N.Y. Business Corporation Law 907 – Merger or consolidation of domestic and foreign corporations
§ 907. Merger or consolidation of domestic and foreign corporations.
Terms Used In N.Y. Business Corporation Law 907
- Consolidated corporation: means the new corporation into which two or more constituent corporations are consolidated. See N.Y. Business Corporation Law 901
- 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.
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Merger: means a procedure of the character described in subparagraph (a) (1). See N.Y. Business Corporation Law 901
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- 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) 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 § 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 or her. The corporation may include an email address to which the secretary of state shall email a notice of the fact that process against it has been electronically served upon him or her. Such post office address shall supersede any prior address designated as the address to which process shall be mailed and such email address shall supersede any prior email address designated as the email address to which a notice shall be sent.
(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.