17-6701.Merger or consolidation of domestic
corporations.
(a) Any two or more corporations existing under the laws of this state and
authorized to issue capital stock 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, 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 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 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; (4) in the case of consolidation, that the articles of
incorporation of the resulting corporation shall be as is set forth in an
attachment to the agreement; (5) 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 or entity may be in addition to or in lieu of shares or other
securities of the surviving or resulting 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. The agreement adopted as provided in
this subsection 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. 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) (1) The agreement required by subsection (b) shall be submitted to the
stockholders of each constituent corporation at an annual or special meeting
thereof for the purpose of acting on the agreement.
(2) The terms of the agreement may require that the agreement be submitted to
the stockholders whether or not the board of directors determines at any time
subsequent to declaring its advisability that the agreement is no longer
advisable and recommends that the stockholders reject it.
(3) Due notice of the time, place and purpose of the meeting shall be mailed
to each holder of stock of the corporation, whether voting or nonvoting, at
the stockholder's address as it appears on the records of the corporation, at
least 20 days prior to the date of the meeting. The notice shall contain a copy
of 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 its
adoption or rejection. If a majority of the outstanding stock of the
corporation entitled to vote thereon shall be voted for the adoption of the
agreement, that fact shall be certified on the agreement by the secretary or
assistant secretary of the corporation. If the agreement is adopted and
certified by each constituent corporation, it shall then be executed and filed,
and shall become effective, in accordance with K.S.A. 17-6003, and amendments
thereto.
(5) 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: (A) The name and state of incorporation of each of the constituent
corporations; (B) 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; (C) the name of the surviving or
resulting corporation; (D) 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 one of the constituent
corporations shall be the articles of incorporation of the surviving
corporation; (E) 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; (F) that the executed agreement of consolidation
or merger is on file at the principal place of business of the surviving or
resulting corporation, stating the address thereof; and (G) 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.
(d) Any agreement of merger or consolidation may contain a provision that at
any 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 board
of directors of any constituent corporation notwithstanding approval of the
agreement by the stockholders of all or any of the constituent corporations; in
the event the agreement of merger or consolidation is terminated after the
filing of the agreement, or a certificate, with the secretary of state but
before the agreement, or certificate, has become effective, a certificate of
termination of merger or consolidation shall be filed in accordance with K.S.A.
17-6003, and amendments thereto. Any agreement of merger or consolidation may
contain a provision that the boards of directors of the constituent
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,
except that an amendment made subsequent to the adoption of the agreement by
the stockholders of any constituent corporation shall not: (1) Alter or change
the amount or kind of shares, securities, cash, property or rights, or any
combination, to be received in exchange for or on conversion of all or any of
the 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 or
resulting 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 holders of any class or series
thereof of such constituent corporation. In the event the agreement of merger
or consolidation is amended after the filing of such merger or consolidation
with the secretary of state but before the agreement has become effective, a
certificate of amendments of merger or consolidation shall be filed in
accordance with K.S.A. 17-6003, and amendments thereto.
(e) In the case of a merger, the articles of incorporation of the surviving
corporation shall automatically be amended to the extent, if any, that changes
in the articles of incorporation are set forth in the agreement of merger.
(f) (1) Notwithstanding the requirements of subsection (c), unless required
by its articles of incorporation, no vote of stockholders of a constituent
corporation surviving a merger shall be necessary to authorize a merger if: (A)
The agreement of merger does not amend in any respect the articles of
incorporation of such constituent corporation; (B) each share of stock of such
constituent corporation outstanding immediately prior to the effective date of
the merger is to be an identical outstanding or treasury share of the surviving
corporation after the effective date of the merger; and (C) either no shares of
common stock of the surviving corporation and no shares, securities or
obligations convertible into such stock are to be issued or delivered under the
plan of merger, or the authorized unissued shares or the treasury shares of
common stock of the surviving corporation to be issued or delivered under the
plan of merger plus those initially issuable upon conversion of any other
shares, securities or obligations to be issued or delivered under such plan do
not exceed 20% of the shares of common stock of such constituent corporation
outstanding immediately prior to the effective date of the merger.
