N.Y. Business Corporation Law 905 – Merger of parent and subsidiary corporations
§ 905. Merger of parent and subsidiary corporations.
Terms Used In N.Y. Business Corporation Law 905
- Consolidation: means a procedure of the character described in subparagraph (a) (2). See N.Y. Business Corporation Law 901
- Constituent corporation: means an existing corporation that is participating in the merger or consolidation with one or more other corporations. See N.Y. Business Corporation Law 901
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Merger: means a procedure of the character described in subparagraph (a) (1). See N.Y. Business Corporation Law 901
- Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
- Surviving corporation: means the constituent corporation into which one or more other constituent corporations are merged. See N.Y. Business Corporation Law 901
(a) Any domestic corporation owning at least ninety percent of the outstanding shares of each class of another domestic corporation or corporations may either merge such other corporation or corporations into itself without the authorization of the shareholders of any such corporation or merge itself and one or more of such other corporations into one of such other corporations with the authorization of the parent corporation's shareholders in accordance with paragraph (a) of section 903 (Authorization by shareholders). In either case, the board of such parent corporation shall adopt a plan of merger, setting forth:
(1) The name of each corporation to be merged and the name of the surviving corporation, and if the name of any of them has been changed, the name under which it was formed.
(2) The designation and number of outstanding shares of each class of each corporation to be merged and the number of such shares of each class, if any, owned by the surviving corporation; and if the number of any such shares is subject to change prior to the effective date of the merger, the manner in which such change may occur.
(3) The terms and conditions of the proposed merger, including the manner and basis of converting the shares of each subsidiary corporation to be merged not owned by the parent corporation into shares, bonds or other securities of the surviving corporation, or the cash or other consideration to be paid or delivered in exchange for shares of each such subsidiary corporation, or a combination thereof.
(4) If the parent corporation is not the surviving corporation, provision for the pro rata issuance of shares of the surviving corporation to the shareholders of the parent corporation on surrender of any certificates therefor.
(5) If the parent corporation is not the surviving corporation, a statement of any amendments or changes in the certificate of incorporation of the surviving corporation to be effected by the merger.
(6) Such other provisions with respect to the proposed merger as the board considers necessary or desirable.
(b) If the surviving corporation is the parent corporation, a copy of such plan of merger or an outline of the material features thereof shall be given, personally or by mail, to all holders of shares of each subsidiary corporation to be merged not owned by the parent corporation, unless the giving of such copy or outline has been waived by such holders.
(c) A certificate of merger, entitled "Certificate of merger of ….. into ….. (names of corporations) under § 905 of the Business Corporation Law", shall be signed and delivered to the department of state by the surviving corporation. If the surviving corporation is the parent corporation and such corporation does not own all shares of each subsidiary corporation to be merged, such certificate shall be delivered not less than thirty days after the giving of a copy or outline of the material features of the plan of merger to shareholders of each such subsidiary corporation, or at any time after the waiving thereof by the holders of all of the outstanding shares of each such subsidiary corporation not owned by the surviving corporation. The certificate shall set forth:
(1) The statements required by subparagraphs (a) (1), (2), (4) and (5) of this section.
(2) The effective date of the merger if other than the date of filing of the certificate of merger by the department of state.
(3) The date when the certificate of incorporation of each constituent corporation was filed by the department of state.
(4) A statement that the plan of merger was adopted by the board of directors of the parent corporation.
(5) If the surviving corporation is the parent corporation and such corporation does not own all the shares of each subsidiary corporation to be merged, either the date of the giving to holders of shares of each such subsidiary corporation not owned by the surviving 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.
(6) If the parent corporation is not the surviving corporation, a statement that the proposed merger has been approved by the shareholders of the parent corporation in accordance with paragraph (a) of section 903 (Authorization by shareholders).
(d) The surviving 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.
(e) Paragraph (b) of section 903 (Authorization by shareholders) shall apply to a merger under this section.
(f) The right of merger granted by this section to certain corporations shall not preclude the exercise by such corporations of any other right of merger or consolidation under this article.