§ 58-65-155. Merger or consolidation, proceedings for.
§58‑65‑155. Merger or consolidation, proceedings for.
Any two or more hospitaland/or medical and/or dental service corporations organized under and/orsubject to the provisions of this Article and Article 66 of this Chapter asdetermined by the Commissioner of Insurance may, as shall be specified in theagreement hereinafter required, be merged into one of such constituentcorporations, herein designated as the surviving corporation, or may beconsolidated into a new corporation to be formed by the means of suchconsolidation of the constituent corporations, which new corporation is hereindesignated as the resulting or consolidated corporation, and the directorsand/or trustees, or a majority of them, of such corporations as desire toconsolidate or merge, may enter into an agreement signed by them and under thecorporate seals of the respective corporations, prescribing the terms andconditions of consolidation or merger, the mode of carrying the same intoeffect and stating such other facts as can be stated in the case of aconsolidation or merger, stated in such altered form as the circumstances ofthe case require, and with such other details as to conversion of certificatesof the subscribers as are deemed necessary and/or proper.
Said agreement shall besubmitted to the certificate holders of each constituent corporation, at aseparate meeting thereof, called for the purpose of taking the same intoconsideration; of the time, place and object of which meeting due notice shallbe given by publication once a week for two consecutive weeks in some newspaperpublished in Raleigh, North Carolina, and in the counties in which theprincipal offices of the constituent corporations are located, and if no suchpaper is published in the county of the principal office of such constituentcorporations, then said notice shall be posted at the courthouse door of saidcounty or counties for a period of two weeks.
Said printed or posted noticesshall be in such form and of such size as the Commissioner of Insurance may approve.A true copy of said notices shall be filed with the Commissioner of Insurance.
Such publication and filing ofnotices shall be completed at least 15 days prior to the date set therein forthe meeting, and due proof thereof shall be filed with the Commissioner ofInsurance at least 10 days prior to the date of such meeting.
At this meeting those presentin person or represented by proxy shall constitute a quorum and said agreementshall be considered and voted upon by ballot in person or by proxy or bothtaken for the adoption or rejection of the same; and if the votes of two thirdsof those at said meeting voting in person or by proxy shall be for the adoptionof the said agreement, then that fact shall be certified on said agreement bythe president and secretary of each such corporation, under the seal thereof.
The agreement so adopted andcertified shall be signed by the president or vice‑president andsecretary or assistant secretary of each of such corporations under thecorporate seals thereof and acknowledged by the president or vice‑presidentof each such corporation before any officer authorized by the laws of thisState to take acknowledgement of deeds to be the respective act, deed, andagreement of each of said corporations.
The said agreement shall besubmitted to and approved by the Commissioner of Insurance, in advance of themerger or consolidation and his approval thereof shall be indicated by hissignature being affixed thereto under the seal of his office.
The Commissioner shall not approveany such plans, unless, after a hearing, he finds that it is fair, equitable tocertificate holders and members, consistent with law, and will not conflictwith the public interest.
