17-1642.Payment for interest of member objecting to
merger; demand for
payment; appraisal and determination of value; taxation of costs; status of
member's interest; section inapplicable to certain member's interest.
(a) Except as provided in subsection (j), the association or
corporation surviving or resulting from
any merger or consolidation, within 10 days after the effective date of the
merger or consolidation, shall notify each member or stockholder of any
association or corporation of this
state so merging or consolidating who objected thereto in writing and whose
shares either were not entitled to vote or were not voted in favor of the
merger or consolidation, and who filed such written objection with the
association or corporation before the taking of the vote on the merger or
consolidation, that
the merger or consolidation has become effective. If any such member or
stockholder, within
20 days after the date of mailing of the notice, shall demand in writing, from
the association or corporation surviving or resulting from the merger or
consolidation, payment of the value of the member's or stockholder's interest,
the surviving or
resulting association or corporation shall pay to the member or stockholder,
within 30 days
after the expiration of the period of 20 days, the value of the member's
or stockholder's interest on the effective date of the merger or consolidation,
exclusive of any
element of value arising from the expectation or accomplishment of the merger
or consolidation.
(b) If during a period of 30 days following the period of 20 days provided
for in subsection (a), the association and any such member or stockholder fail
to agree upon
the value of such member's or stockholder's interest, any such member or
stockholder, or the association or
corporation surviving or resulting from the merger or consolidation, may demand
a determination of the value of the member's or stockholder's interest by an
appraiser or
appraisers to be appointed by the district court, by filing a petition with the
court within four months after the expiration of the thirty-day period.
(c) Upon the filing of any such petition by a member or stockholder, service
of a copy
shall be
made upon the surviving association or corporation, which shall file with the
clerk of the district court, within 10 days after such service, a duly verified
list containing the names and addresses of all members or stockholders who have
demanded
payment for such member's or stockholder's interest and with whom agreements as
to the value of
such member's or stockholder's interest have not been reached by the
association or corporation.
If the petition is filed by the surviving association or corporation, the
petition shall be accompanied by such duly verified list. The surviving
association or corporation shall give notice of the time and place fixed for
the hearing of
such petition
pursuant to subsection (c) of K.S.A. 60-303, and amendments
thereto, to the
members or stockholders shown upon the list at the addresses therein
stated and notice
shall also be given by publishing a notice at least once, at least one week
before the day of the hearing, in a newspaper of general circulation in the
county in which the district court is located. The court may direct such
additional publication of notice as the court deems advisable. The forms of
the notices by mail and by publication shall be approved by the court.
(d) After the hearing on the petition the court shall determine the members
or stockholders who have complied with the provisions of this section and
become entitled to
the valuation of and payment for such member's or stockholder's interest, and
shall appoint an
appraiser or appraisers to determine such value. The appraiser or appraisers
may examine any
of the books and records of the associations or corporations the stock of which
such appraiser or appraisers is charged with the duty of valuing, and following
an
investigation, the appraiser or appraisers shall make a determination of the
value of the
member's
or stockholder's interest. The appraiser or appraisers shall also afford a
reasonable
opportunity to the parties interested to submit to the appraiser or appraisers
pertinent evidence on the value of the member's or stockholder's interest. The
appraiser or
appraisers, also, shall have the powers and authority conferred upon masters by
K.S.A. 60-253, and amendments thereto.
(e) The appraiser or appraisers shall determine the value of the stock of
the
members or stockholders adjudged by the district court to be entitled to
payment therefor and
shall file a report respecting such value in the office of the
clerk of the district court, and notice of the filing of such report shall be
given by the
petitioners to the parties in interest. Such report shall be
subject to exceptions to be heard before the court both upon the law and facts.
The court by decree shall determine the value of the stock of the members
or stockholders entitled to payment and shall direct the payment of such value,
together with
interest, if any, to the members or stockholders entitled by the surviving or
resulting
corporation. Upon payment of the judgment by the surviving or resulting
corporation, the clerk of the district court shall surrender to the surviving
association or corporation the certificates of shares of stock held by the
clerk pursuant to subsection (f). The decree may be enforced as other judgments
of
the district court may be enforced, whether such surviving or resulting
association be an association of this state or of any other state.
