351.400. Disposition of assets. — A sale, lease, or exchange or other disposition other than by mortgage, deed of trust or pledge, of all, or substantially all, the property and assets, with or without the goodwill, of a corporation, if not made in the usual and regular course of its business, may be made upon such terms and conditions and for such consideration, which may consist, in whole or in part, of money or property, real or personal, including shares of any other corporation, domestic or foreign, as may be authorized in the following manner:
(1) The board of directors may adopt a resolution recommending such sale, lease or exchange or other disposition and directing the submission thereof to a vote at a meeting of shareholders entitled to vote thereat, which may be either an annual or a special meeting, except that such proposed sale, lease or exchange need not be adopted by the board of directors and may be directly submitted to any annual or special meeting of shareholders;
(2) Written or printed notice stating that the purpose, or one of the purposes, of such meeting is to consider the sale, lease or exchange, or other disposition of all, or substantially all, of the property and assets of the corporation shall be given to each shareholder of record entitled to vote at such meeting within the time and in the manner provided by this chapter for the giving of notice of meetings of shareholders; if such meeting be an annual meeting, such purpose may be included in the notice of such annual meeting;
(3) At such meeting the shareholders may authorize such sale, lease or exchange, or other disposition and fix, or may authorize the board of directors to fix, any or all of the terms and conditions thereof and the consideration to be received by the corporation therefor. Such authorization shall require the affirmative vote of the holders of at least two-thirds of the outstanding shares entitled to vote at such meeting;
(4) After such authorization by a vote of shareholders, the board of directors nevertheless, in its discretion, may abandon such sale, lease, exchange, or other disposition of assets, subject to the rights of third parties under any contracts relating thereto, without further action or approval by shareholders.
Notes of Decisions
Wooster Repub. Printing Co. v. Channel 17, Inc., 533 F. Supp. 601 (W.D. Mo. 1981).
· cites it 25× “It contends that a requisite number of its shareholders did not approve a sale of its corporate assets, as required by Section 351.400 RSMo.; that, in fact, its shareholders specifically *603 voted to disapprove 'the contract; that Wooster has not fulfilled its obligation under…”
21 West, Inc. v. Meadowgreen Trails, Inc., 913 S.W.2d 858 (Mo. Ct. App. 1995).
· cites it 8× “The court erred in offsetting the recovery due Joe and Carol Layton as shareholders in Meadowgreen against the recovery due the Meadowgreen Parties on their claims of intentional interference with business expectancy, trespass, and breach of fiduciary duty and violation of RSMo…”
In Re Landau Boat Co., 13 B.R. 788 (Bankr. W.D. Mo. 1981).
· cites it 8× “Reynolds contends that the stock may not be cancelled without the unanimous consent of the shareholders of Directional Industries since it constitutes all the assets of that corporation, citing Section 351.”
Flarsheim v. Twenty Five Thirty Two Broadway Corp., 432 S.W.2d 245 (Mo. 1968).
· cites it 10× “The sale of all, or substantially all, of a corporation’s assets, not in the usual course of business, is highly suggestive of a liquidation of the business and the dissolution of the corporate structure.”
Santa Fe Hills Golf & Country Club v. Safehi Realty Co., 349 S.W.2d 27 (Mo. 1961).
· cites it 13× “400 provides that a sale, lease, or other disposition of all or substantially all the property and assets of a corporation “if not made in the usual and regular course of its business” may be made on the authority of the affirmative vote of at least three-fourths of the…”
Cowbell, LLC v. BORC Bldg. & Leasing Corp., 328 S.W.3d 399 (Mo. Ct. App. 2010).
· cites it 4× “The Corporations argue the trial court erred in finding the contracts enforceable because their execution did not comply with section 351.400, 4 which governs the procedure for the disposition of all of a corporation’s assets.”
Beaufort Transfer Co. v. Fischer Trucking Co., 451 S.W.2d 40 (Mo. 1970).
· cites it 7× “Fischer denies any obligation under the purported contract of sale to Beaufort, because : (1) The sale, being for substantially all the corporation’s assets, was not approved by the board of directors as required by Section 351.400, RSMo 1959, V.A.M.S. (2) The parties did not…”
Land Clearance for Redevelopment Auth. v. Zitko, 386 S.W.2d 69 (Mo. 1964).
