17-1638.   Merger or consolidation of cooperative associations and domesticand foreign corporations; service of process upon surviving or resultingcorporation.(a) Any one or more associations incorporated under thecooperative marketing act, cited at K.S.A. 17-1601 et seq., andamendmentsthereto,may merge or consolidate with one or more other associations or corporationsofany other state or states of the United States, or of the District of Columbiaif the laws of such other jurisdiction permit an association or corporation ofsuch jurisdiction to merge or consolidate with an association or corporation ofanother jurisdiction. The constituent associations or corporations may mergeinto a single association or corporation, which may be any one of theconstituents, or they may consolidate into a new association or corporationformed by the consolidation, which may be an association or corporation of thestate of incorporation of any one of the constituent associations orcorporations, pursuant to an agreement of merger or consolidation, as the casemay be, complying and approved in accordance with this section. In addition,any one or more associations or corporations organized under the laws of anyjurisdiction other than one of the United States may merge or consolidate withone or more associations incorporated under the cooperative marketing act,cited at K.S.A. 17-1601 et seq., and amendments thereto, if thesurviving orresulting association or corporation will be an association or corporation ofthis state, and if the laws under which the other associations or corporationsare formed permit an association or corporation of such jurisdiction to mergeor consolidate with an association or corporation of another jurisdiction.

      (b)   All the constituent associations or corporations shall enter into anagreement 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)   the manner of converting the shares of each of the constituentassociations or corporations into shares or other securities of the associationor corporation surviving or resulting from the merger or consolidation and, ifany shares of any of the constituents are not to be converted solely intoshares or other securities of the surviving or resulting association orcorporation, the cash, property, rights or securities of any other associationor corporation which the holders of such shares are to receive in exchange for,or upon conversion of, such shares and the surrender of the certificatesevidencing certificated shares, which cash, property, rights or securities ofany other association or corporation may be in addition to or in lieu of theshares or other securities of the surviving or resulting association orcorporation;

      (4)   such other details or provisions as are deemed desirable, including,without limiting the generality of the foregoing, a provision for the paymentof cash in lieu of the issuance or recognition of fractional shares of thesurviving or resulting association or corporation or of any other associationor corporation the securities of which are to be received in the merger orconsolidation, or for some other arrangement with respect thereto consistentwith the provisions of K.S.A. 17-6405, and amendments thereto; and

      (5)   such other provisions or facts as shallbe required to be set forth in articles of incorporation by the laws of thestate which are stated in the agreement to be the laws that shall govern thesurviving or resulting association or corporation and that can be stated in thecase of a merger or consolidation.

      (c)   Any of the terms of the agreement of merger or consolidation may be madedependent upon facts ascertainable outside of such agreement, provided that themanner in which such facts shall operate upon the terms of the agreement isclearly and expressly set forth in the agreement of merger or consolidation.

      (d)   The agreement shall be adopted, approved, certified andexecuted by each of the constituent associations or corporations inaccordance with the laws under which it is formed, and, in the case of a Kansasassociation, in the same manner as provided in K.S.A. 17-1637 and amendmentsthereto. Theagreement shallbe filed and shall become effective for all purposes of thelawsof this state as provided in K.S.A. 17-1637 and amendments thereto withrespect to themerger orconsolidation of associations or corporations of this state. In lieu of filingthe agreement of merger or consolidation, the surviving orresulting association or corporation may file a certificate of merger orconsolidation, executed in accordance with K.S.A. 17-6003, and amendmentsthereto, which states:

      (1)   The name and state of incorporation of each of the constituents;

      (2)   that an agreement of merger or consolidation has been approved, adopted,certified and executed by each of theconstituentsin accordancewith 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 ofincorporation of the surviving association or corporation as are desired to beeffected by the merger or, if no such amendments or changes are desired, astatement that the articles of incorporation of the surviving association orcorporation shall be the association's or corporation's articles ofincorporation;

      (5)   in the case of a consolidation, that the articles of incorporation ofthe resulting association or corporation shall be as is set forth in anattachment to the certificate;

      (6)   that the executed agreement of consolidation or merger is on file at theprincipal place of business of the surviving association or corporation andaddress thereof;

      (7)   that a copy of the agreement of consolidation or merger will befurnished by the surviving association or corporation, on request and withoutcost, to any member or stockholder of any constituent;

      (8)   if the association or corporation surviving or resulting from the mergeror consolidation is to be an association or corporation of this state, theauthorized capital stock of each constituent association or corporation whichis not an association or corporation of this state; and

      (9)   the agreement, if any, required by subsection (e).

      (e)   If the association or corporation surviving or resulting from the mergeror consolidation is to be governed by the laws of the District of Columbia orany state other than this state, it shall agree that it may be served withprocess in this state in any proceeding for enforcement of any obligation ofany constituent association or corporation of this state, as well as forenforcement of any obligation of the surviving or resulting association orcorporation arising from the merger or consolidation, including any suit orother proceeding to enforce the right of any member or stockholder asdetermined in appraisal proceedings pursuant to the provisions of K.S.A.17-1642, and amendments thereto,and shall irrevocably appoint the secretary of state as such association's orcorporation's last known agent to accept service of process in any such suit orother proceedings and shall specify the address to which a copy of such processshall be mailed by the secretary of state. Service of such process shall bemade by personally delivering to and leaving with the secretary of stateduplicate copies of such process.The secretary of state shall forthwith send by registered mail one of suchcopies to such surviving or resulting association or corporation at suchassociation's or corporation's last known address.

      (f)   The provisions of subsection (e) of K.S.A. 17-1637, and amendmentsthereto, shallapply to any mergeror consolidation under this section. The provisions of subsection (f) ofK.S.A. 17-1637, and amendments thereto, shall apply to a merger underthis section in whichthe survivingassociation or corporation is an association or corporation of this state. Theprovisions of subsection (g) of K.S.A. 17-1637, and amendments thereto,shall apply to anymerger under thissection.

      History:   L. 1991, ch. 74, § 2;L. 1998, ch. 189, § 2;L. 2000, ch. 39, § 7; July 1.