Section 351.1153

Title XXIII CORPORATIONS, ASSOCIATIONS AND PARTNERSHIPS

Chapter 351

Effective - 28 Aug 2011   

  351.1153.  Merger and consolidation — definitions — procedure, effect of. — 1.  As used in this section and sections 351.1156 and 351.1159, the following words shall mean:

  (1)  "Consolidated entity", that entity, or those entities, which are being consolidated into the new entity as described in the plan of consolidation;

  (2)  "Merging entity", that entity, or those entities, which are merging into the surviving entity as described in the plan of merger;

  (3)  "New entity", that entity created due to a consolidation of entities as described in the plan of consolidation;

  (4)  "Ownership interest", shares, membership interests which shall include patron and nonpatron membership interests in the case of a cooperative, or other instances of ownership, whether certificated or uncertificated, in a business entity;

  (5)  "Surviving entity", that entity into which all other merging entities shall merge as described in the plan of merger.

  2.  (1)  Unless otherwise prohibited by Missouri statute or the statutes of a foreign jurisdiction, cooperatives organized under the laws of this state may merge or consolidate with each other, one or more domestic business entity, one or more foreign business entity, or any combination thereof, by complying with:

  (a)  The provisions of this section;

  (b)  The provisions of the law of the state of domicile of the surviving or new entity; and

  (c)  The provisions of the law of the state of domicile of all merging entities.

  (2)  Mergers or consolidations involving domestic business entities shall be subject to the revised statutes of Missouri governing such domestic business entity.

  (3)  This subsection shall not authorize a foreign business entity to act in any way in violation of the law governing the foreign business entity.

  3.  To initiate a merger or consolidation under subsection 2 of this section, a written plan of merger or consolidation shall be prepared by the board or by a committee selected by the board to prepare a plan.  The plan shall state:

  (1)  The names and states of domicile of the cooperatives, domestic business entities, or foreign business entities in a consolidation, or the names and state of domicile of each merging entity;

  (2)  The name and state of domicile of the surviving or new entity;

  (3)  The manner and basis of converting ownership interests of the constituent domestic cooperatives in a consolidation, or the merging entities in a merger into membership or ownership interests in the surviving or new entity;

  (4)  The terms of the merger or consolidation;

  (5)  Provided the surviving entity shall be a cooperative subject to sections 351.1000 to 351.1228, the election by the cooperative of either a corporate or partnership tax structure under federal income tax law;

  (6)  The proposed effect of the consolidation or merger on the ownership interests of the members which shall include patron and nonpatron members in the case of a cooperative, shareholders, or owners of the new or surviving entity, as the case may be; and

  (7)  For a consolidation, the plan shall contain the articles of the entity or organizational documents to be filed with the state in which the new entity is organized, including any filings in Missouri.

  4.  The board shall mail or otherwise transmit or deliver notice of the merger or consolidation to each member in the same manner as notice of a regular or special members' meeting is given.  The notice shall contain the full text of the plan, and the time and place of the meeting at which the plan will be considered.

  5.  (1)  A plan of merger or consolidation shall be adopted by a cooperative as provided in this subsection.

  (2)  A plan of merger or consolidation shall be adopted if:

  (a)  A quorum of the members eligible to vote is registered as being present or represented by mail vote or alternative ballot at the members' meeting; and

  (b)  The plan is approved by the patron members, or if otherwise provided in the articles or bylaws, is approved by a majority of the votes cast in each class of votes cast, or for a cooperative with articles or bylaws requiring more than a majority of the votes cast or other conditions for approval, the plan is approved by a proportion of the votes cast or a number of total members as required by the articles or bylaws and the conditions for approval in the articles or bylaws have been satisfied.

  (3)  After the plan has been adopted, articles of merger or articles of consolidation stating that the plan was adopted according to this subsection shall be signed by an authorized representative of each of the merging or consolidated entities, and an authorized representative of the new or surviving entity.  A copy of the plan shall be attached to such articles of merger or consolidation.

  (4)  The articles of merger or consolidation shall be filed in the office of the secretary of state.

  (5)  For a merger, the articles of the surviving cooperative subject to sections 351.1000 to 351.1228 are deemed amended to the extent provided in the articles of merger.

  (6)  Unless a later date is provided in the plan, the merger or consolidation is effective when the articles of merger or consolidation are filed in the office of the secretary of state or the appropriate office of another jurisdiction.

  (7)  In the case of a merger, the secretary of state shall issue a certificate of merger following the filing of the articles of merger by the secretary of state.

  (8)  In the case of a consolidation, the secretary of state shall issue a certificate of organization following the filing of the articles of consolidation by the secretary of state.

  6.  (1)  After the effective date:

  (a)  In the case of a merger, the merging entity or entities and the surviving entity shall become a single entity, and the separate existence of each merging entity that is a party to the plan of merger shall cease;

  (b)  In the case of a consolidation, the new entity shall be formed and the separate existence of each consolidated domestic or foreign business entity that is a party to the plan of consolidation shall cease.

  (2)  The surviving or new entity possesses all of the rights and property of each of the merging or consolidated entities and is responsible for all their obligations.  The title to property of the merging or consolidated entity or entities is vested in the surviving or new entity without reversion or impairment of the title caused by the merger or consolidation.

  (3)  If it shall be the case that a domestic or foreign business entity not organized as a cooperative association but operating on a cooperative basis under the provisions of subchapter T of the Internal Revenue Code of 1986, as amended, shall merge into a cooperative under sections 351.1000 to 351.1228, then the bylaws and other cooperative agreements related to such entity shall be allowed to govern without further amendment and the surviving entity may continue to operate in the same manner as the merging entity so long as such operations, bylaws, or other cooperative agreements do not directly violate sections 351.1000 to 351.1228.

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(L. 2011 S.B. 366)