Section 901. Power of merger or consolidation. 902. Plan of merger or consolidation. 903. Authorization by shareholders. 904. Certificate of merger or consolidation; contents. 904-a. Merger or consolidation of corporations with other business entities; certificate of merger or consolidation. 904-b. Merger or consolidation of business corporations into non-profit corporations. 905. Merger of parent and subsidiary corporations. 906. Effect of merger or consolidation. 907. Merger or consolidation of domestic and foreign corporations. 908. Guarantee authorized by shareholders. 909. Sale, lease, exchange or other disposition of assets. 910. Right of shareholder to receive payment for shares upon merger or consolidation, or sale, lease, exchange or other disposition of assets, or share exchange. 911. Mortgage or pledge of, or security interest in, corporate property. 912. Requirements relating to certain business combinations. 913. Share exchanges. S 901. Power of merger or consolidation. (a) Two or more domestic corporations may, as provided in this chapter: (1) Merge into a single corporation which shall be one of the constituent corporations; or (2) Consolidate into a single corporation which shall be a new corporation to be formed pursuant to the consolidation. (b) Whenever used in this article: (1) 'Merger' means a procedure of the character described in subparagraph (a) (1). (2) 'Consolidation' means a procedure of the character described in subparagraph (a) (2). (3) 'Constituent corporation' means an existing corporation that is participating in the merger or consolidation with one or more other corporations. (4) 'Surviving corporation' means the constituent corporation into which one or more other constituent corporations are merged. (5) 'Consolidated corporation' means the new corporation into which two or more constituent corporations are consolidated. (6) '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. (7) '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. (8) 'Person' means any association, corporation, joint stock company, estate, general partnership (including any registered limited liability partnership or foreign limited liability partnership), limited association, limited liability company (including a professional service limited liability company), foreign limited liability company (including a foreign professional service limited liability company), joint venture, limited partnership, natural person, real estate investment trust, business trust or other trust, custodian, nominee or any other individual or entity in its own or any representative capacity. (c) One or more domestic corporations and one or more other business entities, or one or more foreign corporations and one or more other business entities may as provided by any other applicable statute and this chapter: (1) Merge into a single domestic or foreign corporation or other business entity, which shall be one of the constituent entities; or (2) Consolidate into a single domestic or foreign corporation or other business entity, which shall be a new domestic or foreign corporation or other business entity to be formed pursuant to the consolidation. S 902. Plan of merger or consolidation. (a) The board of each corporation proposing to participate in a merger or consolidation under section 901 (Power of merger or consolidation) shall adopt a plan of merger or consolidation, setting 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; and the name of the surviving corporation, or the name, or the method of determining it, of the consolidated corporation. (2) As to each constituent corporation, the designation and number of outstanding shares of each class and series, specifying the classes and series entitled to vote and further specifying each class and series, if any, entitled to vote as a class; and, if the number of any such shares is subject to change prior to the effective date of the merger or consolidation, the manner in which such change may occur. (3) The terms and conditions of the proposed merger or consolidation, including the manner and basis of converting the shares of each constituent corporation into shares, bonds or other securities of the surviving or consolidated corporation, or the cash or other consideration to be paid or delivered in exchange for shares of each constituent corporation, or a combination thereof. (4) In case of 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, except statements as to facts not available at the time the plan of consolidation is adopted by the board. (5) Such other provisions with respect to the proposed merger or consolidation as the board considers necessary or desirable. S 903. Authorization by shareholders. (a) The board of each constituent corporation, upon adopting such plan of merger or consolidation, shall submit such plan to a vote of shareholders in accordance with the following: (1) Notice of meeting shall be given to each shareholder of record, as of the record date fixed pursuant to section 604 (Fixing record date), whether or not entitled to vote. A copy of the plan of merger or consolidation or an outline of the material features of the plan shall accompany such notice. (2) The plan of merger or consolidation shall be adopted at a meeting of shareholders by (i) for corporations in existence on the effective date of this clause the certificate of incorporation of which expressly provides such or corporations incorporated after the effective date of subclause (A) of clause (ii) of this subparagraph, a majority of the votes of the shares entitled to vote thereon or (ii) for other corporations in existence on the effective date of this clause, two-thirds of the votes of all outstanding shares entitled to vote thereon. Notwithstanding any provision in the certificate of incorporation, the holders of shares of a class or series of a class shall be entitled to vote together and to vote as a separate class if both of the following conditions are satisfied: (A) such shares will remain outstanding after the merger or consolidation or will be converted into the right to receive shares of stock of the surviving or consolidated corporation or another corporation, and (B) the certificate or articles of incorporation of the surviving or consolidated corporation or of such other corporation immediately after the effectiveness of the merger or consolidation would contain any provision which, is not contained in the certificate of incorporation of the corporation and which, if contained in an amendment to the certificate of incorporation, would entitle the holders of shares of such class or such one or more series to vote and to vote as a separate class thereon pursuant to section 804 (Class voting on amendment). In such case, in addition to the authorization of the merger or consolidation by the requisite number of votes of all outstanding shares entitled to vote thereon pursuant to the first sentence of this subparagraph (2), the merger or consolidation shall be authorized by a majority of the votes of all outstanding shares of the class entitled to vote as a separate class. If any provision referred to in subclause (B) of clause (ii) of this subparagraph would affect the rights of the holders of shares of only one or more series of any class but not the entire class, then only the holders of those series whose rights would be affected shall together be considered a separate class for purposes of this section. (b) Notwithstanding