§ 27-1-9-3 — Procedure for merger

Indiana § 27-1-9-3

• Jurisdiction: Indiana
• Title 27: INSURANCE
• Art. 1: DEPARTMENT OF INSURANCE
• Ch. 9: Merger, Consolidation, and Reinsurance

Text

(a) Any domestic corporation may merge with
any other corporation or corporations, subject to the provisions of
sections 1 and 2 of this chapter, in the following manner. The board of
directors of each corporation shall, by a resolution adopted by a
majority vote of the members of such board, approve a joint agreement
of merger setting forth:
(1) the names of the corporations proposed to merge, and the
name of the corporation into which they propose to merge, which
is designated in this section as the surviving corporation;
(2) the terms and conditions of the proposed merger and the mode
of carrying the same into effect;
(3) the manner and basis, if any, of converting the shares of each
stock corporation, other than the surviving corporation into shares
or other securities or obligations of the surviving corporation, or,
in whole or in part, into cash, property, shares, or other securities
or obligations of any corporation;
(4) a restatement of such provisions of the articles of
incorporation of the surviving corporation as may be deemed
necessary or advisable to give effect to the proposed merger; and
(5) such other provisions with respect to the proposed merger as
are deemed necessary or desirable.
Unless shareholder, member, or policyholder approval is not required
by subsection (i), the resolution of the board of directors of each
corporation approving the agreement shall direct that the agreement be
submitted to a vote of the shareholders, members, or policyholders of
such corporation entitled to vote in respect thereof at a designated
meeting thereof, which may be an annual meeting of shareholders,
members, or policyholders, or a special meeting of the shareholders,
members, or policyholders entitled to vote in respect thereof. If the
designated meeting of any corporation at which the agreement is to be
submitted is an annual meeting, notice of the submission of the
agreement shall be included in the notice of such annual meeting. If the
designated meeting of any corporation at which the agreement is to be
submitted is a special meeting of the shareholders, members, or
policyholders entitled to vote in respect thereof, such special meeting
shall be called by the resolution designating the meeting, and notice of
such meeting shall be given at the time and in the manner provided in
IC 27-1-7-7.
(b) Unless shareholder, member, or policyholder approval is not
required by subsection (i), the agreement of merger so approved shall
be submitted to a vote of the shareholders, members, or policyholders
of each corporation entitled to vote in respect thereof at the meeting
directed by the resolution of the board of directors of such corporation
approving the agreement, and the agreement shall be adopted by such
corporation upon receiving the affirmative vote of such proportion of
the shareholders, members, or policyholders as provided in section 8
of this chapter.
(c) Unless shareholder, member, or policyholder approval is not
required by subsection (i), within five (5) days after the agreement of
merger shall be adopted by any corporation, the secretary of such
corporation shall mail or deliver a written or printed notice of the
adoption of the agreement to each shareholder, member, or
policyholder of record of such corporation who was not present in
person or represented by proxy at the meeting at which the agreement
was adopted. And the corporation shall file an affidavit with the
department, signed by the president and secretary of such corporation,
that such notice was given.
(d) Unless shareholder, member, or policyholder approval is not
required by subsection (i), any shareholder, member, or policyholder
of any such corporation who did not vote in favor of the adoption of the
agreement of merger may object to such merger in the manner and with
the effect provided in sections 9 and 10 of this chapter.
(e) Unless shareholder, member, or policyholder approval is not
required by subsection (i), as soon as practicable after the expiration of
a period of thirty (30) days after the adoption of the agreement of
merger by the shareholders, members, or policyholders of that one (1)
of the merging corporations which is the last, in point of time, to adopt
the same, the agreement shall again be considered by the board of
directors of each corporation a party thereto, at a regular or special
meeting of such board, and if the board of directors of each such
corporation, by a majority vote of the members of such board, shall
again approve the agreement and shall authorize the execution thereof,
the agreement shall be signed on behalf of each such corporation by its
president or a vice president and its secretary or an assistant secretary
and shall have the corporate seal of each such corporation thereto
affixed.
(f) Upon the execution of the agreement of merger by all of the
corporations parties thereto, there shall be executed and filed, in the
manner provided in this section, articles of merger setting forth the
agreement of merger, the signatures of the several corporations parties
thereto, the manner of its adoption, and the vote, if any, by which
adopted by each of such corporations. The articles of merger shall be
signed on behalf of each such corporation by its president or a vice
president and its secretary or an assistant secretary, and acknowledged
before a notary public by the officers signing the same, in such multiple
copies as shall be required to enable the corporations to comply with
the provisions of this chapter with respect to filing and recording the
articles of merger, and shall then be presented to the department at its
office. The department is hereby authorized to approve or disapprove
the articles of merger. In the event that the department shall approve
the articles of merger, it shall endorse its approval thereon in the
manner provided in IC 27-1-6-8, and it shall present the same to the
secretary of state of the state of Indiana at his office.
(g) Upon the presentation of the articles of merger, the secretary of
state, if he finds that they conform to law, shall endorse his approval on
each of the multiple copies of the articles and, when all fees have been
paid as required by law, shall file one (1) copy of the articles of merger
in his office and issue a certificate of merger and shall return the
remaining copies of the articles bearing the endorsement of his
approval, together with the certificate of merger, to the surviving
corporation or its representatives.
(h) The surviving corporation shall obtain a certified copy of the
certificate of merger from the secretary of state and file the same with
the department, accompanied by a copy of the articles of merger
bearing the endorsement and approval of the secretary of state.
(i) If a domestic corporation is the surviving corporation, action by
the shareholders, members, or policyholders is not required if the
articles of incorporation of the surviving corporation will not differ
(except for amendments enumerated in IC 27-1-8-3(b)) from its articles
before the merger and:
(1) if the corporation is a stock corporation:
(A) each shareholder of the surviving corporation whose shares
were outstanding immediately before the merger will hold the
same proportionate number of shares relative to the number of
shares held by all shareholders (except for shares of the
surviving corporation received solely as a result of the
shareholder's proportionate shareholdings in the other
corporations participating in the merger) with identical
designations, preferences, limitations, and relative rights,
immediately after the merger;
(B) the number of voting shares outstanding immediately after
the merger, including the number of voting shares issuable as
a result of the merger (either by the conversion of securities
issued under the merger or the exercise of rights and warrants
issued under the merger), will not exceed by more than twenty
percent (20%) the total number of voting shares (adjusted to
reflect any forward or reverse share split that occurs under the
plan of merger) of the surviving corporation outstanding
immediately before the merger; and
(C) the number of participating shares outstanding immediately
after the merger, including the number of participating shares
issuable as a result of the merger (either by conversion of
securities issued under the merger or the exercise of rights and
warrants issued under the merger), will not exceed by more
than twenty percent (20%) the total number of participating
shares (adjusted to reflect any forward or reverse share split that
occurs under a plan of merger) outstanding immediately before
the merger; or
(2) if the surviving corporation is an insurance company other
than a stock corporation:
(A) each member or policyholder of the surviving corporation
will retain the same contractual and other rights to which the
member or policyholder was entitled before the merger; and
(B) the number of votes of voting members immediately after
the merger, including the number of votes of voting members
added as a result of the merger, will not exceed by more than
twenty percent (20%) the total number of votes of voting
members of the surviving corporation immediately before the
merger.
Formerly: Acts 1935, c.162, s.116; Acts 1973, P.L.272, SEC.1.
As amended by P.L.252-1985, SEC.41; P.L.185-1997, SEC.5.