§ 904-a. Merger or consolidation of corporations with other business

Terms Used In N.Y. Business Corporation Law 904-A

  • 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 entity: means a domestic or foreign corporation or other business entity, that is participating in the merger or consolidation with one or more domestic or foreign 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.
  • Other business entity: means any person other than a natural person, general partnership (including any registered limited liability partnership or registered foreign limited liability partnership) or a domestic or foreign business corporation. See N.Y. Business Corporation Law 901
  • Real property: Land, and all immovable fixtures erected on, growing on, or affixed to the land.
  • Statute: A law passed by a legislature.
  • Surviving corporation: means the constituent corporation into which one or more other constituent corporations are merged. See N.Y. Business Corporation Law 901

entities; certificate of merger or consolidation.

(a) After adoption of the agreement of merger or consolidation by the board and shareholders of each corporation participating in the merger or consolidation, unless the merger or consolidation is abandoned in accordance with paragraph (b) of section nine hundred three of this article, subdivision (d) of § 1002 of the limited liability company law or other applicable statute, and the surviving or resulting entity is a corporation, foreign corporation, or other business entity for which the laws of this state do not provide for the filing of a certificate of merger or consolidation with the department of state, a certificate of merger or consolidation, entitled "Certificate of merger (or consolidation) of ….. and….. into ….. (names of constituent entities) under § 904-a of the business corporation law," shall be signed on behalf of each constituent entity and delivered to the department of state. It shall set forth:

(1) The name of each constituent entity and, if the name of any of them has been changed, the name under which it was formed;

(2) The date when the certificate of incorporation or articles of organization of each domestic constituent entity was filed by the department of state;

(3) If a constituent entity is a foreign business corporation or foreign other business entity, the jurisdiction and date of filing of its initial certificate of incorporation or formation document, if any and the date when its application for authority was filed by the department of state or if no such application has been filed, a statement to such effect and (if the constituent foreign corporation is the surviving entity) that it is not to do business in this state until an application for such authority shall have been filed with the department of state;

(4) A statement that an agreement of merger or consolidation has been approved and executed by each constituent entity;

(5) The name of the surviving or consolidated corporation;

(6) If the surviving or resulting entity is a domestic corporation, in case of a merger, a statement of any amendments or changes in the certificate of incorporation of the surviving corporation to be effected by such merger; in case of consolidation, all statements required to be included in a certificate of incorporation for a corporation formed under this chapter;

(7) If the surviving or resulting entity is a foreign corporation or other business entity, an agreement that the surviving or consolidated foreign corporation or other business entity 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 or foreign entity, previously amenable to suit in this state, which is a constituent entity in such merger or consolidation, and for the enforcement, as provided in this chapter, of the right of shareholders or members of any constituent domestic entity to receive payment for their interests against the surviving or consolidated corporation;

(8) If the surviving or resulting entity is a foreign corporation or other business entity, 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 three hundred six of this chapter, 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;

(9) If the surviving or resulting entity is a foreign corporation, an agreement that, subject to the provisions of section six hundred twenty-three of this chapter, § 1005 of the limited liability company law and any applicable statute, the surviving or consolidated foreign corporation will promptly pay to the shareholders of each constituent domestic corporation and owners of any constituent other business entity the amount, if any, to which they shall be entitled under the provisions of this chapter and the limited liability company law or any applicable statute relating to the right of shareholders, owners and members to receive payment for their interests;

(10) 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;

(11) For each foreign corporation, foreign limited liability company or other business entity, a statement that such merger or consolidation is permitted by its jurisdiction of incorporation or organization and is in compliance therewith;

(12) That the agreement of merger or consolidation is on file at a place of business of the surviving or resulting domestic or foreign corporation and shall state the address thereof.

(b) The surviving or consolidated domestic 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 each office of a participating domestic or foreign 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 participating domestic or foreign corporation, other than the surviving corporation, is situated.

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