17-6701.   Merger or consolidation of domesticcorporations.(a) Any two or more corporations existing under the laws of this state andauthorized to issue capital stock may merge into a single corporation, whichmay be any one of the constituent corporations or they may consolidate into anew corporation formed by the consolidation, pursuant to an agreement of mergeror consolidation, as the case may be, complying and approved in accordance withthis section.

      (b)   The board of directors of each corporation which desires to merge orconsolidate shall adopt a resolution approving an agreement of merger orconsolidation. The agreement shall state: (1) The terms and conditions of themerger or consolidation; (2) the mode of carrying the same into effect; (3) inthe case of a merger, such amendments or changes in the articles ofincorporation of the surviving corporation as are desired to be effected by themerger or, if no such amendments or changes are desired, a statement that thearticles of incorporation of the surviving corporation shall be its articles ofincorporation; (4) in the case of consolidation, that the articles ofincorporation of the resulting corporation shall be as is set forth in anattachment to the agreement; (5) the manner, if any, of converting the sharesof each of the constituent corporations into shares or other securities of thecorporation surviving or resulting from the merger or consolidation, or ofcancelling some or all of such shares and, if any shares of any of theconstituent corporations are not to remain outstanding, to be converted solelyinto shares or other securities of the surviving or resulting corporation or tobe cancelled, the cash, property, rights or securities of any other corporationor entity which the holders of such shares are to receive in exchange for, orupon conversion of, such shares and the surrender of any certificatesevidencing them, which cash, property, rights or securities of any othercorporation or entity may be in addition to or in lieu of shares or othersecurities of the surviving or resulting corporation; and (6) such otherdetails or provisions as are deemed desirable, including, without limiting, thegenerality of the foregoing, a provision for the payment of cash in lieu of theissuance or recognition of fractional shares, interests or rights, or for anyother arrangement with respect thereto, consistent with the provisions ofK.S.A. 17-6405, and amendments thereto. The agreement adopted as provided inthis subsection shall be executed in accordance with K.S.A. 17-6003, andamendments thereto. Any terms of the agreement of merger or consolidation maybe made dependent upon facts ascertainable outside of such agreement, providedthat the manner in which such facts shall operate upon the terms of theagreement is clearly and expressly set forth in the agreement of merger orconsolidation. The term "facts," as used in the preceding sentence,includes, but is not limited to, the occurrence of any event, including adetermination or action by any person or body, including the corporation.

      (c) (1)   The agreement required by subsection (b) shall be submitted to thestockholders of each constituent corporation at an annual or special meetingthereof for the purpose of acting on the agreement.

      (2)   The terms of the agreement may require that the agreement be submitted tothe stockholders whether or not the board of directors determines at any timesubsequent to declaring its advisability that the agreement is no longeradvisable and recommends that the stockholders reject it.

      (3)   Due notice of the time, place and purpose of the meeting shall be mailedto each holder of stock of the corporation, whether voting or nonvoting, atthe stockholder's address as it appears on the records of the corporation, atleast 20 days prior to the date of the meeting. The notice shall contain a copyof the agreement or a brief summary thereof, as the directors deem advisable.

      (4)   At the meeting the agreement shall be considered and a vote taken for itsadoption or rejection. If a majority of the outstanding stock of thecorporation entitled to vote thereon shall be voted for the adoption of theagreement, that fact shall be certified on the agreement by the secretary orassistant secretary of the corporation. If the agreement is adopted andcertified by each constituent corporation, it shall then be executed and filed,and shall become effective, in accordance with K.S.A. 17-6003, and amendmentsthereto.

