35-2-609. Limitations on mergers by public benefit or religious corporations.

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35-2-609 . Limitations on mergers by public benefit or religious corporations.

(1)Except as provided in subsection

(4)or without the prior approval of the district court for the judicial district in which the corporation's principal office is located or, if the principal office is not located in this state, in Lewis and Clark County, in a proceeding of which the attorney general has been given written notice, a public benefit corporation or religious corporation may merge only with:

(a)a public benefit corporation or religious corporation;

(b)a foreign corporation that would qualify under this chapter as a public benefit corporation or religious corporation;

(c)a wholly owned foreign or domestic business or mutual benefit corporation, if the public benefit corporation or religious corporation is the surviving corporation and continues to be a public benefit corporation or religious corporation after the merger; or

(d)a business or mutual benefit corporation, provided that:

(i)on or prior to the effective date of the merger, assets with a value equal to the greater of the fair market value of the net tangible and intangible assets, including good will, of the public benefit corporation or the fair market value of the public benefit corporation if it were to be operated as a business concern are transferred or conveyed to one or more persons who would have received its assets under 35-2-725 (1)(e) and (1)(f) had it dissolved;

(ii)it shall return, transfer, or convey any assets held by it upon condition requiring return, transfer, or conveyance in case of merger, in accordance with the condition; and

(iii)the merger is approved by a majority of directors of the public benefit corporation or religious corporation who are not and will not become members or shareholders in or officers, employees, agents, or consultants of the surviving corporation.

(2)At least 20 days before consummation of any merger of a public benefit corporation or a religious corporation pursuant to subsection (1)(d), notice, including a copy of the proposed plan of merger, must be delivered to the attorney general.

(3)Without the prior written consent of the attorney general or of the district court in a proceeding in which the attorney general has been given notice, a member of a public benefit corporation or religious corporation may not receive or keep anything as a result of a merger other than a membership in the surviving public benefit corporation or religious corporation. The court shall approve the transaction if it is in the public interest.

(4)A public benefit corporation or a religious corporation that is considered a nonprofit health entity, as defined in 50-4-701 , is subject to the provisions of 35-2-617 and Title 50, chapter 4, part 7.