10-1103

10-1103. Action on plan of merger or share
exchange

A. Except as provided in subsection G of this section, after adopting a plan of
merger or share exchange, the board of directors of each corporation that is a party to
the merger and the board of directors of the corporation whose shares will be acquired in
the share exchange shall submit the plan of merger or share exchange for approval by its
shareholders.

B. For a plan of merger or share exchange to be approved both:

1. The board of directors shall recommend the plan of merger or share exchange to
the shareholders, unless the board of directors determines that because of a conflict of
interest or other special circumstances it should not make a recommendation and
communicates the basis for its determination to the shareholders with the plan.

2. The shareholders entitled to vote on the plan of merger or share exchange shall
approve the plan.

C. The board of directors may condition its submission of the proposed merger or
share exchange on any basis.

D. The corporation shall notify each shareholder, whether or not entitled to vote,
of the proposed shareholders' meeting at which the plan of merger or share exchange is to
be submitted for approval in accordance with section 10-705. The notice shall state that
the purpose or one of the purposes of the meeting is to consider the plan of merger or
share exchange and shall contain or be accompanied by a copy or summary of the plan.

E. Unless chapters 1 through 17 of this title, the articles of incorporation or the
board of directors acting pursuant to subsection C of this section requires a greater
vote or a vote by voting groups, the plan of merger or share exchange to be authorized
shall be approved by each voting group entitled to vote separately on the plan by a
majority of all the votes entitled to be cast on the plan by that voting group.

F. Separate voting by voting groups is required:

1. On a plan of merger if either:

(a) The plan contains a provision that, if contained in a proposed amendment to the
articles of incorporation, would require action by one or more separate voting groups on
the proposed amendment under section 10-1004.

(b) One or more voting groups are entitled under the articles of incorporation to
vote as a voting group on the plan of merger.

2. On a plan of share exchange by each class or series of shares included in the
exchange, with each class or series constituting a separate voting group.

G. Unless the articles of incorporation otherwise require, action by the
shareholders of the surviving corporation on a plan of merger is not required if all of
the following conditions exist:

1. The articles of incorporation of the surviving corporation will not differ,
except for amendments enumerated in section 10-1002, from its articles of incorporation
before the merger.

2. Each shareholder of the surviving corporation whose shares were outstanding
immediately before the effective date of the merger will hold the same number of shares
with identical designations, preferences, limitations and relative rights immediately
after the effective date of the merger.

3. The number of voting shares outstanding immediately after the merger, plus the
number of voting shares issuable as a result of the merger either by the conversion of
securities issued pursuant to the merger or the exercise of rights and warrants issued
pursuant to the merger, will not exceed by more than twenty per cent the total number of
voting shares of the surviving corporation outstanding immediately before the merger.

4. The number of participating shares outstanding immediately after the merger,
plus the number of participating shares issuable as a result of the merger either by the
conversion of securities issued pursuant to the merger or the exercise of rights and
warrants issued pursuant to the merger, will not exceed by more than twenty per cent the
total number of participating shares outstanding immediately before the merger.

H. As used in subsection G of this section:

1. "Participating shares" means shares that entitle their holders to participate
without limitation in distributions.

2. "Voting shares" means shares that entitle their holders to vote unconditionally
in elections of directors.

I. At any time before the filing of the articles of merger or share exchange, the
plan of merger or share exchange may be abandoned, subject to any contractual rights,
without further shareholder action, in accordance with the procedure set forth in the
plan of merger or share exchange or, if none is set forth, in the manner determined by
the board of directors.