(2) No vote of stockholders of a constituent corporation shall be necessary
to authorize a merger or consolidation if no shares of the stock of such
corporation shall have been issued prior to the adoption by the board of
directors of the resolution approving the agreement of merger or consolidation.
If an agreement of merger is adopted by the constituent corporation surviving
the merger, by action of its board of directors and without any vote of its
stockholders pursuant to this subsection, the secretary or assistant secretary
of that corporation shall certify on the agreement that the agreement has been
adopted pursuant to this subsection and: (A) If it has been adopted pursuant to
the first sentence of this subsection, that the conditions specified in that
sentence have been satisfied, or (B) if it has been adopted pursuant to the
second sentence of this subsection, that no shares of stock of such corporation
were issued prior to the adoption by the board of directors of the resolution
approving the agreement of merger or consolidation.
(3) The agreement adopted and certified shall then 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.
(g) Notwithstanding the requirements of subsection (c), unless expressly
required by its articles of incorporation, no vote of stockholders of a
constituent corporation shall be necessary to authorize a merger with or into a
single direct or indirect wholly-owned subsidiary of such constituent
corporation if:
(1) Such constituent corporation and the direct or indirect wholly-owned
subsidiary of such constituent corporation are the only constituent entities to
the merger;
(2) each share or fraction of a share of the capital stock of the constituent
corporation outstanding immediately prior to the effective time of the merger
is converted in the merger into a share or equal fraction of share of capital
stock of a holding company having the same designations, rights, powers and
preferences, and the qualifications, limitations and restrictions thereof, as
the share of stock of the constituent corporation being converted in the
merger;
(3) the holding company and the constituent corporations are corporations of
this state and the direct or indirect wholly-owned subsidiary that is the other
constituent entity to the merger is a corporation or limited liability company
of this state;
(4) the articles of incorporation and bylaws of the holding company
immediately following the effective time of the merger contain provisions
identical to the articles of incorporation and bylaws of the constituent
corporation immediately prior to the effective time of the merger, other than
provisions, if any, regarding the incorporator or incorporators, the corporate
name, the registered office and agent, the initial board of directors and the
initial subscribers for shares and such provisions contained in any amendment
to 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 or
cancellation has become effective;
(5) as a result of the merger the constituent corporation or its successor
becomes or remains a direct or indirect wholly-owned subsidiary of the
holding company;
(6) the directors of the constituent corporation become or remain the
directors of the holding company upon the effective time of the merger; and
(7) (A) the organizational documents of the surviving entity immediately
following the effective time of the merger contain provisions identical to the
articles of incorporation of the constituent corporation immediately prior to
the effective time of the merger, other than provisions, if any, regarding the
incorporator or incorporators, the corporate or entity name, the registered
office and agent, the initial board of directors and the initial subscribers
for 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 body
rather than directors and such provisions contained in any amendment to 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 or cancellation
has become effective.
(B) If the organizational documents of the surviving entity do not contain
the following provisions, such documents shall be amended in the merger to
contain provisions requiring that: (i) Any act or transaction by or involving
the surviving entity, other than the election or removal of directors or
managers, managing members or other members of the governing body of the
surviving entity, that requires for its adoption under this act or its
organizational documents the approval of the stockholders or members of the
surviving entity shall, by specific reference to this subsection, require, in
addition, the approval of the stockholders of the holding company, or any
successor by merger, by the same vote as is required by this act or by the
organizational documents of the surviving entity, or both. For purposes of this
clause, any surviving entity that is not a corporation shall include in such
amendments a requirement that the approval of the stockholders of the holding
company be obtained for any act or transaction by or involving the surviving
entity, other than the election or removal of directors or managers, managing
members or other members of the governing body of the surviving entity, which
would require the approval of the stockholders of the surviving entity if the
surviving entity were a corporation subject to this act;
(ii) any amendment of the organizational documents of a surviving entity that
is not a corporation, which amendment would, if adopted by a corporation
subject to this act, be required to be included in the articles of
incorporation of such corporation, shall, by specific reference to this
subsection, require, in addition, the approval of the stockholders of the
holding company, or any successor by merger, by the same vote as is required by
this act or by the organizational documents of the surviving
entity or both; and
(iii) the business and affairs of a surviving entity that is not a
corporation shall be managed by or under the direction of a board of directors,
board of managers or other governing body consisting of individuals who are
subject to the same fiduciary duties applicable to, and who are liable for
breach of such duties to the same extent as, directors of a corporation subject
to this act. Neither the provisions of this subsection nor any provision of a
surviving entity's organizational documents required by this subsection shall
be deemed or construed to require approval of the stockholders of the holding
company to elect or remove directors or managers, managing members or other
members of the governing body of the surviving entity.
