Nonprofit Corporation Merger Approval and Filing Requirements in Montana

At a glance

Requirements one by one

Merger parties and plan

Section 35-2-608(1) permits one or more nonprofit corporations to merge into a business or nonprofit survivor, subject to § 35-2-609's public-benefit and religious limits. Foreign business and nonprofit parties also have a route under § 35-2-613. The plan names the parties and survivor and states the terms. For public-benefit or religious corporations it states any conversion of memberships into survivor memberships; for a mutual-benefit corporation it states any conversion into memberships, obligations, securities, cash, or other property (§ 35-2-608(2)).

Board, member, and class approval

The board approves the plan, and members, if any, approve by the lesser of two-thirds of votes cast or a majority of voting power (§ 35-2-610(1)). The board may condition submission on a higher percentage or another basis; members may condition their approval similarly (§ 35-2-610(3)). A class votes separately if a comparable articles or bylaws amendment would give it a class vote, using the same lesser-of threshold within the class (§ 35-2-610(6)). A person whose written approval the articles require for such an amendment must approve the plan in writing (§ 35-2-610(1)(c)).

Meeting notice and member consent

Meeting notice must state the merger purpose and contain the plan or a summary. Surviving-corporation members receive provisions that would trigger an amendment vote, while disappearing-corporation members receive the postmerger articles and bylaws or summaries (§ 35-2-610(4)). Section 35-2-530(3) treats notice as fair and reasonable if given at least ten days before a meeting, or by certified mail between thirty and sixty days before it, with the required description of annual, regular, or special meeting business. If written consent or ballot is solicited, the same plan and document material accompanies it (§ 35-2-610(5)). Section 35-2-529(1),(4) permits written consent by holders of at least eighty per cent of voting power unless the articles or bylaws restrict it, with notice to nonsigners and effectiveness ten days after that notice.

Corporation without members

When a corporation has no members, a majority of directors in office must approve (§ 35-2-610(2)). Each director must receive the notice required by § 35-2-429(3): at least seven days' written notice that the merger will be voted on, unless waived. Section 35-2-610(2) specifies a corporation without members and does not state a separate route for a corporation whose members lack a merger vote; the governing documents and member rights need attention in that case.

Charitable property and state review

Section 35-2-609(1) generally confines a public-benefit or religious corporation to specified public-benefit or religious survivors, an eligible wholly owned entity when the nonprofit survives, or a business/mutual-benefit survivor after the listed asset-transfer and disinterested-director conditions. A district court can approve an exception in a proceeding with written notice to the Attorney General. For the specified business/mutual-benefit route, the Attorney General receives the plan at least twenty days before consummation (§ 35-2-609(2)). A public-benefit or religious member receiving anything other than membership in a surviving public-benefit or religious corporation needs prior written Attorney General or court consent (§ 35-2-609(3)). Transferred property remains subject to preexisting conditions (§ 35-2-612(2)).

Filing and effective time

The surviving or acquiring corporation files articles containing the plan and either the no-member-approval statement with board vote, or class membership and vote counts, plus required third-person approval (§ 35-2-611). A board presiding officer, president, or other officer can sign under § 35-2-119(5)–(6). The filing becomes effective when filed, at a time stated for that day, or on a delayed date no more than ninety days later (§ 35-2-121).

Abandonment

Before articles are filed, § 35-2-610(7) lets the merger be abandoned under the plan's procedure, or as the board determines if the plan is silent, subject to contract rights. The cited ordinary merger provisions do not set a separate parent-subsidiary filing route.

What trips people up

For a public-benefit or religious corporation, the extra § 35-2-609 conditions depend on the survivor and what members receive. An ordinary member approval count alone does not answer those questions. The articles themselves must contain the plan (§ 35-2-611(1)).

Common questions

Can a business corporation survive? Section 35-2-608 permits that in general, while § 35-2-609 imposes additional conditions on a public-benefit or religious party.

Does the merger free donated property from restrictions? Section 35-2-612(2) says property vests in the survivor subject to conditions that applied before the merger.

