State Codes and Statutes
Statutes > Utah > Title-16 > Chapter-10a > 16-10a-110316-10a-1103. Action on plan.
(1) After adopting a plan of merger or share exchange, the board of directors of eachcorporation party to the merger, and the board of directors of each corporation whose shares willbe acquired in the share exchange, shall submit the plan of merger to its shareholders forapproval, except as provided in:
(a) Subsection (7);
(b) Section 16-10a-1104; or
(c) the plan of share exchange.
(2) For a plan of merger or share exchange to be approved:
(a) the board of directors shall recommend the plan of merger or share exchange to theshareholders, unless the board of directors determines that because of conflict of interest or otherspecial circumstances it should make no recommendation and communicates the basis for itsdetermination to the shareholders with the plan; and
(b) the shareholders entitled to vote on the plan of merger or share exchange shallapprove the plan as provided in Subsection (5).
(3) The board of directors may condition its submission of the proposed merger or shareexchange on any basis.
(4) The corporation shall give notice of the shareholders' meeting in accordance withSection 16-10a-705 to each shareholder entitled to vote on the plan of merger or share exchange. The notice shall state that one of the purposes of the meeting is to consider the plan of merger orshare exchange and contain or be accompanied by a copy or summary of the plan.
(5) Unless this chapter, the articles of incorporation, the initial bylaws, the amendedbylaws, or the board of directors acting pursuant to Subsection (3) requires a greater vote, theplan of merger or share exchange to be authorized shall be approved by each voting groupentitled to vote separately on the plan by a majority of all the votes entitled to be cast on the planby that voting group.
(6) Separate voting by voting groups is required on a plan of:
(a) merger if the plan contains a provision that, if contained in an amendment to thearticles of incorporation, would require action by one or more separate voting groups on theamendment under Section 16-10a-1004; and
(b) share exchange by each class or series of shares included in the share exchange, witheach class or series constituting a separate voting group.
(7) Action by the shareholders of the surviving corporation on a plan of merger is notrequired if:
(a) the articles of incorporation of the surviving corporation will not differ, except foramendments enumerated in Section 16-10a-1002, from its articles of incorporation before themerger;
(b) each shareholder of the surviving corporation whose shares were outstandingimmediately before the merger will hold the same number of shares, with identical designations,preferences, limitations, and relative rights, immediately after the merger;
(c) the number of voting shares outstanding immediately after the merger, plus thenumber of voting shares issuable as a result of the merger either by the conversion of securitiesissued pursuant to the merger or the exercise of rights and warrants issued pursuant to themerger, will not exceed by more than 20% the total number of voting shares of the survivingcorporation outstanding immediately before the merger; and
(d) the number of participating shares outstanding immediately after the merger, plus thenumber of participating shares issuable as a result of the merger either by the conversion ofsecurities issued pursuant to the merger or the exercise of rights and warrants issued pursuant tothe merger, will not exceed by more than 20% the total number of participating sharesoutstanding immediately before the merger.
(8) As used in Subsection (7):
(a) "Participating shares" means shares that entitle their holders to participate withoutlimitation in distributions.
(b) "Voting shares" means shares that entitle their holders to vote unconditionally inelections of directors.
(9) After a plan of merger or share exchange is approved, and at any time before themerger or share exchange becomes effective the merger or share exchange may be abandoned,subject to any contractual rights, without further shareholder action, in accordance with theprocedure set forth in the plan of merger or share exchange or, if none is set forth, in the mannerdetermined by the board of directors.
(10) If a merger or share exchange is abandoned after articles of merger or shareexchange have been filed by the division pursuant to Section 16-10a-1105 specifying a delayedeffective date, the merger or share exchange may be prevented from becoming effective bydelivering to the division for filing prior to the specified effective time and date a statement ofabandonment stating that by appropriate corporate action the merger or share exchange has beenabandoned. The statement of abandonment shall be executed in the same manner as the articlesof merger or share exchange.
Amended by Chapter 378, 2010 General Session