(C) The organizational documents of the surviving entity may be amended in
the merger to reduce the number of classes and shares of capital stock or other
equity 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 of
such corporation and, when used in reference to a limited liability company,
means the articles of organization or operating agreement of such limited
liability company; the term "holding company" means a corporation which, from
its incorporation until consummation of a merger governed by this subsection,
was at all times a direct or indirect wholly-owned subsidiary of the
constituent corporation and whose capital stock is issued in such merger. From
and after the effective time of a merger adopted by a constituent corporation
by action of its board of directors and without any vote of stockholders
pursuant to this subsection: (i) To the extent the restriction of K.S.A.
17-12,100 et seq., and amendments thereto, applied to the
constituent corporation and its stockholders the effective time of the merger
such restrictions shall apply to the holding company and its stockholders
immediately after the effective time of the merger as though it were the
constituent corporation, and all shares of stock of the holding company
acquired in the merger shall for the purposes of K.S.A. 17-12,100 et
seq., and amendments thereto, be deemed to have been acquired at the time
that the shares of stock of the constituent corporation converted in the merger
were acquired, and provided further that any stockholder who immediately prior
to the effective time of the merger was not an interested stockholder within
the 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 of
the holding company; and (ii) if the corporate name of the holding company
immediately following the effective time of the merger is the same as the
corporate name of the constituent corporation immediately prior to the
effective time of the merger, the shares of capital stock of the holding
company into which the shares of capital stock of the constituent corporation
are converted in the merger shall be represented by the stock certificates that
previously represented shares of capital stock of the constituent corporation
and to the extent a stockholder of the constituent corporation immediately
prior to the merger had standing to institute or maintain derivative litigation
on behalf of the constituent corporation, nothing in this section shall be
deemed to limit or extinguish such standing. If an agreement of merger is
adopted by a constituent corporation by action of its board of directors and
without any vote of stockholders pursuant to this subsection, the secretary or
assistant secretary of the constituent corporation shall certify on the
agreement or a certificate of merger that the agreement has been adopted
pursuant to this subsection and that the conditions specified in the first
sentence of this subsection have been satisfied. The agreement or certificate
of merger so adopted and certified shall then be filed and 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 or
certificate of merger that the facts stated in the certificate remain true
immediately 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.
17-6701.Merger or consolidation of domestic
corporations.
(a) Any two or more corporations existing under the laws of this state and
authorized to issue capital stock 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, 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 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 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; (4) in the case of consolidation, that the articles of
incorporation of the resulting corporation shall be as is set forth in an
attachment to the agreement; (5) 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 or entity may be in addition to or in lieu of shares or other
securities of the surviving or resulting 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. The agreement adopted as provided in
this subsection 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. 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) (1) The agreement required by subsection (b) shall be submitted to the
stockholders of each constituent corporation at an annual or special meeting
thereof for the purpose of acting on the agreement.
(2) The terms of the agreement may require that the agreement be submitted to
the stockholders whether or not the board of directors determines at any time
subsequent to declaring its advisability that the agreement is no longer
advisable and recommends that the stockholders reject it.
(3) Due notice of the time, place and purpose of the meeting shall be mailed
to each holder of stock of the corporation, whether voting or nonvoting, at
the stockholder's address as it appears on the records of the corporation, at
least 20 days prior to the date of the meeting. The notice shall contain a copy
of 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 its
adoption or rejection. If a majority of the outstanding stock of the
corporation entitled to vote thereon shall be voted for the adoption of the
agreement, that fact shall be certified on the agreement by the secretary or
assistant secretary of the corporation. If the agreement is adopted and
certified by each constituent corporation, it shall then be executed and filed,
and shall become effective, in accordance with K.S.A. 17-6003, and amendments
thereto.