Statutes and sources

• Mont. Code Ann. § 35-2-608 (accessed 2026-10-03): “35-2-608 . Approval of plan of merger. (1) Subject to the limitations set forth in 35-2-609 , one or more nonprofit corporations may merge into a business or nonprofit corporation if the plan of merger is approved as provided in 35-2-610 . (2) The plan of merger must set forth: (a) the name of each corporation planning to merge and the name of the surviving corporation into which each plans to merge; (b) the terms and conditions of the planned merger; (c) the manner and basis, if any, of converting the memberships of each public benefit or religious corporation into memberships of the surviving corporation; and (d) if the merger involves a mutual benefit corporation, the manner and basis, if any, of converting memberships of each merging corporation into memberships, obligations, or securities of the surviving or any other corporation or into cash or other property in whole or part. (3) The plan of merger may set forth: (a) any amendments to the articles of incorporation or bylaws of the surviving corporation to be effected by the planned merger; and (b) other provisions relating to the planned merger.”
• Mont. Code Ann. § 35-2-609 (accessed 2026-10-03): “35-2-609 . Limitations on mergers by public benefit or religious corporations. (1) Except as provided in subsection (4) or without the prior approval of the district court for the judicial district in which the corporation's principal office is located or, if the principal office is not located in this state, in Lewis and Clark County, in a proceeding of which the attorney general has been given written notice, a public benefit corporation or religious corporation may merge only with: (a) a public benefit corporation or religious corporation; (b) a foreign corporation that would qualify under this chapter as a public benefit corporation or religious corporation; (c) a wholly owned foreign or domestic business or mutual benefit corporation, if the public benefit corporation or religious corporation is the surviving corporation and continues to be a public benefit corporation or religious corporation after the merger; or (d) a business or mutual benefit corporation, provided that: (i) on or prior to the effective date of the merger, assets with a value equal to the greater of the fair market value of the net tangible and intangible assets, including good will, of the public benefit corporation or the fair market value of the public benefit corporation if it were to be operated as a business concern are transferred or conveyed to one or more persons who would have received its assets under 35-2-725 (1)(e) and (1)(f) had it dissolved; (ii) it shall return, transfer, or convey any assets held by it upon condition requiring return, transfer, or conveyance in case of merger, in accordance with the condition; and (iii) the merger is approved by a majority of directors of the public benefit corporation or religious corporation who are not and will not become members or shareholders in or officers, employees, agents, or consultants of the surviving corporation. (2) At least 20 days before consummation of any merger of a public benefit corporation or a religious corporation pursuant to subsection (1)(d), notice, including a copy of the proposed plan of merger, must be delivered to the attorney general. (3) Without the prior written consent of the attorney general or of the district court in a proceeding in which the attorney general has been given notice, a member of a public benefit corporation or religious corporation may not receive or keep anything as a result of a merger other than a membership in the surviving public benefit corporation or religious corporation. The court shall approve the transaction if it is in the public interest. (4) A public benefit corporation or a religious corporation that is considered a nonprofit health entity, as defined in 50-4-701 , is subject to the provisions of 35-2-617 and Title 50, chapter 4, part 7.”
• Mont. Code Ann. § 35-2-610 (accessed 2026-10-03): “35-2-610 . Action on plan by board, members, and third persons. (1) Unless this chapter, the articles, the bylaws, or the board of directors or members, acting pursuant to subsection (3), require a greater vote or voting by class to be adopted, a plan of merger must be approved: (a) by the board; (b) by the members, if any, by two-thirds of the votes cast or a majority of the voting power, whichever is less; and (c) in writing by any person or persons whose approval is required by a provision of the articles, as authorized by 35-2-232 , for an amendment to the articles or bylaws. (2) If the corporation does not have members, the merger must be approved by a majority of the directors in office at the time the merger is approved. In addition, the corporation shall provide notice, in accordance with 35-2-429 (3), of any directors' meeting at which approval is to be obtained. The notice must also state that the purpose or one of the purposes of the meeting is to consider the proposed merger. (3) The board may condition its submission of the proposed merger and the members may condition their approval of the merger on receipt of a higher percentage of affirmative votes or on any other basis. (4) If the board seeks to have the plan approved by the members at a membership meeting, the corporation shall give notice to its members of the proposed membership meeting in accordance with 35-2-530 . The notice must state that the purpose or one of the purposes of the meeting is to consider the plan of merger and contain or be accompanied by a copy or summary of the plan. The copy or summary of the plan for members of the surviving corporation must include any provision that, if contained in a proposed amendment to the articles of incorporation or bylaws, would entitle members to vote on the provision. The copy or summary of the plan for members of the disappearing corporation must include a copy or summary of the articles and bylaws that will be in effect immediately after the merger takes