(f) At the time of appointing the appraiser or appraisers, the court shall
require the members or stockholders who hold certificated shares and who
demanded payment for
the shares to submit the certificates of stock to the clerk of the court, to be
held by the clerk pending the appraisal proceedings. If any member or
stockholder fails to
comply with such direction, the court shall dismiss the proceedings as to such
member or stockholder.
(g) The cost of any such appraisal, including reasonable fees and expenses
of the appraiser or appraisers, but exclusive of fees of counsel or of experts
retained by
any party, shall be determined by the court and taxed upon the parties to such
appraisal or any of them as appears to be equitable, except that the cost of
giving the notice by publication and by certified mail shall be paid by the
surviving association or corporation.
Postjudgment interest, if any, shall be in accordance with K.S.A. 16-204, and
amendments thereto, to be paid upon
the value of the stock of the members or stockholders entitled thereto.
(h) Any member or stockholder who has demanded payment of the member's or
stockholder's interest as herein
provided shall not thereafter be entitled to vote such member's or
stockholder's stock for any
purpose or be entitled to the payment of dividends or other distribution
on such stock, except dividends or other distributions payable to members or
stockholders of
record at a date which is prior to the effective date of
the merger or consolidation, unless the appointment of an appraiser or
appraisers shall not be applied for within the time herein provided, or the
proceeding be dismissed as to such member or stockholder, or unless such member
or stockholder with the
written approval of the surviving association or corporation shall deliver to
the association or corporation a written withdrawal of the member's or
stockholder's objections
to and an acceptance of the merger or consolidation, in any of which cases the
right of such member or stockholder to payment for the member's or
stockholder's interest shall cease.
(i) The shares of the surviving or resulting association or corporation
into which the shares of such objecting members or stockholders would have been
converted had
they assented to the merger or consolidation shall have the status of
authorized and unissued shares of the surviving or resulting association or
corporation.
(j) This section shall not be applicable to the members, stockholders or
other holders of equity securities of the surviving association or corporation
in any merger where the active members of the surviving association or
corporation continue to be eligible to be members of the surviving association
or corporation after the merger and the agreement of merger does not amend the
articles of incorporation, and shall not apply to the members, stockholders or
other holders of equity securities of the constituent association or
corporation
not surviving the merger in any merger where the active members of such
constituent association or corporation are eligible to become members of the
surviving association or corporation on the same terms and conditions as other
similarly classified members of the surviving association or corporation.
History: L. 1991, ch. 74, § 6;
L. 2000, ch. 175, § 1; July 1.
17-1642.Payment for interest of member objecting to
merger; demand for
payment; appraisal and determination of value; taxation of costs; status of
member's interest; section inapplicable to certain member's interest.
(a) Except as provided in subsection (j), the association or
corporation surviving or resulting from
any merger or consolidation, within 10 days after the effective date of the
merger or consolidation, shall notify each member or stockholder of any
association or corporation of this
state so merging or consolidating who objected thereto in writing and whose
shares either were not entitled to vote or were not voted in favor of the
merger or consolidation, and who filed such written objection with the
association or corporation before the taking of the vote on the merger or
consolidation, that
the merger or consolidation has become effective. If any such member or
stockholder, within
20 days after the date of mailing of the notice, shall demand in writing, from
the association or corporation surviving or resulting from the merger or
consolidation, payment of the value of the member's or stockholder's interest,
the surviving or
resulting association or corporation shall pay to the member or stockholder,
within 30 days
after the expiration of the period of 20 days, the value of the member's
or stockholder's interest on the effective date of the merger or consolidation,
exclusive of any
element of value arising from the expectation or accomplishment of the merger
or consolidation.
