§ 54B-35. Merger of like savings and loan associations. - North Carolina Statutes

§ 54B‑35.  Merger oflike savings and loan associations.

Any two or more mutualassociations or any two or more stock associations organized and operating, maymerge or consolidate into a single association which may be either one of saidmerging associations, and the procedure to effect such merger shall be asfollows:

(1)        The directors, or amajority of them, of such associations as desire to merge, may, at separatemeetings, enter into a written agreement of merger signed by them and under thecorporate seals of the respective associations, specifying each association tobe merged and the association which is to receive into itself the mergingassociation or associations, and prescribing the terms and conditions of themerger and the mode of carrying it into effect. Such merger agreement mustprovide the manner and basis of converting or exchanging the withdrawableaccounts in the mutual association or associations so merged for withdrawableaccounts of the same or a different class of the receiving association, or ofconverting or exchanging the stock in the stock association or associations somerged into stock or other securities or obligations of the receivingassociation. The merger agreement may provide for such other provisions withrespect to the merger as appear necessary or desirable, or as the Commissionerof Banks may require by regulation to enable him to discharge his duties withrespect to such merger.

(2)        Such mergeragreement together with copies of the minutes of the meetings of the respectiveboards of directors verified by the secretaries of the respective associationsshall be submitted to the Commissioner of Banks, who shall cause a carefulinvestigation and examination to be made of the affairs of the associationsproposing to merge, including a determination of their respective assets andliabilities. The reasonable cost and expenses of such examination shall bedefrayed by each association so investigated and examined. If, as a result ofsuch investigation, he shall conclude that the members or stockholders of eachof the associations proposing to merge will be benefited thereby, he shall, inwriting, approve same. If he deems that the proposed merger will not be in theinterest of all members or stockholders of the associations so merging, heshall, in writing, disapprove the same. If he approves the merger agreement,then same shall be submitted, within 45 days after notice of such associationsof such approval, to the members or stockholders of each of such association,as provided in the next subdivision. Such disapproval may be appealed by theassociation to the Commission.

(3)        A special meeting ofthe members or stockholders of each of the associations shall be heldseparately upon written notice of not less than 20 days to members orstockholders of each association. The notice shall specify the time, place, andpurpose for the calling of the meeting. Notice may be given to members ofmutual associations by one or more of the following methods: (i) personalservice, (ii) postage prepaid mail to the last address of each member appearingupon the records of the association, or (iii) publication of notice at leastonce a week for four successive weeks in one or more newspapers published inthe county or counties where each association has its principal or a branchoffice, or in a newspaper published in an adjoining county if none is publishedin the county. Notice may be given to stockholders by personal service orprepaid mail to the last address of each stockholder appearing upon the recordsof the association. The Commissioner of Banks may approve notice tostockholders by publication in the same manner as provided to members of mutualassociations. The secretary or other officer of the association shall makeproof by affidavit at such meeting of the due service of the notice or call forsaid meeting.

(4)        At separate meetingsof the members or stockholders of the respective associations, the members orstockholders may adopt, by an affirmative vote of a majority of the votes orshares present, in person or by proxy, a resolution to merge into a singleassociation upon the terms of the merger agreement as shall have been agreedupon by the directors of the respective associations and as approved by theCommissioner of Banks. Upon the adoption of the resolution, a copy of theminutes of the proceedings of the meetings of the members or stockholders ofthe respective associations, certified by the president or vice‑presidentand secretary or assistant secretary of the merging associations, shall befiled in the office of the Commissioner of Banks. Within 15 days after thereceipt of a certified copy of the minutes of such meetings the Commissioner ofBanks shall either approve or disapprove the proceedings for compliance withthis section. If the proceedings are approved by him, he shall issue acertificate of his approval of the merger and send it to each of theassociations. The certificate shall be filed and recorded in the office of theSecretary of State. When the certificate is so filed, the merger agreementshall take effect according to its terms and shall be binding upon all themembers or stockholders of the associations merging, and it shall be deemed tobe the act of merger of such constituent savings and loan associations under thelaws of this State, and the certificate or certified copy thereof shall beevidence of the agreement and act of merger of the savings and loanassociations and the observance and performance of all acts and conditionsnecessary to have been observed and performed precedent to such merger. Within60 days after its receipt from the Secretary of State, the certified copy ofthe certificate shall be filed with the register of deeds of the county orcounties in which the respective associations so merged have recorded theiroriginal certificates of incorporation. Failure to so file shall only subjectthe association to a penalty of one hundred dollars ($100.00) to be collectedby the Secretary of State. The only fees that shall be collected in connectionwith the merger of the associations shall be filing and recording fees. If theCommissioner of Banks disapproves the proceedings, he shall mark the certifiedcopies of the meetings in his office as disapproved and notify the associationsto that effect. Such disapproval may be appealed by the association to theCommission.

(5)        Upon the merger ofany association, as above provided, into another:

a.         Its corporateexistence shall be merged into that of the receiving association; and all andsingular its rights, powers, privileges and franchises, and all of itsproperty, including all right, title, interest in and to all property ofwhatsoever kind, whether real, personal or mixed, and things in action, andevery right, privilege, interest or asset of any conceivable value or benefitthen existing, belonging or pertaining to it, or which would inure to it underan unmerged existence, shall immediately by act of law and without anyconveyance or transfer, and without any further act or deed, be vested in andbecome the property of such receiving association which shall have, hold andenjoy the same in its own right as fully and to the same extent as if the samewere possessed, held or enjoyed by the association or associations so merged;and such receiving association shall absorb fully and completely theassociation or associations so merged.

b.         Its rights,liabilities, obligations and relations to any person shall remain unchanged andthe association into which it has been merged shall, by the merger, succeed toall the relations, obligations and liabilities as though it had itself assumedor incurred the same. No obligation or liability of a member, customer orstockholder in an association which is a party to the merger shall be affectedby the merger, but obligations and liabilities shall continue as they existedbefore the merger, unless otherwise provided in the merger agreement.

c.         A pending action orother judicial proceeding to which any association that shall be so merged is aparty, shall not be deemed to have abated or to have discontinued by reason ofthe merger, but may be prosecuted to final judgment, order or decree in thesame manner as if the merger had not been made; or the receiving associationmay be substituted as a party to such action or proceeding, and any judgment,order or decree may be rendered for or against it that might have been renderedfor or against such other association if the merger had not occurred.

(6)        Notwithstanding anyother provision of this section, the Commissioner of Banks may waive any or allof the foregoing requirements upon finding that such waiver would be in thebest interest of the members or stockholders of the merging associations. (1981, c. 282, s. 3; c. 670,s. 1; 1981 (Reg. Sess., 1982), c. 1238, s. 8; 1983, c. 144, s. 13; 1985, c.659, s. 5; 1989, c. 76, s. 8; 2001‑193, s. 16.)