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This entry was published on 2021-04-23
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SECTION 907
Merger or consolidation of domestic and foreign corporations
Business Corporation (BSC) CHAPTER 4, ARTICLE 9
§ 907. Merger or consolidation of domestic and foreign corporations.

(a) One or more foreign corporations and one or more domestic
corporations may be merged or consolidated into a corporation of this
state or of another jurisdiction, if such merger or consolidation is
permitted by the laws of the jurisdiction under which each such foreign
corporation is incorporated. With respect to such merger or
consolidation, any reference in paragraph (b) of section 901 (Power of
merger or consolidation) to a corporation shall, unless the context
otherwise requires, include both domestic and foreign corporations.

(b) With respect to procedure, including the requirement of share-
holder authorization, each domestic corporation shall comply with the
provisions of this chapter relating to merger or consolidation of
domestic corporations, and each foreign corporation shall comply with
the applicable provisions of the law of the jurisdiction under which it
is incorporated.

(c) The procedure for the merger of a subsidiary corporation or
corporations under section 905 (Merger of parent and subsidiary
corporations) shall be available where either a subsidiary corporation
or the corporation owning at least ninety percent of the outstanding
shares of each class of a subsidiary is a foreign corporation, and such
merger is permitted by the laws of the jurisdiction under which such
foreign corporation is incorporated.

(d) If the surviving or consolidated corporation is, or is to be, a
domestic corporation, a certificate of merger or consolidation shall be
signed and delivered to the department of state as provided in section
904 (Certificate of merger or consolidation; contents) or 905 (Merger of
parent and subsidiary corporations), as the case may be. In addition to
the matters specified in such sections, the certificate shall set forth
as to each constituent foreign corporation the jurisdiction and date of
its incorporation and the date when its application for authority to do
business in this state was filed by the department of state, and its
fictitious name used in this state pursuant to article thirteen of this
chapter, if applicable, or, if no such application has been filed, a
statement to such effect.

(e) If the surviving or consolidated corporation is, or is to be,
formed under the law of any jurisdiction other than this state:

(1) It shall comply with the provisions of this chapter relating to
foreign corporations if it is to do business in this state.

(2) It shall deliver to the department of state a certificate,
entitled "Certificate of merger (or consolidation) of ..... and .....
into ..... (names of corporations) under section 907 of the Business
Corporation Law", which shall be signed on behalf of each constituent
domestic and foreign corporation. It shall set forth:

(A) If the procedure for the merger or consolidation of a constituent
domestic corporation was effected in compliance with sections 902 (Plan
of merger or consolidation) and 903 (Authorization by shareholders), the
following:

(i) The statements required by subparagraphs (a) (1) and (2) of
section 902.

(ii) The effective date of the merger or consolidation if other than
the date of filing of the certificate of merger or consolidation by the
department of state.

(iii) The manner in which the merger or consolidation was authorized
with respect to each constituent domestic corporation and that the
merger or consolidation is permitted by the laws of the jurisdiction of
each constituent foreign corporation and is in compliance therewith.

(B) If the procedure for the merger of a subsidiary corporation was
effected in compliance with section 905, the following:

(i) The statements required by subparagraphs (a) (1), (2), (4) and (5)
of section 905.

(ii) The effective date of the merger if other than the date of filing
of the certificate of merger by the department of state.

(iii) If the surviving foreign corporation is the parent corporation
and such corporation does not own all the shares of a subsidiary do-
mestic corporation being merged, either the date of the giving to hold-
ers of shares of each subsidiary domestic corporation not owned by the
surviving foreign corporation of a copy of the plan of merger or an
outline of the material features thereof, or a statement that the giving
of such copy or outline has been waived, if such is the case.

(iv) That the merger is permitted by the laws of the jurisdiction of
each constituent foreign corporation and is in compliance therewith.

(v) If the parent domestic corporation is not the surviving
corporation, a statement that the proposed merger has been approved by
the shareholders of the parent domestic corporation in accordance with
paragraph (a) of section 903 (Authorization by shareholders).

