Sec. 33-817. Action on plan of merger or share exchange.
Sec. 33-817. Action on plan of merger or share exchange. In the case of a domestic corporation that is a party to a merger or a share exchange:
(1) The plan of merger or share exchange must be adopted by the board of directors.
(2) Except as provided in subdivision (7) of this section and section 33-818, 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 the
board of directors makes a determination that because of conflicts of interest or other
special circumstances it should not make such a recommendation, in which case the
board of directors must transmit to the shareholders the basis for such determination.
(3) The board of directors may condition its submission of the plan merger or share
exchange to the shareholders on any basis.
(4) 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 also 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 other entity, the notice shall also include or be accompanied by a copy
or summary of the certificate of incorporation or organizational documents of such
existing corporation or other entity. If the corporation is to be merged into a corporation
or other 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 certificate of incorporation or organizational
documents of the new corporation or other entity.
(5) Unless sections 33-600 to 33-998, inclusive, the certificate of incorporation or
the board of directors acting pursuant to subdivision (3) of this section requires a greater
vote or a vote by voting groups, and except as provided in subdivision (9) of this section,
the plan of merger or share exchange to be authorized must be approved by each voting
group entitled to vote separately on the plan by a majority of all the votes entitled to be
cast on the plan by that voting group.
(6) Separate voting by voting groups is required: (A) On a plan of merger, by each
class or series of shares that (i) are to be converted, pursuant to the provisions of the
plan of merger, into shares or other securities, interests, obligations, rights to acquire
shares or other securities, cash or other property, or any combination thereof, or (ii)
would have a right to vote as a separate group on a provision in the plan that, if contained
in a proposed amendment to the certificate of incorporation, would require action by
separate voting groups under section 33-798; (B) 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 (C) on a plan of merger or share exchange, if the voting
group is entitled under the certificate of incorporation to vote as a voting group to approve
a plan of merger or share exchange.
(7) Unless the certificate of incorporation otherwise provides, approval by the corporation's shareholders of a plan of merger or share exchange is not required if: (A)
The corporation will be the survivor in the merger or is the acquiring corporation in the
share exchange; (B) except for amendments permitted by section 33-796, its certificate
of incorporation will not be changed; and (C) each shareholder of the corporation whose
shares were outstanding immediately before the effective date of the merger or the share
exchange will hold the same number of shares, with identical preferences, limitations
and relative rights, immediately after the effective date of the merger or the share exchange.
(8) If, as a result of a merger or a share exchange, one or more shareholders of a
domestic corporation would become subject to personal liability for the 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 personal liability.
(9) Notwithstanding any provision of subdivision (5) of this section to the contrary,
a plan of merger or share exchange of a corporation which was incorporated under the
laws of this state, whether under chapter 599 of the general statutes, revision of 1958,
revised to January 1, 1995, or any other general law or special act, prior to January 1,
1997, to be authorized by such corporation, shall be approved by (A) the affirmative
vote of at least two-thirds of the voting power of each voting group entitled to vote
thereon unless the certificate of incorporation expressly provides otherwise, provided
if such corporation is the surviving corporation of such merger and such plan of merger
will not effect any change in or amendment to the certificate of incorporation of such
corporation and the shares to be issued under the plan of merger could have been issued
by the board of directors of such corporation without further authorization of the shareholders of such corporation, then the provisions of this subdivision shall not require
approval of such plan of merger or share exchange by the corporation's shareholders,
and (B) the affirmative vote of at least two-thirds of the voting power of each class of
stock of such corporation outstanding prior to January 1, 1997, and not otherwise entitled
to vote thereon, unless the certificate of incorporation expressly provides otherwise;
provided if such corporation is the surviving corporation of such merger and such plan
of merger or share exchange does not contain any provisions which, if contained in a
proposed amendment to the certificate of incorporation of such corporation, would entitle any class or series of shareholders of such surviving corporation to vote as a class
or series as provided in subsection (f) of section 33-797 or section 33-798, then the
provisions of this subdivision shall not require approval of such plan of merger or share
exchange by the holders of such class or series not otherwise entitled to vote thereon.
(P.A. 94-186, S. 134, 215; P.A. 96-271, S. 99-103, 254; P.A. 03-18, S. 20.)
History: P.A. 94-186 effective January 1, 1997; P.A. 96-271 replaced "articles" of incorporation with "certificate" of
incorporation where appearing, amended Subsec. (i) to replace "articles" of merger or share exchange with "certificate"
of merger or share exchange and amended Subsec. (j) to replace "January 1, 1996" with "January 1, 1997", effective
January 1, 1997; P.A. 03-18 substantially revised section, deleting former Subsecs. (a) and (b), adding provision re domestic
corporation that is a party to a merger or share exchange, adding Subdivs. (1) and (2) re adoption of plan by board and
submission of plan to shareholders for approval, redesignating Subsecs. (c) to (g) as Subdivs. (3) to (7) and adding provisions
re shareholder approval and meeting, re copy or summary of certificate of incorporation or organizational documents
included in shareholder notice, re separate voting by each class or series of shares and by voting group and re when
shareholder approval of plan is not required unless the certificate of incorporation otherwise provides, deleting former
Subsecs. (g)(3) and (4), (h) and (i), adding Subdiv. (8) re consent to personal liability, redesignating Subsec. (j) as Subdiv.
(9), and making conforming and technical changes throughout, effective July 1, 2003.
Annotation to former sections 33-365 and 33-366:
Cited. 178 C. 262.