shareholder authorization and at any time prior to the filing of the certificate of merger or consolidation, the plan of merger or consolidation may be abandoned pursuant to a provision for such abandonment, if any, contained in the plan of merger or consolidation. S 904. Certificate of merger or consolidation; contents. (a) After adoption of the plan of merger or consolidation by the board and shareholders of each constituent corporation, unless the merger or consolidation is abandoned in accordance with paragraph (b) of section 903 (Authorization by shareholders), a certificate of merger or consolidation, entitled 'Certificate of merger (or consolidation) of .....and ..... into ..... (names of corporations) under section 904 of the Business Corporation Law', shall be signed on behalf of each constituent corporation and delivered to the department of state. It shall set forth: (1) The statements required by subparagraphs (a) (1), (2) and (4) of section 902 (Plan of merger or consolidation). (2) 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. (3) In the case of consolidation, any statement required to be included in a certificate of incorporation for a corporation formed under this chapter but which was omitted under subparagraph (a) (4) of section 902. (4) The date when the certificate of incorporation of each constituent corporation was filed by the department of state. (5) The manner in which the merger or consolidation was authorized with respect to each constituent corporation. (b) The surviving or consolidated 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. S 904-a. Merger or consolidation of corporations with other business 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 section one thousand two of the limited liability company law or other applicable statute, a certificate of merger or consolidation, entitled 'Certificate of merger (or consolidation) of ..... and ..... into ..... (names of constituent entities) under section nine hundred four-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, 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 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, 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. Such post office address shall supersede any prior address designated as the address to which process shall be mailed; (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, section one thousand five 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. S 904-b. Merger or consolidation of business corporations into non-profit corporations. (a) A domestic business corporation may be merged or consolidated into a domestic corporation formed under section two hundred one (Purposes) of the not-for-profit corporation law and authorized to do business under article forty-three of the insurance law. (b) With respect to procedure, including approval by members or authorization by shareholders, the domestic not-for-profit corporation shall comply with the not-for-profit corporation law and the domestic business corporation shall comply with the provisions of this chapter. (c) The plan of merger or consolidation, pursuant to this section, shall set forth all matters required by section nine hundred two of the not-for-profit corporation law or section 902 (Plan of merger or consolidation) and the terms and conditions of the proposed merger or consolidation, including the manner and basis of converting shares, bonds or other securities in each constituent corporation into membership or other interest of the surviving or consolidated corporation, or the cash or other consideration to be paid or delivered in exchange for shares, bonds or other securities in each constituent corporation, or a combination thereof. (d) After adoption of the plan of merger or consolidation by the board and shareholders or members of each constituent corporation, unless the merger or consolidation is abandoned in accordance with paragraph (b) of section 903 (Authorization by shareholders) and paragraph (b) of section nine hundred three of the not-for-profit corporation law, a certificate of merger or consolidation, entitled 'Certificate of merger (or consolidation) of ........ and.......... into ........... (names of corporations) under section 904-b of the Business Corporation Law', shall be signed on behalf of each constituent corporation and delivered to the department of state. (e) The certificate required to be filed pursuant to this section shall set forth the statements required by paragraph (a) of section nine hundred four of the not-for-profit corporation law or paragraph (a) of section nine hundred four (Adoption of the plan of merger or consolidation). (f) No certificate shall be filed pursuant to this section until an order approving the plan of merger or consolidation and authorizing the filing of the certificate has been made by the supreme court, as provided in section nine hundred seven of the not-for-profit corporation law. (g) Upon the filing of the certificate of merger or consolidation by the department of state or on such date subsequent thereto, not to exceed thirty days, as shall be set forth in such certificate, the merger or consolidation shall be effected. (h) The surviving or consolidated domestic 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. (i) When such merger or consolidation has been effected, it shall be subject to the not-for-profit corporation law and 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 nine hundred five of the not-for-profit corporation law, except that in subparagraph three of paragraph (b) of such section the word 'member' shall be read to include the word 'shareholder' as the latter is defined in this chapter. S 905. Merger of parent and subsidiary corporations. (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 section 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. S 906. Effect of merger or consolidation. (a) Upon the filing of the certificate of merger or consolidation by the department of state or on such date subsequent thereto, not to exceed thirty days, as shall be set forth in such certificate, the merger or consolidation shall be effected. (b) When such merger or consolidation has been effected: (1) Such surviving or consolidated corporation shall thereafter, consistently with its certificate of incorporation as altered or established by the merger or consolidation, possess all the rights, privileges, immunities, powers and purposes of each of the constituent corporations. (2) All the property, real and personal, including subscriptions to shares, causes of action and every other asset of each of the constituent entities, shall vest in such surviving or consolidated corporation without further act or deed. (3) The surviving or consolidated corporation shall assume and be liable for all the liabilities, obligations and penalties of each of the constituent entities. No liability or obligation due or to become due, claim or demand for any cause existing against any such constituent entity, or any shareholder, member, officer or director thereof, shall be released or impaired by such merger or consolidation. No action or proceeding, whether civil or criminal, then pending by or against any such constituent entity, or any shareholder, member, officer or director thereof, shall abate or be discontinued by such merger or consolidation, but may be enforced, prosecuted, settled or compromised as if such merger or consolidation