§ 908 — Merger or consolidation of business and not-for-profit corporations

§ 908. Merger or consolidation of business and not-for-profit\n corporations.\n (a) One or more domestic or foreign corporations which is, or would be\nif formed under this chapter, a non-charitable corporation, or any\ncorporation formed as a type A corporation prior to July first, two\nthousand fourteen, may be merged or consolidated into a domestic or\nforeign corporation which is, or would be if formed under the laws of\nthis state, a corporation formed under the business corporation law of\nthis state if such merger or consolidation is not contrary to the law of\nthe state of incorporation of any constituent corporation. With respect\nto such merger or consolidation, any reference in paragraph (b) of\nsection 901 (Power of merger or consolidation) of this article or\nparagraph (b) of section 901 (Power of merger or consolidation) of the\nbusiness corporation law to a corporation shall, unless the context\notherwise requires, include both domestic and foreign corporations.\n (b) With respect to procedure including authorization by shareholders\nor approval by members, each domestic business corporation shall comply\nwith the business corporation law, each domestic not-for-profit\ncorporation shall comply with the provisions of this chapter and each\nforeign corporation shall comply with the applicable provisions of the\nlaw of the jurisdiction under which it is incorporated.\n (c) The plan of merger or consolidation shall set forth all matter\nrequired by section 902 of the business corporation law or section 902\nof this chapter and the terms and conditions of the proposed merger or\nconsolidation, including the manner and basis of converting shares,\nmembership or other interest in each constituent corporation into\nshares, bonds or other securities of the surviving or consolidated\ncorporation, or the cash or other consideration to be paid or delivered\nin exchange for shares, membership or other interest in each constituent\ncorporation, or a combination thereof.\n (d) After adoption of the plan of merger or consolidation by the board\nand members or shareholders of each constituent corporation, unless the\nmerger or consolidation is abandoned in accordance with paragraph (b) of\nsection 903 (Approval by members) and paragraph (b) of section 903\n(Authorization by shareholders) of the business corporation law, a\ncertificate of merger or consolidation, entitled "Certificate of merger\n(or consolidation) of .......... and .......... into ..............\n(names of corporations) under section 908 of the Not-for-Profit\nCorporation Law", shall be signed on behalf of each constituent\ncorporation and delivered to the department of state.\n (1) If the surviving or consolidated corporation is, or is to be, a\ndomestic corporation such certificate shall set forth the statements\nrequired by section 904(a) of the business corporation law or section\n904(a) of this chapter and, as to each constituent foreign corporation\nthe jurisdiction and date of its incorporation and the date when its\napplication for authority to conduct activities or do business in this\nstate was filed by the department of state or, if no such application\nhas been filed, a statement to such effect.\n (2) If the surviving or consolidated corporation is, or is to be\nformed under the law of any jurisdiction other than this state such\ncertificate shall set forth:\n (A) The statements required by subparagraphs (a)(1) and (2) of section\n902 of the business corporation law or subparagraphs (a)(1) and (2) of\nsection 902 (Plan of merger or consolidation) of this chapter, and the\nmanner in which the merger or consolidation was authorized with respect\nto each constituent domestic corporation.\n (B) 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 or, if no such application has been filed, a statement to such\neffect and that it is not to do business in this state until an\napplication for such authority shall have been filed by such department.\n (C) 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 or conduct activities in this state, the date when its\napplication for authority was filed by the department of state.\n (D) 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\nthe business corporation law, of the rights of shareholders of any\nconstituent domestic business corporation to receive payment for their\nshares against the surviving or consolidated corporation.\n (E) An agreement that, subject to the provisions of section 623 of the\nbusiness corporation law, the surviving or consolidated foreign\ncorporation will promptly pay to the shareholders of each constituent\ndomestic business corporation the amount, if any, to which they shall be\nentitled under the provisions of the business corporation law relating\nto the right of shareholders to receive payment for their shares.\n (F) A designation of the secretary of state as his 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 described in subparagraph (D) and a post office address,\nwithin or without the state, to which the secretary of state shall mail\na copy of the process in such action or special proceeding.\n (e) The department of state shall not file a certificate delivered to\nit under subparagraph (d) (2) unless the consent of the state tax\ncommission to the merger or consolidation is attached thereto.\n (g) Upon the filing of the certificate of merger or consolidation by\nthe department of state or on such dates subsequent thereto, not to\nexceed thirty days, as shall be set forth in such certificate, the\nmerger or consolidation shall be effected.\n (h) The surviving or consolidated domestic or foreign corporation\nshall thereafter cause a copy of such certificate, certified by the\ndepartment of state, to be filed in the office of the clerk of each\ncounty in which the office of a constituent corporation, other than the\nsurviving corporation, is located, and in the office of the official who\nis 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 (i) When such merger or consolidation has been effected:\n (A) If the surviving or consolidated corporation is, or is to be,\nformed under the law of this state, it shall be subject to the business\ncorporation law and the effect of such merger or consolidation shall be\nthe same as in the case of the merger or consolidation of domestic\ncorporations under section 906 (Effect of merger or consolidation) of\nthe business corporation law, except that in subparagraph (b) (3) of\nsuch section the word "shareholder" shall be read to include the word\n"member" as the latter is defined in this chapter.\n (B) If the surviving or consolidated corporation is, or is to be,\nincorporated under the law of any jurisdiction other than this state,\nthe effect of such merger or consolidation shall be as provided in\nsubparagraph (A), except insofar as the law of such other jurisdiction\nprovides otherwise.\n