§ 907 — Merger or consolidation of domestic and foreign corporations

§ 907. Merger or consolidation of domestic and foreign corporations.\n (a) One or more foreign corporations and one or more domestic\ncorporations may be merged or consolidated into a corporation of this\nstate or of another jurisdiction, if such merger or consolidation is\npermitted by the laws of the jurisdiction under which each such foreign\ncorporation is incorporated. With respect to such merger or\nconsolidation, any reference in paragraph (b) of section 901 (Power of\nmerger or consolidation) to a corporation shall, unless the context\notherwise requires, include both domestic and foreign corporations.\n (b) With respect to procedure, including the requirement of share-\nholder authorization, each domestic corporation shall comply with the\nprovisions of this chapter relating to merger or consolidation of\ndomestic corporations, and each foreign corporation shall comply with\nthe applicable provisions of the law of the jurisdiction under which it\nis incorporated.\n (c) The procedure for the merger of a subsidiary corporation or\ncorporations under section 905 (Merger of parent and subsidiary\ncorporations) shall be available where either a subsidiary corporation\nor the corporation owning at least ninety percent of the outstanding\nshares of each class of a subsidiary is a foreign corporation, and such\nmerger is permitted by the laws of the jurisdiction under which such\nforeign corporation is incorporated.\n (d) If the surviving or consolidated corporation is, or is to be, a\ndomestic corporation, a certificate of merger or consolidation shall be\nsigned and delivered to the department of state as provided in section\n904 (Certificate of merger or consolidation; contents) or 905 (Merger of\nparent and subsidiary corporations), as the case may be. In addition to\nthe matters specified in such sections, the certificate shall set forth\nas to each constituent foreign corporation the jurisdiction and date of\nits incorporation and the date when its application for authority to do\nbusiness in this state was filed by the department of state, and its\nfictitious name used in this state pursuant to article thirteen of this\nchapter, if applicable, or, if no such application has been filed, a\nstatement to such effect.\n (e) If the surviving or consolidated corporation is, or is to be,\nformed under the law of any jurisdiction other than this state:\n (1) It shall comply with the provisions of this chapter relating to\nforeign corporations if it is to do business in this state.\n (2) It shall deliver to the department of state a certificate,\nentitled "Certificate of merger (or consolidation) of ..... and .....\ninto ..... (names of corporations) under section 907 of the Business\nCorporation Law", which shall be signed on behalf of each constituent\ndomestic and foreign corporation. It shall set forth:\n (A) If the procedure for the merger or consolidation of a constituent\ndomestic corporation was effected in compliance with sections 902 (Plan\nof merger or consolidation) and 903 (Authorization by shareholders), the\nfollowing:\n (i) The statements required by subparagraphs (a) (1) and (2) of\nsection 902.\n (ii) The effective date of the merger or consolidation if other than\nthe date of filing of the certificate of merger or consolidation by the\ndepartment of state.\n (iii) The manner in which the merger or consolidation was authorized\nwith respect to each constituent domestic corporation and that the\nmerger or consolidation is permitted by the laws of the jurisdiction of\neach constituent foreign corporation and is in compliance therewith.\n (B) If the procedure for the merger of a subsidiary corporation was\neffected in compliance with section 905, the following:\n (i) The statements required by subparagraphs (a) (1), (2), (4) and (5)\nof section 905.\n (ii) The effective date of the merger if other than the date of filing\nof the certificate of merger by the department of state.\n (iii) If the surviving foreign corporation is the parent corporation\nand such corporation does not own all the shares of a subsidiary do-\nmestic corporation being merged, either the date of the giving to hold-\ners of shares of each subsidiary domestic corporation not owned by the\nsurviving foreign corporation of a copy of the plan of merger or an\noutline of the material features thereof, or a statement that the giving\nof such copy or outline has been waived, if such is the case.\n (iv) That the merger is permitted by the laws of the jurisdiction of\neach constituent foreign corporation and is in compliance therewith.\n (v) If the parent domestic corporation is not the surviving\ncorporation, a statement that the proposed merger has been approved by\nthe shareholders of the parent domestic corporation in accordance with\nparagraph (a) of section 903 (Authorization by shareholders).