Missouri Revised Statutes

Chapter 394
Rural Electric Cooperatives

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Designation of chapter.

394.010. This chapter may be cited as "The Rural Electric Cooperative Law".

(RSMo 1939 § 5386)

Definitions.

394.020. In this chapter, unless the context otherwise requires,

(1) "Member" means each incorporator of a cooperative and each person admitted to and retaining membership therein, and shall include a husband and wife admitted to joint membership;

(2) "Person" includes any natural person, firm, association, corporation, business trust, partnership, federal agency, state or political subdivision or agency thereof, or any body politic; and

(3) "Rural area" shall be deemed to mean any area of the United States not included within the boundaries of any city, town or village having a population in excess of fifteen hundred inhabitants, and such term shall be deemed to include both the farm and nonfarm population thereof.

(RSMo 1939 § 5415)

Formation of cooperative corporations authorized.

394.030. Cooperative, nonprofit, membership corporations may be organized under this chapter for the purpose of supplying electric energy and promoting and extending the use thereof in rural areas. Corporations organized under this chapter and corporations which become subject to this chapter in the manner herein provided are herein referred to as "cooperatives".

(RSMo 1939 § 5387)

Who may organize.

394.040. Five or more persons may organize a cooperative in the manner herein provided.

(RSMo 1939 § 5391)

Articles of incorporation--where filed.

394.050. 1. The articles of incorporation of a cooperative shall recite in the caption that they are executed pursuant to this chapter, shall be signed and acknowledged in duplicate by at least five of the incorporators and shall state:

(1) The name of the cooperative;

(2) The address of its principal office;

(3) The names and addresses of the incorporators;

(4) The number of years the cooperative is to continue, which may be any number including perpetuity;

(5) The names and addresses of the persons who shall constitute its first board of directors; and

(6) Any provisions not inconsistent with this chapter deemed necessary or advisable for the conduct of its business and affairs.

2. Such articles of incorporation shall be submitted to the secretary of state for filing as provided in this chapter.

(RSMo 1939 § 5392, A.L. 1983 H.B. 137)

Name of cooperative shall include what.

394.060. The name of each cooperative shall include the words "electric" and "cooperative". The name of a cooperative shall distinguish it from the name of any other corporation organized under the laws of, or authorized to transact business in, this state. The words "electric" and "cooperative" shall not both be used in the name of any corporation organized under the laws of, or authorized to transact business in, this state, except a cooperative or a corporation transacting business in this state pursuant to the provisions of this chapter.

(RSMo 1939 § 5390)

Corporation may become subject to provisions of chapter, how.

394.070. 1. Any corporation organized under the laws of this state for the purpose, among others, of supplying electric energy in rural areas may be converted into a cooperative and become subject to this chapter with the same effect as if originally organized under this chapter by complying with the following requirements:

(1) The proposition for the conversion of such corporation into a cooperative and proposed articles of conversion to give effect thereto shall be first approved by the board of trustees or the board of directors, as the case may be, of such corporation. The proposed articles of conversion shall recite in the caption that they are executed pursuant to this chapter and shall state

(a) The name of the corporation prior to its conversion into a cooperative;

(b) The address of the principal office of such corporation;

(c) The date of the filing of the articles of incorporation of such corporation in the office of the secretary of state;

(d) The statute or statutes under which such corporation was organized;

(e) The name assumed by such corporation;

(f) A statement that such corporation elects to become a cooperative, nonprofit, membership corporation subject to this chapter;

(g) The manner and basis of converting either memberships in or shares of stock of such corporation into memberships therein after completion of the conversion; and

(h) Any provisions not inconsistent with this chapter deemed necessary or advisable for the conduct of the business and affairs of such corporation.

(2) The proposition for the conversion of such corporation into a cooperative and the proposed articles of conversion approved by the board of trustees or board of directors, as the case may be, of such corporation shall then be submitted to a vote of the members or stockholders, as the case may be, of such corporation at any duly held annual or special meeting thereof the notice of which shall set forth full particulars concerning the proposed conversion. The proposition for the conversion of such corporation into a cooperative and the proposed articles of conversion, with such amendments thereto as the members or stockholders of such corporation shall choose to make, shall be deemed to be approved upon the affirmative vote of not less than a majority of the members of such corporation, or, if such corporation is a stock corporation upon the affirmative vote of the holders of not less than a majority of the capital stock of such corporation.

(3) Upon such approval by the members or stockholders of such corporation, articles of conversion in the form approved by such members or stockholders shall be executed and acknowledged in duplicate on behalf of such corporation by its president or vice president and its corporate seal shall be affixed thereto and attested by its secretary. The president or vice president executing such articles of conversion on behalf of such corporation shall also make and annex to each copy thereof an affidavit stating that the provisions of this section with respect to the approval of its trustees or directors and its members or stockholders, of the proposition for the conversion of such corporation into a cooperative and such articles of conversion were duly complied with. Such articles of conversion and affidavit shall be submitted to the secretary of state for filing as provided in this chapter.

2. The term "articles of incorporation" as used in this chapter shall be deemed to include the articles of conversion of a converted corporation.

(RSMo 1939 § 5402)

Powers, generally--may supply energy to certain cities, towns andvillages, when.

