17-1637. Merger or consolidation of cooperative associations and corporations.
17-1637
17-1637. Merger or consolidation of cooperative associations and
corporations.
(a) Any two or more associations incorporated under the
cooperative marketing act, cited at K.S.A. 17-1601, et seq., and
amendments
thereto,
or any association incorporated under
the cooperative marketing act, cited at K.S.A. 17-1601, et seq., and
amendments thereto, and a corporation existing under
the laws of this state, may merge into a single association or corporation,
which may be any of the constituent associations or corporations or they may
consolidate into a new association or corporation formed by the consolidation,
pursuant to an agreement of merger or consolidation, as the case may be,
complying and approved in accordance with this section.
(b) The board of directors of each association or corporation which desires
to merge or consolidate shall adopt a resolution approving an agreement of
merger or consolidation. The agreement shall state:
(1) The terms and conditions of the merger or consolidation;
(2) the mode of carrying the same into effect;
(3) in the case of a merger, such amendments or changes in the articles of
incorporation of the surviving association or corporation as are desired to be
effected by the merger or, if no such amendments or changes are desired, a
statement that the articles of incorporation of the surviving association or
corporation shall be its articles of incorporation;
(4) in the case of consolidation, that the articles of incorporation of the
resulting association or corporation shall be as is set forth in an attachment
to the agreement;
(5) the manner of converting the shares of each of the constituents into
shares or other securities of the association or corporation surviving or
resulting from the merger or consolidation, and, if any shares of any of the
constituents are not to be converted solely into shares or other securities of
the surviving or resulting association or corporation, the cash, property,
rights or securities of any other association or corporation which the holders
of such shares are to receive in exchange for, or upon conversion of, such
shares and the surrender of the certificates evidencing certificated shares,
which cash, property, rights or securities of any other association or
corporation may be in addition to or in lieu of shares or other securities of
the surviving or resulting association or corporation; and
(6) such other details or provisions as are deemed desirable, including,
without limiting the generality of the foregoing, a provision for the payment
of cash in lieu of the issuance or recognition of fractional shares, interests
or rights, or for any other arrangement with respect thereto, consistent with
the provisions of K.S.A. 17-6405, and amendments thereto.
(c) The agreement adopted as provided in this section
shall be executed in accordance with K.S.A.
17-6003, and amendments thereto. Any terms of the agreement of merger or
consolidation may be made dependent upon facts ascertainable outside of such
agreement, provided that the manner in which such facts shall operate upon the
terms of the agreement is clearly and expressly set forth in the agreement of
merger or consolidation.
(d) The agreement required by subsection (b) shall be submitted to the
members or stockholders of each constituent association or corporation at an
annual or special meeting for the purpose of acting on the agreement. Due
notice of the time, place and purpose of the meeting shall be mailed to each
member or holder of stock of the association or corporation, whether voting or
nonvoting, at the member's or stockholder's address as it appears
on the records of the association or corporation, at least 20 days prior to the
date of the meeting. At the meeting the agreement shall be considered and a
vote taken for its adoption or rejection. If the agreement is adopted by a vote
representing a majority of all members of the association or, a
majority vote of
all outstanding stock of the corporation entitled to vote thereon,
as
applicable, that fact shall be certified on the agreement by the secretary or
assistant secretary of the association or corporation. In lieu of an
affirmative vote of a majority of all members of the association or, a
majority
vote of all outstanding stock of the association entitled to vote,
as applicable, the
agreement may be adopted by a vote of 2/3 of the members or voting
stockholders
present and voting at any annual meeting or special meeting
called for such
purpose. The method of adoption and the votes cast shall be certified on the
agreement by the secretary or assistant secretary of the association or
corporation. If the agreement is adopted and
certified by each
constituent association or corporation, the agreement shall then be
executed and filed, and shall become effective, in accordance with
K.S.A.
17-6003, and amendments thereto.