(b) If during a period of 30 days following the period of 20 days provided
for in subsection (a), the association and any such member or stockholder fail
to agree upon
the value of such member's or stockholder's interest, any such member or
stockholder, or the association or
corporation surviving or resulting from the merger or consolidation, may demand
a determination of the value of the member's or stockholder's interest by an
appraiser or
appraisers to be appointed by the district court, by filing a petition with the
court within four months after the expiration of the thirty-day period.
(c) Upon the filing of any such petition by a member or stockholder, service
of a copy
shall be
made upon the surviving association or corporation, which shall file with the
clerk of the district court, within 10 days after such service, a duly verified
list containing the names and addresses of all members or stockholders who have
demanded
payment for such member's or stockholder's interest and with whom agreements as
to the value of
such member's or stockholder's interest have not been reached by the
association or corporation.
If the petition is filed by the surviving association or corporation, the
petition shall be accompanied by such duly verified list. The surviving
association or corporation shall give notice of the time and place fixed for
the hearing of
such petition
pursuant to subsection (c) of K.S.A. 60-303, and amendments
thereto, to the
members or stockholders shown upon the list at the addresses therein
stated and notice
shall also be given by publishing a notice at least once, at least one week
before the day of the hearing, in a newspaper of general circulation in the
county in which the district court is located. The court may direct such
additional publication of notice as the court deems advisable. The forms of
the notices by mail and by publication shall be approved by the court.
(d) After the hearing on the petition the court shall determine the members
or stockholders who have complied with the provisions of this section and
become entitled to
the valuation of and payment for such member's or stockholder's interest, and
shall appoint an
appraiser or appraisers to determine such value. The appraiser or appraisers
may examine any
of the books and records of the associations or corporations the stock of which
such appraiser or appraisers is charged with the duty of valuing, and following
an
investigation, the appraiser or appraisers shall make a determination of the
value of the
member's
or stockholder's interest. The appraiser or appraisers shall also afford a
reasonable
opportunity to the parties interested to submit to the appraiser or appraisers
pertinent evidence on the value of the member's or stockholder's interest. The
appraiser or
appraisers, also, shall have the powers and authority conferred upon masters by
K.S.A. 60-253, and amendments thereto.
(e) The appraiser or appraisers shall determine the value of the stock of
the
members or stockholders adjudged by the district court to be entitled to
payment therefor and
shall file a report respecting such value in the office of the
clerk of the district court, and notice of the filing of such report shall be
given by the
petitioners to the parties in interest. Such report shall be
subject to exceptions to be heard before the court both upon the law and facts.
The court by decree shall determine the value of the stock of the members
or stockholders entitled to payment and shall direct the payment of such value,
together with
interest, if any, to the members or stockholders entitled by the surviving or
resulting
corporation. Upon payment of the judgment by the surviving or resulting
corporation, the clerk of the district court shall surrender to the surviving
association or corporation the certificates of shares of stock held by the
clerk pursuant to subsection (f). The decree may be enforced as other judgments
of
the district court may be enforced, whether such surviving or resulting
association be an association of this state or of any other state.
(f) At the time of appointing the appraiser or appraisers, the court shall
require the members or stockholders who hold certificated shares and who
demanded payment for
the shares to submit the certificates of stock to the clerk of the court, to be
held by the clerk pending the appraisal proceedings. If any member or
stockholder fails to
comply with such direction, the court shall dismiss the proceedings as to such
member or stockholder.
(g) The cost of any such appraisal, including reasonable fees and expenses
of the appraiser or appraisers, but exclusive of fees of counsel or of experts
retained by
any party, shall be determined by the court and taxed upon the parties to such
appraisal or any of them as appears to be equitable, except that the cost of
giving the notice by publication and by certified mail shall be paid by the
surviving association or corporation.
Postjudgment interest, if any, shall be in accordance with K.S.A. 16-204, and
amendments thereto, to be paid upon
the value of the stock of the members or stockholders entitled thereto.
