(a) If a corporation has members, an amendment to the certificate of incorporation shall be adopted as provided in this section. A proposed amendment must be adopted by the board of directors.

(b) (1) Except as provided in sections 33-1141, 33-1145 and 33-1146, after adopting the proposed amendment, the board of directors must submit the amendment to the members entitled to vote on the amendment, if any, for their approval. If any members are entitled to vote on the amendment to the certificate of incorporation, the board of directors must also transmit to such members a recommendation that such members approve the amendment, 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 such members the basis for such determination.

(2) The board of directors may condition its submission of the amendment to the members on any basis.

(c) If members are entitled to vote on the amendment to the certificate of incorporation, the members must approve the amendment, either before or after the actions required in subsections (a) and (b) of this section, as provided in subsection (e) of this section.

(d) If the amendment is required to be approved by the members, and the approval is to be given at a meeting, the corporation must notify each member entitled to vote on the amendment, if any, of the meeting of members at which the amendment 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 amendment and must contain or be accompanied by a copy of the amendment.

(e) Unless sections 33-1000 to 33-1290, inclusive, the certificate of incorporation or the board of directors acting pursuant to subdivision (2) of subsection (b) of this section requires a greater vote or a vote by class of members, the amendment to be adopted must be approved by: (1) If no class of members is entitled to vote separately on the amendment as a class, at least two-thirds of the votes cast by the members entitled to vote thereon; and (2) if any class of members is entitled to vote on the amendment separately as a class, at least two-thirds of the votes cast by the members of each such class.

(f) If the corporation has no members, or no members entitled to vote, the proposed amendment shall be adopted by vote of at least two-thirds of the directors present at a meeting of the board of directors at which a quorum is present.

(P.A. 96-256, S. 99, 209; P.A. 03-18, S. 39.)

History: P.A. 96-256 effective January 1, 1997; P.A. 03-18 amended Subsec. (a) by replacing former provisions with provisions re adoption of amendment as provided in section if corporation has members and re adoption of proposed amendment by board, amended Subsec. (b) by replacing former provisions with Subdiv. (1) re submission of proposed amendment to members after adoption and re transmission of board's recommendation to members, redesignated existing Subsec. (c) as Subsec. (b)(2) and replaced “submission of the proposed amendment” with “submission of the amendment to the members” therein, added new Subsec. (c) re approval of amendment by members entitled to vote, amended Subsec. (d) by adding provision re notice to members if the amendment is required to be approved by the members at a meeting, replacing provision re notice of the proposed meeting in accordance with Sec. 33-1065 with provision re notice of the meeting of members at which the amendment is to be submitted for approval, deleting references to proposed amendment and summary of the amendment and making technical changes, and amended Subsec. (e) by making technical changes, effective July 1, 2003.