had not occurred, or such surviving or consolidated corporation may be substituted in such action or special proceeding in place of any constituent entity. (4) In the case of a merger, the certificate of incorporation of the surviving corporation shall be automatically amended to the extent, if any, that changes in its certificate of incorporation are set forth in the plan of merger; and, in the case of a consolidation, the statements set forth in the certificate of consolidation and which are required or permitted to be set forth in a certificate of incorporation of a corporation formed under this chapter shall be its certificate of incorporation. S 907. Merger or consolidation of domestic and foreign corporations. (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 section 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. Such post office address shall supersede any prior address designated as the address to which process shall be mailed. (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. S 908. Guarantee authorized by shareholders. A guarantee may be given by a corporation, although not in furtherance of its corporate purposes, when authorized at a meeting of shareholders by two-thirds of the votes of all outstanding shares entitled to vote thereon. If authorized by a like vote, such guarantee may be secured by a mortgage or pledge of, or the creation of a security interest in, all or any part of the corporate property, or any interest therein, wherever situated. S 909. Sale, lease, exchange or other disposition of assets. (a) A sale, lease, exchange or other disposition of all or substantially all the assets of a corporation, if not made in the usual or regular course of the business actually conducted by such corporation, shall be authorized only in accordance with the following procedure: (1) The board shall authorize the proposed sale, lease, exchange or other disposition and direct its submission to a vote of shareholders. (2) Notice of meeting shall be given to each shareholder of record, whether or not entitled to vote. (3) The shareholders shall approve such sale, lease, exchange or other disposition and may fix, or may authorize the board to fix, any of the terms and conditions thereof and the consideration to be received by the corporation therefor, which may consist in whole or in part of cash or other property, real or personal, including shares, bonds or other securities of any other domestic or foreign corporation or corporations, by vote at a meeting of shareholders of (A) for corporations in existence on the effective date of this clause the certificate of incorporation of which expressly provides such or corporations incorporated after the effective date of this clause, a majority of the votes of all outstanding shares entitled to vote thereon or (B) for other corporations in existence on the effective date of this clause, two-thirds of the votes of all outstanding shares entitled to vote thereon. (b) A recital in a deed, lease or other instrument of conveyance executed by a corporation to the effect that the property described therein does not constitute all or substantially all of the assets of the corporation, or that the disposition of the property affected by said instrument was made in the usual or regular course of business of the corporation, or that the shareholders have duly authorized such disposition, shall be presumptive evidence of the fact so recited. (c) An action to set aside a deed, lease or other instrument of conveyance executed by a corporation affecting real property or real and personal property may not be maintained for failure to comply with the requirements of paragraph (a) unless the action is commenced and a notice of pendency of action is filed within one year after such conveyance, lease or other instrumment is recorded or within six months after this subdivision takes effect, whichever date occurs later. (d) Whenever a transaction of the character described in paragraph (a) involves a sale, lease, exchange or other disposition of all or substantially all the assets of the corporation, including its name, to a new corporation formed under the same name as the existing corporation, upon the expiration of thirty days from the filing of the certificate of incorporation of the new corporation, with the consent of the state tax commission attached, the existing corporation shall be automatically dissolved, unless, before the end of such thirty-day period, such corporation has changed its name. The adjustment and winding up of the affairs of such dissolved corporation shall proceed in accordance with the provisions of article 10 (Non-judicial dissolution). (e) The certificate of incorporation of a corporation formed under the authority of paragraph (d) shall set forth the name of the existing corporation, the date when its certificate of incorporation was filed by the department of state, and that the shareholders of such corporation have authorized the sale, lease, exchange or other disposition of all or substantially all the assets of such corporation, including its name, to the new corporation to be formed under the same name as the existing corporation. (f) Notwithstanding shareholder approval, the board may abandon the proposed sale, lease, exchange or other disposition without further action by the shareholders, subject to the rights, if any, of third parties under any contract relating thereto.
NY Corporation Law
NY Not-for-Profit Law
NY Partnership Law
NY Insurance Law
NY Debtor Creditor Law
S 910. Right of shareholder to receive payment for shares upon merger or consolidation, or sale, lease, exchange or other disposition of assets, or share exchange. (a) A shareholder of a domestic corporation shall, subject to and by complying with section 623 (Procedure to enforce shareholder`s right to receive payment for shares), have the right to receive payment of the fair value of his shares and the other rights and benefits provided by such section, in the following cases: (1) Any shareholder entitled to vote who does not assent to the taking of an action specified in clauses (A), (B) and (C). (A) Any plan of merger or consolidation to which the corporation is a party; except that the right to receive payment of the fair value of his shares shall not be available: (i) To a shareholder of the parent corporation in a merger authorized by section 905 (Merger of parent and subsidiary corporations), or paragraph (c) of section 907 (Merger or consolidation of domestic and foreign corporations); or (ii) To a shareholder of the surviving corporation in a merger authorized by this article, other than a merger specified in subclause (i), unless such merger effects one or more of the changes specified in subparagraph (b) (6) of section 806 (Provisions as to certain proceedings) in the rights of the shares held by such shareholder; or (iii) Notwithstanding subclause (ii) of this clause, to a shareholder for the shares of any class or series of stock, which shares or depository receipts in respect thereof, at the record date fixed to determine the shareholders entitled to receive notice of the meeting of shareholders to vote upon the plan of merger or consolidation, were listed on a national securities exchange or designated as a national market system security on an interdealer quotation system by the National Association of Securities Dealers, Inc. (B) Any sale, lease, exchange or other disposition of all