(h) Any member or stockholder who has demanded payment of the member's or
stockholder's interest as herein
provided shall not thereafter be entitled to vote such member's or
stockholder's stock for any
purpose or be entitled to the payment of dividends or other distribution
on such stock, except dividends or other distributions payable to members or
stockholders of
record at a date which is prior to the effective date of
the merger or consolidation, unless the appointment of an appraiser or
appraisers shall not be applied for within the time herein provided, or the
proceeding be dismissed as to such member or stockholder, or unless such member
or stockholder with the
written approval of the surviving association or corporation shall deliver to
the association or corporation a written withdrawal of the member's or
stockholder's objections
to and an acceptance of the merger or consolidation, in any of which cases the
right of such member or stockholder to payment for the member's or
stockholder's interest shall cease.
(i) The shares of the surviving or resulting association or corporation
into which the shares of such objecting members or stockholders would have been
converted had
they assented to the merger or consolidation shall have the status of
authorized and unissued shares of the surviving or resulting association or
corporation.
(j) This section shall not be applicable to the members, stockholders or
other holders of equity securities of the surviving association or corporation
in any merger where the active members of the surviving association or
corporation continue to be eligible to be members of the surviving association
or corporation after the merger and the agreement of merger does not amend the
articles of incorporation, and shall not apply to the members, stockholders or
other holders of equity securities of the constituent association or
corporation
not surviving the merger in any merger where the active members of such
constituent association or corporation are eligible to become members of the
surviving association or corporation on the same terms and conditions as other
similarly classified members of the surviving association or corporation.
History: L. 1991, ch. 74, § 6;
L. 2000, ch. 175, § 1; July 1.
17-1642.Payment for interest of member objecting to
merger; demand for
payment; appraisal and determination of value; taxation of costs; status of
member's interest; section inapplicable to certain member's interest.
(a) Except as provided in subsection (j), the association or
corporation surviving or resulting from
any merger or consolidation, within 10 days after the effective date of the
merger or consolidation, shall notify each member or stockholder of any
association or corporation of this
state so merging or consolidating who objected thereto in writing and whose
shares either were not entitled to vote or were not voted in favor of the
merger or consolidation, and who filed such written objection with the
association or corporation before the taking of the vote on the merger or
consolidation, that
the merger or consolidation has become effective. If any such member or
stockholder, within
20 days after the date of mailing of the notice, shall demand in writing, from
the association or corporation surviving or resulting from the merger or
consolidation, payment of the value of the member's or stockholder's interest,
the surviving or
resulting association or corporation shall pay to the member or stockholder,
within 30 days
after the expiration of the period of 20 days, the value of the member's
or stockholder's interest on the effective date of the merger or consolidation,
exclusive of any
element of value arising from the expectation or accomplishment of the merger
or consolidation.
(b) If during a period of 30 days following the period of 20 days provided
for in subsection (a), the association and any such member or stockholder fail
to agree upon
the value of such member's or stockholder's interest, any such member or
stockholder, or the association or
corporation surviving or resulting from the merger or consolidation, may demand
a determination of the value of the member's or stockholder's interest by an
appraiser or
appraisers to be appointed by the district court, by filing a petition with the
court within four months after the expiration of the thirty-day period.
(c) Upon the filing of any such petition by a member or stockholder, service
of a copy
shall be
made upon the surviving association or corporation, which shall file with the
clerk of the district court, within 10 days after such service, a duly verified
list containing the names and addresses of all members or stockholders who have
demanded
payment for such member's or stockholder's interest and with whom agreements as
to the value of
such member's or stockholder's interest have not been reached by the
association or corporation.
If the petition is filed by the surviving association or corporation, the
petition shall be accompanied by such duly verified list. The surviving
association or corporation shall give notice of the time and place fixed for
the hearing of
such petition
pursuant to subsection (c) of K.S.A. 60-303, and amendments
thereto, to the
members or stockholders shown upon the list at the addresses therein
stated and notice
shall also be given by publishing a notice at least once, at least one week
before the day of the hearing, in a newspaper of general circulation in the
county in which the district court is located. The court may direct such
additional publication of notice as the court deems advisable. The forms of
the notices by mail and by publication shall be approved by the court.