      (5)   In lieu of filing the agreement of merger or consolidation, the survivingor resulting corporation may file a certificate of merger or consolidation,executed in accordance with K.S.A. 17-6003, and amendments thereto, whichstates: (A) The name and state of incorporation of each of the constituentcorporations; (B) that an agreement of merger or consolidation has beenapproved, adopted, certified and executed by each of the constituentcorporations in accordance with this section; (C) the name of the surviving orresulting corporation; (D) in the case of a merger, such amendments or changesin the articles of incorporation of the surviving corporation as are desired tobe effected by the merger or, if no such amendments or changes are desired, astatement that the articles of incorporation of one of the constituentcorporations shall be the articles of incorporation of the survivingcorporation; (E) in the case of a consolidation, that the articles ofincorporation of the resulting corporation shall be as is set forth in anattachment to the certificate; (F) that the executed agreement of consolidationor merger is on file at the principal place of business of the surviving orresulting corporation, stating the address thereof; and (G) that a copy of theagreement of consolidation or merger will be furnished by the surviving orresulting corporation, on request and without cost, to any stockholder of anyconstituent corporation.

      (d)   Any agreement of merger or consolidation may contain a provision that atany time prior to the time that the agreement, or certificate in lieu thereof,filed with the secretary of state becomes effective in accordance with K.S.A.17-6003, and amendments thereto, the agreement may be terminated by the boardof directors of any constituent corporation notwithstanding approval of theagreement by the stockholders of all or any of the constituent corporations; inthe event the agreement of merger or consolidation is terminated after thefiling of the agreement, or a certificate, with the secretary of state butbefore the agreement, or certificate, has become effective, a certificate oftermination of merger or consolidation shall be filed in accordance with K.S.A.17-6003, and amendments thereto. Any agreement of merger or consolidation maycontain a provision that the boards of directors of the constituentcorporations may amend the agreement at any time prior to the filing of theagreement, or a certificate in lieu thereof, with the secretary of state,except that an amendment made subsequent to the adoption of the agreement bythe stockholders of any constituent corporation shall not: (1) Alter or changethe amount or kind of shares, securities, cash, property or rights, or anycombination, to be received in exchange for or on conversion of all or any ofthe shares of any class or series thereof of such constituent corporation; (2)alter or change any term of the articles of incorporation of the surviving orresulting corporation to be effected by the merger or consolidation; or (3)alter or change any of the terms and conditions of the agreement if suchalteration or change would adversely affect the holders of any class or seriesthereof of such constituent corporation. In the event the agreement of mergeror consolidation is amended after the filing of such merger or consolidationwith the secretary of state but before the agreement has become effective, acertificate of amendments of merger or consolidation shall be filed inaccordance with K.S.A. 17-6003, and amendments thereto.

      (e)   In the case of a merger, the articles of incorporation of the survivingcorporation shall automatically be amended to the extent, if any, that changesin the articles of incorporation are set forth in the agreement of merger.

      (f) (1)   Notwithstanding the requirements of subsection (c), unless requiredby its articles of incorporation, no vote of stockholders of a constituentcorporation surviving a merger shall be necessary to authorize a merger if: (A)The agreement of merger does not amend in any respect the articles ofincorporation of such constituent corporation; (B) each share of stock of suchconstituent corporation outstanding immediately prior to the effective date ofthe merger is to be an identical outstanding or treasury share of the survivingcorporation after the effective date of the merger; and (C) either no shares ofcommon stock of the surviving corporation and no shares, securities orobligations convertible into such stock are to be issued or delivered under theplan of merger, or the authorized unissued shares or the treasury shares ofcommon stock of the surviving corporation to be issued or delivered under theplan of merger plus those initially issuable upon conversion of any othershares, securities or obligations to be issued or delivered under such plan donot exceed 20% of the shares of common stock of such constituent corporationoutstanding immediately prior to the effective date of the merger.

      (2)   No vote of stockholders of a constituent corporation shall be necessaryto authorize a merger or consolidation if no shares of the stock of suchcorporation shall have been issued prior to the adoption by the board ofdirectors of the resolution approving the agreement of merger or consolidation.If an agreement of merger is adopted by the constituent corporation survivingthe merger, by action of its board of directors and without any vote of itsstockholders pursuant to this subsection, the secretary or assistant secretaryof that corporation shall certify on the agreement that the agreement has beenadopted pursuant to this subsection and: (A) If it has been adopted pursuant tothe first sentence of this subsection, that the conditions specified in thatsentence have been satisfied, or (B) if it has been adopted pursuant to thesecond sentence of this subsection, that no shares of stock of such corporationwere issued prior to the adoption by the board of directors of the resolutionapproving the agreement of merger or consolidation.