In lieu of filing the
agreement
of merger or consolidation, the surviving or resulting association or
corporation may file a certificate of merger or consolidation, executed in
accordance with K.S.A. 17-6003, and amendments thereto, which states:
(1) The name and state of incorporation of each of the constituent
associations or corporations;
(2) that an agreement of merger or consolidation has been approved, adopted,
certified and executed by each of the
constituent associations or
corporations in accordance with this subsection;
(3) the name of the surviving or resulting association or corporation;
(4) in the case of a merger, such amendments or changes in the articles of
incorporation of the surviving association or corporation as are desired to be
effected by the merger or, if no such changes or amendments are desired, a
statement that the articles of incorporation of one of the surviving
associations or corporation shall be the articles of incorporation;
(5) in the case of a consolidation, that the articles of incorporation
of the resulting corporation shall be as is set forth in an attachment to the
certificate;
(6) that the executed agreement of consolidation or merger is on file at the
principal place of business of the surviving association or corporation,
stating the address thereof; and
(7) that a copy of the agreement of consolidation or merger will be
furnished by the surviving association or corporation, on request and without
cost, to any member or stockholder of any constituent association or
corporation.
(e) Any agreement of merger or consolidation may contain a provision that at
any time prior to the filing of the agreement with the secretary of state, the
agreement may be terminated by the board of directors of any constituent
association or corporation notwithstanding approval of the agreement by the
members or stockholders of all or any of the constituent associations or
corporations. Any agreement of merger or consolidation may contain a provision
that the boards of directors of the constituent associations or corporations
may amend the agreement at any time prior to the filing of the agreement, or a
certificate in lieu thereof, with the secretary of state provided that an
amendment made subsequent to the adoption of the agreement by the members or
stockholders of any constituent association or corporation shall not:
(1) Alter or change the amount or kind of shares, securities, cash, property
or rights, or any of the proceedings, in exchange for or on conversion of all
or any of the shares of any class or series thereof of such constituent
association or corporation;
(2) alter or change any term of the articles of incorporation of the
surviving association or corporation to be effected by the merger or
consolidation; or
(3) alter or change any of the terms and conditions of the agreement if such
alteration or change would adversely affect the members or holders of any class
of series thereof of such constituent association or corporation.
(f) In the case of a merger, the articles of incorporation of the surviving
association or corporation shall automatically be amended to the extent, if
any, that change in the articles of incorporation are set forth in the
agreement of merger.
(g) Notwithstanding the requirements of subsection (d), unless required by
its articles of incorporation, no vote of members or stockholders of a
constituent association or corporation surviving a merger shall be necessary to
authorize a merger if:
(1) The agreement of merger does not amend in any respect the articles of
incorporation of the surviving corporation; and
(2) the aggregate stockholders' equity, as determined in accordance with
generally accepted accounting principles, of the stock or other equity of the
surviving association or corporation to be issued or delivered under the plan
of merger does not constitute more than 25% of the aggregate stockholders'
equity, as determined in accordance with generally accepted accounting
principles, of all classes of stock or other equity of the surviving
association or corporation immediately following the effectiveness of the
merger.
If an agreement of merger is adopted by the constituent association or
corporation surviving the merger, by action of its board of directors and
without any vote of the constituent association's or corporation's members or
stockholders pursuant to this subsection, the secretary or assistant secretary
of such association or corporation shall certify on the agreement, under the
seal, that the agreement has been adopted pursuant to this subsection and that,
as of the date of such certificate, the stockholders' equity of the association
or corporation was such as to render this subsection applicable. The agreement
adopted and certified as provided in this section shall
be executed and filed,
and
shall become effective, in accordance with K.S.A. 17-6003, and amendments
thereto. Such filing shall constitute a representation by the person who
executes the agreement that the facts stated in the certificate remain true
immediately prior to such filing.
History: L. 1991, ch. 74, § 1;
L. 1998, ch. 189, § 1;
L. 2000, ch. 39, § 6; July 1.