effect. (5) If the board seeks to have the plan approved by the members by written consent or written ballot, the material soliciting the approval must contain or be accompanied by a copy or summary of the plan. The copy or summary of the plan for members of the surviving corporation must include any provision that, if contained in a proposed amendment to the articles of incorporation or bylaws, would entitle members to vote on the provision. The copy or summary of the plan for members of the disappearing corporation must include a copy or summary of the articles and bylaws that will be in effect immediately after the merger takes effect. (6) Voting by a class of members is required on a plan of merger if the plan contains a provision that, if contained in a proposed amendment to articles of incorporation or bylaws, would entitle the class of members to vote as a class on the proposed amendment under 35-2-224 or 35-2-231 . The plan is approved by a class of members by two-thirds of the votes cast by the class or a majority of the voting power of the class, whichever is less. (7) After a merger is adopted and at any time before articles of merger are filed, the planned merger may be abandoned, subject to any contractual rights, without further action by members or other persons who approved the plan in accordance with the procedure set forth in the plan of merger or, if no procedure is set forth, in the manner determined by the board of directors.”
• Mont. Code Ann. § 35-2-611 (accessed 2026-10-03): “35-2-611 . Articles of merger. After a plan of merger is approved by the board of directors and, if required by 35-2-610 , by the members and any other persons, the surviving or acquiring corporation shall deliver to the secretary of state, for filing, articles of merger setting forth: (1) the plan of merger; (2) if approval of members was not required, a statement to that effect and a statement that the plan was approved by a sufficient vote of the board of directors; (3) if approval by members was required: (a) the designation, number of memberships outstanding, number of votes entitled to be cast by each class entitled to vote separately on the plan, and number of votes of each class indisputably voting on the plan; and (b) (i) either the total number of votes cast for and against the plan by each class entitled to vote separately on the plan or the total number of undisputed votes cast for the plan by each class; and (ii) a statement that the number cast for the plan by each class was sufficient for approval by that class; (4) if approval of the plan by some person or persons other than the members or the board is required pursuant to 35-2-610 (1)(c), a statement that the approval was obtained.”
• Mont. Code Ann. § 35-2-612 (accessed 2026-10-03): “35-2-612 . Effect of merger. When a merger takes effect: (1) every other corporation party to the merger merges into the surviving corporation and the separate existence of every corporation except the surviving corporation ceases; (2) the title to all real estate and other property owned by each corporation party to the merger is vested in the surviving corporation without reversion or impairment, subject to any conditions to which the property was subject prior to the merger; (3) the surviving corporation has all liabilities and obligations of each corporation party to the merger; (4) a proceeding pending against any corporation party to the merger may be continued as if the merger did not occur or the surviving corporation may be substituted in the proceeding for the corporation whose existence ceased; and (5) the articles of incorporation and bylaws of the surviving corporation are amended to the extent provided in the plan of merger.”
• Mont. Code Ann. § 35-2-613 (accessed 2026-10-03): “35-2-613 . Merger with foreign corporation. (1) Except as provided in 35-2-609 , one or more foreign business or nonprofit corporations may merge with one or more domestic nonprofit corporations if: (a) the merger is permitted by the law of the state, tribe, or country under whose law each foreign corporation is incorporated and each foreign corporation complies with that law in effecting the merger; or (b) the foreign corporation complies with 35-2-611 if it is the surviving corporation of the merger; and (c) each domestic nonprofit corporation complies with the applicable provisions of 35-2-608 through 35-2-610 and, if it is the surviving corporation of the merger, with the provisions of 35-2-611 . (2) When the merger takes effect, the surviving foreign business or nonprofit corporation may be served with process in any proceeding brought against it as provided in 35-7-113 .”
• Mont. Code Ann. § 35-2-530 (accessed 2026-10-03): “35-2-530 . Notice of meeting. (1) A corporation shall give notice consistent with its bylaws of meetings of members in a fair and reasonable manner. (2) Any notice that conforms to the requirements of subsection (3) is fair and reasonable, but other means of giving notice may also be fair and reasonable when all the circumstances are considered. However, notice of matters referred to in subsection (3)(b) must be given as specified in subsection (3). (3) Notice is fair and reasonable if: (a) the corporation notifies its members of the place, date, and time of each annual, regular, and special meeting of members not less than 10 days before the meeting date or, if notice is mailed by certified mail, not less than 30 or more than 60 days before the meeting date; (b) notice of an annual or regular meeting includes a description of any matter or matters that must be approved by the members under 35-2-223 , 35-2-230 , 35-2-418 , 35-2-452 , 35-2-611 , 35-2-617 , 35-2-720 , or 35-2-721 ; and (c) notice of a special meeting includes a description of the matter or matters for which the meeting is called. (4) Unless the bylaws require otherwise, if an annual, regular, or special meeting of members is adjourned to a different date, time, or place, notice need not be given of the new date, time, or place, if the new date, time, or place is announced at the meeting before adjournment. If a new record date for the adjourned meeting is or must be fixed under 35-2-532 , notice of the adjourned meeting must be given under this section to the members of record as of the new record date. (5) When giving notice of an annual, regular, or special meeting of members, a corporation shall give notice of a matter a member intends to raise at the meeting if: (a) requested in writing to do so by a person entitled to call a special meeting; and (b) the request is received by the secretary or president of the corporation at least 10 days before the corporation gives notice of the meeting.”