      (3)   The agreement adopted and certified shall then be executed and filed, andshall become effective, in accordance with K.S.A. 17-6003, and amendmentsthereto. Such filing shall constitute a representation by the person whoexecutes the agreement that the facts stated in the certificate remain trueimmediately prior to such filing.

      (g)   Notwithstanding the requirements of subsection (c), unless expresslyrequired by its articles of incorporation, no vote of stockholders of aconstituent corporation shall be necessary to authorize a merger with or into asingle direct or indirect wholly-owned subsidiary of such constituentcorporation if:

      (1)   Such constituent corporation and the direct or indirect wholly-ownedsubsidiary of such constituent corporation are the only constituent entities tothe merger;

      (2)   each share or fraction of a share of the capital stock of the constituentcorporation outstanding immediately prior to the effective time of the mergeris converted in the merger into a share or equal fraction of share of capitalstock of a holding company having the same designations, rights, powers andpreferences, and the qualifications, limitations and restrictions thereof, asthe share of stock of the constituent corporation being converted in themerger;

      (3)   the holding company and the constituent corporations are corporations ofthis state and the direct or indirect wholly-owned subsidiary that is the otherconstituent entity to the merger is a corporation or limited liability companyof this state;

      (4)   the articles of incorporation and bylaws of the holding companyimmediately following the effective time of the merger contain provisionsidentical to the articles of incorporation and bylaws of the constituentcorporation immediately prior to the effective time of the merger, other thanprovisions, if any, regarding the incorporator or incorporators, the corporatename, the registered office and agent, the initial board of directors and theinitial subscribers for shares and such provisions contained in any amendmentto the articles of incorporation as were necessary to effect a change,exchange, reclassification, subdivision, combination or cancellation of stock,if such change, exchange, reclassification, subdivision, combination orcancellation has become effective;

      (5)   as a result of the merger the constituent corporation or its successorbecomes or remains a direct or indirect wholly-owned subsidiary of theholding company;

      (6)   the directors of the constituent corporation become or remain thedirectors of the holding company upon the effective time of the merger; and

      (7) (A)   the organizational documents of the surviving entity immediatelyfollowing the effective time of the merger contain provisions identical to thearticles of incorporation of the constituent corporation immediately prior tothe effective time of the merger, other than provisions, if any, regarding theincorporator or incorporators, the corporate or entity name, the registeredoffice and agent, the initial board of directors and the initial subscribersfor shares, references to members rather than stockholders or shareholders,references to interests, units or the like rather than stock or shares,references to managers, managing members or other members of the governing bodyrather than directors and such provisions contained in any amendment to thearticles of incorporation as were necessary to effect a change, exchange,reclassification, subdivision, combination or cancellation of stock, if suchchange, exchange, reclassification, subdivision, combination or cancellationhas become effective.

      (B)   If the organizational documents of the surviving entity do not containthe following provisions, such documents shall be amended in the merger tocontain provisions requiring that: (i) Any act or transaction by or involvingthe surviving entity, other than the election or removal of directors ormanagers, managing members or other members of the governing body of thesurviving entity, that requires for its adoption under this act or itsorganizational documents the approval of the stockholders or members of thesurviving entity shall, by specific reference to this subsection, require, inaddition, the approval of the stockholders of the holding company, or anysuccessor by merger, by the same vote as is required by this act or by theorganizational documents of the surviving entity, or both. For purposes of thisclause, any surviving entity that is not a corporation shall include in suchamendments a requirement that the approval of the stockholders of the holdingcompany be obtained for any act or transaction by or involving the survivingentity, other than the election or removal of directors or managers, managingmembers or other members of the governing body of the surviving entity, whichwould require the approval of the stockholders of the surviving entity if thesurviving entity were a corporation subject to this act;