or substantially all of the assets of a corporation which requires shareholder approval under section 909 (Sale, lease, exchange or other disposition of assets) other than a transaction wholly for cash where the shareholders` approval thereof is conditioned upon the dissolution of the corporation and the distribution of substantially all of its net assets to the shareholders in accordance with their respective interests within one year after the date of such transaction. (C) Any share exchange authorized by section 913 in which the corporation is participating as a subject corporation; except that the right to receive payment of the fair value of his shares shall not be available to a shareholder whose shares have not been acquired in the exchange or to a shareholder for the shares of any class or series of stock, which shares or depository receipt in respect thereof, at the record date fixed to determine the shareholders entitled to receive notice of the meeting of shareholders to vote upon the plan of exchange, were listed on a national securities exchange or designated as a national market system security on an interdealer quotation system by the National Association of Securities Dealers, Inc. (2) Any shareholder of the subsidiary corporation in a merger authorized by section 905 or paragraph (c) of section 907, or in a share exchange authorized by paragraph (g) of section 913, who files with the corporation a written notice of election to dissent as provided in paragraph (c) of section 623. (3) Any shareholder, not entitled to vote with respect to a plan of merger or consolidation to which the corporation is a party, whose shares will be cancelled or exchanged in the merger or consolidation for cash or other consideration other than shares of the surviving or consolidated corporation or another corporation. S 911. Mortgage or pledge of, or security interest in, corporate property. The board may authorize any mortgage or pledge of, or the creation of a security interest in, all or any part of the corporate property, or any interest therein, wherever situated. Unless the certificate of incorporation provides otherwise, no vote or consent of shareholders shall be required to approve such action by the board. S 912. Requirements relating to certain business combinations. (a) For the purposes of this section: (1) 'Affiliate' means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, a specified person. (2) 'Announcement date', when used in reference to any business combination, means the date of the first public announcement of the final, definitive proposal for such business combination. (3) 'Associate', when used to indicate a relationship with any person, means (A) any corporation or organization of which such person is an officer or partner or is, directly or indirectly, the beneficial owner of ten percent or more of any class of voting stock, (B) any trust or other estate in which such person has a substantial beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity, and (C) any relative or spouse of such person, or any relative of such spouse, who has the same home as such person. (4) 'Beneficial owner', when used with respect to any stock, means a person: (A) that, individually or with or through any of its affiliates or associates, beneficially owns such stock, directly or indirectly; or (B) that, individually or with or through any of its affiliates or associates, has (i) the right to acquire such stock (whether such right is exercisable immediately or only after the passage of time), pursuant to any agreement, arrangement or understanding (whether or not in writing), or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the beneficial owner of stock tendered pursuant to a tender or exchange offer made by such person or any of such person`s affiliates or associates until such tendered stock is accepted for purchase or exchange; or (ii) the right to vote such stock pursuant to any agreement, arrangement or understanding (whether or not in writing); provided, however, that a person shall not be deemed the beneficial owner of any stock under this item if the agreement, arrangement or understanding to vote such stock (X) arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made in accordance with the applicable rules and regulations under the Exchange Act and (Y) is not then reportable on a Schedule 13D under the Exchange Act (or any comparable or successor report); or (C) that has any agreement, arrangement or understanding (whether or not in writing), for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in item (ii) of clause (B) of this subparagraph), or disposing of such stock with any other person that beneficially owns, or whose affiliates or associates beneficially own, directly or indirectly, such stock. (5) 'Business combination', when used in reference to any domestic corporation and any interested shareholder of such corporation, means: (A) any merger or consolidation of such corporation or any subsidiary of such corporation with (i) such interested shareholder or (ii) any other corporation (whether or not itself an interested shareholder of such corporation) which is, or after such merger or consolidation would be, an affiliate or associate of such interested shareholder; (B) any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions) to or with such interested shareholder or any affiliate or associate of such interested shareholder of assets of such corporation or any subsidiary of such corporation (i) having an aggregate market value equal to ten percent or more of the aggregate market value of all the assets, determined on a consolidated basis, of such corporation, (ii) having an aggregate market value equal to ten percent or more of the aggregate market value of all the outstanding stock of such corporation, or (iii) representing ten percent or more of the earning power or net income determined on a consolidated basis, of such corporation; (C) the issuance or transfer by such corporation or any subsidiary of such corporation (in one transaction or a series of transactions) of any stock of such corporation or any subsidiary of such corporation which has an aggregate market value equal to five percent or more of the aggregate market value of all the outstanding stock of such corporation to such interested shareholder or any affiliate or associate of such interested shareholder except pursuant to the exercise of warrants or rights to purchase stock offered, or a dividend or distribution paid or made, pro rata to all shareholders of such corporation; (D) the adoption of any plan or proposal for the liquidation or dissolution of such corporation proposed by, or pursuant to any agreement, arrangement or understanding (whether or not in writing) with, such interested shareholder or any affiliate or associate of such interested shareholder; (E) any reclassification of securities (including, without limitation, any stock split, stock dividend, or other distribution of stock in respect of stock, or any reverse stock split), or recapitalization of such corporation, or any merger or consolidation of such corporation with any subsidiary of such corporation, or any other transaction (whether or not with or into or otherwise involving such interested shareholder), proposed by, or pursuant to any agreement, arrangement or understanding (whether or not in writing) with, such interested shareholder or any affiliate or associate of such interested