(C) The jurisdiction and date of incorporation of the surviving or
consolidated foreign corporation, the date when its application for
authority to do business in this state was filed by the department of
state, and its fictitious name used in this state pursuant to article
thirteen of this chapter, if applicable, or, if no such application has
been filed, a statement to such effect and that it is not to do business
in this state until an application for such authority shall have been
filed by such department.

(D) The date when the certificate of incorporation of each constituent
domestic corporation was filed by the department of state and the
jurisdiction and date of incorporation of each constituent foreign
corporation, other than the surviving or consolidated foreign
corporation, and, in the case of each such corporation authorized to do
business in this state, the date when its application for authority was
filed by the department of state.

(E) An agreement that the surviving or consolidated foreign
corporation may be served with process in this state in any action or
special proceeding for the enforcement of any liability or obligation of
any domestic corporation or of any foreign corporation, previously
amenable to suit in this state, which is a constituent corporation in
such merger or consolidation, and for the enforcement, as provided in
this chapter, of the right of shareholders of any constituent domestic
corporation to receive payment for their shares against the surviving or
consolidated corporation.

(F) An agreement that, subject to the provisions of section 623
(Procedure to enforce shareholder's right to receive payment for
shares), the surviving or consolidated foreign corporation will promptly
pay to the shareholders of each constituent domestic corporation the
amount, if any, to which they shall be entitled under the provisions of
this chapter relating to the right of shareholders to receive payment
for their shares.

* (G) A designation of the secretary of state as its agent upon whom
process against it may be served in the manner set forth in paragraph
(b) of section 306 (Service of process), in any action or special
proceeding, and a post office address, within or without this state, to
which the secretary of state shall mail a copy of any process against it
served upon him. Such post office address shall supersede any prior
address designated as the address to which process shall be mailed.

* NB Effective until January 1, 2023

* (G) A designation of the secretary of state as its agent upon whom
process against it may be served in the manner set forth in paragraph
(b) of section 306 (Service of process), in any action or special
proceeding, and a post office address, within or without this state, to
which the secretary of state shall mail a copy of any process against it
served upon him or her. The corporation may include an email address to
which the secretary of state shall email a notice of the fact that
process against it has been electronically served upon him or her. Such
post office address shall supersede any prior address designated as the
address to which process shall be mailed and such email address shall
supersede any prior email address designated as the email address to
which a notice shall be sent.

* NB Effective January 1, 2023

(H)(i) A certification that all fees and taxes (including penalties
and interest) administered by the department of taxation and finance
which are then due and payable by each constituent domestic corporation
have been paid and that a cessation franchise tax report (estimated or
final) through the anticipated date of the merger or consolidation
(which return, if estimated, shall be subject to amendment) has been
filed by each constituent domestic corporation and (ii) an agreement
that the surviving or consolidated foreign corporation will within
thirty days after the filing of the certificate of merger or
consolidation file the cessation franchise tax report, if an estimated
report was previously filed, and promptly pay to the department of
taxation and finance all fees and taxes (including penalties and
interest), if any, due to the department of taxation and finance by each
constituent domestic corporation.

(f) Upon the filing of the certificate of merger or consolidation by
the department of state or on such date subsequent thereto, not to
exceed ninety days, as shall be set forth in such certificate, the
merger or consolidation shall be effected.

(g) The surviving or consolidated domestic corporation or foreign
corporation shall thereafter cause a copy of such certificate, certified
by the department of state, to be filed in the office of the clerk of
each county in which the office of a constituent corporation other than
the surviving corporation is located, and in the office of the official
who is the recording officer of each county in this state in which real
property of a constituent corporation, other than the surviving
corporation, is situated.

(h) If the surviving or consolidated corporation is, or is to be,
formed under the law of this state, the effect of such merger or
consolidation shall be the same as in the case of the merger or
consolidation of domestic corporations under section 906 (Effect of
merger or consolidation). If the surviving or consolidated corporation
is, or is to be, incorporated under the law of any jurisdiction other
than this state, the effect of such merger or consolidation shall be the
same as in the case of the merger or consolidation of domestic
corporations, except in so far as the law of such other jurisdiction
provides otherwise.