394.080. 1. A cooperative shall have power:

(1) To sue and be sued, in its corporate name;

(2) To have succession by its corporate name for the period stated in its articles of incorporation or, if no period is stated in its articles of incorporation, to have such succession perpetually;

(3) To adopt a corporate seal and alter the same at pleasure;

(4) Except as provided in section 386.800, to generate, manufacture, purchase, acquire, accumulate and transmit electric energy, and to distribute, sell, supply, and dispose of electric energy in rural areas to its members, to governmental agencies and political subdivisions, and to other persons not in excess of ten percent of the number of its members; provided, however, that where a cooperative has been transmitting, distributing, selling, supplying or disposing of electric energy in a rural area which, by reason of increase in its population, its inclusion in a city, town or village, or by reason of any other circumstance ceases to be a rural area, such cooperative shall have the power to continue to transmit, distribute, sell, supply or dispose of electric energy therein until such time as the municipality, or the holder of a franchise to furnish electric energy in such municipality, may purchase the physical property of such cooperative located within the boundaries of the municipality, pursuant to law, or until such time as the municipality may grant a franchise in the manner provided by law to a privately owned public utility to distribute electric power within the municipality and such privately owned public utility shall purchase the physical property of such cooperative located within the boundaries of the municipality. In case any of the parties to such purchase, as herein provided, cannot agree upon the fair and reasonable price to be paid for the physical property of such cooperative within the municipality, or if either party refuses to negotiate for the sale of such property upon the request of the other, the fair and reasonable value of such property for such purchase shall be fixed by the public service commission upon application of any one or more of the interested parties;

(5) To make loans to persons to whom electric energy is or will be supplied by the cooperative for the purpose of, and otherwise to assist such persons in, wiring their premises and installing therein electric and plumbing fixtures, appliances, apparatus and equipment of any and all kinds and character, and in connection therewith, to purchase, acquire, lease, sell, distribute, install and repair such electric and plumbing fixtures, appliances, apparatus and equipment, and to accept or otherwise acquire, and to sell, assign, transfer, endorse, pledge, hypothecate and otherwise dispose of notes, bonds and other evidences of indebtedness and any and all types of security therefor;

(6) To make loans to persons to whom electric energy is or will be supplied by the cooperative for the purpose of, and otherwise to assist such persons in, constructing, maintaining and operating electric refrigeration plants;

(7) To construct, purchase, take, receive, lease as lessee, or otherwise acquire, and to own, hold, use, equip, maintain, and operate, and to sell, assign, transfer, convey, exchange, lease as lessor, mortgage, pledge, or otherwise dispose of or encumber, electric transmission and distribution lines or systems, electric generating plants, electric refrigeration plants, lands, buildings, structures, dams, plants and equipment, and any and all kinds and classes of real or personal property whatsoever, which shall be deemed necessary, convenient or appropriate to accomplish the purpose for which the cooperative is organized;

(8) To purchase or otherwise acquire, and to own, hold, use and exercise and to sell, assign, transfer, convey, mortgage, pledge, hypothecate, or otherwise dispose of or encumber, franchises, rights, privileges, licenses, rights-of-way and easements;

(9) To borrow money and otherwise contract indebtedness, and to issue notes, bonds, and other evidences of indebtedness therefor, and to secure the payment thereof by mortgage, pledge, deed of trust, or any other encumbrance upon any or all of its then-owned or after-acquired real or personal property, assets, franchises, revenues or income;

(10) To construct, maintain and operate electric transmission and distribution lines along, upon, under and across all public thoroughfares, including without limitation, all roads, highways, streets, alleys, bridges and causeways, and upon, under and across all publicly owned lands, subject, however, to the requirements in respect of the use of such thoroughfares and lands that are imposed by the respective authorities having jurisdiction thereof upon corporations constructing or operating electric transmission and distribution lines or systems;

(11) To exercise the power of eminent domain in the manner provided by the laws of this state for the exercise of that power by corporations constructing or operating electric transmission and distribution lines or systems;

(12) To conduct its business and exercise any or all of its powers within or without this state;

(13) To adopt, amend and repeal bylaws; and

(14) To do and perform any and all other acts and things, and to have and exercise any and all other powers which may be necessary, convenient or appropriate to accomplish the purpose for which the cooperative is organized.

2. In addition to all other powers granted in this section, rural electric cooperatives shall have the power to supply electric energy at retail after August 28, 1989, in cities, towns and villages having a population in excess of fifteen hundred inhabitants under the following conditions:

(1) The cooperative was the predominant supplier of retail electric energy within the city, town or village at the time any official United States Census Bureau "decennial census report" declares the population of such city, town or village to be in excess of fifteen hundred inhabitants;

(2) The city, town or village has granted to the cooperative a franchise to supply electric energy within the city, town or village.

3. In addition, the cooperative shall provide, concurrent with its application to the city, town or village for its initial franchise, written notice of its franchise application to all other providers of electric energy at retail operating within such city, town or village.

4. The provisions of subsections 2 and 3 of this section shall in no way affect or diminish the rights and duties of any city, town or village to grant franchises to electric suppliers in the manner provided by law or of any electrical corporation authorized by law to provide electric service at retail within such city, town or village.

5. Notwithstanding the provisions of subsection 2 of this section, after a public hearing upon a complaint, the public service commission may order that service be provided by another supplier if it finds that service from another supplier of electricity is in the public interest for a reason other than rate differential. Nothing in this section shall be construed as conferring upon the public service commission jurisdiction over the rates, financing, accounting or management of any electric cooperative.

(RSMo 1939 § 5388, A.L. 1943 p. 491, A.L. 1949 p. 238, A.L. 1983 H.B. 137, A.L. 1989 H.B. 813, A.L. 1991 S.B. 221)

Effective 7-11-91

CROSS REFERENCES:

Condemnation proceedings, Chap. 523

Power lines on state highways, location and removal, 227.240

Articles may be amended, how.

394.090. 1. A cooperative may amend its articles of incorporation by complying with the following requirements:

(1) The proposed amendment shall be first approved by the board of directors and shall then be submitted to a vote of the members at any annual or special meeting thereof, the notice of which shall set forth the proposed amendment. The proposed amendment, with such changes as the members shall choose to make therein, shall be deemed to be approved on the affirmative vote of not less than two-thirds of those members voting thereon at such meeting; and

(2) (a) Upon such approval by the members, articles of amendment shall be executed and acknowledged in duplicate on behalf of the cooperative by its president or vice president and its corporate seal shall be affixed thereto and attested by its secretary. The articles of amendment shall recite in the caption that they are executed pursuant to this chapter and shall state:

a. The name of the cooperative;

b. The address of its principal office;

c. The date of the filing of its articles of incorporation in the office of the secretary of state; and

d. The amendment to its articles of incorporation.