(d) After the hearing on the petition the court shall determine the members
or stockholders who have complied with the provisions of this section and
become entitled to
the valuation of and payment for such member's or stockholder's interest, and
shall appoint an
appraiser or appraisers to determine such value. The appraiser or appraisers
may examine any
of the books and records of the associations or corporations the stock of which
such appraiser or appraisers is charged with the duty of valuing, and following
an
investigation, the appraiser or appraisers shall make a determination of the
value of the
member's
or stockholder's interest. The appraiser or appraisers shall also afford a
reasonable
opportunity to the parties interested to submit to the appraiser or appraisers
pertinent evidence on the value of the member's or stockholder's interest. The
appraiser or
appraisers, also, shall have the powers and authority conferred upon masters by
K.S.A. 60-253, and amendments thereto.
(e) The appraiser or appraisers shall determine the value of the stock of
the
members or stockholders adjudged by the district court to be entitled to
payment therefor and
shall file a report respecting such value in the office of the
clerk of the district court, and notice of the filing of such report shall be
given by the
petitioners to the parties in interest. Such report shall be
subject to exceptions to be heard before the court both upon the law and facts.
The court by decree shall determine the value of the stock of the members
or stockholders entitled to payment and shall direct the payment of such value,
together with
interest, if any, to the members or stockholders entitled by the surviving or
resulting
corporation. Upon payment of the judgment by the surviving or resulting
corporation, the clerk of the district court shall surrender to the surviving
association or corporation the certificates of shares of stock held by the
clerk pursuant to subsection (f). The decree may be enforced as other judgments
of
the district court may be enforced, whether such surviving or resulting
association be an association of this state or of any other state.
(f) At the time of appointing the appraiser or appraisers, the court shall
require the members or stockholders who hold certificated shares and who
demanded payment for
the shares to submit the certificates of stock to the clerk of the court, to be
held by the clerk pending the appraisal proceedings. If any member or
stockholder fails to
comply with such direction, the court shall dismiss the proceedings as to such
member or stockholder.
(g) The cost of any such appraisal, including reasonable fees and expenses
of the appraiser or appraisers, but exclusive of fees of counsel or of experts
retained by
any party, shall be determined by the court and taxed upon the parties to such
appraisal or any of them as appears to be equitable, except that the cost of
giving the notice by publication and by certified mail shall be paid by the
surviving association or corporation.
Postjudgment interest, if any, shall be in accordance with K.S.A. 16-204, and
amendments thereto, to be paid upon
the value of the stock of the members or stockholders entitled thereto.
(h) Any member or stockholder who has demanded payment of the member's or
stockholder's interest as herein
provided shall not thereafter be entitled to vote such member's or
stockholder's stock for any
purpose or be entitled to the payment of dividends or other distribution
on such stock, except dividends or other distributions payable to members or
stockholders of
record at a date which is prior to the effective date of
the merger or consolidation, unless the appointment of an appraiser or
appraisers shall not be applied for within the time herein provided, or the
proceeding be dismissed as to such member or stockholder, or unless such member
or stockholder with the
written approval of the surviving association or corporation shall deliver to
the association or corporation a written withdrawal of the member's or
stockholder's objections
to and an acceptance of the merger or consolidation, in any of which cases the
right of such member or stockholder to payment for the member's or
stockholder's interest shall cease.
(i) The shares of the surviving or resulting association or corporation
into which the shares of such objecting members or stockholders would have been
converted had
they assented to the merger or consolidation shall have the status of
authorized and unissued shares of the surviving or resulting association or
corporation.
(j) This section shall not be applicable to the members, stockholders or
other holders of equity securities of the surviving association or corporation
in any merger where the active members of the surviving association or
corporation continue to be eligible to be members of the surviving association
or corporation after the merger and the agreement of merger does not amend the
articles of incorporation, and shall not apply to the members, stockholders or
other holders of equity securities of the constituent association or
corporation
not surviving the merger in any merger where the active members of such
constituent association or corporation are eligible to become members of the
surviving association or corporation on the same terms and conditions as other
similarly classified members of the surviving association or corporation.
History: L. 1991, ch. 74, § 6;
L. 2000, ch. 175, § 1; July 1.