(5) 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: (A) The name and state of incorporation of each of the constituent
corporations; (B) 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; (C) the name of the surviving or
resulting corporation; (D) 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 one of the constituent
corporations shall be the articles of incorporation of the surviving
corporation; (E) 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; (F) that the executed agreement of consolidation
or merger is on file at the principal place of business of the surviving or
resulting corporation, stating the address thereof; and (G) 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.
(d) Any agreement of merger or consolidation may contain a provision that at
any 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 board
of directors of any constituent corporation notwithstanding approval of the
agreement by the stockholders of all or any of the constituent corporations; in
the event the agreement of merger or consolidation is terminated after the
filing of the agreement, or a certificate, with the secretary of state but
before the agreement, or certificate, has become effective, a certificate of
termination of merger or consolidation shall be filed in accordance with K.S.A.
17-6003, and amendments thereto. Any agreement of merger or consolidation may
contain a provision that the boards of directors of the constituent
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,
except that an amendment made subsequent to the adoption of the agreement by
the stockholders of any constituent corporation shall not: (1) Alter or change
the amount or kind of shares, securities, cash, property or rights, or any
combination, to be received in exchange for or on conversion of all or any of
the 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 or
resulting 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 holders of any class or series
thereof of such constituent corporation. In the event the agreement of merger
or consolidation is amended after the filing of such merger or consolidation
with the secretary of state but before the agreement has become effective, a
certificate of amendments of merger or consolidation shall be filed in
accordance with K.S.A. 17-6003, and amendments thereto.
(e) In the case of a merger, the articles of incorporation of the surviving
corporation shall automatically be amended to the extent, if any, that changes
in the articles of incorporation are set forth in the agreement of merger.
(f) (1) Notwithstanding the requirements of subsection (c), unless required
by its articles of incorporation, no vote of stockholders of a constituent
corporation surviving a merger shall be necessary to authorize a merger if: (A)
The agreement of merger does not amend in any respect the articles of
incorporation of such constituent corporation; (B) each share of stock of such
constituent corporation outstanding immediately prior to the effective date of
the merger is to be an identical outstanding or treasury share of the surviving
corporation after the effective date of the merger; and (C) either no shares of
common stock of the surviving corporation and no shares, securities or
obligations convertible into such stock are to be issued or delivered under the
plan of merger, or the authorized unissued shares or the treasury shares of
common stock of the surviving corporation to be issued or delivered under the
plan of merger plus those initially issuable upon conversion of any other
shares, securities or obligations to be issued or delivered under such plan do
not exceed 20% of the shares of common stock of such constituent corporation
outstanding immediately prior to the effective date of the merger.
(2) No vote of stockholders of a constituent corporation shall be necessary
to authorize a merger or consolidation if no shares of the stock of such
corporation shall have been issued prior to the adoption by the board of
directors of the resolution approving the agreement of merger or consolidation.
If an agreement of merger is adopted by the constituent corporation surviving
the merger, by action of its board of directors and without any vote of its
stockholders pursuant to this subsection, the secretary or assistant secretary
of that corporation shall certify on the agreement that the agreement has been
adopted pursuant to this subsection and: (A) If it has been adopted pursuant to
the first sentence of this subsection, that the conditions specified in that
sentence have been satisfied, or (B) if it has been adopted pursuant to the
second sentence of this subsection, that no shares of stock of such corporation
were issued prior to the adoption by the board of directors of the resolution
approving the agreement of merger or consolidation.
(3) The agreement adopted and certified shall then 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.