(b) The president or vice president executing such articles of amendment shall also make and annex to each copy thereof an affidavit stating that the provisions of this section were duly complied with.

(c) Such articles of amendment and affidavit shall be submitted to the secretary of state for filing as provided in this chapter.

2. A cooperative may upon authorization of a majority of the members at any regular or special meeting change the location of its principal office by filing a certificate of change of principal office, executed and acknowledged in duplicate by its president or vice president under its seal attested by its secretary, in the office of the secretary of state and also by filing such certificate of change in each county office in which its articles of incorporation or any prior certificate of change of principal office of such cooperative has been filed. Such cooperative shall also, within thirty days after the filing of such certificate of change of principal office in any county office, file therein certified copies of its articles of incorporation and all amendments thereto, if the same are not already on file therein.

(RSMo 1939 § 5398)

Articles to be filed with secretary of state.

394.100. 1. Articles of incorporation, amendment, consolidation, merger, conversion, or dissolution, as the case may be, when executed and acknowledged in duplicate and accompanied by such affidavits as may be required by applicable provisions of this chapter, shall be presented to the secretary of state for filing in the records of his office.

2. If the secretary of state shall find that the articles presented conform to the requirements of this chapter, he shall, upon the payment of the fees as in this chapter provided, file one copy of the articles so presented in the records of his office and upon such filing the incorporation, amendment, consolidation, merger, conversion, or dissolution provided for therein shall be in effect. The secretary of state immediately upon the filing in his office of any articles pursuant to this chapter shall transmit a certified copy thereof, with the certified copy of the certificate of incorporation, amendment, consolidation, merger, conversion or dissolution, as the case may be, attached, to the recorder of deeds of the county in which the principal office of each cooperative or corporation affected by such incorporation, amendment, consolidation, merger, conversion, or dissolution shall be located.

3. The recorder of deeds of any county, upon receipt of any such certified copy, shall file, record and index the same in the records of his office, but the failure of the secretary of state or of a recorder of deeds of a county to comply with the provisions of this section shall not invalidate such articles.

4. The provisions of this section shall also apply to certificates of election to dissolve and affidavits of compliance executed pursuant to subdivision (2) of subsection 3 of section 394.240.

(RSMo 1939 § 5404)

Bylaws to be adopted.

394.110. The original bylaws of a cooperative may be adopted by its board of directors or stockholders. Thereafter bylaws shall be adopted, amended or repealed by its members. The bylaws shall set forth the rights and duties of members and directors and may contain other provisions for the regulation and management of the affairs of the cooperative not inconsistent with this chapter or with its articles of incorporation.

(RSMo 1939 § 5393)

Qualifications for membership--meetings--rules.

394.120. 1. No person shall become a member of a cooperative unless such person shall agree to use electric energy furnished by the cooperative when such electric energy shall be available through its facilities. The bylaws of a cooperative may provide that any person, including an incorporator, shall cease to be a member thereof if he or she shall fail or refuse to use electric energy made available by the cooperative or if electric energy shall not be made available to such person by the cooperative within a specified time after such person shall have become a member thereof. Membership in the cooperative shall not be transferable, except as provided in the bylaws. The bylaws may prescribe additional qualifications and limitations in respect of membership.

2. An annual meeting of the members shall be held at such time as shall be provided in the bylaws.

3. Special meetings of the members may be called by the board of directors, by any three directors, by not less than ten percent of the members, or by the president.

4. Meetings of members shall be held at such place as may be provided in the bylaws. In the absence of any such provisions, all meetings shall be held in the city or town in which the principal office of the cooperative is located.

5. Except as herein otherwise provided, written or printed notice stating the time and place of each meeting of members and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given to each member, either personally or by mail, not less than ten nor more than twenty-five days before the date of the meeting.

6. Two percent of the first two thousand members and one percent of the remaining members, present in person, or if the bylaws so provide, participating electronically or by mail, shall constitute a quorum for the transaction of business at all meetings of the members, unless the bylaws prescribe the presence of a greater percentage of the members for a quorum. If less than a quorum is present at any meeting, a majority of those present in person may adjourn the meeting from time to time without further notice.

7. Each member shall be entitled to one vote on each matter submitted to a vote at a meeting. Voting shall be in person, but, if the bylaws so provide, may also be by proxy, by electronic means, by mail, or any combination thereof. If the bylaws provide for voting by proxy, by electronic means, or by mail, they shall also prescribe the conditions under which proxy, electronic, or mail voting shall be exercised. In any event, no person shall vote as proxy for more than two members at any meeting of the members.

(RSMo 1939 § 5394, A.L. 1945 p. 694, A.L. 1971 H.B. 344, A.L. 1999 H.B. 915, A.L. 2014 H.B. 1651 merged with S.B. 734)

Territory supplied by cooperative may be divided into votingdistricts.

394.130. Notwithstanding any other provision of this chapter, the bylaws may provide that the territory in which a cooperative supplies electric energy to its members may be divided into two or more voting districts for the purpose of properly distributing its directors over the area in which its members reside. In such case the bylaws shall prescribe the manner in which such voting districts shall function in the election of directors at annual meetings.

(RSMo 1939 § 5396)

Directors to manage cooperative.

394.140. 1. The business and affairs of a cooperative shall be managed by a board of not less than five directors, each of whom shall be a member of the cooperative. The bylaws shall prescribe the number of directors, their qualifications, other than those provided for in this chapter, the manner of holding meetings of the board of directors and of the election of successors to directors who shall resign, die, or otherwise be incapable of acting. The bylaws may also provide for the removal of directors from office and for the election of their successors. Without approval of the members, directors shall not receive any salaries for their services as directors. The bylaws may, however, provide that a fixed fee and expenses of attendance, if any, may be allowed to each director for attendance at each meeting of the board of directors.

