351.448. Merger without shareholders' vote, when--requirements, results.
Merger without shareholders' vote, when--requirements, results.
351.448. 1. Unless expressly required by its articles ofincorporation for a holding company reorganization pursuant to this sectionthrough the use of a specific reference to this section, no vote ofshareholders of a domestic corporation shall be necessary to authorize amerger with or into a single indirect wholly owned subsidiary of suchdomestic corporation but solely in connection with a holding companyreorganization if:
(1) Such domestic corporation and the indirect wholly ownedsubsidiary of such domestic corporation are the only constituentcorporations to the merger;
(2) Each share or fraction of a share of the capital stock of suchdomestic corporation outstanding immediately prior to the effective time ofthe merger is converted in the merger into a share or equal fraction ofshare of capital stock of a holding company having the same designations,rights, powers and preferences, and the qualifications, limitations andrestrictions thereof, as the share or fraction of a share of stock of suchdomestic corporation being converted in the merger;
(3) The holding company and each of the constituent corporations tothe merger are corporations of this state;
(4) The articles of incorporation and bylaws of the holding companyimmediately following the effective time of the merger contain provisionsidentical to the articles of incorporation and bylaws of such domesticcorporation immediately prior to the effective time of the merger, otherthan provisions, if any, regarding the incorporator or incorporators, thecorporate name, registered office and agent, the initial board of directorsand the initial subscribers for shares and such provisions contained in anyamendment to the articles of incorporation as were necessary to effect achange, exchange, reclassification or cancellation of stock, if suchchange, exchange, reclassification or cancellation has become effective;
(5) As a result of the merger such domestic corporation or itssuccessor corporation becomes or remains a direct or indirect wholly ownedsubsidiary of the holding company;
(6) The directors of such domestic corporation become or remain thedirectors of the holding company upon the effective time of the merger;
(7) The articles of incorporation of the surviving corporationimmediately following the effective time of the merger are identical to thearticles of incorporation of such domestic corporation immediately prior tothe effective time of the merger, other than provisions, if any, regardingthe incorporator or incorporators, the corporate name, registered officeand agent, elections and composition of the board of directors, the initialboard of directors and the initial subscribers for shares and suchprovisions contained in any amendment to the articles of incorporation aswere necessary to effect a change, exchange, reclassification orcancellation of stock, if such change, exchange, reclassification orcancellation has become effective; provided, however, that:
(a) The articles of incorporation of the surviving corporation shallbe amended in the merger to contain a provision requiring that any act ortransaction by or involving the surviving corporation that requires for itsadoption pursuant to this chapter or its articles of incorporation theapproval of the shareholders of the surviving corporation shall, byspecific reference to this section, require, in addition, the approval ofthe shareholders of the holding company, or any successor by merger, by thesame vote as is required by this chapter or by the articles ofincorporation of the surviving corporation, or both; and
(b) The articles of incorporation of the surviving corporation may beamended in the merger to reduce the number of classes and shares of capitalstock that the surviving corporation is authorized to issue; and
(8) The shareholders of such domestic corporation do not recognizegain or loss for United States federal income tax purposes as determined bythe board of directors of such domestic corporation.
2. As used in this section only, the term "holding company" means acorporation which, from its incorporation until consummation of a mergergoverned by this section, was at all times a direct or indirect whollyowned subsidiary of such domestic corporation and whose capital stock isissued in such merger.
3. From and after the effective time of a merger adopted by suchdomestic corporation by action of its board of directors and without anyvote of shareholders pursuant to this section:
(1) To the extent the restrictions of section 351.407 or 351.459applied to such domestic corporation and its shareholders or shares at theeffective time of the merger, such restrictions shall apply to the holdingcompany and its shareholders or shares immediately after the effective timeof the merger as though it were such domestic corporation, and all sharesof stock of the holding company acquired in the merger shall for purposesof sections 351.407 and 351.459 be deemed to have been acquired at the timethat the shares of stock of such domestic corporation converted in themerger were acquired, and provided further that any shareholder whoimmediately prior to the effective time of the merger was not an interestedshareholder within the meaning of section 351.459 shall not solely byreason of the merger become an interested shareholder of the holdingcompany; and
(2) If the corporate name of the holding company immediatelyfollowing the effective time of the merger is the same as the corporatename of such domestic corporation immediately prior to the effective timeof the merger, the shares of capital stock of the holding company intowhich the shares of capital stock of such domestic corporation areconverted in the merger shall be represented by the stock certificates thatpreviously represented shares of capital stock of such domesticcorporation.
4. If a plan of merger is adopted by such domestic corporation byaction of its board of directors and without any vote of shareholderspursuant to this section, the articles of merger shall state that the planof merger has been adopted pursuant to this section and shall set forth theresolution of the board of directors of such domestic corporation approvingthe plan of merger and the date of adoption of the resolution and shallstate that the conditions in the first sentence of subsection 1 of thissection have been satisfied. The articles of merger shall also set forththe plan of merger and as to each of the constituent corporations to themerger, the number of shares outstanding, shall be executed as provided insection 351.430 and shall be filed in accordance with section 351.435 andthe merger shall become effective in accordance with section 351.440*.
5. The provisions of section 351.455 shall not apply to a mergereffected pursuant to this section.
6. Nothing in this section shall amend, alter, modify, restrict,limit or otherwise change the provisions of section 351.447. As providedin section 351.017, actions taken in accordance with this section and withany other section of this chapter are acts of independent legalsignificance.
(L. 1998 H.B. 1309 merged with S.B. 680, A.L. 1999 H.B. 282 merged with S.B. 278, A.L. 2004 H.B. 1664)*Section 351.440 was repealed by S.B. 288 in 2001.