(g) Notwithstanding the requirements of subsection (c), unless expressly
required by its articles of incorporation, no vote of stockholders of a
constituent corporation shall be necessary to authorize a merger with or into a
single direct or indirect wholly-owned subsidiary of such constituent
corporation if:
(1) Such constituent corporation and the direct or indirect wholly-owned
subsidiary of such constituent corporation are the only constituent entities to
the merger;
(2) each share or fraction of a share of the capital stock of the constituent
corporation outstanding immediately prior to the effective time of the merger
is converted in the merger into a share or equal fraction of share of capital
stock of a holding company having the same designations, rights, powers and
preferences, and the qualifications, limitations and restrictions thereof, as
the share of stock of the constituent corporation being converted in the
merger;
(3) the holding company and the constituent corporations are corporations of
this state and the direct or indirect wholly-owned subsidiary that is the other
constituent entity to the merger is a corporation or limited liability company
of this state;
(4) the articles of incorporation and bylaws of the holding company
immediately following the effective time of the merger contain provisions
identical to the articles of incorporation and bylaws of the constituent
corporation immediately prior to the effective time of the merger, other than
provisions, if any, regarding the incorporator or incorporators, the corporate
name, the registered office and agent, the initial board of directors and the
initial subscribers for shares and such provisions contained in any amendment
to 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 or
cancellation has become effective;
(5) as a result of the merger the constituent corporation or its successor
becomes or remains a direct or indirect wholly-owned subsidiary of the
holding company;
(6) the directors of the constituent corporation become or remain the
directors of the holding company upon the effective time of the merger; and
(7) (A) the organizational documents of the surviving entity immediately
following the effective time of the merger contain provisions identical to the
articles of incorporation of the constituent corporation immediately prior to
the effective time of the merger, other than provisions, if any, regarding the
incorporator or incorporators, the corporate or entity name, the registered
office and agent, the initial board of directors and the initial subscribers
for 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 body
rather than directors and such provisions contained in any amendment to 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 or cancellation
has become effective.
(B) If the organizational documents of the surviving entity do not contain
the following provisions, such documents shall be amended in the merger to
contain provisions requiring that: (i) Any act or transaction by or involving
the surviving entity, other than the election or removal of directors or
managers, managing members or other members of the governing body of the
surviving entity, that requires for its adoption under this act or its
organizational documents the approval of the stockholders or members of the
surviving entity shall, by specific reference to this subsection, require, in
addition, the approval of the stockholders of the holding company, or any
successor by merger, by the same vote as is required by this act or by the
organizational documents of the surviving entity, or both. For purposes of this
clause, any surviving entity that is not a corporation shall include in such
amendments a requirement that the approval of the stockholders of the holding
company be obtained for any act or transaction by or involving the surviving
entity, other than the election or removal of directors or managers, managing
members or other members of the governing body of the surviving entity, which
would require the approval of the stockholders of the surviving entity if the
surviving entity were a corporation subject to this act;
(ii) any amendment of the organizational documents of a surviving entity that
is not a corporation, which amendment would, if adopted by a corporation
subject to this act, be required to be included in the articles of
incorporation of such corporation, shall, by specific reference to this
subsection, require, in addition, the approval of the stockholders of the
holding company, or any successor by merger, by the same vote as is required by
this act or by the organizational documents of the surviving
entity or both; and
(iii) the business and affairs of a surviving entity that is not a
corporation shall be managed by or under the direction of a board of directors,
board of managers or other governing body consisting of individuals who are
subject to the same fiduciary duties applicable to, and who are liable for
breach of such duties to the same extent as, directors of a corporation subject
to this act. Neither the provisions of this subsection nor any provision of a
surviving entity's organizational documents required by this subsection shall
be deemed or construed to require approval of the stockholders of the holding
company to elect or remove directors or managers, managing members or other
members of the governing body of the surviving entity.
(C) The organizational documents of the surviving entity may be amended in
the merger to reduce the number of classes and shares of capital stock or other
equity 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 of
such corporation and, when used in reference to a limited liability company,
means the articles of organization or operating agreement of such limited
liability company; the term "holding company" means a corporation which, from
its incorporation until consummation of a merger governed by this subsection,
was at all times a direct or indirect wholly-owned subsidiary of the
constituent corporation and whose capital stock is issued in such merger. From
and after the effective time of a merger adopted by a constituent corporation
by action of its board of directors and without any vote of stockholders
pursuant to this subsection: (i) To the extent the restriction of K.S.A.