2. The directors of a cooperative named in any articles of incorporation, consolidation, merger or conversion, as the case may be, shall hold office until the next following annual meeting of the members or until their successors shall have been elected and qualified.

3. The bylaws shall provide that the directors shall be divided into three classes, each class to be as nearly equal in number as possible, with the term of office of the directors of the first class to expire at the next succeeding annual meeting and the term of the second class to expire at the second succeeding annual meeting, and the term of the third class to expire at the third succeeding annual meeting. At each annual meeting after such classification a number of directors equal to the number of the class whose term expires at the time of such meeting shall be elected to hold office until the third succeeding annual meeting.

4. A majority of the board of directors shall constitute a quorum.

5. If a husband and wife hold a joint membership in a cooperative, either one, but not both, may be elected a director.

6. The board of directors may exercise all of the powers of a cooperative except such as are conferred upon the members by this chapter, or its articles of incorporation or bylaws.

(RSMo 1939 § 5395)

Officers--removal.

394.150. The officers of a cooperative shall consist of a president, vice president, secretary and treasurer, who shall be elected annually. No person shall continue to hold the offices of president or vice president after he shall have ceased to be a director. The offices of secretary and of treasurer may be held by the same person and need not be a member of the board of directors. The board of directors may also elect or appoint such other officers, agents, or employees as it shall deem necessary or advisable and shall prescribe the powers and duties thereof. Any officer may be removed from office and his successor elected in the manner prescribed in the bylaws.

(RSMo 1939 § 5397)

Rules and regulations prescribed by public servicecommission--limitation on jurisdiction of commission.

394.160. 1. Every cooperative constructing, maintaining and operating its electric transmission or distribution lines shall construct, maintain and operate such lines in conformity with the rules and regulations relating to the manner and methods of construction, maintenance and operation and as to safety of the public and as to induction or electrical interference with other lines now or hereafter from time to time prescribed by the public service commission for the construction, maintenance and operation of electric transmission or distribution lines or system. The jurisdiction, supervision, powers and duties of the public service commission shall extend to every such cooperative so far as concerns the construction, maintenance and operation of the physical equipment of such cooperative to the extent of providing for the safety of the public and the elimination or lessening of induction or electrical interference, including the power to minimize retail distribution electric line duplication for the sole purpose of providing for the safety of employees and the general public in those cases when, upon complaint, the commission finds that a proposed retail distribution electric line cannot be constructed in compliance with commission safety rules. The jurisdiction of the public service commission shall be extended only to the extent provided in this section, and nothing herein contained shall be construed as otherwise conferring upon such commission jurisdiction over the service, rates, financing, accounting or management of any such cooperative.

2. Applications, notices, hearings, findings and orders, and all other proceedings before the commission, in pursuance of the powers and duties herein conferred upon such commission, and review thereof, shall be the same as now or hereafter provided by law for other similar proceedings before the commission and review thereof.

3. The commission may retain jurisdiction of any such cause for the purpose of making such supplemental orders in such cause as may be necessary in furtherance of the purposes of this section, or for the purpose of modifying or amending the terms of, or revoking any permit granted under, the provisions of this section for failure to comply with such rules, regulations, findings and orders made by the commission under authority of this section.

(RSMo 1939 § 5389, A.L. 1979 H.B. 186)

Revenues of cooperative--disposition.

394.170. 1. Revenues of a cooperative for any fiscal year in excess of the amount thereof necessary:

(1) To defray expenses of the cooperative and of the operation and maintenance of its facilities during such fiscal year;

(2) To pay interest and principal obligations of the cooperative coming due in such fiscal year;

(3) To finance, or to provide a reserve for the financing of, the construction or acquisition by the cooperative of additional facilities to the extent determined by the board of directors;

(4) To provide a reasonable reserve for working capital;

(5) To provide a reserve for the payment of indebtedness of the cooperative maturing more than one year after the date of the incurrence of such indebtedness in an amount not less than the total of the interest and principal payments in respect thereof required to be made during the next following fiscal year; and

(6) To provide a fund for education in cooperation and for the dissemination of information concerning the effective use of electric energy and other services made available by the cooperative;

shall, unless otherwise determined by a vote of the members, be distributed by the cooperative to its members as patronage refunds prorated in accordance with the patronage of the cooperative by the respective members paid for during such fiscal year.

2. Nothing herein contained shall be construed to prohibit the payment by a cooperative of all or any part of its indebtedness prior to the date when the same shall become due.

(RSMo 1939 § 5405)

Sale of property by cooperative--membership approval required.

394.180. 1. A cooperative may not sell, lease or otherwise dispose of, except by mortgage, or deeds of trust, all or any substantial portion of its property unless such sale, lease, or other disposition is authorized at a duly held meeting of the members thereof by the affirmative vote of not less than two-thirds of all of the members of the cooperative, and unless the notice of such proposed sale, lease or other disposition shall have been contained in the notice of the meeting.

2. Notwithstanding any other provisions of law, the board of directors of a cooperative, without authorization by the members thereof, shall have full power and authority to authorize the execution and delivery of a mortgage or mortgages or a deed or deeds of trust upon, or the pledging or encumbering of, any or all of the property, assets, rights, privileges, licenses, franchises and permits of the cooperative, whether acquired or to be acquired, and wherever situated, as well as the revenues and income therefrom, all upon such terms and conditions as the board of directors shall determine, to secure any indebtedness of the cooperative to the United States of America or any instrumentality or agency thereof, or to any bank or other financial institution or organization.

(RSMo 1939 § 5406, A.L. 1971 H.B. 126)

Effect of mortgage or deed of trust executed by cooperative.