The agreement so certified andacknowledged with the approval of the Commissioner of Insurance noted thereon,shall be filed in the office of the Secretary of State, and shall thenceforthbe taken and deemed to be the agreement and act of consolidation or merger ofsaid corporations; and a copy of said agreement and act of consolidation ormerger duly certified by the Secretary of State under the seal of his officeshall also be recorded, in the office of the register of deeds of the county ofthis State in which the principal office of the surviving or consolidated corporationis, or is to be established, and in the office of the registers of deeds of thecounties of this State in which the respective corporations so merging orconsolidating shall have their original certificates of incorporation recorded,and also in the office of the register of deeds in each county in which eitheror any of the corporations entering into merger or consolidation owns any realestate; and such record, or a certified copy thereof, shall be evidence of theagreement and act of consolidation or merger of said corporations, and of theobservance and performance of all acts and conditions necessary to have beenobserved and performed precedent to such consolidation or merger. When anagreement shall have been signed, authorized, adopted, acknowledged, approved,and filed and recorded as hereinabove set forth in this section, for allpurposes of the laws of this State, the separate existence of all constituentcorporations, parties to said agreement, or of all such constituentcorporations, except the one into which the other or others of such constituentcorporations have been merged, as the case may be, shall cease and theconstituent corporations shall become a new corporation, or be merged into oneof such corporations, as the case may be, in accordance with the provisions ofsaid agreement, possessing all the rights, privileges, powers and franchises aswell of a public as of a private nature, of each of said constituentcorporations, and all and singular, the rights, privileges, powers and franchisesof each of said corporations, and all property, real, personal and mixed, andall debts due to any of said constituent corporations on whatever account,shall be vested in the corporation resulting from or surviving suchconsolidation or merger, and all property, rights, privileges, powers, andfranchises and all and every other interest shall be thereafter as effectuallythe property of the resulting or surviving corporation as they were of theseveral and respective constituent corporations, and the title to any realestate, whether vested by deed or otherwise, under the laws of this State,vested in any such constituent corporations shall not revert or be in any wayimpaired by reason of such consolidation or merger; provided, however, that allrights of creditors and all liens upon the property of either of or any of saidconstituent corporations shall be preserved, unimpaired, limited in lien to theproperty affected by such lien at the time of the merger or consolidation, andall debts, liabilities, and duties of the respective constituent corporationsshall thenceforth attach to said resulting or surviving corporation, and may beenforced against it to the same extent as if said debts, liabilities, andduties had been incurred or contracted by it; and further provided that noticeof any said liens, debts, liabilities, and duties is given in writing to theresulting or surviving corporation within six months after the date of thefiling of the agreement of merger in the office of the Secretary of State. Allsuch liens, debts, liabilities, and duties of which notice is not given asprovided herein are forever barred. The certificate of incorporation of thesurviving corporation shall be deemed to be amended to the extent, if any, thatthe changes in its certificates of incorporation are stated in the agreement ofmerger. All certificates theretofore issued and outstanding by each constituentcorporation in good standing upon the date of the filing of such agreement withthe Secretary of State without reissuance thereof by the resulting or survivingcorporation shall be the contract and agreement of the resulting or survivingcorporation with each of the certificate holders thereof and subject to allterms and conditions thereof and of the agreement of merger filed in the officeof the Secretary of State.
Any action or proceedingpending by or against any of the corporations consolidated or merged may beprosecuted to judgment as if such consolidation or merger had not taken place,or the corporations resulting from or surviving such consolidation or mergermay be substituted in its place.
The liability of suchconstituent corporations to the certificate holders thereof, and the rights orremedies of the creditors thereof, or persons doing or transacting businesswith such corporations, shall not, in any way, be lessened or impaired by theconsolidation or merger of two or more of such corporations under theprovisions of this section, except as provided in this section.
When two or more corporationsare consolidated or merged, the corporation resulting from or surviving suchconsolidation or merger shall have the power and authority to continue anycontracts which any of the constituent corporations might have elected tocontinue. All contracts entered into between any constituent corporations andany other persons shall be and become the contract of the resultingcorporations according to the terms and conditions of said contract and theagreement of consolidation or merger.
For the filing of the agreementas hereinabove provided, the Secretary of State is entitled to receive suchfees only as he would have received had a new corporation been formed.
Any agreement for mergerand/or consolidation as shall conform to the provisions of this section, shallbe binding and valid upon all the subscribers, certificate holders and/ormembers of such constituent corporations, provided only that any subscriber,certificate holder and/or member who shall so indicate his disapproval thereofto the resulting, consolidated or surviving corporation within 90 days afterthe filing of said agreement with the Secretary of State shall be entitled toreceive all unearned portions of premiums paid on his certificate from andafter the date of the receipt of the application therefor by the resulting,surviving, or consolidated corporation; each subscriber, certificate holderand/or member who shall not so indicate his or her disapproval of saidagreement and said merger within said period of 90 days is deemed and presumedto have approved said agreement and said merger and/or consolidation and shallhave waived his or her right to question the legality of said merger and/orconsolidation.
No director, officer,subscriber, certificate holder and/or member as such of any such corporation,except as is expressly provided by the plan of merger or consolidation, shallreceive any fee, commission, other compensation or valuable considerationwhatever, for in any manner aiding, promoting or assisting in the merger orconsolidation. (1947, c. 820, s. 8; 1961, c. 1149; 1967, c. 823, s.25.)