17-12,100 et seq., and amendments thereto, applied to the
constituent corporation and its stockholders the effective time of the merger
such restrictions shall apply to the holding company and its stockholders
immediately after the effective time of the merger as though it were the
constituent corporation, and all shares of stock of the holding company
acquired in the merger shall for the purposes of K.S.A. 17-12,100 et
seq., and amendments thereto, be deemed to have been acquired at the time
that the shares of stock of the constituent corporation converted in the merger
were acquired, and provided further that any stockholder who immediately prior
to the effective time of the merger was not an interested stockholder within
the 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 of
the holding company; and (ii) if the corporate name of the holding company
immediately following the effective time of the merger is the same as the
corporate name of the constituent corporation immediately prior to the
effective time of the merger, the shares of capital stock of the holding
company into which the shares of capital stock of the constituent corporation
are converted in the merger shall be represented by the stock certificates that
previously represented shares of capital stock of the constituent corporation
and to the extent a stockholder of the constituent corporation immediately
prior to the merger had standing to institute or maintain derivative litigation
on behalf of the constituent corporation, nothing in this section shall be
deemed to limit or extinguish such standing. If an agreement of merger is
adopted by a constituent corporation by action of its board of directors and
without any vote of stockholders pursuant to this subsection, the secretary or
assistant secretary of the constituent corporation shall certify on the
agreement or a certificate of merger that the agreement has been adopted
pursuant to this subsection and that the conditions specified in the first
sentence of this subsection have been satisfied. The agreement or certificate
of merger so adopted and certified shall then be filed and 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 or
certificate of merger that the facts stated in the certificate remain true
immediately 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.
17-6701.Merger or consolidation of domestic
corporations.
(a) Any two or more corporations existing under the laws of this state and
authorized to issue capital stock 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, 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 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 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; (4) in the case of consolidation, that the articles of
incorporation of the resulting corporation shall be as is set forth in an
attachment to the agreement; (5) 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 or entity may be in addition to or in lieu of shares or other
securities of the surviving or resulting 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. The agreement adopted as provided in
this subsection 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. 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) (1) The agreement required by subsection (b) shall be submitted to the
stockholders of each constituent corporation at an annual or special meeting
thereof for the purpose of acting on the agreement.
(2) The terms of the agreement may require that the agreement be submitted to
the stockholders whether or not the board of directors determines at any time
subsequent to declaring its advisability that the agreement is no longer
advisable and recommends that the stockholders reject it.
(3) Due notice of the time, place and purpose of the meeting shall be mailed
to each holder of stock of the corporation, whether voting or nonvoting, at
the stockholder's address as it appears on the records of the corporation, at
least 20 days prior to the date of the meeting. The notice shall contain a copy
of 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 its
adoption or rejection. If a majority of the outstanding stock of the
corporation entitled to vote thereon shall be voted for the adoption of the
agreement, that fact shall be certified on the agreement by the secretary or
assistant secretary of the corporation. If the agreement is adopted and
certified by each constituent corporation, it shall then be executed and filed,
and shall become effective, in accordance with K.S.A. 17-6003, and amendments
thereto.
(5) 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: (A) The name and state of incorporation of each of the constituent
corporations; (B) 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; (C) the name of the surviving or
resulting corporation; (D) 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 one of the constituent
corporations shall be the articles of incorporation of the surviving
corporation; (E) 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; (F) that the executed agreement of consolidation
or merger is on file at the principal place of business of the surviving or
resulting corporation, stating the address thereof; and (G) 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.
(d) Any agreement of merger or consolidation may contain a provision that at
any 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 board
of directors of any constituent corporation notwithstanding approval of the
agreement by the stockholders of all or any of the constituent corporations; in
the event the agreement of merger or consolidation is terminated after the
filing of the agreement, or a certificate, with the secretary of state but
before the agreement, or certificate, has become effective, a certificate of
termination of merger or consolidation shall be filed in accordance with K.S.A.
17-6003, and amendments thereto. Any agreement of merger or consolidation may
contain a provision that the boards of directors of the constituent
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,
except that an amendment made subsequent to the adoption of the agreement by
the stockholders of any constituent corporation shall not: (1) Alter or change
the amount or kind of shares, securities, cash, property or rights, or any
combination, to be received in exchange for or on conversion of all or any of
the 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 or
resulting 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 holders of any class or series
thereof of such constituent corporation. In the event the agreement of merger
or consolidation is amended after the filing of such merger or consolidation
with the secretary of state but before the agreement has become effective, a
certificate of amendments of merger or consolidation shall be filed in
accordance with K.S.A. 17-6003, and amendments thereto.
