date") or (b) in the transaction in which it became an interested shareholder, whichever is higher; and
(ii) the fair market value per common share
on the first trading date after the announcement date or on the first trading date after the date of the first public announcement that the interested shareholder became an interested shareholder (the "Determination Date"), whichever is higher.
(b) The business combination shall provide for
consideration to be received by all holders of outstanding shares other than common shares in exchange for all such shares, and the aggregate amount of the cash and the fair market value as of the date of the consummation of the business combination of consideration other than cash to be received per share by holders of outstanding shares other than common shares shall be at least equal to the highest of the following (it being intended that the requirements of this subparagraph (2)(b) shall be required to be met with respect to every class and series of outstanding shares other than common shares whether or not the interested shareholder or any affiliate or associate of the interested shareholder has previously acquired any shares of a particular class or series):
(i) (if applicable) the highest per share
price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the interested shareholder or any affiliate or associate of the interested shareholder to acquire any shares of such class or series beneficially owned by the interested shareholder which were acquired (a) within the 2-year period immediately prior to the announcement date or (b) in the transaction in which it became an interested shareholder, whichever is higher;
(ii) (if applicable) the highest preferential
amount per share to which the holders of shares of such class or series are entitled in the event of any voluntary or involuntary liquidation, dissolution or winding up of the corporation;
(iii) the fair market value per share of such
class or series on the first trading date after the announcement date or on the determination date, whichever is higher; and
(iv) an amount equal to the fair market value
per share of such class or series determined pursuant to clause (iii) times the highest value obtained in calculating the following quotient for each class or series of which the interested shareholder has acquired shares within the 2-year period ending on the announcement date: (x) the highest per share price (including any brokerage commissions, transfer taxes and soliciting dealers' fees) paid by the interested shareholder or any affiliate or associate of the interested Shareholder for any shares of such class or series acquired within such 2-year period divided by (y) the market value per share of such class or series on the first day in such 2-year period on which the interested shareholder or any affiliate or associate of the interested shareholder acquired any shares of such class or series.
(c) The consideration to be received by holders of a
particular class or series of outstanding shares shall be in cash or in the same form as the interested shareholder or any affiliate or associate of the interested shareholder has previously paid to acquire shares of such class or series beneficially owned by the interested shareholder. If the interested shareholder and any affiliates or associates of the interested shareholder have paid for shares of any class or series with varying forms of consideration, the form of consideration for such class or series shall be either cash or the form used to acquire the largest number of shares of such class or series beneficially owned by the interested shareholder.
(d) After such interested shareholder has become an
interested shareholder and prior to the consummation of such business combination: (1) except as approved by two-thirds of the disinterested directors, there shall have been no failure to declare and pay at the regular date therefor any full periodic dividends (whether or not cumulative) on any outstanding shares of the corporation other than the common shares; (2) there shall have been (a) no reduction in the annual rate of dividends paid on the common shares (except as necessary to reflect any subdivision of the common shares), except as approved by two-thirds of the disinterested directors, and (b) an increase in such annual rate of dividends (as necessary to prevent any such reduction) in the event of any reclassification (including any reverse share split), recapitalization, reorganization or any similar transaction which has the effect of reducing the number of outstanding common shares; and (3) such interested shareholder shall not have become the beneficial owner of any additional Voting Shares except as part of the transaction which results in such interested shareholder becoming an interested shareholder or as a result of action taken by the corporation not caused, directly or indirectly, by such interested shareholder.
(e) After such interested shareholder has become an
interested shareholder, such interested shareholder shall not have received the benefit, directly or indirectly (except proportionately as a shareholder), of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by the corporation or any Subsidiary, whether in anticipation of or in connection with such business combination or otherwise.
(f) A proxy or information statement describing the
proposed business combination and complying with the requirements of the Securities Exchange Act of 1934 and the rules and regulations thereunder (or any subsequent provisions replacing such Act, rules or regulations) shall be mailed to public shareholders of the corporation at least 30 days prior to the consummation of such business combination (whether or not such proxy or information statement is required to be mailed pursuant to such Act or subsequent provisions).
