10-2704. Limitation on share repurchases; definition

A. An issuing public corporation shall not, directly or indirectly, purchase or agree to purchase any shares from a beneficial owner of more than five per cent of the voting power of the issuing public corporation for more than the average market price of the shares if the shares have been beneficially owned by the beneficial owner for less than three years, unless either:

1. The purchase or agreement to purchase is approved at a meeting of shareholders by the affirmative vote of the holders of a majority of the voting power of all shares excluding shares beneficially owned by the beneficial owner or its affiliates or associates or by any officer or director of the issuing public corporation.

2. The issuing public corporation makes an offer, of at least equal value per share, to all holders of shares of such class or series and to all holders of any class or series into which the shares may be converted.

B. For the purposes of this section, " average market price" means the average closing sale price during the thirty trading days immediately preceding the purchase of the shares in question, or if the person or persons have commenced a tender offer or have announced an intention to seek control of the issuing public corporation, during the thirty trading days preceding the earlier of the commencement of the tender offer or the making of the announcement, of a share on the composite tape for New York stock exchange listed shares or, if the shares are not quoted on the composite tape or not listed on the New York stock exchange, on the principal United States securities exchange registered under the securities exchange act of 1934 on which the shares are listed or, if the shares are not listed on any such exchange, on the national association of securities dealers, inc. automated quotations national market system or, if the shares are not quoted on the national association of securities dealers, inc. automated quotations national market system, the average closing bid quotation, during the thirty trading days preceding the purchase of the shares in question of a share on the national association of securities dealers, inc. automated quotations system or any system then in use, or if the person or persons have commenced a tender offer or have announced an intention to seek control of the issuing public corporation, during the thirty trading days preceding the earlier of the commencement of the tender offer or the making of the announcement, except that if no quotation is available the average market price is the fair market value on the date of purchase of the shares in question of a share as determined in good faith by the board of directors of the issuing public corporation.