394.190. Any mortgage, deed of trust, or other instrument executed by a cooperative or foreign corporation transacting business in this state pursuant to this chapter, which, by its terms, creates a lien upon real and personal property then owned or after-acquired, and which is recorded as a mortgage of* real property in any county in which such property is located or is to be located, shall have the same force and effect as if the mortgage, deed of trust or other instrument were also recorded or filed in the proper office in such county as a mortgage of personal property. Recordation of any such mortgage, deed of trust or other instrument shall cause the lien thereof to attach to all after-acquired property of the mortgagor of the nature therein described as being mortgaged or pledged thereby immediately upon the acquisition thereof by the mortgagor, and such liens shall be superior to all claims of creditors of the mortgagor and purchasers of such property and to all other liens, except liens of prior record, affecting such property.

(RSMo 1939 § 5408)

*Word "or" appears in original rolls.

Cooperative of adjacent state may extend lines and transact businessin this state, when--service of process on, how made.

394.200. 1. Any corporation organized on a nonprofit or a cooperative basis for the purpose of supplying electric energy in rural areas and owning and operating electric transmission or distribution lines in a state adjacent to this state shall be permitted to extend its lines into and to transact business in this state without complying with any statute of this state pertaining to the qualification of foreign corporations for the transaction of business in this state. Any such foreign corporation, as a prerequisite to the extension of its lines into and the transaction of business in this state, shall, by an instrument executed and acknowledged in its behalf by its president or vice president under its corporate seal attested by its secretary, designate the secretary of state its agent to accept service of process in its behalf.

2. In the event any process shall be served upon the secretary of state, he shall forthwith forward the same by registered mail to such corporation at the address thereof specified in such instrument.

3. Any such corporation may sue and be sued in the courts of this state to the same extent that a cooperative may sue or be sued in such courts.

4. Any such foreign corporation may secure its notes, bonds or other evidences of indebtedness by mortgage, pledge, deed of trust or other encumbrance upon any or all of its then owned or after-acquired real or personal property, assets, or franchises, located or to be located in this state, and also upon the revenues and income thereof.

(RSMo 1939 § 5411)

Cooperatives may consolidate, how.

394.210. Any two or more cooperatives, each of which is herein designated a "consolidating cooperative", may consolidate into a new cooperative, herein designated "the new cooperative", by complying with the following requirements:

(1) The proposition for the consolidation of the consolidating cooperatives into the new cooperative and proposed articles of consolidation to give effect thereto shall be first approved by the board of directors of each consolidating cooperative. The proposed articles of consolidation shall recite in the caption that they are executed pursuant to this chapter and shall state:

(a) The name of each consolidating cooperative, the address of its principal office, and the date of the filing of its articles of incorporation in the office of the secretary of state;

(b) The name of the new cooperative and the address of its principal office;

(c) The names and addresses of the persons who shall constitute the first board of directors of the new cooperative;

(d) The terms and conditions of the consolidation and the mode of carrying the same into effect, including the manner and basis of converting memberships in each consolidating cooperative into memberships in the new cooperative and the issuance of certificates of membership in respect of such converted membership; and

(e) Any provisions not inconsistent with this chapter deemed necessary or advisable for the conduct of the business and affairs of the new cooperative;

(2) The proposition for the consolidation of the consolidating cooperatives into the new cooperative and the proposed articles of consolidation approved by the board of directors of each consolidating cooperative shall then be submitted to a vote of the members thereof at any annual or special meeting thereof, the notice of which shall set forth full particulars concerning the proposed consolidation. The proposed consolidation and the proposed articles of consolidation shall be deemed to be approved upon the affirmative vote of a majority of the members of each cooperative present at the meeting and voting on the issue; and

(3) (a) Upon such approval by the members of the respective consolidating cooperatives, articles of consolidation in the form approved shall be executed and acknowledged in duplicate on behalf of each consolidating cooperative by its president or vice president and its seal shall be affixed thereto and attested by its secretary;

(b) The president or vice president of each consolidating cooperative executing such articles of consolidation shall also make and annex thereto an affidavit stating that the provisions of this section were duly complied with by such cooperative;

(c) Such articles of consolidation and affidavits shall be submitted to the secretary of state for filing as provided in this chapter.

(RSMo 1939 § 5399, A.L. 1991 S.B. 221)

Effective 7-11-91

Cooperatives may merge, how.

394.220. Any one or more cooperatives, each of which is herein designated a "merging cooperative", may merge into another cooperative, herein designated the "surviving cooperative", by complying with the following requirements:

(1) The proposition for the merger of the merging cooperatives into the surviving cooperative and proposed articles of merger to give effect thereto shall be first approved by the board of directors of each merging cooperative and by the board of directors of the surviving cooperative. The proposed articles of merger shall recite in the caption that they are executed pursuant to this chapter and shall state:

(a) The name of each merging cooperative, the address of its principal office, and the date of the filing of its articles of incorporation in the office of the secretary of state;

(b) The name of the surviving cooperative and the address of its principal office;

(c) A statement that the merging cooperatives elect to be merged into the surviving cooperative;

(d) The terms and conditions of the merger and the mode of carrying the same into effect, including the manner and basis of converting the memberships in the merging cooperative or cooperatives into memberships in the surviving cooperative and the issuance of certificates of memberships in respect of such converted memberships; and

(e) Any provisions not inconsistent with this chapter deemed necessary or advisable for the conduct of the business and affairs of the surviving cooperative;

(2) The proposition for the merger of the merging cooperatives into the surviving cooperative and the proposed articles of merger approved by the board of directors of the respective cooperatives, parties to the proposed merger, shall then be submitted to a vote of the members of each such cooperative at any annual or special meeting thereof, the notice of which shall set forth full particulars concerning the proposed merger. The proposed merger and the proposed articles of merger shall be deemed to be approved upon the affirmative vote of a majority of the members of each cooperative present at the meeting and voting on the issue; and

(3) (a) Upon such approval by the members of the respective cooperatives, parties to the proposed merger, articles of merger in the form approved shall be executed and acknowledged in duplicate on behalf of each such cooperative by its president or vice president and its seal shall be affixed thereto and attested by its secretary;

(b) The president or vice president of each cooperative executing such articles of merger shall also make and annex thereto an affidavit stating that the provisions of this section were duly complied with by such cooperative;

(c) Such articles of merger and affidavits shall be submitted to the secretary of state for filing as provided in this chapter.

