10-11103

10-11103. Action on plan by board, members
and third persons

A. If the members of any merging corporation or other persons are entitled to vote
on or approve the plan, except as provided in subsection G of this section, after
adopting a plan of merger or membership exchange, the board of directors of the
corporation shall submit the plan of merger or membership exchange for approval by its
members and the other persons.

B. For a plan of merger or membership exchange to be approved all of the following
shall have occurred:

1. The board of directors shall recommend the plan of merger or membership exchange
to the members, 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 members with the plan.

2. The members entitled to vote on the plan of merger or membership exchange shall
approve the plan.

3. Each person whose approval is required by the articles of incorporation for a
merger shall approve the plan in writing.

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

D. If the corporation submits the transaction for member action at a membership
meeting, the corporation shall notify each member of the proposed membership meeting at
which the plan of merger or membership exchange is to be submitted for approval in
accordance with section 10-3705. The notice shall state that the purpose or one of the
purposes of the meeting is to consider the plan of merger or membership and shall contain
or be accompanied by a copy or summary of the plan.

E. Unless chapters 24 through 40 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 voting by class, the plan of merger or membership exchange to be authorized shall
be approved by a majority of the votes cast or a majority of the voting power of the
class, whichever is less.

F. Voting by a class of members is required on a plan of merger or membership
exchange if the plan contains a provision that, if contained in a proposed amendment to
articles of incorporation or bylaws, would entitle the class of members to vote as a
class on the proposed amendment under section 10-11004 or 10-11022. The plan is approved
by a class of members by two-thirds of the votes cast by the class or a majority of the
voting power of the class, whichever is less.

G. Unless the articles of incorporation otherwise require, action by the members 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 10-11002, from its articles of incorporation
before the merger.

2. Each member of the surviving corporation who was a member immediately before the
effective date of merger will hold the same number of memberships with identical
designations, preferences, limitations and relative rights immediately after the
effective date of merger.

3. The number of voting members existing immediately after the merger, plus the
number of voting memberships issuable as a result of the merger, will not exceed more
than twenty per cent the total number of voting memberships of the surviving corporation
existing immediately before the merger.

4. The number of memberships, if any, that entitle the holders of the memberships
to participate without limitation in distributions existing immediately after the merger,
plus the number of participating memberships issuable as a result of the merger, will not
exceed the total number of participating memberships existing immediately before the
merger by more than ninety per cent.

H. At any time before the filing of the articles of merger, the plan of merger or
membership exchange may be abandoned, subject to any contractual rights, without further
action by the members or other persons who approved the plan, in accordance with the
procedure set forth in the plan of merger or membership exchange or, if none is set
forth, in the manner determined by the board of directors.