      (ii)   any amendment of the organizational documents of a surviving entity thatis not a corporation, which amendment would, if adopted by a corporationsubject to this act, be required to be included in the articles ofincorporation of such corporation, shall, by specific reference to thissubsection, require, in addition, the approval of the stockholders of theholding company, or any successor by merger, by the same vote as is required bythis act or by the organizational documents of the survivingentity or both; and

      (iii)   the business and affairs of a surviving entity that is not acorporation shall be managed by or under the direction of a board of directors,board of managers or other governing body consisting of individuals who aresubject to the same fiduciary duties applicable to, and who are liable forbreach of such duties to the same extent as, directors of a corporation subjectto this act. Neither the provisions of this subsection nor any provision of asurviving entity's organizational documents required by this subsection shallbe deemed or construed to require approval of the stockholders of the holdingcompany to elect or remove directors or managers, managing members or othermembers of the governing body of the surviving entity.

      (C)   The organizational documents of the surviving entity may be amended inthe merger to reduce the number of classes and shares of capital stock or otherequity interests or units that the surviving entity is authorized to issue.

      (D)   As used in this subsection only, the term "organizational documents,"when used in reference to a corporation, means the articles of incorporation ofsuch corporation and, when used in reference to a limited liability company,means the articles of organization or operating agreement of such limitedliability company; the term "holding company" means a corporation which, fromits incorporation until consummation of a merger governed by this subsection,was at all times a direct or indirect wholly-owned subsidiary of theconstituent corporation and whose capital stock is issued in such merger. Fromand after the effective time of a merger adopted by a constituent corporationby action of its board of directors and without any vote of stockholderspursuant to this subsection: (i) To the extent the restriction of K.S.A.17-12,100 et seq., and amendments thereto, applied to theconstituent corporation and its stockholders the effective time of the mergersuch restrictions shall apply to the holding company and its stockholdersimmediately after the effective time of the merger as though it were theconstituent corporation, and all shares of stock of the holding companyacquired in the merger shall for the purposes of K.S.A. 17-12,100 etseq., and amendments thereto, be deemed to have been acquired at the timethat the shares of stock of the constituent corporation converted in the mergerwere acquired, and provided further that any stockholder who immediately priorto the effective time of the merger was not an interested stockholder withinthe meaning of K.S.A. 17-12,100 et seq., and amendments thereto,shall not solely by reason of the merger become an interested stockholder ofthe holding company; and (ii) if the corporate name of the holding companyimmediately following the effective time of the merger is the same as thecorporate name of the constituent corporation immediately prior to theeffective time of the merger, the shares of capital stock of the holdingcompany into which the shares of capital stock of the constituent corporationare converted in the merger shall be represented by the stock certificates thatpreviously represented shares of capital stock of the constituent corporationand to the extent a stockholder of the constituent corporation immediatelyprior to the merger had standing to institute or maintain derivative litigationon behalf of the constituent corporation, nothing in this section shall bedeemed to limit or extinguish such standing. If an agreement of merger isadopted by a constituent corporation by action of its board of directors andwithout any vote of stockholders pursuant to this subsection, the secretary orassistant secretary of the constituent corporation shall certify on theagreement or a certificate of merger that the agreement has been adoptedpursuant to this subsection and that the conditions specified in the firstsentence of this subsection have been satisfied. The agreement or certificateof merger so adopted and certified shall then be filed and become effective, inaccordance with K.S.A. 17-6003, and amendments thereto. Such filing shallconstitute a representation by the person who executes the agreement orcertificate of merger that the facts stated in the certificate remain trueimmediately prior to such filing.

      History:   L. 1972, ch. 52, § 79;L. 1986, ch. 399, § 10;L. 1988, ch. 99, § 39;Revived and amend., L. 1988, ch. 100, § 39;L. 1992, ch. 270, § 15;L. 1993, ch. 163, § 4;L. 1998, ch. 189, § 13;L. 2000, ch. 39, § 28;L. 2004, ch. 143, § 49; Jan. 1, 2005.