(RSMo 1939 § 5400, A.L. 1991 S.B. 221)

Effective 7-11-91

Effect of consolidation or merger.

394.230. The effect of consolidation or merger shall be as follows:

(1) The several cooperatives, parties to the consolidation or merger, shall be a single cooperative, which in the case of a consolidation, shall be the new cooperative provided for in the articles of consolidation, and, in the case of a merger, shall be that cooperative designated in the articles of merger as the surviving cooperative, and the separate existence of all cooperatives, parties to the consolidation or merger, except the new or surviving cooperative, shall cease;

(2) Such new or surviving cooperative shall have all the rights, privileges, immunities, and powers and shall be subject to all the duties and liabilities of a cooperative organized under the provisions of this chapter, and shall possess all the rights, privileges, immunities, and franchises, as well of a public as of a private nature, and all property, real and personal, applications for membership, all debts due on whatever account, and all other choses in action, of each of the consolidating or merging cooperatives, and furthermore all and every interest of, or belonging or due to, each of the cooperatives so consolidated or merged, shall be taken and deemed to be transferred to and vested in such new or surviving cooperative without further act or deed; and the title to any real estate, or any interest therein, under the laws of this state vested in any such cooperatives shall not revert or be in any way impaired by reason of such consolidation or merger;

(3) Such new or surviving cooperative shall thenceforth be responsible and liable for all of the liabilities and obligations of each of the cooperatives so consolidated or merged, and any claim existing, or action or proceeding pending, by or against any of such cooperatives may be prosecuted as if such consolidation or merger had not taken place, but such new or surviving cooperative may be substituted in its place;

(4) Neither the rights of creditors nor any liens upon the property of any of such cooperatives shall be impaired by such consolidation or merger; and

(5) In the case of a consolidation, the articles of consolidation shall be deemed to be the articles of incorporation of the new cooperative; and in the case of a merger, the articles of incorporation of the surviving cooperatives shall be deemed to be amended to the extent, if any, that changes therein are provided for in the articles of merger.

(RSMo 1939 § 5401)

Dissolution of cooperative--procedure.

394.240. 1. A cooperative which has not commenced business may dissolve voluntarily by delivering to the secretary of state articles of dissolution, executed and acknowledged in duplicate on behalf of the cooperative by a majority of the incorporators, which shall state:

(1) The name of the cooperative;

(2) The address of its principal office;

(3) The date of its incorporation;

(4) That the cooperative has not commenced business;

(5) That the amount, if any, actually paid in on account of membership fees, less any part thereof disbursed for necessary expenses, has been returned to those entitled thereto and that all easements shall have been released to the grantors;

(6) That no debt of the cooperative remains unpaid; and

(7) That a majority of the incorporators elect that the cooperative be dissolved.

2. Such articles of dissolution shall be submitted to the secretary of state for filing as provided in this chapter.

3. A cooperative which has commenced business may dissolve voluntarily and wind up its affairs in the following manner:

(1) The board of directors shall first recommend that the cooperative be dissolved voluntarily and thereafter the proposition that the cooperative be dissolved shall be submitted to the members of the cooperative at any annual or special meeting the notice of which shall set forth such proposition. The proposed voluntary dissolution shall be deemed to be approved upon the affirmative vote of not less than a majority of the members;

(2) Upon such approval, a certificate of election to dissolve, herein designated the "certificate", shall be executed and acknowledged in duplicate on behalf of the cooperative by its president or vice president, and its corporate seal shall be affixed thereto and attested by its secretary. The certificate shall state:

(a) The name of the cooperative;

(b) The address of its principal office;

(c) The names and addresses of its directors; and

(d) The total number of members of the cooperative and the number of members who voted for and against the voluntary dissolution of the cooperative. The president or vice president executing the certificate shall also make and annex thereto an affidavit stating that the provisions of subsection 3 were duly complied with. Such certificate and affidavit shall be submitted to the secretary of state for filing as provided in this chapter;

(3) Upon the filing of the certificate and affidavit by the secretary of state, the cooperative shall cease to carry on its business except insofar as may be necessary for the winding up thereof, but its corporate existence shall continue until articles of dissolution have been filed by the secretary of state;

(4) After the filing of the certificate and affidavit by the secretary of state the board of directors shall immediately cause notice of the winding up proceedings to be mailed to each known creditor and claimant and to be published once a week for two successive weeks in a newspaper of general circulation in the county in which the principal office of the cooperative is located;

(5) The board of directors shall become trustees and have full power to wind up and settle the affairs of the cooperative and shall proceed to collect the debts owing to the cooperative, convey and dispose of its property and assets, pay, satisfy, and discharge its debts, obligations, and liabilities, and do all other things required to liquidate its business and affairs, and after paying or adequately providing for the payment of all its debts, obligations and liabilities, shall distribute the remainder of its property and assets among its members in proportion to the aggregate patronage of each such member during the seven years next preceding the date of such filing of the certificate, or, if the cooperative shall not have been in existence for such period, during the period of its existence; and

(6) (a) When all debts, liabilities and obligations of the cooperative have been paid and discharged or adequate provision shall have been made therefor, and all of the remaining property and assets of the cooperative shall have been distributed to the members pursuant to the provisions of this section, the board of trustees shall authorize the execution of articles of dissolution which shall thereupon be executed and acknowledged on behalf of the cooperative by its president or vice president, and its corporate seal shall be affixed thereto and attested by its secretary. Such articles of dissolution shall recite in the caption that they are executed pursuant to this chapter and shall state:

a. The name of the cooperative;

b. The address of the principal office of the cooperative;

c. That the cooperative has heretofore delivered to the secretary of state a certificate of election to dissolve and the date on which the certificate was filed by the secretary of state in the records of his office;

d. That all debts, obligations and liabilities of the cooperative have been paid and discharged or that adequate provision has been made therefor;

e. That all the remaining property and assets of the cooperative have been distributed among the members in accordance with the provisions of this section; and

f. That there are no actions or suits pending against the cooperative.

