§ 14-2-1103 - Action on plan
O.C.G.A. 14-2-1103 (2010)
14-2-1103. Action on plan
(a) After adopting a plan of merger or share exchange, the board of directors of each corporation 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 (except as provided in subsection (h) of this Code section) or share exchange for approval by its shareholders.
(b) For a plan of merger or share exchange to be approved:
(1) The board of directors shall also transmit to the shareholders a recommendation that the shareholders approve the plan, unless the board of directors makes a determination that, because of conflicts of interest or other special circumstances, it should either refrain from making such a recommendation or recommend that the shareholders reject or vote against the plan, in which case the board of directors shall transmit to the shareholders the basis for such determination; and
(2) The shareholders entitled to vote must approve the plan as provided in subsections (e), (f), and (g) of this Code section.
(c) The board of directors may condition its submission of the proposed merger or share exchange, the effectiveness of the proposed merger or share exchange, or both on any basis.
(d) The corporation shall notify each shareholder entitled to vote of the proposed shareholders' meeting in accordance with Code Section 14-2-705. The notice must also state that the purpose, or one of the purposes, of the meeting is to consider the plan of merger or share exchange and contain or be accompanied by a copy or summary of the plan.
(e) Unless this chapter, the articles of incorporation, the bylaws, or the board of directors (acting pursuant to subsection (c) of this Code section) requires a greater vote or a vote by voting groups, the plan of merger or share exchange to be authorized must be approved by:
(1) A majority of all the votes entitled to be cast on the plan by all shares entitled to vote on the plan, voting as a single voting group; and
(2) A majority of all the votes entitled to be cast by holders of the shares of each voting group entitled to vote separately on the plan as a voting group by the articles of incorporation.
(f) Shares of a class or series not otherwise entitled to vote on the merger are entitled to vote on a plan of merger if the plan contains a provision that, if contained in a proposed amendment to articles of incorporation, would require action by that class or series of shares voting as a separate voting group on the proposed amendment under Code Section 14-2-1004 as a part of the voting group described in paragraph (1) of subsection (e) of this Code section.
(g) Shares of a class or series included in a share exchange but not otherwise entitled to vote on the plan of share exchange are entitled to vote, with each class or series constituting a separate voting group.
(h) Action by the shareholders of the surviving corporation on a plan of merger or by the shareholders of the acquiring corporation in a share exchange is not required if:
(1) The articles of incorporation of the surviving or acquiring corporation will not differ (except for amendments enumerated in Code Section 14-2-1002) from its articles before the merger or share exchange;
(2) Each share of stock of the surviving or acquiring corporation outstanding immediately before the effective date of the merger or share exchange is to be an identical outstanding or reacquired share immediately after the merger or share exchange; and
(3) The number and kind of shares outstanding immediately after the merger or share exchange, plus the number and kind of shares issuable as a result of the merger or share exchange and by the conversion of securities issued pursuant to the merger or share exchange or the exercise of rights and warrants issued pursuant to the merger or share exchange, will not exceed the total number and kind of shares of the surviving or acquiring corporation authorized by its articles of incorporation immediately before the merger or share exchange.
(i) Unless otherwise provided in a plan of merger or share exchange or in the laws under which a foreign corporation that is a party to a merger or share exchange is organized or by which it is governed, after a merger or share exchange is authorized, and at any time before articles of merger or a certificate of merger or share exchange becomes effective, 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 and otherwise in accordance with subsection (j) of this Code section.
(j) If a merger or share exchange is abandoned as permitted by subsection (i) of this Code section after articles or a certificate of merger or share exchange has been filed with the Secretary of State but before the merger or share exchange has become effective, a statement that the merger or share exchange has been abandoned in accordance with this Code section executed on behalf of a party to the merger or share exchange by an officer or other duly authorized representative shall be delivered to the Secretary of State for filing prior to the effectiveness of the merger or share exchange. Upon filing, the statement shall take effect and the merger or share exchange shall be deemed abandoned and shall not become effective.