shareholder, which has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class or series of voting stock or securities convertible into voting stock of such corporation or any subsidiary of such corporation which is directly or indirectly owned by such interested shareholder or any affiliate or associate of such interested shareholder, except as a result of immaterial changes due to fractional share adjustments; or (F) any receipt by such interested shareholder or any affiliate or associate of such interested shareholder of the benefit, directly or indirectly (except proportionately as a shareholder of such corporation) of any loans, advances, guarantees, pledges or other financial assistance or any tax credits or other tax advantages provided by or through such corporation. (6) 'Common stock' means any stock other than preferred stock. (7) 'Consummation date', with respect to any business combination, means the date of consummation of such business combination, or, in the case of a business combination as to which a shareholder vote is taken, the later of the business day prior to the vote or twenty days prior to the date of consummation of such business combination. (8) 'Control', including the terms 'controlling', 'controlled by' and 'under common control with', means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting stock, by contract, or otherwise. A person`s beneficial ownership of ten percent or more of a corporation`s outstanding voting stock shall create a presumption that such person has control of such corporation. Notwithstanding the foregoing, a person shall not be deemed to have control of a corporation if such person holds voting stock, in good faith and not for the the purpose of circumventing this section, as an agent, bank, broker, nominee, custodian or trustee for one or more beneficial owners who do not individually or as a group have control of such corporation. (9) 'Exchange Act' means the Act of Congress known as the Securities Exchange Act of 1934, as the same has been or hereafter may be amended from time to time. (10) 'Interested shareholder', when used in reference to any domestic corporation, means any person (other than such corporation or any subsidiary of such corporation) that (A) (i) is the beneficial owner, directly or indirectly, of twenty percent or more of the outstanding voting stock of such corporation; or (ii) is an affiliate or associate of such corporation and at any time within the five-year period immediately prior to the date in question was the beneficial owner, directly or indirectly, of twenty percent or more of the then outstanding voting stock of such corporation; provided that (B) for the purpose of determining whether a person is an interested shareholder, the number of shares of voting stock of such corporation deemed to be outstanding shall include shares deemed to be beneficially owned by the person through application of subparagraph four of this paragraph but shall not include any other unissued shares of voting stock of such corporation which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise. (11) 'Market value', when used in reference to stock or property of any domestic corporation, means: (A) in the case of stock, the highest closing sale price during the thirty-day period immediately preceding the date in question of a share of such stock on the composite tape for New York stock exchange-listed stocks, or, if such stock is not quoted on such composite tape or if such stock is not listed on such exchange, on the principal United States securities exchange registered under the Exchange Act on which such stock is listed, or, if such stock is not listed on any such exchange, the highest closing bid quotation with respect to a share of such stock during the thirty-day period preceding the date in question on the National Association of Securities Dealers, Inc. Automated Quotations System or any system then in use, or if no such quotations are available, the fair market value on the date in question of a share of such stock as determined by the board of directors of such corporation in good faith; and (B) in the case of property other than cash or stock, the fair market value of such property on the date in question as determined by the board of directors of such corporation in good faith. (12) 'Preferred stock' means any class or series of stock of a domestic corporation which under the by-laws or certificate of incorporation of such corporation is entitled to receive payment of dividends prior to any payment of dividends on some other class or series of stock, or is entitled in the event of any voluntary liquidation, dissolution or winding up of the corporation to receive payment or distribution of a preferential amount before any payments or distributions are received by some other class or series of stock. (14) 'Stock' means: (A) any stock or similar security, any certificate of interest, any participation in any profit sharing agreement, any voting trust certificate, or any certificate of deposit for stock; and (B) any security convertible, with or without consideration, into stock, or any warrant, call or other option or privilege of buying stock without being bound to do so, or any other security carrying any right to acquire, subscribe to or purchase stock. (15) 'Stock acquisition date', with respect to any person and any domestic corporation, means the date that such person first becomes an interested shareholder of such corporation. (16) 'Subsidiary' of any person means any other corporation of which a majority of the voting stock is owned, directly or indirectly, by such person. (17) 'Voting stock' means shares of capital stock of a corporation entitled to vote generally in the election of directors. (b) Notwithstanding anything to the contrary contained in this chapter (except the provisions of paragraph (d) of this section), no domestic corporation shall engage in any business combination with any interested shareholder of such corporation for a period of five years following such interested shareholder`s stock acquisition date unless such business combination or the purchase of stock made by such interested shareholder on such interested shareholder`s stock acquisition date is approved by the board of directors of such corporation prior to such interested shareholder`s stock acquisition date. If a good faith proposal is made in writing to the board of directors of such corporation regarding a business combination, the board of directors shall respond, in writing, within thirty days or such shorter period, if any, as may be required by the Exchange Act, setting forth its reasons for its decision regarding such proposal. If a good faith proposal to purchase stock is made in writing to the board of directors of such corporation, the board of directors, unless it responds affirmatively in writing within thirty days or such shorter period, if any, as may be required by the Exchange Act, shall be deemed to have disapproved such stock purchase. (c) Notwithstanding anything to the contrary contained in this chapter (except the provisions of paragraphs (b) and (d) of this section), no domestic corporation shall engage at any time in any business combination with any interested shareholder of such corporation other than a business combination specified in any one of subparagraph (1), (2) or (3): (1) A business combination approved by the board of directors of such corporation prior