§ 33-10-103 — Amendment by board of directors and shareholders.

(a) A corporation's board of directors may propose amendments to the articles of incorporation for submission to the shareholders. (b) For an amendment proposed by the board of directors to be adopted: (1) the board of directors must recommend the amendment to the shareholders unless the board of directors determines that because of conflict of interest or other special circumstances it should make no recommendation and communicates the basis of its determination to the shareholders with the amendment; and (2) the shareholders entitled to vote on the amendment must approve the amendment as provided in subsection (f). (c) The board of directors may condition on any basis its submission of an amendment that it proposes. (d) In the case of a corporation which is not a public corporation, if the holders of at least ten percent of any class of voting shares of the corporation propose amendments to the articles of incorporation, the board of directors shall submit the proposed amendments to the shareholders at the next possible special or annual meeting. (e) The corporation shall notify each shareholder, whether or not entitled to vote, of the shareholders' meeting in accordance with Section 33-7-105. The notice of meeting must state also that the purpose, or one of the purposes, of the meeting is to consider the proposed amendment and contain or be accompanied by a copy or summary of the amendment. (f) Unless Chapters 1 thru 20 of this title or the articles of incorporation require a different vote or the board of directors (acting pursuant to subsection (c)) requires a greater vote than that specified by this subsection or the articles of incorporation, to be adopted the amendment must be approved by: (1) two-thirds of the votes entitled to be cast on the amendment, regardless of the class or voting group to which the shares belong, and (2) two-thirds of the votes entitled to be cast on the amendment within each voting group entitled to vote as a separate voting group on the amendment. (g) The articles of incorporation may require a lower or higher vote for approval than that specified in subsection (f), but the required vote must be at least (1) a majority of the votes entitled to be cast on the amendment by any voting group with respect to which the amendment would create dissenters' rights, and (2) the votes required by Sections 33-7-250 and 33-7-260 by every other voting group entitled to vote on the amendment.

Legislative History

HISTORY: Derived from 1976 Code SECTION 33-15-40 [1962 Code SECTION 12-19.4; 1952 Code SECTIONS 12-401 to 12-404; 1942 Code SECTIONS 7676, 7736, 7741, 7744; 1932 Code SECTIONS 7676, 7736, 7741, 7744; Civ. C. '22 SECTIONS 4250, 4310, 4315, 4318; Civ. C. '12 SECTIONS 2846, 2849, 2873; Civ. C. '02 SECTIONS 1842, 1889, 1892; R. S. 1499; 1886 (19) 546; 1896 (22) 97; 1898 (22) 769, 771; 1901 (23) 710; 1917 (30) 36; 1962 (52) 1996; 1981 Act No. 146, SECTION 2; Repealed, 1988 Act No. 444, SECTION 2]; 1988 Act No. 444, SECTION 2; 1998 Act No. 328, SECTION 5.