CORPORATIONS, ASSOCIATIONS, AND PROPRIETORS OF COMMON LANDS
NEW HAMPSHIRE BUSINESS CORPORATION ACT
Merger and Share Exchange
293-A:11.04 Action on a Plan of Merger or Share Exchange.
In the case of a domestic corporation that is a party to a merger or share exchange:
(a) The plan of merger or share exchange must be adopted by the board of directors.
(b) Except as provided in subsection (g) and in RSA 293-A:11.05, after adopting the plan of merger or share exchange the board of directors must submit the plan to the shareholders for their approval. The board of directors must also transmit to the shareholders a recommendation that the shareholders approve the plan, unless: (i) the board of directors makes a determination that because of conflicts of interest or other special circumstances it should not make such a recommendation; or (ii) RSA 293-A:8.26 applies. If either (i) or (ii) applies, the board of directors must transmit to the shareholders the basis for that determination.
(c) The board of directors may condition its submission of the plan of merger or share exchange to the shareholders on any basis.
(d) If the plan of merger or share exchange is required to be approved by the shareholders, and if the approval is to be given at a meeting, the corporation must notify each shareholder, whether or not entitled to vote, of the meeting of shareholders at which the plan is to be submitted for approval. The notice must state that the purpose, or one of the purposes, of the meeting is to consider the plan and must contain or be accompanied by a copy or summary of the plan. If the corporation is to be merged into an existing corporation or eligible entity, the notice shall also include or be accompanied by a copy or summary of the articles of incorporation or organizational documents of that corporation or eligible entity. If the corporation is to be merged into a corporation or eligible entity that is to be created pursuant to the merger, the notice shall include or be accompanied by a copy or a summary of the articles of incorporation or organizational documents of the new corporation or eligible entity.
(e) Unless the articles of incorporation, or the board of directors acting pursuant to subsection (c), requires a greater vote or a greater number of votes to be present, approval of the plan of merger or share exchange requires the approval of the shareholders at a meeting at which a quorum consisting of at least a majority of the votes entitled to be cast on the plan exists, and, if any class or series of shares is entitled to vote as a separate group on the plan of merger or share exchange, the approval of each such separate voting group at a meeting at which a quorum of the voting group consisting of at least a majority of the votes entitled to be cast on the merger or share exchange by that voting group is present.
(f) Subject to subsection (g), separate voting by voting groups is required:
(1) on a plan of merger, by each class or series of shares that:
(i) are to be converted under the plan of merger into other securities, interests, obligations, rights to acquire shares, other securities or interests, cash, other property, or any combination of the foregoing; or
(ii) are entitled to vote as a separate group on a provision in the plan that constitutes a proposed amendment to articles of incorporation, of a surviving corporation, that requires require action by separate voting groups under RSA 293-A:10.04;
(2) on a plan of share exchange, by each class or series of shares included in the exchange, with each class or series constituting a separate voting group; and
(3) on a plan of merger or share exchange, if the voting group is entitled under the articles of incorporation to vote as a voting group to approve a plan of merger or share exchange.
(g) The articles of incorporation may expressly limit or eliminate the separate voting rights provided in subsections (f)(1)(i) and (f)(2) as to any class or series of shares, except for a transaction that (A) includes what is or would be, if the corporation were the surviving corporation, an amendment subject to subsection (f)(1)(ii), and (B) will effect no significant change in the assets of the resulting entity, including all parents and subsidiaries on a consolidated basis.
(h) Unless the articles of incorporation otherwise provide, approval by the corporation's shareholders of a plan of merger or share exchange is not required if:
(1) the corporation will survive the merger or is the acquiring corporation in a share exchange;
(2) except for amendments permitted by RSA 293-A:10.05, its articles of incorporation will not be changed; and
(3) each shareholder of the corporation whose shares were outstanding immediately before the effective date of the merger or share exchange will hold the same number of shares, with identical preferences, limitations, and relative rights, immediately after the effective date of change.
(i) If as a result of a merger or share exchange one or more shareholders of a domestic corporation would become subject to owner liability for the debts, obligations, or liabilities of any other person or entity, approval of the plan of merger or share exchange shall require the execution, by each such shareholder, of a separate written consent to become subject to such owner liability.
Source. 2013, 142:1, eff. Jan. 1, 2014.