West Virginia Code 31D-11-1103 – Share exchange
(a) Through a share exchange:
Terms Used In West Virginia Code 31D-11-1103
- Articles of incorporation: includes , but is not limited to, amended and restated articles of incorporation and articles of merger. See West Virginia Code 31D-1-150
- 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.
- Dependent: A person dependent for support upon another.
- domestic corporation: means a corporation for profit, which is not a foreign corporation, incorporated under or subject to the provisions of this chapter. See West Virginia Code 31D-1-150
- Entity: includes corporations and foreign corporations. See West Virginia Code 31D-1-150
- Foreign corporation: means a corporation for profit incorporated under a law other than the laws of this state. See West Virginia Code 31D-1-150
- Interests: means the proprietary interests in an other entity. See West Virginia Code 31D-11-1101
- Organizational documents: means the basic document or documents that create, or determine the internal governance of, an other entity. See West Virginia Code 31D-11-1101
- Other entity: means any association or legal entity, other than a domestic or foreign corporation, organized to conduct business, including, but not limited to, limited partnerships, general partnerships, limited liability partnerships, limited liability companies, joint ventures, joint stock companies and business trusts. See West Virginia Code 31D-11-1101
- Person: includes , but is not limited to, an individual and an entity. See West Virginia Code 31D-1-150
- Secretary: means the corporate officer to whom the board of directors has delegated responsibility under subsection (c), section eight hundred forty, article eight of this chapter for custody of the minutes of the meetings of the board of directors and the meetings of the shareholders and for authenticating records of the corporation. See West Virginia Code 31D-1-150
- Share exchange: means a business combination pursuant to section one thousand one hundred three of this article. See West Virginia Code 31D-11-1101
- Shares: means the units into which the proprietary interests in a corporation are divided. See West Virginia Code 31D-1-150
- State: when applied to a part of the United States and not restricted by the context, includes the District of Columbia and the several territories, and the words "United States" also include the said district and territories. See West Virginia Code 2-2-10
(1) A domestic corporation may acquire all of the shares of one or more classes or series of shares of another domestic or foreign corporation, or all of the interests of one or more classes or series of interests of a domestic or foreign other entity, in exchange for shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, other property or any combination of the foregoing, pursuant to a plan of share exchange; or
(2) All of the shares of one or more classes or series of shares of a domestic corporation may be acquired by another domestic or foreign corporation or other entity, in exchange for shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, other property or any combination of the foregoing, pursuant to a plan of share exchange.
(b) A foreign corporation, or a domestic or foreign other entity, may be a party to the share exchange only if:
(1) The share exchange is permitted by the laws under which the corporation or other entity is organized or by which it is governed; and
(2) In effecting the share exchange, the corporation or other entity complies with the laws under which the corporation or other entity is organized or by which it is governed and with its articles of incorporation or organizational documents.
(c) The plan of share exchange must include:
(1) The name of each corporation or other entity whose shares or interests will be acquired and the name of the corporation or other entity that will acquire those shares or interests;
(2) The terms and conditions of the share exchange;
(3) The manner and basis of exchanging shares of a corporation or interests in an other entity whose shares or interests will be acquired under the share exchange into shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, other property or any combination of the foregoing; and
(4) Any other provisions required by the laws under which any party to the share exchange is organized or by the articles of incorporation or organizational documents of any party to the share exchange.
(d) The terms described in subdivisions (2) and (3), subsection (c) of this section may be made dependent on facts ascertainable outside the plan of share exchange, provided that those facts are objectively ascertainable. The term "facts" includes, but is not limited to, the occurrence of any event, including a determination or action by any person or body, including the corporation.
(e) The plan of share exchange may also include a provision that the plan may be amended prior to filing of the articles of share exchange with the Secretary of State: Provided, That if the shareholders of a domestic corporation that is a party to the share exchange are required or permitted to vote on the plan, the plan must provide that subsequent to approval of the plan by shareholders the plan may not be amended to:
(1) Change the amount or kind of shares or other securities, interests, obligations, rights to acquire shares or other securities, cash or other property to be issued by the corporation or to be received by the shareholders of or owners of interests in any party to the share exchange in exchange for their shares or interests under the plan; or
(2) Change any of the terms or conditions of the plan if the change would adversely affect the shareholders in any material respect.
(f) This section does not limit the power of a domestic corporation to acquire shares of another corporation or interests in another entity in a transaction other than a share exchange.