2012 New York Consolidated Laws
BSC - Business Corporation
Article 9 - (901 - 913) MERGER OR CONSOLIDATION; GUARANTEE; DISPOSITION OF ASSETS; SHARE EXCHANGES
907 - Merger or consolidation of domestic and foreign corporations.

 
  § 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.
    (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.