(b) The president or vice president executing the articles of dissolution shall also make and annex thereto an affidavit stating that the provisions of this subsection were duly complied with;

(c) Such articles of dissolution and affidavit accompanied by proof of the publication required in this subsection, shall be submitted to the secretary of state for filing as provided in this chapter.

(RSMo 1939 § 5403)

Fees to be collected by director of revenue.

394.250. 1. There shall be charged and collected for:

(1) Filing articles of incorporation, ten dollars;

(2) Filing articles of amendment, one dollar;

(3) Filing articles of consolidation or merger, ten dollars;

(4) Filing articles of conversion, ten dollars;

(5) Filing certificate of election to dissolve, one dollar;

(6) Filing articles of dissolution, two dollars; and

(7) Filing certificate of change of principal office, two dollars.

2. All fees shall be made payable to and collected by the state director of revenue.

3. Fees mandated in subdivision (1) of subsection 1 of this section shall be waived if an initial member of the cooperative is a member of the Missouri National Guard or any other active duty military, resides in the state of Missouri, and provides proof of such service to the secretary of state.

(RSMo 1939 § 5412, A.L. 1947 V. I p. 232, A.L. 2014 S.B. 600)

Annual fee.

394.260. Each cooperative and each foreign corporation transacting business in this state pursuant to this chapter shall pay annually, on or before the first day of July, to the state director of revenue, a fee of ten dollars.

(RSMo 1939 § 5413, A.L. 1947 V. I p. 232)

Members not to be liable for debts of cooperative.

394.270. The private property of the members of a cooperative shall be exempt from execution for the debts of the cooperative and no member shall be liable or responsible for any debts of the cooperative.

(RSMo 1939 § 5407)

Provisions of securities law not to apply.

394.280. The provisions of the securities law of Missouri shall not apply to any note, bond or other evidence of indebtedness issued by any cooperative or foreign corporation transacting business in this state pursuant to this chapter to the United States of America or any agency or instrumentality thereof, or to any mortgage or deed of trust executed to secure the same. The provisions of said securities law shall not apply to the issuance of membership certificates by any cooperative or any such foreign corporation.

(RSMo 1939 § 5414)

Acknowledgments, who may take.

394.290. No person who is authorized to take acknowledgments under the laws of this state shall be disqualified from taking acknowledgments of instruments executed in favor of a cooperative or to which it is a party, by reason of being an officer, director or member of such cooperative.

(RSMo 1939 § 5410)

Waiver of notice shall be deemed equivalent to such notice, when.

394.300. 1. Whenever any notice is required to be given under the provisions of this chapter or under the provisions of the articles of incorporation or bylaws of a cooperative, waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time fixed for the giving of such notice, shall be deemed equivalent to such notice.

2. If a person or persons entitled to notice of a meeting shall attend such meeting, such attendance shall constitute a waiver of notice of the meeting, except in case the attendance is for the express purpose of objecting to the transaction of any business because the meeting shall not have been lawfully called or convened.

(RSMo 1939 § 5409)

Chapter to be construed liberally.

394.310. This chapter shall be construed liberally. The enumeration of any object, purpose, power, manner, method or thing shall not be deemed to exclude like or similar objects, purposes, powers, manners, methods or things.

(RSMo 1939 § 5416)

Territorial agreements authorized, procedure--public servicecommission, duties, fees may be set.

394.312. 1. Competition to provide retail electric service, as between rural electric cooperatives, electrical corporations and municipally owned utilities may be displaced by written territorial agreements, but only to the extent hereinafter provided for in this section.

2. Such territorial agreements shall specifically designate the boundaries of the electric service area of each electric service supplier subject to the agreement, any and all powers granted to a rural electric cooperative by a municipality, pursuant to the agreement, to operate within the corporate boundaries of that municipality, notwithstanding the provisions of section 394.020 and of section 394.080 to the contrary, and any and all powers granted to a municipally owned utility, pursuant to the agreement, to operate in areas beyond the corporate municipal boundaries of its municipality.

3. Where the parties cannot agree upon the boundaries of the electric service areas that are to be set forth in the agreement, they may, by mutual consent of all parties involved, petition the public service commission to designate the boundaries of the electric service areas to be served by each party and such designations by the commission shall be binding on all such parties. Petitions shall be made pursuant to the rules and regulations of the commission governing applications for certificates of public convenience and necessity and the commission shall hold evidentiary hearings on all petitions so received as required in subsection 5 of this section. The commission shall base its final determination regarding such petitions upon a finding that the commission's designation of electric service areas is in the public interest.

4. The provisions of sections 386.310 and 393.106 and sections 394.160 and 394.315 to the contrary notwithstanding, before becoming effective, all territorial agreements entered into under the provisions of this section, including any subsequent amendments to such agreements, or the transfer or assignment of the agreement or any rights or obligations of any party to an agreement, shall receive the approval of the public service commission by report and order. Applications for commission approval shall be made and notice of such filing shall be given to other electrical suppliers pursuant to the rules and regulations of the commission governing applications for certificates of public convenience and necessity. Unless otherwise ordered by the commission for good cause shown, the commission shall rule on such applications not later than one hundred twenty days after the application is properly filed with the secretary of the commission.

