§ 55A-11-03. Action on plan.
§ 55A‑11‑03. Action on plan.
(a) Unless thisChapter, the articles of incorporation, bylaws, or the board of directors ormembers (acting pursuant to subsection (c) of this section) require a greatervote or voting by class, a plan of merger to be adopted shall be approved foreach constituent corporation:
(1) By the board;
(2) By the membersentitled to vote thereon, if any, by two‑thirds of the votes cast or amajority of the votes entitled to be cast on the plan of merger, whichever isless; and
(3) In writing by anyperson or persons whose approval is required by a provision of the articles ofincorporation authorized by G.S. 55A‑10‑30 for an amendment to thearticles of incorporation or bylaws.
(b) If the corporationdoes not have members entitled to vote thereon, the merger shall be approved bya majority of the directors then in office. The corporation shall provide atleast five days' written notice of any directors' meeting at which the approvalwill be considered. The notice shall state that the purpose, or one of thepurposes, of the meeting is to consider the proposed merger.
(c) The board maycondition its approval of the proposed merger, and the members entitled to votethereon may condition their approval of the merger, on receipt of a higher percentageof affirmative votes or on any other basis.
(d) If the board seeksto have the plan approved by the members entitled to vote thereon at amembership meeting, the corporation shall give notice of the membership meetingto those members in accordance with G.S. 55A‑7‑05. The notice shallstate that the purpose, or one of the purposes, of the meeting is to considerthe plan of merger and contain or be accompanied by a copy or summary of theplan. The copy or summary of the plan for members of the surviving corporationshall include any provision that, if contained in a proposed amendment to thearticles of incorporation or bylaws, would entitle members to vote on theprovision. The copy or summary of the plan for members of the disappearingcorporation shall include a copy or summary of the articles of incorporationand bylaws that will be in effect immediately after the merger takes effect.
(e) If the board seeksto have the plan approved by the members entitled to vote thereon by writtenconsent or written ballot, the material soliciting the approval shall containor be accompanied by a copy or summary of the plan. The copy or summary of theplan for members of the surviving corporation shall include any provision that,if contained in a proposed amendment to the articles of incorporation orbylaws, would entitle members to vote on the provision. The copy or summary ofthe plan for members of the disappearing corporation shall include a copy orsummary of the articles of incorporation and bylaws that will be in effectimmediately after the merger takes effect.
(f) Voting by a classof members is required on a plan of merger if the plan contains a provisionthat, if contained in a proposed amendment to articles of incorporation orbylaws, would entitle the class of members to vote as a class on the proposedamendment under G.S. 55A‑10‑04 or G.S. 55A‑10‑22. Theplan is approved by a class of members by two‑thirds of the votes cast bythe class or a majority of the votes entitled to be cast by the class, whicheveris less.
(g) After a merger isadopted but before the articles of merger become effective, the plan of merger(i) may be amended as provided in the plan of merger, or (ii) may be abandoned,subject to any contractual rights, as provided in the plan of merger, or, ifthere is no such provision, as determined by the board of directors withoutfurther action by the members or other persons who approved the plan of merger.(1955, c. 1230;1993, c. 398, s. 1; 2005‑268, s. 39.)