to such interested shareholder`s stock acquisition date, or where the purchase of stock made by such interested shareholder on such interested shareholder`s stock acquisition date had been approved by the board of directors of such corporation prior to such interested shareholder`s stock acquisition date. (2) A business combination approved by the affirmative vote of the holders of a majority of the outstanding voting stock not beneficially owned by such interested shareholder or any affiliate or associate of such interested shareholder at a meeting called for such purpose no earlier than five years after such interested shareholder`s stock acquisition date. (3) A business combination that meets all of the following conditions: (A) The aggregate amount of the cash and the market value as of the consummation date of consideration other than cash to be received per share by holders of outstanding shares of common stock of such corporation in such business combination is at least equal to the higher of the following: (i) the highest per share price paid by such interested shareholder at a time when he was the beneficial owner, directly or indirectly, of five percent or more of the outstanding voting stock of such corporation, for any shares of common stock of the same class or series acquired by it (X) within the five-year period immediately prior to the announcement date with respect to such business combination, or (Y) within the five-year period immediately prior to, or in, the transaction in which such interested shareholder became an interested shareholder, whichever is higher; plus, in either case, interest compounded annually from the earliest date on which such highest per share acquisition price was paid through the consummation date at the rate for one-year United States treasury obligations from time to time in effect; less the aggregate amount of any cash dividends paid, and the market value of any dividends paid other than in cash, per share of common stock since such earliest date, up to the amount of such interest; and (ii) the market value per share of common stock on the announcement date with respect to such business combination or on such interested shareholder`s stock acquisition date, whichever is higher; plus interest compounded annually from such date through the consummation date at the rate for one-year United States treasury obligations from time to time in effect; less the aggregate amount of any cash dividends paid, and the market value of any dividends paid other than in cash, per share of common stock since such date, up to the amount of such interest. (B) The aggregate amount of the cash and the market value as of the consummation date of consideration other than cash to be received per share by holders of outstanding shares of any class or series of stock, other than common stock, of such corporation is at least equal to the highest of the following (whether or not such interested shareholder has previously acquired any shares of such class or series of stock): (i) the highest per share price paid by such interested shareholder at a time when he was the beneficial owner, directly or indirectly, of five percent or more of the outstanding voting stock of such corporation, for any shares of such class or series of stock acquired by it (X) within the five-year period immediately prior to the announcement date with respect to such business combination, or (Y) within the five-year period immediately prior to, or in, the transaction in which such interested shareholder became an interested shareholder, whichever is higher; plus, in either case, interest compounded annually from the earliest date on which such highest per share acquisition price was paid through the consummation date at the rate for one-year United States treasury obligations from time to time in effect; less the aggregate amount of any cash dividends paid, and the market value of any dividends paid other than in cash, per share of such class or series of stock since such earliest date, up to the amount of such interest; (ii) the highest preferential amount per share to which the holders of shares of such class or series of stock are entitled in the event of any voluntary liquidation, dissolution or winding up of such corporation, plus the aggregate amount of any dividends declared or due as to which such holders are entitled prior to payment of dividends on some other class or series of stock (unless the aggregate amount of such dividends is included in such preferential amount); and (iii) the market value per share of such class or series of stock on the announcement date with respect to such business combination or on such interested shareholder`s stock acquisition date, whichever is higher; plus interest compounded annually from such date through the consummation date at the rate for one-year United States treasury obligations from time to time in effect; less the aggregate amount of any cash dividends paid, and the market value of any dividends paid other than in cash, per share of such class or series of stock since such date, up to the amount of such interest. (C) The consideration to be received by holders of a particular class or series of outstanding stock (including common stock) of such corporation in such business combination is in cash or in the same form as the interested shareholder has used to acquire the largest number of shares of such class or series of stock previously acquired by it, and such consideration shall be distributed promptly. (D) The holders of all outstanding shares of stock of such corporation not beneficially owned by such interested shareholder immediately prior to the consummation of such business combination are entitled to receive in such business combination cash or other consideration for such shares in compliance with clauses (A), (B) and (C) of this subparagraph. (E) After such interested shareholder`s stock acquisition date and prior to the consummation date with respect to such business combination, such interested shareholder has not become the beneficial owner of any additional shares of voting stock of such corporation except: (i) as part of the transaction which resulted in such interested shareholder becoming an interested shareholder; (ii) by virtue of proportionate stock splits, stock dividends or other distributions of stock in respect of stock not constituting a business combination under clause (E) of subparagraph five of paragraph (a) of this section; (iii) through a business combination meeting all of the conditions of paragraph (b) of this section and this paragraph; or (iv) through purchase by such interested shareholder at any price which, if such price had been paid in an otherwise permissible business combination the announcement date and consummation date of which were the date of such purchase, would have satisfied the requirements of clauses (A), (B) and (C) of this subparagraph. (d) The provisions of this section shall not apply: (1) to any business combination of a domestic corporation that does not have a class of voting stock registered with the Securities and Exchange Commission pursuant to section twelve of the Exchange Act, unless the certificate of incorporation provides otherwise; or (2) to any business combination of a domestic corporation whose certificate of incorporation has been amended to provide that such corporation shall be subject to the provisions of this section, which did not have a