\n (C) The jurisdiction and date of incorporation of the surviving or\nconsolidated foreign corporation, the date when its application for\nauthority to do business in this state was filed by the department of\nstate, and its fictitious name used in this state pursuant to article\nthirteen of this chapter, if applicable, or, if no such application has\nbeen filed, a statement to such effect and that it is not to do business\nin this state until an application for such authority shall have been\nfiled by such department.\n (D) The date when the certificate of incorporation of each constituent\ndomestic corporation was filed by the department of state and the\njurisdiction and date of incorporation of each constituent foreign\ncorporation, other than the surviving or consolidated foreign\ncorporation, and, in the case of each such corporation authorized to do\nbusiness in this state, the date when its application for authority was\nfiled by the department of state.\n (E) An agreement that the surviving or consolidated foreign\ncorporation may be served with process in this state in any action or\nspecial proceeding for the enforcement of any liability or obligation of\nany domestic corporation or of any foreign corporation, previously\namenable to suit in this state, which is a constituent corporation in\nsuch merger or consolidation, and for the enforcement, as provided in\nthis chapter, of the right of shareholders of any constituent domestic\ncorporation to receive payment for their shares against the surviving or\nconsolidated corporation.\n (F) An agreement that, subject to the provisions of section 623\n(Procedure to enforce shareholder's right to receive payment for\nshares), the surviving or consolidated foreign corporation will promptly\npay to the shareholders of each constituent domestic corporation the\namount, if any, to which they shall be entitled under the provisions of\nthis chapter relating to the right of shareholders to receive payment\nfor their shares.\n (G) A designation of the secretary of state as its agent upon whom\nprocess against it may be served in the manner set forth in paragraph\n(b) of section 306 (Service of process), in any action or special\nproceeding, and a post office address, within or without this state, to\nwhich the secretary of state shall mail a copy of any process against it\nserved upon him or her. The corporation may include an email address to\nwhich the secretary of state shall email a notice of the fact that\nprocess against it has been electronically served upon him or her. Such\npost office address shall supersede any prior address designated as the\naddress to which process shall be mailed and such email address shall\nsupersede any prior email address designated as the email address to\nwhich a notice shall be sent.\n (H)(i) A certification that all fees and taxes (including penalties\nand interest) administered by the department of taxation and finance\nwhich are then due and payable by each constituent domestic corporation\nhave been paid and that a cessation franchise tax report (estimated or\nfinal) through the anticipated date of the merger or consolidation\n(which return, if estimated, shall be subject to amendment) has been\nfiled by each constituent domestic corporation and (ii) an agreement\nthat the surviving or consolidated foreign corporation will within\nthirty days after the filing of the certificate of merger or\nconsolidation file the cessation franchise tax report, if an estimated\nreport was previously filed, and promptly pay to the department of\ntaxation and finance all fees and taxes (including penalties and\ninterest), if any, due to the department of taxation and finance by each\nconstituent domestic corporation.\n (f) Upon the filing of the certificate of merger or consolidation by\nthe department of state or on such date subsequent thereto, not to\nexceed ninety days, as shall be set forth in such certificate, the\nmerger or consolidation shall be effected.\n (g) The surviving or consolidated domestic corporation or foreign\ncorporation shall thereafter cause a copy of such certificate, certified\nby the department of state, to be filed in the office of the clerk of\neach county in which the office of a constituent corporation other than\nthe surviving corporation is located, and in the office of the official\nwho is the recording officer of each county in this state in which real\nproperty of a constituent corporation, other than the surviving\ncorporation, is situated.\n (h) If the surviving or consolidated corporation is, or is to be,\nformed under the law of this state, the effect of such merger or\nconsolidation shall be the same as in the case of the merger or\nconsolidation of domestic corporations under section 906 (Effect of\nmerger or consolidation). If the surviving or consolidated corporation\nis, or is to be, incorporated under the law of any jurisdiction other\nthan this state, the effect of such merger or consolidation shall be the\nsame as in the case of the merger or consolidation of domestic\ncorporations, except in so far as the law of such other jurisdiction\nprovides otherwise.\n