409(e)(3) requires the pass through of voting rights with regard to certain transactions. If you have three shareholders, and one is an ESOP, and there is an agreement to purchase all shares by a buyer, this doesn't appear to be a "merger, consolidation, ..." and require pass through voting , or does it?

Whenever a voting pass-through question comes up, I immediately tell ESOP sponsors to look at their articles and by-laws or other documents governing what events trigger a shareholder vote. If still in doubt go to corporate counsel.

Also, look at the plan and trust agreements to see if they include any exposition on the topic, expanded voting rights, etc.

Becky, I agree, but why is the statute so strange as to require pass-through in some cases but not others?

Everything about ESOPs is strange and artificial.