by the board of directors and shall hold their offices until their successors are chosen and qualify. Every corporation may also have one or more vice-presidents, who need not be directors, assistant secretaries and assistant treasurers, and such other officers, agents and factors as may be deemed necessary. All officers, agents and factors shall be chosen in such manner, hold their offices for such terms and have such powers and duties as may be prescribed by the by-laws or determined by the board of directors. Any person may hold two or more offices.

See annotations to corporation law of 1903, Rev. Laws, § 1126, infra, p. 894.

§ 37. May Sell, Lease, or Exchange Property and Assets.

Every corporation may, by action taken at any meeting of its board of directors, sell, lease or exchange all of its property and assets, including its goodwill and its corporate franchises, upon such terms and conditions as its board of directors deem expedient and for the best interests of the corporation, when and as authorized by the affirmative vote of stockholders holding stock in the corporation entitling them to exercise at least a majority of the voting power given at a stockholders' meeting called for that purpose in the manner provided in section 27 hereof, or when authorized by the written consent of stockholders holding stock in the corporation entitling them to exercise at least a majority of the voting power; provided, however, that the certificate or articles of incorporation may require the vote or written consent of a larger proportion of the stockholders and the separate vote or consent of any class of stockholders; and provided further, that unless the certificate or articles of incorporation, or an amendment thereof, shall provide otherwise, no vote or consent of stockholders shall be necessary for a transfer of assets by way of mortgage, or in trust or in pledge to secure indebtedness of the corporation.

§ 38. Sale by Court.

Sales of the property and franchises of such corporations that may be sold under a decree of court shall be made after such notice of the time and place as the court may deem proper; and if such sales are made in the foreclosure of one or more mortgages, the court may order such sale to be made for the whole amount of indebtedness secured by such mortgage or mortgages, or for the amount of interest due under said mortgage or mortgages, subject to the payment by the purchaser of the outstanding indebtedness and interest secured thereby as they become due; and in the latter event may, by proper orders,

secure the assumption thereof by the purchaser; but when a sale shall be ordered to be made, subject as aforesaid, the court shall direct the officer making such sale, in the event that the property and franchises offered do not sell for enough to pay the amount aforesaid, to sell the same free from encumbrances. Sales under this section shall be made on such credits as the court may deem proper.

§ 39. Consolidation; Procedure.

Any two or more corporations may consolidate into a single corporation; the directors, or a majority of them, of such corporations as desire to consolidate, may enter into an agreement signed by them and under the corporate seals of the respective corporations, prescribing the terms and conditions of consolidation, the mode of carrying the same into effect, and stating such other facts as are necessary to be set out in a certificate or article of incorporation, as provided by section 4 of this act, as well as the manner and basis of converting the shares of each of the old corporations into the shares of the new (whether into the same or a different number of shares of the new) with such other details and provisions as are deemed necessary or desirable. In complying with the requirements of said section 4, the agreement may state as the amount of capital with which the consolidated corporation will begin business any amount not less than the aggregate par value of shares of stock having par value to be distributed in place of previously issued and outstanding shares of stock of constituent corporations; provided, however, that the amount so stated shall not be less than $500. The agreement may provide for the distribution of cash, notes or bonds, in whole or in part, in lieu of stock to stockholders of the constituent corporations or any of them; provided, however, that upon such distribution of cash, notes or bonds, the liabilities of the consolidated corporation, including those derived by it from the constituent corporations and including the amount of capital stock in the consolidation agreement as the amount with which the consolidated corporation will begin business, shall not exceed the value of the assets of such consolidated corporation.

Said agreement shall be submitted to the stockholders of each corporation at a meeting thereof, called separately for the purpose of taking the same into consideration; of the time, place and object of which meeting notice shall be given in the manner required by section 27 of this act to each stockholder whether entitled to vote or not, and at said meeting said agreement shall be considered and a vote by ballot, in person or by proxy,

taken for the adoption or rejection of the same; and if the votes of stockholders of each corporation holding stock in such corporation entitling them to exercise at least a majority of the voting power shall be for the adoption of the said agreement, then that fact shall be certified on said agreement by the secretary or assistant secretary of each corporation, under the seal thereof; and the agreement so adopted and certified shall be signed by the president, or vice-president, and secretary, or assistant secretary, of each of said corporations under the corporate seals thereof, and acknowledged by the president or vicepresident of each of such corporations, before any officer authorized by the laws of this state to take acknowledgments of deeds, to be the respective act, deed and agreement of each of said corporations, and the agreement so certified and acknowledged shall be filed in the office of the secretary of state, and shall thence be taken and deemed to be the agreement and act of consolidation of the said corporation; and a certified copy thereof shall be evidence of the existence of the corporation created by the said agreement, and of the observance and performance of all antecedent acts and conditions necessary to the creation thereof.

$ 40. Effect of Consolidation.

