3836

(a) Notwithstanding any provision to the contrary in the certificate of incorporation or the bylaws, or in any stockholders’ agreement, the Court of First Instance (Superior Part) may appoint a provisional director for a close corporation if the directors are in such disagreement respecting the business and affairs of the corporation that it is impossible to obtain the votes for the board of directors to act, and as a result, the business and affairs of the corporation cannot be conducted for the benefit of the stockholders generally.\n(b) A petition for relief pursuant to this section must be filed:\n(1) By at least one-half (½) of the number of directors then in office;\n(2) by the holders of at least one-third (⅓) of all stock then entitled to elect the directors, or\n(3) if there be more than one (1) class of stock then entitled to elect one (1) or more directors, by the holders of two-thirds (⅔) of the stock of any of such classes; but the certificate of incorporation of a close corporation may provide that a lesser proportion of the directors or of the stockholders or of a class of stockholders may request relief under this section.\n(c) The provisional director shall be an

corporation may provide that a lesser proportion of the directors or of the stockholders or of a class of stockholders may request relief under this section.\n(c) The provisional director shall be an impartial person who is neither a stockholder nor a creditor of the corporation or of any subsidiary or affiliate of such corporation, and whose further qualifications, if any, may be determined by the Court of First Instance (Superior Part). The provisional director is not a receiver of the corporation and does not have the juridical status and powers of a trustee or receiver appointed pursuant to the provisions of § 3656 of this title. The provisional director shall have all of the rights and powers of a duly elected director of the corporation, including the right to notice of the meetings and to vote thereat until removed from his/her office by the Court of First Instance (Superior Part) or by the holders of a majority of the shares then entitled to elect the directors, or by the holders of two-thirds (⅔) of the shares of the class of the stockholders which filed the petition for appointment of a provisional director.

the shares then entitled to elect the directors, or by the holders of two-thirds (⅔) of the shares of the class of the stockholders which filed the petition for appointment of a provisional director. The provisional director and the corporation shall agree on the compensation to be received by the provisional director, subject to the approval of the Court of First Instance (Superior Part), which may fix such compensation in the absence of an agreement or in the event of disagreement between the provisional director and the corporation.\n(d) Even though the requirements of subsection (b) relating to the number of directors or stockholders who may petition for the appointment of a provisional director are not satisfied, the Court of First Instance (Superior Part) may nevertheless appoint a provisional director if permitted by § 3835(b) of this title.\nHistory —Dec. 16, 2009, No. 164, § 14.16.