• Mont. Code Ann. § 35-2-429 (accessed 2026-10-03): “35-2-429 . Call and notice of meetings. (1) Unless the articles or bylaws provide otherwise or unless the provisions of subsection (3) apply, regular meetings of the board may be held without notice. (2) Unless the articles, bylaws, or subsection (3) provide otherwise, special meetings of the board must be preceded by at least 2 days' notice to each director of the date, time, and place, but not the purpose, of the meeting. (3) In a corporation without members, any board action to remove a director or to approve a matter that would require approval by the members if the corporation had members is not valid unless each director is given at least 7 days' written notice that the matter will be voted upon at a directors' meeting or unless notice is waived pursuant to 35-2-430 . (4) Unless the articles or bylaws provide otherwise, the presiding officer of the board, the president, or 20% of the directors then in office may call and give notice of a meeting of the board.”
• Mont. Code Ann. § 35-2-529 (accessed 2026-10-03): “35-2-529 . Action by written consent. (1) Unless limited or prohibited by the articles or bylaws, action required or permitted by this chapter to be approved by the members may be approved without a meeting of members if the action is approved by members holding at least 80% of the voting power. The action must be evidenced by one or more written consents that describe the action taken, be signed by those members representing at least 80% of the voting power, and be delivered to the corporation for inclusion in the minutes or filing with the corporate records. (2) If not otherwise determined under 35-2-528 or 35-2-532 , the record date for determining members entitled to take action without a meeting is the date the first member signs the consent under subsection (1). (3) A consent signed under this section has the effect of a meeting vote and may be described as a vote in any document filed with the secretary of state. (4) Written notice of member approval pursuant to this section must be given to all members who have not signed the written consent. If written notice is required, member approval pursuant to this section is effective 10 days after written notice is given.”
• Mont. Code Ann. § 35-2-119 (accessed 2026-10-03): “35-2-119 . Filing requirements. All of the following requirements must be met before a document may be filed under this section by the secretary of state: (1) A document that is required or permitted by this chapter to be filed in the office of the secretary of state must satisfy the requirements of this section and of any other section that adds to or varies these requirements. (2) The document must contain the information required by this chapter. The document may contain other information as well. (3) The document must be typewritten or printed unless an electronic form is allowed by the secretary of state. (4) The document must be in the English language. However, a corporate name does not need to be in English if it is written in English letters or Arabic or Roman numerals. (5) (a) Except as provided in subsection (5)(b), the document must be executed: (i) by the presiding officer of the corporation's board of directors, its president, or another of its officers; (ii) if directors have not been selected or the corporation has not been formed, by an incorporator; or (iii) if the corporation is in the hands of a receiver, trustee, or other court-appointed fiduciary, by that fiduciary. (b) (i) A corporation's annual report may be executed as provided in subsection (5)(a) or by the corporation's authorized agent. (ii) For the purposes of this subsection (5)(b), "authorized agent" means any individual granted permission by an entity to execute a document on behalf of the entity. The entity is responsible for maintaining a record of the permission granted to an authorized agent. (6) The person executing the document shall sign the document and state beneath or opposite the signature the person's name and the capacity in which the person signs. The document may but does not need to contain the corporate seal, an attestation by the secretary or an assistant secretary, or an acknowledgment, verification, or proof. (7) The document must be in or on the prescribed form if the secretary of state has prescribed a mandatory form for a document under 35-2-1108 . (8) Except as provided in 33-3-601 , the document must be delivered to the office of the secretary of state for filing and must be accompanied by: (a) the correct filing fee; and (b) any franchise tax, license fee, or penalty required by this chapter, rules promulgated under this chapter, or other law.”
• Mont. Code Ann. § 35-2-121 (accessed 2026-10-03): “35-2-121 . Effective date of document. (1) Except as provided in subsection (2), a document is effective: (a) at the time of filing on the date it is filed, as evidenced by the secretary of state's endorsement on the original document; or (b) at the time specified in the document as its effective time on the date it is filed. (2) A document may specify a delayed effective time and date, and if it does so the document becomes effective at the time and date specified. If a delayed effective date but no time is specified, the document is effective at the close of business on that date. A delayed effective date for a document may not be later than 90 days after the date it is filed.”