§414D-202  Action on plan by board, members,and third persons.  (a)  Unless this chapter, the articles, the bylaws, orthe board of directors or members (acting pursuant to subsection (c)) require agreater vote or voting by class, a plan of merger to be adopted shall beapproved:

(1)  By the board;

(2)  By the members, if any, by two-thirds of thevotes cast or a majority of the voting power, whichever is less; and

(3)  In writing by any person or persons whoseapproval is required by a provision of the articles authorized by section414D-188 for an amendment to the articles or bylaws.

(b)  If the corporation does not have members,the merger shall be approved by a majority of the directors in office at thetime the merger is approved.  In addition, the corporation shall provide noticeof any directors' meeting at which the approval is to be obtained in accordancewith section 414D-145(c).  The notice shall also state that the purpose, or oneof the purposes, of the meeting is to consider the proposed merger.

(c)  The board may condition its submission ofthe proposed merger, and the members may condition their approval of themerger, on receipt of a higher percentage of affirmative votes or on any otherbasis.

(d)  If the board seeks to have the plan approvedby the members at a membership meeting, the corporation shall give notice toits members of the proposed membership meeting in accordance with section414D-105.  The notice shall also state that the purpose, or one of thepurposes, of the meeting is to consider the plan of merger and contain or beaccompanied by a copy or summary of the plan.  The copy or summary of the planfor members of the surviving corporation shall include any provision that, ifcontained in a proposed amendment to the articles of incorporation or bylaws,would entitle members to vote on the provision.  The copy or summary of theplan for members of the disappearing corporation shall include a copy orsummary of the articles and bylaws that will be in effect immediately after themerger takes effect.

(e)  If the board seeks to have the planapproved by the members by written consent or written ballot, the materialsoliciting the approval shall contain or be accompanied by a copy or summary ofthe plan.  The copy or summary of the plan for members of the survivingcorporation shall include any provision that, if contained in a proposedamendment to the articles of incorporation or bylaws, would entitle members tovote on the provision.  The copy or summary of the plan for members of thedisappearing corporation shall include a copy or summary of the articles andbylaws that will be in effect immediately after the merger takes effect.

(f)  Voting by a class of members is requiredon a plan of merger if the plan contains a provision that, if contained in aproposed amendment to articles of incorporation or bylaws, would entitle theclass of members to vote as a class on the proposed amendment under section414D-184 or 414D-187.  The plan shall be approved by a class of members by two-thirdsof the votes cast by the class or a majority of the voting power of the class,whichever is less.

(g)  After a merger is adopted, and at any timebefore articles of merger are filed, the planned merger may be abandoned(subject to any contractual rights) without further action by members or otherpersons who approved the plan in accordance with the procedure set forth in theplan of merger or, if none is set forth, in the manner determined by the boardof directors.  A plan of merger may providethat at any time prior to the time that the plan becomes effective, the planmay be terminated by the board of directors of any constituent corporationnotwithstanding approval of the plan by the stockholders of all or any of theconstituent corporations.  If the plan of merger is terminated after the filingof the articles but before the plan has become effective, a certificate oftermination shall be filed with the department director.  A plan of merger mayallow the boards of directors of the constituent corporations to amend the planat any time prior to the time that the plan becomes effective; provided that anamendment made subsequent to the adoption of the plan by the stockholders ofany constituent corporation shall not:

(1)  Alter orchange the amount or kind of shares, securities, cash, property, or rights orany of them  to be received in exchange for or on conversion of all or any ofthe interests of the constituent corporation;

(2)  Alter orchange any term of the organizing articles of the surviving entity to beeffected by the merger; or

(3)  Alter orchange any of the terms and conditions of the plan if the alteration or changewould adversely affect the holders of any interest of the constituentcorporation.

If the planof merger is amended after the articles are filed with the department directorbut before the plan has become effective, articles of amendment shall be filedwith the department director.

[(h)]  A merger takes effect on the filing dateof the articles of merger, or on the date subsequent to the filing as set forthin the articles of merger; provided that the effective date shall not be morethan thirty days from the filing date. [L 2001, c 105, pt of §1; am L 2002, c41, §14]