US Laws, Codes, Statutes & Cases

 
  § 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 type  A  or  type  C  corporation  under
  section  201 (Purposes) 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 of this article or paragraph  (b)  of  section  901  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.
    (f)  Where any constituent corporation is, or would be if formed under
  this chapter, a Type C corporation  under  section  201  (Purposes),  no
  certificate  shall  be  filed  pursuant  to  this section until an order
  approving the plan of merger or consolidation and authorizing the filing
  of the certificate has been made by the supreme court,  as  provided  in
  section 907 (Approval by the supreme court).
    (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.