When the agreement is signed, acknowledged and filed, as in the preceding section is required, the separate existence of the constituent corporations shall cease, and the consolidating corporations shall become a single corporation in accordance with the said agreement, possessing all the rights, privileges, powers and franchises, as well of a public as of a private nature, and being subject to all the restrictions, disabilities and duties of each of such corporations so consolidated, and all and singular, the rights, privileges, powers and franchises of each of said corporations, and all property, real, personal and mixed, and all debts due on whatever account, and all other things in action or belonging to each of such corporations shall be vested in the consolidated corporation; and all property, rights, privileges, powers and franchises, and all and every other interest shall be thereafter as effectually the property of the consolidated corporation as they were of the several and respective former corporations, and the title to any real estate, whether by deed or otherwise, under the laws of this state, vested in either of such corporations, shall not revert or be in any way impaired by reason hereof; provided, that all rights of creditors and all liens upon the property of either of said former corporations shall be preserved unimpaired, limited in lien to the prop

erty affected by such liens at the time of the consolidation, and all debts, liabilities and duties of the respective former corporations shall thenceforth attach to said consolidated corporation, and may be enforced against it to the same extent as if said debts, liabilities and duties had been incurred or controlled by it.

§ 41. Rights of Dissenting Stockholder.

If any stockholder entitled to vote in either corporation consolidating as aforesaid shall vote against the same and shall, at or prior to the taking of the vote, object thereto in writing, or if any stockholder in either corporation consolidating as aforesaid, not entitled to vote thereon, shall at or prior to the taking of the vote, object thereto in writing, and if, in either case, such stockholder shall, within twenty days after the taking of such vote, demand in writing from the consolidated corporation payment of his stock, such consolidated corporation shall within thirty days thereafter pay to him the fair cash value of the stock as of the day before such vote was taken; in case of disagreement as to such fair cash value, it shall be lawful for any such stockholder or stockholders within thirty days after he has made demand in writing as aforesaid, and upon reasonable notice to the consolidated corporation, to appeal by petition to the district court of the county in which the principal office of the consolidated corporation is, or is to be, established, to appoint three appraisers to appraise the value of his stock. The award of the appraisers (or a majority of them), if not opposed within ten days after the same shall have been filed in court, shall be confirmed by the court, and when confirmed shall be final and conclusive; and if opposed said opposition shall be tried summarily and judgment rendered thereon by the court. The court shall assess against the consolidated corporation the costs of said proceedings, including a reasonable attorney's fee to the stockholder and a reasonable fee to the appraisers as it shall deem equitable, and any party shall have the right of appeal according to existing laws, provided said appeal be taken within ten days after the signing of the judgment. On the making of said demand in writing as aforesaid, any such stockholder or stockholders shall cease to be stockholders in said constituent company and shall have no rights with respect to such stock except the right to receive payment therefor, as aforesaid, and upon payment of the agreed fair cash value of the stock or of the value of the stock under final judgment, said stockholder or stockholders shall transfer their stock to the consolidated corporation; and in the event the consolidated corporation shall fail to pay the amount of said judgment within

ten days after the same shall become final, said judgment may be collected and enforced in the manner prescribed by law for the enforcement of judgments. Each stockholder in either of the constituent corporations at the time the consolidation becomes effective, entitled to vote, who does not vote against the consolidation and object thereto in writing as aforesaid, and each stockholder in each of the constituent corporations at the time the consolidation becomes effective, not entitled to vote, who does not object thereto in writing as aforesaid, shall cease to be a stockholder in such constituent corporation and shall be deemed to have assented to the consolidation, and, together with the stockholders voting in favor of the consolidation, entitled to receive certificates of stock in the consolidated corporation or cash or notes or bonds, in the manner and on the terms specified in the agreement of consolidation.

§ 42. Effect of Consolidation on Pending Actions.

Any action or proceeding pending by or against either of the corporations consolidated may be prosecuted to judgment, as if such consolidation had not taken place, or the new corporation may be substituted in its place.

§ 43. Liability not Affected.

The liability of corporations, or the stockholders or officers thereof, or the rights or remedies of the creditors thereof, or of persons doing or transacting business with such corporation, shall not in any way be lessened or impaired by the consolidation of two or more corporations under the provisions hereof.

§ 44. Capital of Consolidated Corporation.

Notwithstanding the provisions of section 24 of this act, the capital of a consolidated corporation shall be deemed to be the amount stated in the consolidation agreement as the amount of capital with which the consolidated corporation will begin business until such time as the corporation shall issue shares of stock in addition to those distributed to the stockholders of its constituent corporations upon the consolidation, or shall, by action of its board of directors, transfer additional amounts to capital. Upon the issue of any such additional shares or the transfer of any such additional amounts, the provisions of section 24 shall be operative with respect to the par value of such additional shares or the consideration received therefor, as the case may be, and with respect to the amount so transferred, and the capital of the consolidated corporation shall be deemed to be increased accordingly.