(e) In the case of a merger, the articles of incorporation of the surviving
corporation shall automatically be amended to the extent, if any, that changes
in the articles of incorporation are set forth in the agreement of merger.
(f) (1) Notwithstanding the requirements of subsection (c), unless required
by its articles of incorporation, no vote of stockholders of a constituent
corporation surviving a merger shall be necessary to authorize a merger if: (A)
The agreement of merger does not amend in any respect the articles of
incorporation of such constituent corporation; (B) each share of stock of such
constituent corporation outstanding immediately prior to the effective date of
the merger is to be an identical outstanding or treasury share of the surviving
corporation after the effective date of the merger; and (C) either no shares of
common stock of the surviving corporation and no shares, securities or
obligations convertible into such stock are to be issued or delivered under the
plan of merger, or the authorized unissued shares or the treasury shares of
common stock of the surviving corporation to be issued or delivered under the
plan of merger plus those initially issuable upon conversion of any other
shares, securities or obligations to be issued or delivered under such plan do
not exceed 20% of the shares of common stock of such constituent corporation
outstanding immediately prior to the effective date of the merger.
(2) No vote of stockholders of a constituent corporation shall be necessary
to authorize a merger or consolidation if no shares of the stock of such
corporation shall have been issued prior to the adoption by the board of
directors of the resolution approving the agreement of merger or consolidation.
If an agreement of merger is adopted by the constituent corporation surviving
the merger, by action of its board of directors and without any vote of its
stockholders pursuant to this subsection, the secretary or assistant secretary
of that corporation shall certify on the agreement that the agreement has been
adopted pursuant to this subsection and: (A) If it has been adopted pursuant to
the first sentence of this subsection, that the conditions specified in that
sentence have been satisfied, or (B) if it has been adopted pursuant to the
second sentence of this subsection, that no shares of stock of such corporation
were issued prior to the adoption by the board of directors of the resolution
approving the agreement of merger or consolidation.
(3) The agreement adopted and certified shall then 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.
(g) Notwithstanding the requirements of subsection (c), unless expressly
required by its articles of incorporation, no vote of stockholders of a
constituent corporation shall be necessary to authorize a merger with or into a
single direct or indirect wholly-owned subsidiary of such constituent
corporation if:
(1) Such constituent corporation and the direct or indirect wholly-owned
subsidiary of such constituent corporation are the only constituent entities to
the merger;
(2) each share or fraction of a share of the capital stock of the constituent
corporation outstanding immediately prior to the effective time of the merger
is converted in the merger into a share or equal fraction of share of capital
stock of a holding company having the same designations, rights, powers and
preferences, and the qualifications, limitations and restrictions thereof, as
the share of stock of the constituent corporation being converted in the
merger;
(3) the holding company and the constituent corporations are corporations of
this state and the direct or indirect wholly-owned subsidiary that is the other
constituent entity to the merger is a corporation or limited liability company
of this state;
(4) the articles of incorporation and bylaws of the holding company
immediately following the effective time of the merger contain provisions
identical to the articles of incorporation and bylaws of the constituent
corporation immediately prior to the effective time of the merger, other than
provisions, if any, regarding the incorporator or incorporators, the corporate
name, the registered office and agent, the initial board of directors and the
initial subscribers for shares and such provisions contained in any amendment
to 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 or
cancellation has become effective;
(5) as a result of the merger the constituent corporation or its successor
becomes or remains a direct or indirect wholly-owned subsidiary of the
holding company;
(6) the directors of the constituent corporation become or remain the
directors of the holding company upon the effective time of the merger; and
(7) (A) the organizational documents of the surviving entity immediately
following the effective time of the merger contain provisions identical to the
articles of incorporation of the constituent corporation immediately prior to
the effective time of the merger, other than provisions, if any, regarding the
incorporator or incorporators, the corporate or entity name, the registered
office and agent, the initial board of directors and the initial subscribers
for 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 body
rather than directors and such provisions contained in any amendment to 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 or cancellation
has become effective.