class of voting stock registered with the Securities and Exchange Commission pursuant to section twelve of the Exchange Act on the effective date of such amendment, and which is a business combination with an interested shareholder whose stock acquisition date is prior to the effective date of such amendment; or (3) to any business combination of a domestic corporation (i) the original certificate of incorporation of which contains a provision expressly electing not to be governed by this section, or (ii) which adopts an amendment to such corporation`s by-laws prior to March thirty-first, nineteen hundred eighty-six, expressly electing not to be governed by this section, or (iii) which adopts an amendment to such corporation`s by-laws, approved by the affirmative vote of a majority of votes of the outstanding voting stock of such corporation, excluding the voting stock of interested shareholders and their affiliates and associates, expressly electing not to be governed by this section, provided that such amendment to the by-laws shall not be effective until eighteen months after such vote of such corporation`s shareholders and shall not apply to any business combination of such corporation with an interested shareholder whose stock acquisition date is on or prior to the effective date of such amendment; or (4) to any business combination of a domestic corporation with an interested shareholder of such corporation which became an interested shareholder inadvertently, if such interested shareholder (i) as soon as practicable, divests itself of a sufficient amount of the voting stock of such corporation so that it no longer is the beneficial owner, directly or indirectly, of twenty percent or more of the outstanding voting stock of such corporation, and (ii) would not at any time within the five-year period preceding the announcement date with respect to such business combination have been an interested shareholder but for such inadvertent acquisition; or (5) to any business combination with an interested shareholder who was the beneficial owner, directly or indirectly, of five percent or more of the outstanding voting stock of such corporation on October thirtieth, nineteen hundred eighty-five, and remained so to such interested shareholder`s stock acquisition date. S 913. Share exchanges. (a) (1) Two domestic corporations may, as provided in this section, participate in the consummation of a plan for binding share exchanges. (2) Whenever used in this article: (A) 'Acquiring corporation' means a corporation that is participating in a procedure pursuant to which such corporation is acquiring all of the outstanding shares of one or more classes of a subject corporation. (B) 'Subject corporation' means a corporation that is participating in a procedure pursuant to which all of the outstanding shares of one or more classes of such corporation are being acquired by an acquiring corporation. (b) The board of the acquiring corporation and the board of the subject corporation shall adopt a plan of exchange, setting forth: (1) The name of the acquiring corporation and the name of the subject corporation, and, if the name of either of them has been changed, the name under which it was formed; (2) As to the acquiring corporation and the subject corporation, the designation and number of outstanding shares of each class and series, specifying the classes and series entitled to vote and further specifying each class and series, if any, entitled to vote as a class; and, if the number of any such shares is subject to change prior to the effective date of the exchange, the manner in which such change may occur; (3) The terms and conditions of the proposed exchange, including the manner and basis of exchanging the shares to be acquired for shares, bonds or other securities of the acquiring corporation, or the cash or other consideration to be paid or delivered in exchange for such shares to be acquired, or a combination thereof; and (4) Such other provisions with respect to the proposed exchange as the board considers necessary or desirable. (c) The board of the subject corporation, upon adopting the plan of exchange, shall submit such plan, except as provided in paragraph (g) of this section, to a vote of shareholders in accordance with the following: (1) Notice of meeting shall be given to each shareholder of record, as of the record date fixed pursuant to section 604 (Fixing record date), whether or not entitled to vote. A copy of the plan of exchange or an outline of the material features of the plan shall accompany such notice. (2) (A) The plan of exchange shall be adopted at a meeting of shareholders by (i) for any corporation in existence on the effective date of subclause (ii) of this clause, two-thirds of the votes of all outstanding shares entitled to vote thereon and (ii) for any corporation in existence on the effective date of this subclause the certificate of incorporation of which expressly provides such and for any corporation incorporated after the effective date of this subclause, a majority of the votes of all outstanding shares entitled to vote thereon. Notwithstanding any provision in the certificate of incorporation, the holders of shares of a class or series of a class shall be entitled to vote together and to vote as a separate class if both of the following conditions are satisfied: 1. Such shares will be converted into shares of the acquiring corporation, and 2. The certificate or articles of incorporation of the acquiring corporation immediately after the share exchange would contain any provision which is not contained in the certificate of incorporation of the subject corporation and which, if contained in an amendment to the certificate of incorporation of the subject corporation, would entitle the holders of shares of such class or such one or more series to vote and to vote as a separate class thereon pursuant to section 804 (Class voting on amendment). In such case, in addition to the authorization of the exchange by the proportion of votes indicated above of all outstanding shares entitled to vote thereon, the exchange shall be authorized by a majority of the votes of all outstanding shares of the class entitled to vote as a separate class. If any provision referred to in subclause 2 of this clause (A) would affect the rights of the holders of shares of only one or more series of any class but not the entire class, then only the holders of those series whose rights would be affected shall together be considered a separate class for purposes of this section. Notwithstanding shareholder authorization and at any time prior to the filing of the certificate of exchange, the plan of exchange may be abandoned pursuant to a provision for such abandonment, if any, contained in the plan of exchange. (B) Any corporation may adopt an amendment of the certificate of incorporation which provides that such plan of exchange shall be adopted at a meeting of the shareholders by vote of a specified proportion of the holders of outstanding shares, or class or series of shares, entitled to vote thereon, provided that such proportion may not be less than a majority and subject to the second sentence of clause (A) of this subparagraph (2). (d) After adoption of the plan of exchange by the board of the acquiring corporation and the board of the subject corporation and by the shareholders of the subject corporation entitled to vote thereon, unless the exchange is