5. The commission shall hold evidentiary hearings to determine whether such territorial agreements should be approved or disapproved, except that in those instances where the matter is resolved by a stipulation and agreement submitted to the commission by all the parties such hearings may be waived by agreement of the parties. The commission may approve the application if it determines that approval of the territorial agreement in total is not detrimental to the public interest. Review of commission decisions under this section shall be governed by the provisions of sections 386.500 to 386.550.

6. Commission approval of any territorial agreement entered into under the provisions of this section shall in no way affect or diminish the rights and duties of any supplier not a party to the agreement or of any electrical corporation authorized by law to provide service within the boundaries designated in such territorial agreement. In the event any electrical corporation which is not a party to the territorial agreement and which is subject to the jurisdiction, control and regulation of the commission under chapters 386 and 393 has heretofore sought or hereafter seeks authorization from the commission to render electric service or construct, operate and maintain electric facilities within the boundaries designated in any such territorial agreement, the commission, in making its determination regarding such requested authority, shall give no consideration or weight to the existence of any such territorial agreement and any actual rendition of retail electric service by any of the parties to such territorial agreement will not preclude the commission from granting the requested authority.

7. The commission shall have jurisdiction to entertain and hear complaints involving any commission-approved territorial agreement. Such complaints shall be brought and prosecuted in the same manner as other complaints before the commission. The commission shall hold an evidentiary hearing regarding such complaints, except that in those instances where the matter is resolved by a stipulation and agreement submitted to the commission by all the parties, such hearings may be waived by agreement of the parties. If the commission determines that a territorial agreement that is the subject of a complaint is no longer in the public interest, it shall have the authority to suspend or revoke the territorial agreement. If the commission determines that the territorial agreement is still in the public interest, such territorial agreement shall remain in full force and effect. Except as provided in this section, nothing in this section shall be construed as otherwise conferring upon the commission jurisdiction over the service, rates, financing, accounting, or management of any rural electric cooperative or municipally owned utility, or to amend, modify, or otherwise limit the rights of electrical suppliers to provide service as otherwise provided by law.

8. Notwithstanding the provisions of section 386.410, the commission shall by rule set a schedule of fees based upon its costs in reviewing proposed territorial agreements for approval or disapproval. Responsibility for payment of the fees shall be that of the parties to the proceeding as ordered by the commission in each case. The fees shall be paid to the director of revenue who shall remit such payments to the state treasurer. The state treasurer shall credit such payments to the public service commission fund, or its successor fund, as established in section 33.571. Nothing in this section shall be construed as otherwise conferring upon the commission jurisdiction over the service, rates, financing, accounting or management of any rural electric cooperative or municipally owned utility and except as provided in this section nothing shall affect the rights, privileges or duties of rural electric cooperatives, electrical corporations or municipally owned utilities.

9. Notwithstanding any other provisions of this section, the commission may hold a hearing regarding any application, complaint or petition filed under this section upon its own motion.

(L. 1988 S.B. 689, A.L. 1989 H.B. 813, A.L. 2007 S.B. 416)

CROSS REFERENCE:

Antitrust laws not applicable to territorial agreements, 416.041

Definitions--rural electric cooperative exclusive right to servestructures, exception--change of suppliers, procedure.

394.315. 1. As used in this section, the following terms mean:

(1) "Permanent service", electrical service provided through facilities which have been permanently installed on a structure and which are designed to provide electric service for the structure's anticipated needs for the indefinite future, as contrasted with facilities installed temporarily to provide electrical service during construction. Service provided temporarily shall be at the risk of the electrical supplier and shall not be determinative of the rights of the provider or recipient of permanent service;

(2) "Structure" or "structures", an agricultural, residential, commercial, industrial or other building or a mechanical installation, machinery or apparatus at which retail electric energy is being delivered through a metering device which is located on or adjacent to the structure and connected to the lines of an electrical supplier. Such terms shall include any contiguous or adjacent additions to or expansions of a particular structure. Nothing in this section shall be construed to confer any right on a rural electric cooperative to serve new structures on a particular tract of land because it was serving an existing structure on that tract.

2. Once a rural electric cooperative, or its predecessor in interest, lawfully commences supplying retail electric energy to a structure through permanent service facilities, it shall have the right to continue serving such structure, and other suppliers of electrical energy shall not have the right to provide service to the structure except as might be otherwise permitted in the context of municipal annexation, pursuant to section 386.800 and section 394.080, or pursuant to a territorial agreement approved under section 394.312. The public service commission, upon application made by an affected party, may order a change of suppliers on the basis that it is in the public interest for a reason other than a rate differential, and the commission is hereby given jurisdiction over rural electric cooperatives to accomplish the purpose of this section. The commission's jurisdiction under this section is limited to public interest determinations and excludes questions as to the lawfulness of the provision of service, such questions being reserved to courts of competent jurisdiction. Except as provided herein, nothing in this section shall be construed as otherwise conferring upon the commission jurisdiction over the service, rates, financing, accounting or management of any such cooperative, and except as provided in this section, nothing contained herein shall affect the rights, privileges or duties of existing cooperatives pursuant to this chapter. Nothing in this section shall be construed to make lawful any provision of service which was unlawful prior to July 11, 1991. Nothing in this section shall be construed to make unlawful the continued lawful provision of service to any structure which may have had a different supplier in the past, if such a change in supplier was lawful at the time it occurred. However, those customers who had cancelled service with their previous supplier or had requested cancellation by May 1, 1991, shall be eligible to change suppliers as per previous procedures. No customer shall be allowed to change electric suppliers by disconnecting service between May 1, 1991, and July 11, 1991.

(L. 1982 H.B. 1646 § 2, A.L. 1986 H.B. 1486, A.L. 1991 S.B. 221)

Effective 7-11-91


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