17-6702. Merger or consolidation of domestic and foreign corporations; service of process upon surviving or resulting corporation.
17-6702
17-6702. Merger or consolidation of domestic and
foreign corporations; service of process upon surviving or resulting
corporation.
(a) Any one or more corporations of this state may merge or consolidate
with one or more other stock corporations of any other state or states of the
United States, or of the District of Columbia if the laws of such other
jurisdiction permit a corporation of such jurisdiction to merge or consolidate
with a corporation of another jurisdiction. The constituent corporations may
merge into a single corporation, which may be any one of the constituent
corporations, or they may consolidate into a new corporation formed by the
consolidation, which may be a corporation of the state of incorporation of any
one of the constituent corporations, pursuant to an agreement of merger or
consolidation, as the case may be, complying and approved in accordance with
this section. In addition, any one or more corporations organized under the
laws of any jurisdiction other than one of the United States may merge or
consolidate with one or more corporations existing under the laws of this
state, if the laws under which the other corporation or corporations are formed
permit a corporation of such jurisdiction to merge or consolidate with a
corporation of another jurisdiction.
(b) All the constituent corporations shall enter into 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)
the manner, if any, of converting the shares of each of the constituent
corporations into shares or other securities of the corporation surviving or
resulting from the merger or consolidation, or of cancelling some or all of
such shares, and, if any shares of any of the constituent corporations are not
to remain outstanding, to be converted solely into shares or other securities
of the surviving or resulting corporation or to be cancelled, the cash,
property, rights or securities of any other corporation or entity which the
holders of such shares are to receive in exchange for, or upon conversion of,
such shares and the surrender of any certificates evidencing them, which cash,
property, rights or securities of any other corporation may be in addition to
or in lieu of the shares or other securities of the surviving or resulting
corporation; (4) 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
of the surviving or resulting corporation or of any other corporation the
securities of which are to be received in the merger or consolidation, or for
some other arrangement with respect thereto consistent with the provisions of
K.S.A. 17-6405, and amendments thereto; and (5) such other provisions or facts
as shall be required to be set forth in articles of incorporation by the laws
of the state which are stated in the agreement to be the laws that shall govern
the surviving or resulting corporation and that can be stated in the case of a
merger or consolidation. Any of the 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. The term "facts," as used in the preceding sentence,
includes, but is not limited to, the occurrence of any event, including a
determination or action by any person or body, including the corporation.
(c) The agreement shall be adopted, approved, certified and executed by each
of the constituent corporations in accordance with the laws under which it is
formed, and, in the case of a Kansas corporation, in the same manner as
provided in K.S.A. 17-6701, and amendments thereto. The agreement shall be
filed and shall become effective for all purposes of the laws of this state
when and as provided in K.S.A. 17-6701, and amendments thereto, with respect to
the merger or consolidation of corporations of this state. In lieu of filing
the agreement of merger or consolidation, the surviving or resulting
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 jurisdiction 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 the constituent corporations in accordance with this
section; (3) the name of the surviving or resulting corporation; (4) in the
case of a merger, such amendments or changes in the articles of incorporation
of the surviving 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 corporation shall be its 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 or resulting corporation and the address thereof; (7) that a
copy of the agreement of consolidation or merger will be furnished by the
surviving or resulting corporation, on request and without cost, to any
stockholder of any constituent corporation; (8) if the corporation surviving or
resulting from the merger or consolidation is to be a corporation of this
state, the authorized capital stock of each constituent corporation which is
not a corporation of this state; and (9) the agreement, if any, required by
subsection (d).
(d) If the corporation surviving or resulting from the merger or
consolidation is to be governed by the laws of the District of Columbia or any
state other than this state, it shall agree that it may be served with process
in this state in any proceeding for enforcement of any obligation of any
constituent corporation of this state, as well as for enforcement of any
obligation of the surviving or resulting corporation arising from the merger or
consolidation, including any suit or other proceeding to enforce the right of
any stockholder as determined in appraisal proceedings pursuant to the
provisions of K.S.A. 17-6712, and amendments thereto. Such corporation
shall irrevocably appoint the secretary of state as its agent to accept service
of process in any such suit or other proceedings and shall specify the address
to which a copy of such process shall be mailed by the secretary of state.
Service of such process shall be made by personally delivering to and leaving
with the secretary of state duplicate copies of such process. The secretary of
state shall forthwith send by registered mail one of such copies to such
surviving or resulting corporation at its address so specified, unless such
surviving or resulting corporation shall thereafter have designated in writing
to the secretary of state a different address for such purpose, in which case
it shall be mailed to the last address so designated.
(e) The provisions of subsection (d) of K.S.A. 17-6701, and amendments
thereto, shall apply to any merger or consolidation under this section; the
provisions of subsection (e) of K.S.A. 17-6701, and amendments thereto, shall
apply to a merger under this section in which the surviving corporation is a
corporation of this state; the provisions of subsection (f) of K.S.A. 17-6701,
and amendments thereto, shall apply to any merger under this section.
History: L. 1972, ch. 52, § 80;
L. 1986, ch. 399, § 11;
L. 1988, ch. 99, § 40;
Revived and amend., L. 1988, ch. 100, § 40;
L. 1992, ch. 270, § 16;
L. 1998, ch. 189, § 14;
L. 2000, ch. 39, § 29;
L. 2004, ch. 143, § 50; Jan. 1, 2005.