abandoned in accordance with paragraph (c), a certificate of exchange, entitled 'Certificate of exchange of shares of .............., subject corporation, for shares of ............., acquiring corporation, or other consideration, under section 913 of the Business Corporation Law', shall be signed on behalf of each corporation and delivered to the department of state. It shall set forth: (1) the statements required by subparagraphs (1) and (2) of paragraph (b) of this section; (2) the effective date of the exchange if other than the date of filing of the certificate of exchange by the department of state; (3) the date when the certificate of incorporation of each corporation was filed by the department of state; (4) the designation of the shares to be acquired by the acquiring corporation and a statement of the consideration for such shares; and (5) the manner in which the exchange was authorized with respect to each corporation. (e) Upon the filing of the certificate of exchange by the department of state or on such date subsequent thereto, not to exceed thirty days, as shall be set forth in such certificate, the exchange shall be effected. When such exchange has been effected, ownership of the shares to be acquired pursuant to the plan of exchange shall vest in the acquiring corporation, whether or not the certificates for such shares have been surrendered for exchange, and the acquiring corporation shall be entitled to have new certificates registered in its name or at its direction. Shareholders whose shares have been so acquired shall become entitled to the shares, bonds or other securities of the acquiring corporation, or the cash or other consideration, required to be paid or delivered in exchange for such shares pursuant to the plan. Subject to any terms of the plan regarding surrender of certificates theretofore evidencing the shares so acquired and regarding whether such certificates shall thereafter evidence securities of the acquiring corporation, such certificates shall thereafter evidence only the right to receive the consideration required to be paid or delivered in exchange for such shares pursuant to the plan or, in the case of dissenting shareholders, their rights under section 910 (Right of shareholder to receive payment for shares upon merger or consolidation, or sale, lease, exchange or other disposition of assets, or share exchange) and section 623 (Procedure to enforce shareholder`s right to receive payment for shares). (f) (1) A foreign corporation and a domestic corporation may participate in a share exchange, but, if the subject corporation is a foreign corporation, only if such exchange is permitted by the laws of the jurisdiction under which such foreign corporation is incorporated. With respect to such exchange, any reference in subparagraph (2) of paragraph (a) of this section to a corporation shall, unless the context otherwise requires, include both domestic and foreign corporations, and the provisions of paragraphs (b), (c), (d) and (e) of this section shall apply, except to the extent otherwise provided in this paragraph. (2) With respect to procedure, including the requirement of shareholder authorization, a domestic corporation shall comply with the provisions of this chapter relating to share exchanges in which domestic corporations are participating, and a foreign corporation shall comply with the applicable provisions of the law of the jurisdiction under which it is incorporated. (3) If the subject corporation is a foreign corporation, the certificate of exchange shall set forth, in addition to the matters specified in paragraph (d), the jurisdiction and date of incorporation of such corporation and a statement that the exchange is permitted by the laws of the jurisdiction of such corporation and is in compliance therewith. (g) (1) Any corporation owning at least ninety percent of the outstanding common shares, having full voting rights, of another corporation may acquire by exchange the remainder of such outstanding common shares, without the authorization of the shareholders of any such corporation and with the effect provided for in paragraph (e) of this section. The board of the acquiring corporation shall adopt a plan of exchange, setting forth the matters specified in paragraph (b) of this section. A copy of such plan of exchange or an outline of the material features thereof shall be given, personally or by mail, to all holders of shares of the subject corporation that are not owned by the acquiring corporation, unless the giving of such copy or outline has been waived by such holders. (2) A certificate of exchange, entitled 'Certificate of exchange of shares of .........., subject corporation, for shares of .........., acquiring corporation, or other consideration, under paragraph (g) of section 913 of the Business Corporation Law' and complying with the provisions of paragraph (d) and, if applicable, subparagraph (3) of paragraph (f) shall be signed, verified and delivered to the department of state by the acquiring corporation, but not less than thirty days after the giving of a copy or outline of the material features of the plan of exchange to shareholders of the subject corporation, or at any time after the waiving thereof by the holders of all the outstanding shares of the subject corporation not owned by the acquiring corporation. (3) The right of exchange of shares granted by this paragraph to certain corporations shall not preclude the exercise by such corporations of any other right of exchange under this article. (4) The procedure for the exchange of shares of a subject corporation under this paragraph (g) of this section shall be available where either the subject corporation or the acquiring corporation is a foreign corporation, and, in case the subject corporation is a foreign corporation, where such exchange is permitted by the laws of the jurisdiction under which such foreign corporation is incorporated. (h) This section does not limit the power of a domestic or foreign corporation to acquire all or part of the shares of one or more classes of another domestic or foreign corporation by means of a voluntary exchange or otherwise. (i) (1) A binding share exchange pursuant to this section shall constitute a 'business combination' pursuant to section nine hundred twelve of this chapter (Requirements relating to certain business combinations) if the subject corporation is a domestic corporation and the acquiring corporation is an 'interested shareholder' of the subject corporation, as such term is defined in section nine hundred twelve of this chapter. (2) With respect to convertible securities and other securities evidencing a right to acquire shares of a subject corporation, a binding share exchange pursuant to this section shall have the same effect on the rights of the holders of such securities as a merger of the subject corporation. (3) A binding share exchange pursuant to this section which is effectuated on or after September first, nineteen hundred ninety-one is intended to have the same effect as a 'merger' in which the subject corporation is a surviving corporation, within the meaning of any provision of the certificate of incorporation, bylaws or other contract or instrument by which the subject corporation was bound on September first, nineteen hundred eighty-six, unless it is apparent on the face of such instrument that the term 'merger' was not intended to include a binding share exchange.