D. Certain definitions. For the purposes of this Section 7.85:
(1) "Person" means an individual, firm, corporation,
partnership, trust or other entity.
(2) "Interested shareholder" means (i) a person
(other than the corporation and a direct or indirect majority-owned subsidiary of the corporation) that (a) is the owner of 15% or more of the outstanding voting shares of the corporation or (b) is an affiliate or associate of the corporation and was the owner of 15% or more of the outstanding voting shares of the corporation at any time within the 3 year period immediately before the date on which it is sought to be determined whether the person is an interested shareholder and (ii) the affiliates and associates of that person, provided, however, that the term "interested shareholder" shall not include (x) a person who (A) owned shares in excess of the 15% limitation as of January 1, 1997 and either (I) continued to own shares in excess of the 15% limitation or would have but for action by the corporation or (II) is an affiliate or associate of the corporation and so continued (or so would have continued but for action by the corporation) to be the owner of 15% or more of the outstanding voting shares of the corporation at any time within the 3-year period immediately prior to the date on which it is sought to be determined whether such a person is an interested shareholder or (B) acquired the shares from a person described in clause (A) by gift, inheritance, or in a transaction in which no consideration was exchanged or (y) a person whose ownership of shares in excess of the 15% limitation is the result of action taken solely by the corporation, provided that the person shall be an interested shareholder if thereafter the person acquires additional shares of the corporation, except as a result of further corporate action not caused, directly or indirectly, by the person or if the person acquires additional shares in transactions approved by the board of directors, which approval shall include a majority of the disinterested directors. For the purpose of determining whether a person is an interested shareholder, the voting shares of the corporation deemed to be outstanding shall include shares deemed to be owned by the person through application of subparagraph (3) of this paragraph, but shall not include any other unissued shares of the corporation that may be issuable pursuant to any agreement, arrangement, or understanding, upon exercise of conversion rights, warrants, or options, or otherwise.
(3) "Owner", including the terms "own" and "owned",
when used with respect to shares means a person that individually or with or through any of its affiliates or associates:
(a) beneficially owns the shares, directly or
(b) has (i) the right to acquire the shares
(whether the right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement, or understanding, upon exercise of conversion rights, exchange rights, warrants, or options, or otherwise; provided, however, that a person shall not be deemed the owner of shares tendered pursuant to a tender or exchange offer made by the person or any of the person's affiliates or associates until the tendered shares are accepted for purchase or exchange or (ii) the right to vote the shares pursuant to an agreement, arrangement, or understanding; provided, however, that a person shall not be deemed the owner of any shares because of the person's right to vote the shares if the agreement, arrangement, or understanding to vote the shares arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made to 10 or more persons; or
(c) has an agreement, arrangement, or
understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in clause (ii) of item (b) of this subparagraph), or disposing of the shares with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, the shares.
(4) "Affiliate" means a person that directly, or
indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, another person.
(5) "Associate", when used to indicate a relationship
with a person, means (i) a corporation, partnership, unincorporated association, or other entity of which the person is a director, officer, or partner or is, directly or indirectly, the owner of 20% or more of a class of voting shares, (ii) a trust or other estate in which the person has at least a 20% beneficial interest or as to which the person serves as trustee or in a similar fiduciary capacity, and (iii) a relative or spouse of the person, or a relative of that spouse who has the same residence as the person.
(6) "Subsidiary" means any corporation of which a
majority of any class of equity security is owned, directly or indirectly, by the corporation; provided, however, that for the purposes of the definition of interested shareholder set forth in subparagraph (2) of this paragraph D, the term "subsidiary" shall mean only a corporation of which a majority of each class or equity security is owned, directly or indirectly, by the corporation.