(B) If the organizational documents of the surviving entity do not contain
the following provisions, such documents shall be amended in the merger to
contain provisions requiring that: (i) Any act or transaction by or involving
the surviving entity, other than the election or removal of directors or
managers, managing members or other members of the governing body of the
surviving entity, that requires for its adoption under this act or its
organizational documents the approval of the stockholders or members of the
surviving entity shall, by specific reference to this subsection, require, in
addition, the approval of the stockholders of the holding company, or any
successor by merger, by the same vote as is required by this act or by the
organizational documents of the surviving entity, or both. For purposes of this
clause, any surviving entity that is not a corporation shall include in such
amendments a requirement that the approval of the stockholders of the holding
company be obtained for any act or transaction by or involving the surviving
entity, other than the election or removal of directors or managers, managing
members or other members of the governing body of the surviving entity, which
would require the approval of the stockholders of the surviving entity if the
surviving entity were a corporation subject to this act;
(ii) any amendment of the organizational documents of a surviving entity that
is not a corporation, which amendment would, if adopted by a corporation
subject to this act, be required to be included in the articles of
incorporation of such corporation, shall, by specific reference to this
subsection, require, in addition, the approval of the stockholders of the
holding company, or any successor by merger, by the same vote as is required by
this act or by the organizational documents of the surviving
entity or both; and
(iii) the business and affairs of a surviving entity that is not a
corporation shall be managed by or under the direction of a board of directors,
board of managers or other governing body consisting of individuals who are
subject to the same fiduciary duties applicable to, and who are liable for
breach of such duties to the same extent as, directors of a corporation subject
to this act. Neither the provisions of this subsection nor any provision of a
surviving entity's organizational documents required by this subsection shall
be deemed or construed to require approval of the stockholders of the holding
company to elect or remove directors or managers, managing members or other
members of the governing body of the surviving entity.
(C) The organizational documents of the surviving entity may be amended in
the merger to reduce the number of classes and shares of capital stock or other
equity 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 of
such corporation and, when used in reference to a limited liability company,
means the articles of organization or operating agreement of such limited
liability company; the term "holding company" means a corporation which, from
its incorporation until consummation of a merger governed by this subsection,
was at all times a direct or indirect wholly-owned subsidiary of the
constituent corporation and whose capital stock is issued in such merger. From
and after the effective time of a merger adopted by a constituent corporation
by action of its board of directors and without any vote of stockholders
pursuant to this subsection: (i) To the extent the restriction of K.S.A.
17-12,100 et seq., and amendments thereto, applied to the
constituent corporation and its stockholders the effective time of the merger
such restrictions shall apply to the holding company and its stockholders
immediately after the effective time of the merger as though it were the
constituent corporation, and all shares of stock of the holding company
acquired in the merger shall for the purposes of K.S.A. 17-12,100 et
seq., and amendments thereto, be deemed to have been acquired at the time
that the shares of stock of the constituent corporation converted in the merger
were acquired, and provided further that any stockholder who immediately prior
to the effective time of the merger was not an interested stockholder within
the 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 of
the holding company; and (ii) if the corporate name of the holding company
immediately following the effective time of the merger is the same as the
corporate name of the constituent corporation immediately prior to the
effective time of the merger, the shares of capital stock of the holding
company into which the shares of capital stock of the constituent corporation
are converted in the merger shall be represented by the stock certificates that
previously represented shares of capital stock of the constituent corporation
and to the extent a stockholder of the constituent corporation immediately
prior to the merger had standing to institute or maintain derivative litigation
on behalf of the constituent corporation, nothing in this section shall be
deemed to limit or extinguish such standing. If an agreement of merger is
adopted by a constituent corporation by action of its board of directors and
without any vote of stockholders pursuant to this subsection, the secretary or
assistant secretary of the constituent corporation shall certify on the
agreement or a certificate of merger that the agreement has been adopted
pursuant to this subsection and that the conditions specified in the first
sentence of this subsection have been satisfied. The agreement or certificate
of merger so adopted and certified shall then be filed and 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 or
certificate of merger that the facts stated in the certificate remain true
immediately 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.