16-6a-1102 - Action on plan of merger.
16-6a-1102. Action on plan of merger.
(1) After adopting the plan of merger, the board of directors of each domestic nonprofitcorporation that is a party to the merger shall submit the plan of merger to its members, if any areentitled to vote on the plan of merger, for approval.
(2) If the domestic nonprofit corporation has members entitled to vote with respect to theapproval of a plan of merger, a plan of merger is approved by the members if:
(a) (i) the board of directors recommends the plan of merger to the members entitled tovote on the plan of merger; or
(ii) (A) the board of directors determines that, because of conflict of interest or otherspecial circumstances, it should make no recommendation; and
(B) communicates the basis for its determination to the members with the plan; and
(b) the members entitled to vote on the plan of merger approve the plan as provided inSubsection (7).
(3) After adopting the plan of merger, the board of directors of each domestic nonprofitcorporation party to the merger shall submit the plan of merger for written approval by anyperson or persons:
(a) whose approval is required by the articles of incorporation of the domestic nonprofitcorporation; and
(b) as required by Section 16-6a-1013 for an amendment to the articles of incorporationor bylaws.
(4) (a) If the domestic nonprofit corporation does not have members entitled to vote on amerger, the merger shall be approved and adopted by a majority of the directors elected and inoffice at the time the plan of merger is considered by the board of directors.
(b) The domestic nonprofit corporation shall provide notice of any meeting of the boardof directors at which the approval described in Subsection (4)(a) is to be obtained in accordancewith Section 16-6a-814.
(c) The notice required by Subsection (4)(b) shall state that the purpose, or one of thepurposes, of the meeting is to consider the proposed merger.
(5) The board of directors may condition the effectiveness of the plan of merger on anybasis.
(6) (a) The domestic nonprofit corporation shall give notice, in accordance with Section16-6a-704, to each member entitled to vote on the plan of merger of the members' meeting atwhich the plan will be voted on.
(b) The notice required by Subsection (6)(a) shall:
(i) state that the purpose, or one of the purposes, of the meeting is to consider the plan ofmerger; and
(ii) contain or be accompanied by a copy of the plan of merger or a summary of the planof merger.
(7) The plan of merger shall be approved by the votes required by Sections 16-6a-714and 16-6a-715 by every voting group entitled to vote on the plan of merger unless a greater voteis required by:
(a) this chapter;
(b) the articles of incorporation;
(c) bylaws adopted by the members; or
(d) the board of directors acting pursuant to Subsection (5).
(8) Separate voting by voting groups is required on a plan of merger if the plan contains aprovision that, if contained in an amendment to the articles of incorporation, would require actionby one or more separate voting groups on the amendment.
Amended by Chapter 228, 2006 General Session