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This entry was published on 2014-09-22
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SECTION 908
Merger or consolidation of business and not-for-profit corporations
Not-for-Profit Corporation (NPC) CHAPTER 35, ARTICLE 9
§ 908. Merger or consolidation of business and not-for-profit

corporations.

(a) One or more domestic or foreign corporations which is, or would be
if formed under this chapter, a non-charitable corporation, or any
corporation formed as a type A corporation prior to July first, two
thousand fourteen, may be merged or consolidated into a domestic or
foreign corporation which is, or would be if formed under the laws of
this state, a corporation formed under the business corporation law of
this state if such merger or consolidation is not contrary to the law of
the state of incorporation of any constituent corporation. With respect
to such merger or consolidation, any reference in paragraph (b) of
section 901 (Power of merger or consolidation) of this article or
paragraph (b) of section 901 (Power of merger or consolidation) of the
business corporation law to a corporation shall, unless the context
otherwise requires, include both domestic and foreign corporations.

(b) With respect to procedure including authorization by shareholders
or approval by members, each domestic business corporation shall comply
with the business corporation law, each domestic not-for-profit
corporation shall comply with the provisions of this chapter and each
foreign corporation shall comply with the applicable provisions of the
law of the jurisdiction under which it is incorporated.

(c) The plan of merger or consolidation shall set forth all matter
required by section 902 of the business corporation law or section 902
of this chapter and the terms and conditions of the proposed merger or
consolidation, including the manner and basis of converting shares,
membership or other interest in each constituent corporation into
shares, bonds or other securities of the surviving or consolidated
corporation, or the cash or other consideration to be paid or delivered
in exchange for shares, membership or other interest in each constituent
corporation, or a combination thereof.

(d) After adoption of the plan of merger or consolidation by the board
and members or shareholders of each constituent corporation, unless the
merger or consolidation is abandoned in accordance with paragraph (b) of
section 903 (Approval by members) and paragraph (b) of section 903
(Authorization by shareholders) of the business corporation law, a
certificate of merger or consolidation, entitled "Certificate of merger
(or consolidation) of .......... and .......... into ..............
(names of corporations) under section 908 of the Not-for-Profit
Corporation Law", shall be signed on behalf of each constituent
corporation and delivered to the department of state.

(1) If the surviving or consolidated corporation is, or is to be, a
domestic corporation such certificate shall set forth the statements
required by section 904(a) of the business corporation law or section
904(a) of this chapter and, as to each constituent foreign corporation
the jurisdiction and date of its incorporation and the date when its
application for authority to conduct activities or do business in this
state was filed by the department of state or, if no such application
has been filed, a statement to such effect.

(2) If the surviving or consolidated corporation is, or is to be
formed under the law of any jurisdiction other than this state such
certificate shall set forth:

(A) The statements required by subparagraphs (a)(1) and (2) of section
902 of the business corporation law or subparagraphs (a)(1) and (2) of
section 902 (Plan of merger or consolidation) of this chapter, and the
manner in which the merger or consolidation was authorized with respect
to each constituent domestic corporation.

(B) 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 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.

(C) 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 or conduct activities in this state, the date when its
application for authority was filed by the department of state.

(D) 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
the business corporation law, of the rights of shareholders of any
constituent domestic business corporation to receive payment for their
shares against the surviving or consolidated corporation.

(E) An agreement that, subject to the provisions of section 623 of the
business corporation law, the surviving or consolidated foreign
corporation will promptly pay to the shareholders of each constituent
domestic business corporation the amount, if any, to which they shall be
entitled under the provisions of the business corporation law relating
to the right of shareholders to receive payment for their shares.

(F) A designation of the secretary of state as his 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 described in subparagraph (D) and a post office address,
within or without the state, to which the secretary of state shall mail
a copy of the process in such action or special proceeding.

(e) The department of state shall not file a certificate delivered to
it under subparagraph (d) (2) unless the consent of the state tax
commission to the merger or consolidation is attached thereto.

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

(h) The surviving or consolidated domestic 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.

(i) When such merger or consolidation has been effected:

(A) If the surviving or consolidated corporation is, or is to be,
formed under the law of this state, it shall be subject to the business
corporation law and 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) of
the business corporation law, except that in subparagraph (b) (3) of
such section the word "shareholder" shall be read to include the word
"member" as the latter is defined in this chapter.

(B) 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 as provided in
subparagraph (A), except insofar as the law of such other jurisdiction
provides otherwise.