Corporate Sale of Substantially All Assets Approval Requirements in New Hampshire

At a glance

Requirements one by one

The 25% pair is conclusive only when both parts are met

N.H. Rev. Stat. Ann. § 293-A:12.02(a) applies to a non-exempt disposition that would leave the corporation without a significant continuing business activity. The corporation conclusively retains such activity if it keeps a business representing at least 25% of prior-year total assets and at least 25% of either pretax continuing income or continuing revenue. Each measure consolidates the corporation and its subsidiaries, and direct or indirect consolidated-subsidiary assets are deemed parent assets.

The text does not say that missing either percentage conclusively proves the opposite. It states no separate subsidiary valuation or investment-holding rule, so disputed financial and operating facts remain outside this survey.

The board initiates, recommends, and may condition

The board initiates a covered disposition by authorizing resolution, submits it to holders, and ordinarily recommends approval. A conflict or special circumstance can support no recommendation, and N.H. Rev. Stat. Ann. § 293-A:8.26 also permits agreed submission after the board determines it no longer recommends the matter. In either branch, § 293-A:12.02(b) requires the board to transmit its basis. It may condition submission on any basis.

Every holder receives terms, conditions, and consideration

Section 293-A:12.02(d) requires meeting notice to each voting and nonvoting holder. The notice states the purpose and describes the disposition, including its terms, conditions, and the consideration the corporation will receive. N.H. Rev. Stat. Ann. § 293-A:7.05(a) supplies the 10-to-60-day interval.

N.H. Rev. Stat. Ann. § 293-A:7.04 defaults no-meeting action to unanimous written consent. The articles may instead authorize the meeting-equivalent minimum, collected within 60 days. Nonvoters then receive the meeting-equivalent materials no more than 10 days after sufficient consents arrive, and nonconsenting voters receive prompt post-action notice. The notices do not delay effectiveness, although the statute preserves judicial power to remedy a shareholder harmed by a notice failure.

A majority quorum uses a votes-cast decision rule

At a meeting, § 293-A:12.02(e) requires a quorum of at least a majority of votes entitled to be cast. Under N.H. Rev. Stat. Ann. § 293-A:7.25(c), the votes cast for then must exceed those cast against. The articles or a board condition may require a greater vote or more votes present. Article 12 does not add a disposition-specific class or group vote.

Four ordinary exclusions and dissolution use different routes

N.H. Rev. Stat. Ann. § 293-A:12.01 removes four actions from ordinary holder approval unless the articles provide otherwise: a usual-and-regular-course disposition of any or all assets, an encumbrance in or outside that course, a transfer to wholly owned entities, and a pro rata asset distribution to one or more classes or series. The board determines their terms, conditions, and consideration.

Section 293-A:12.02(g) places a disposition in the course of dissolution under the separate dissolution subchapter instead of article 12's approval subdivision.

Approval may be abandoned before consummation

After shareholder approval and before consummation, § 293-A:12.02(f) allows the corporation to abandon without another holder action, subject to other parties' contractual rights. Article 12 states no statutory agreement execution, filing, amendment, or closing process.

Appraisal depends on several holder and transaction filters

N.H. Rev. Stat. Ann. § 293-A:13.02(a)(3) makes consummation of a § 293-A:12.02 disposition an appraisal trigger. The same section can remove or restore rights depending on a pro rata cash distribution of net assets within one year, reasonable claims reserves, interested-transaction status, organized-market or covered-security status, consideration, and a valid preferred-share limitation. Those filters require the complete class, market, consideration, distribution, reserve, articles, and transaction record.

N.H. Rev. Stat. Ann. § 293-A:13.20 requires meeting and consent notices to say whether the corporation concludes appraisal rights are, are not, or may be available. When rights are or may be available, the relevant record holders also receive the appraisal subdivision.

What trips people up

• The safe harbor does not run backward. Meeting the 25%-plus-25% pair is conclusive, but the statute does not label failure to meet it as a conclusive loss of significant continuing activity.
• The meeting vote is not a majority of all entitled votes. Entitled votes set the quorum; once it exists, votes cast for must exceed votes cast against, unless a valid greater rule applies.
• Consent notices follow the action. The articles-based consent route can proceed without prior notice, followed by the specific nonvoter and nonconsenter notices in § 293-A:7.04.

Common questions

Are a subsidiary's assets included with the parent?

Yes, for direct and indirect consolidated subsidiaries. Section 293-A:12.02(h) deems their assets parent assets for the approval analysis.

Must nonvoting holders receive disposition materials?

Yes. Section 293-A:12.02(d) sends every holder the meeting notice and its description of terms, conditions, and consideration. The consent route supplies equivalent post-action materials to nonvoters.

Does article 12 require a state filing?

No filing step appears in RSA §§ 293-A:12.01 to :12.02. Other transaction, property, regulatory, or dissolution law may independently require a filing.

Statutes and sources

• N.H. Rev. Stat. Ann. §§ 293-A:12.01 to :12.02 — exclusions, significant- activity trigger, 25% safe harbor, consolidated subsidiaries, board action, notice, vote, dissolution, and abandonment. Official section 12.01 text and official section 12.02 text, accessed September 5, 2026.
• N.H. Rev. Stat. Ann. §§ 293-A:7.04 to :7.05, :7.25, and :8.26 — consent, meeting notice, votes-cast approval, and agreed submission after nonrecommendation. Official section 7.04 text, section 7.05 text, section 7.25 text, and section 8.26 text, accessed September 5, 2026.
• N.H. Rev. Stat. Ann. §§ 293-A:13.02 and :13.20 — appraisal eligibility, limitations, and notice. Official appraisal-right text and official appraisal-notice text, accessed September 5, 2026.