In the case of a domestic corporation that is a party to a merger:
(1) The plan of merger must be adopted by the board of directors. After adopting a plan of merger, the board of directors of each corporation party to the merger shall submit the plan of merger, except as provided in subdivision (8) of this section, for approval by those members who are entitled to vote on such plan, if any.
(2) The board of directors must also transmit to the members entitled to vote, if any, a recommendation that such members approve the plan, unless the board of directors makes a determination that because of conflicts of interest or other special circumstances it should not make such a recommendation, in which case the board of directors must transmit to the members entitled to vote, if any, the basis for such determination.
(3) The board of directors may condition its submission of the plan of merger to the members on any basis.
(4) If the plan of merger is required to be approved by the members, and if the approval is to be given at a meeting, the corporation must notify each member entitled to vote on the plan, if any, of the meeting of the members at which the plan is to be submitted for approval. The notice must state that the purpose, or one of the purposes, of the meeting is to consider the plan and must contain or be accompanied by a copy or summary of the plan. If the corporation is to be merged into an existing corporation, the notice shall also include or be accompanied by a copy or summary of the certificate of incorporation of such existing corporation. If the corporation is to be merged into a corporation that is to be created pursuant to the merger, the notice shall include or be accompanied by a copy or a summary of the certificate of incorporation of the new corporation.
(5) Unless sections 33-1000 to 33-1290, inclusive, the certificate of incorporation or the board of directors acting pursuant to subdivision (3) of this section requires a greater vote or a vote by class of members, the plan of merger to be adopted must be approved by: (A) If no class of members is entitled to vote separately on the plan as a class, at least two-thirds of the votes cast by the members entitled to vote thereon; and (B) if any class of members is entitled to vote on the plan separately as a class, at least two-thirds of the votes cast by the members of each such class. Approval of the plan of merger by members may precede or follow adoption of the plan of merger by the board of directors and the taking of any necessary actions under subdivision (2) of this section.
(6) Separate voting by a class of members of a corporation is required on a plan of merger if: (A) The plan contains a provision that, if contained in a proposed amendment to the certificate of incorporation of such corporation, would require action by such class, as a separate class, on the proposed amendment under the certificate of incorporation of the corporation; (B) such class is entitled under the certificate of incorporation of the corporation to vote as a separate class to approve a plan of merger; or (C) the memberships of such class are to be converted, pursuant to the provisions of the plan of merger, into memberships of a different class of members of such corporation or into memberships of any class of members of any other corporation.
(7) If (A) in the case of the surviving corporation, a plan of merger contains any provision which, if contained in a proposed amendment to its certificate of incorporation would require a greater vote than, or additional vote to, that otherwise required to approve the plan of merger, or (B) in the case of any terminating corporation, a sale of all or substantially all assets, or dissolution, would under the circumstances require a greater vote than, or additional vote to, that otherwise required to approve the plan of merger, approval of the plan of merger by such corporation shall require such greater or additional vote.
(8) Unless the certificate of incorporation otherwise provides, approval by the corporation's members of a plan of merger is not required if: (A) The corporation will be the survivor of the merger; (B) except for amendments permitted by section 33-1141, the corporation's certificate of incorporation will not be changed; and (C) each member of the corporation immediately before the effective date of the merger will be a member of the survivor with identical designations, qualifications, privileges and rights immediately after the effective date of the merger.
(9) If any merging corporation has no members, or no members entitled to vote thereon, a plan of merger shall be adopted by the board of directors.
(P.A. 96-256, S. 109, 209; P.A. 97-246, S. 67, 99; P.A. 03-18, S. 43.)
History: P.A. 96-256 effective January 1, 1997; P.A. 97-246 amended Subsec. (a) to make a technical change, effective June 27, 1997; P.A. 03-18 substantially revised section, adding provision re in the case of a domestic corporation that is a party to a merger, redesignating Subsec. (a) as Subdiv. (1) and adding provision therein re plan of merger must be adopted by the board, deleting former Subsec. (b) re approval of plan of merger, adding Subdiv. (2) re transmission of board recommendation to members entitled to vote, redesignating Subsec. (c) as Subdiv. (3) and replacing “proposed merger” with “plan of merger to the members” therein, redesignating Subsec. (d) as Subdiv. (4) and amending same to add provision re notice if plan of merger is required to be approved by members at a meeting, replace provision re notice of proposed members' meeting in accordance with Sec. 33-1065 with provision re notice of meeting of members at which plan is to be submitted for approval and add provisions re notice to include or be accompanied by copy or summary of certificate of incorporation, redesignating Subsec. (e) as Subdiv. (5) and adding provision therein re member adoption of plan of merger may precede or follow adoption by board and taking of actions under Subdiv. (2), redesignating Subsec. (f) as Subdiv. (6) and amending same to replace “one or more separate classes of members” with “such class, as a separate class” and add provisions re voting as a separate class and conversion of memberships, redesignating Subsec. (g) as Subdiv. (7), redesignating Subsec. (h) as Subdiv. (8) and amending same to add provision re approval of plan of merger by corporation's members is not required unless the certificate of incorporation otherwise provides, replace provisions re certificate of surviving corporation will not differ with provisions re corporation will be the survivor and certificate will not be changed and add “the effective date of the merger”, deleting former Subsec. (i) re abandoned merger, redesignating Subsec. (j) as Subdiv. (9) and making technical and conforming changes throughout, effective July 1, 2003.