ARS § 10-11103. Action on plan by board, members and third persons

ARS § 10-11103. Action on plan by board, members and third persons2018-01-14T10:37:50+00:00

A. If the members of any merging corporation or other persons are entitled to vote on or approve the plan, except as provided in subsection G of this section, after adopting a plan of merger or membership exchange, the board of directors of the corporation shall submit the plan of merger or membership exchange for approval by its members and the other persons.

B. For a plan of merger or membership exchange to be approved all of the following shall have occurred:

1. The board of directors shall recommend the plan of merger or membership exchange to the members, unless the board of directors determines that because of a conflict of interest or other special circumstances it should not make a recommendation and communicates the basis for its determination to the members with the plan.

2. The members entitled to vote on the plan of merger or membership exchange shall approve the plan.

3. Each person whose approval is required by the articles of incorporation for a merger shall approve the plan in writing.

C. The board of directors may condition its submission of the proposed merger or membership exchange on any basis.

D. If the corporation submits the transaction for member action at a membership meeting, the corporation shall notify each member of the proposed membership meeting at which the plan of merger or membership exchange is to be submitted for approval in accordance with section 10-3705. The notice shall state that the purpose or one of the purposes of the meeting is to consider the plan of merger or membership and shall contain or be accompanied by a copy or summary of the plan.

E. Unless chapters 24 through 40 of this title, the articles of incorporation or the board of directors acting pursuant to subsection C of this section requires a greater vote or voting by class, the plan of merger or membership exchange to be authorized shall be approved by a majority of the votes cast or a majority of the voting power of the class, whichever is less.

F. Voting by a class of members is required on a plan of merger or membership exchange if the plan contains a provision that, if contained in a proposed amendment to articles of incorporation or bylaws, would entitle the class of members to vote as a class on the proposed amendment under section 10-11004 or 10-11022. The plan is approved by a class of members by two-thirds of the votes cast by the class or a majority of the voting power of the class, whichever is less.

G. Unless the articles of incorporation otherwise require, action by the members of the surviving corporation on a plan of merger is not required if all of the following conditions exist:

1. The articles of incorporation of the surviving corporation will not differ, except for amendments enumerated in section 10-11002, from its articles of incorporation before the merger.

2. Each member of the surviving corporation who was a member immediately before the effective date of merger will hold the same number of memberships with identical designations, preferences, limitations and relative rights immediately after the effective date of merger.

3. The number of voting members existing immediately after the merger, plus the number of voting memberships issuable as a result of the merger, will not exceed more than twenty per cent the total number of voting memberships of the surviving corporation existing immediately before the merger.

4. The number of memberships, if any, that entitle the holders of the memberships to participate without limitation in distributions existing immediately after the merger, plus the number of participating memberships issuable as a result of the merger, will not exceed the total number of participating memberships existing immediately before the merger by more than ninety per cent.

H. At any time before the filing of the articles of merger, the plan of merger or membership exchange may be abandoned, subject to any contractual rights, without further action by the members or other persons who approved the plan, in accordance with the procedure set forth in the plan of merger or membership exchange or, if none is set forth, in the manner determined by the board of directors.

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