(7) "Disinterested director" means any member of the
board of directors of the corporation who: (a) is neither the interested shareholder nor an affiliate or associate of the interested shareholder; (b) was a member of the board of directors prior to the time that the interested shareholder became an interested shareholder or was a director of the corporation before January 1, 1997, or was recommended to succeed a disinterested director by a majority of the disinterested directors then in office; and (c) was not nominated for election as a director by the interested shareholder or any affiliate or associate of the interested shareholder.
(8) "Fair market value" means: (a) in the case of
shares, the highest closing sale price during the 30-day period immediately preceding the date in question of a share on the New York Stock Exchange Composite Tape, or, if such shares are not quoted on the Composite Tape, on the New York Stock Exchange, or, if such shares are not listed on such Exchange, on the principal United States securities exchange registered under the Securities Exchange Act of 1934 on which such shares are listed, or, if such shares are not listed on any such exchange, the highest closing sale price or bid quotation with respect to a share during the 30-day period preceding the date in question on the National Association of Securities Dealers, Inc. Automated Quotations System or any system then in use, or if no such quotations are available, the fair market value on the date in question of a share as determined by a majority of the disinterested directors in good faith; and (b) in the case of property other than cash or shares, the fair market value of such property on the date in question as determined by a majority of the disinterested directors in good faith.
(9) "Disinterested shareholder" shall mean a
shareholder of the corporation who is not an interested shareholder or an affiliate or an associate of an interested shareholder.
(10) "Business combination" has the meaning set forth
in Section 11.75 of this Act (regardless of the case of the word "only" in that Section).
(11) In the event of any business combination in
which the corporation survives, the phrase " consideration other than cash" as used in subparagraphs (2)(a) and (2)(b) of paragraph C of this Section 7.85 shall include the common shares and the shares of any other class or series retained by the holders of such shares.
(12) "Shares" means, with respect to any corporation,
capital stock and, with respect to any other entity, any equity interest.
(13) "Voting shares" means, with respect to any
corporation, shares of any class or series entitled to vote generally in the election of directors and, with respect to any entity that is not a corporation, any equity interest entitled to vote generally in its election of the governing body of the entity.
E. Determinations by disinterested directors. A majority
of the disinterested directors shall have the power to
determine, for the purposes of this Section 7.85, (a) whether a person is
an interested shareholder, (b) the number of voting shares beneficially
owned by any person, (c) whether a person is an affiliate or associate of
another, and (d) whether the transaction is the subject of any business
(Source: P.A. 90-461, eff. 1-1-98.)
805 ILCS 5/7.90
(805 ILCS 5/7.90)
(a) Unless otherwise provided in the articles of incorporation, a shareholder who executes and delivers to the corporation a written instrument irrevocably waiving the right (i) to vote any shares held by such shareholder, whether for the election of directors or otherwise, (ii) to be a director or officer of the corporation, and (iii) in any other manner to control, directly or indirectly, corporate actions or the election or removal of any director or officer of the corporation, and who at the time of such waiver is not a director or officer of the corporation, shall have no fiduciary duty to the corporation or any of its shareholders arising out of the fact that such person is a shareholder of the corporation. No such waiver shall affect any breach of fiduciary duty arising prior to the effective date of the waiver.
(b) The corporation shall give prompt notice of such waiver to the remaining shareholders, except that no such notice need be given by a corporation that has shares listed on a national securities exchange or regularly traded in a market maintained by one or more members of a national or affiliated securities association.
(c) The waiver referred to in this Section shall not affect any other rights or obligations of the shareholder, including but not limited to the rights under Sections 7.80, 11.65, 11.70, 12.55 and 12.56 of this Act.
(d) Shares that cannot be voted because of a waiver under this Section shall not be counted in determining the number of shares necessary for a quorum or for shareholder action under Section 7.60 of this Act. A waiver under this Section shall not apply to any transferee of the shares.
(e) The waiver referred to in this Section is specifically enforceable in accordance with the principles of equity.
(f) This Section is not intended to describe or suggest the circumstances under which any fiduciary duty arises or exists, including with respect to any shareholder who fails to make a waiver under this Section.
(Source: P.A. 94-394, eff. 8-1-05.)