· cites it 4× “The intervenor complains that the minutes had no validity because they did not comply with § 351.400, RSMo 1959, V.A.M.S., which requires the directors to adopt a resolution and submit it to the stockholders.”
Still v. Travelers Indem. Co., 374 S.W.2d 95 (Mo. 1963).
· cites it 3× “They *99 ■contend that the bill of sale purporting to transfer the insured property to Watkins was void under Sections 351.400, 351.460, 351.465, 351.475, 351.”
Kaufman v. Henry, 520 S.W.2d 152 (Mo. Ct. App. 1975).
· cites it 4× “Transfer on April 30 did not comply with § 351.400, RSMo 1969, governing the sale of substantially all of the property and assets of a corporation.”
Lytle v. Lytle, 982 F. Supp. 671 (E.D. Mo. 1997).
· cites it 2× “327 (against Moe), (8) negligence per se for violation of RSMo § 351.400 (against Moe), (9) declaratory judgment for violation of § 351.”
Theodore Pullen, Edgar Pullen, Freddie Pullen, & Elisha Pullen v. Timothy Flowers, Kimberly Ann Flowers, Stanley C. Flowers, Tr. of the Stanley C. Flowers Revocable Trust Dated 12/09/2005, Kenneth R. Bell, Debra J. Bell, & the Bell Fam. P'ship, Defendants-respondents., 509 S.W.3d 131 (Mo. Ct. App. 2016).
· cites it 19× “2 In response, Plaintiffs argued Section 351.400 applied to create a cause of action in their favor because Everse and Bertha “emptied the corporation out.”
— Mo. Rev. Stat. § 351.400(1) — 1 case
Wooster Repub. Printing Co. v. Channel 17, Inc., 533 F. Supp. 601 (W.D. Mo. 1981).
“It contends that a requisite number of its shareholders did not approve a sale of its corporate assets, as required by Section 351.400 RSMo.; that, in fact, its shareholders specifically *603 voted to disapprove 'the contract; that Wooster has not fulfilled its obligation under…”
— Mo. Rev. Stat. § 351.400(2) — 2 cases
Theodore Pullen, Edgar Pullen, Freddie Pullen, & Elisha Pullen v. Timothy Flowers, Kimberly Ann Flowers, Stanley C. Flowers, Tr. of the Stanley C. Flowers Revocable Trust Dated 12/09/2005, Kenneth R. Bell, Debra J. Bell, & the Bell Fam. P'ship, Defendants-respondents., 509 S.W.3d 131 (Mo. Ct. App. 2016).
“2 In response, Plaintiffs argued Section 351.400 applied to create a cause of action in their favor because Everse and Bertha “emptied the corporation out.”
Theodore Pullen, Edgar Pullen, Freddie Pullen, & Elisha Pullen v. Timothy Flowers, Kimberly Ann Flowers, Stanley C. Flowers, Tr. of the Stanley C. Flowers Revocable Trust Dated 12/09/2005, Kenneth R. Bell, Debra J. Bell, & the Bell Fam. P'ship, Defendants-respondents. (Mo. Ct. App. 2016).
— Mo. Rev. Stat. § 351.400(3) — 3 cases
In Re Landau Boat Co., 13 B.R. 788 (Bankr. W.D. Mo. 1981).
“Reynolds contends that the stock may not be cancelled without the unanimous consent of the shareholders of Directional Industries since it constitutes all the assets of that corporation, citing Section 351.”
Theodore Pullen, Edgar Pullen, Freddie Pullen, & Elisha Pullen v. Timothy Flowers, Kimberly Ann Flowers, Stanley C. Flowers, Tr. of the Stanley C. Flowers Revocable Trust Dated 12/09/2005, Kenneth R. Bell, Debra J. Bell, & the Bell Fam. P'ship, Defendants-respondents., 509 S.W.3d 131 (Mo. Ct. App. 2016).
“2 In response, Plaintiffs argued Section 351.400 applied to create a cause of action in their favor because Everse and Bertha “emptied the corporation out.”
Theodore Pullen, Edgar Pullen, Freddie Pullen, & Elisha Pullen v. Timothy Flowers, Kimberly Ann Flowers, Stanley C. Flowers, Tr. of the Stanley C. Flowers Revocable Trust Dated 12/09/2005, Kenneth R. Bell, Debra J. Bell, & the Bell Fam. P'ship, Defendants-respondents. (Mo. Ct. App. 2016).
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