Article 9, not-for-profit corporations, Gauthier

Section 901. Power of merger or consolidation. 902. Plan of merger or consolidation. 903. Approval of plan. 904. Certificate of merger or consolidation; contents. 905. Effect of merger or consolidation. 906. Merger or consolidation of domestic and foreign corporations. 907. Approval by the supreme court. 908. Merger or consolidation of business corporations and non-profit corporations. 909. Consent to filing. 910. Merger or consolidation of corporations formed under the religious corporations law and certain other corporations formed for religious purposes. 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 in which two or more constituent corporations are consolidated. 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 corporation 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, a description of the membership and holders of any certificates evidencing capital contributions or subventions, including their number, classification, and voting rights, if any. (3) The terms and conditions of the proposed merger or consolidation, including the manner and basis of converting membership or other interest in each constituent corporation into membership or other interest in the surviving or consolidated corporation, or the cash or other consideration to be paid or delivered in exchange for membership or other interest in 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) In case of a merger or consolidation under section 906 (Merger or consolidation of domestic and foreign corporations), a statement of any agreements required by subparagraph (2) (D) of paragraph (d) thereof. S 903. Approval of plan. (a) The board of each constituent corporation, upon approving such plan of merger or consolidation shall submit such plan to a vote of the members in accordance with the following: (1) Notice of meeting shall be given to each member 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 approved at a meeting of the members by two-thirds vote as provided in paragraph (c) of section 613 (Vote of members). (3) If any merging or consolidating corporation has no members entitled to vote thereon, a plan of merger or consolidation shall be deemed approved by the members of the corporation when it is adopted by the board of such corporation pursuant to section 902 (Plan of merger or consolidation). (b) Notwithstanding authorization as provided herein, 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 approval of the plan of merger or consolidation unless the merger or consolidation is abandoned in accordance with paragraph (b) of section 903 (Approval of plan) a certificate of merger or consolidation, entitled "Certificate of merger (or consolidation) of .......... and ............... into (names of corporations) under section 904 of the Not-for-Profit 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 or, in the case of constituent corporations created by special law, the chapter number and year of passage of such law. (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 905. Effect of merger or consolidation. (a) Upon the filing of the certificate of merger and 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 causes of action and every other asset of each of the constituent corporations, shall vest in such surviving or consolidated corporation without further act or deed, except as otherwise provided in paragraph (b) of section 907 (Approval by the Supreme Court). Except as the court may otherwise direct, as provided in section 8-1.1 of the Estates, Powers and Trusts Law, any disposition made in the will of a person dying domiciled in this state or in any other instrument executed under the laws of this state, taking effect after such merger or consolidation, to or for any of the constituent corporations shall inure to the benefit of the surviving or consolidated corporation. So far as is necessary for that purpose, or for the purpose of a like result with respect to a disposition governed by the law of any other jurisdiction, the existence of each constituent domestic corporation shall be deemed to continue in and through the surviving or consolidated corporation. (3) The surviving or consolidated corporation shall assume and be liable for all the liabilities, obligations and penalties of each of the constituent corporations. No liability or obligation due or to become due, claim or demand for any cause existing against any such corporation, or any 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 corporation, or any member, officer or director thereof, shall abate or be discontinued by such merger or consolidation, but may be enforced, prosecuted, settled or comprised 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 corporation. (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 906. 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 approval by members, 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) if the surviving or consolidated corporation is, or is to be, a domestic corporation, a certificate of merger or consolidation shall be signed, verified and delivered to the department of state as provided in section 904 (Certificate of merger or consolidation; contents). In addition to the matters specified in such section, 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 conduct activities 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. (d) 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 conduct activities 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 906 of the Not-for-Profit Corporation Law", which shall be signed on behalf of each constituent domestic and foreign corporation. It shall set forth: (A) The statements required by subparagraphs (a) (1) and (2) of section 902 (Plan of merger or consolidation). (B) The jurisdiction and date of incorporation of the surviving or consolidated foreign corporation, the date when its application for authority to conduct activities 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 conduct activities in this state until an application for such authority shall have been filed by such department. (C) 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 conduct activities in this state, the date when its application for authority was filed by the department of state. (D) 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 an agreement that the surviving or consolidated foreign corporation may be sued in this state in respect of any property transferred or conveyed to it as provided in paragraph (c) of section 907 (Approval by the supreme court), or the use made of such property, or any transaction in connection therewith. (E) 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 described in subparagraph (D) and a post office address, within or without this state, to which the secretary of state shall mail a copy of the process in such action or special proceeding. (F) The manner in which the plan of merger or consolidation was approved 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. (G) 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. (e) 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. (f) 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 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. (g) 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 905 (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 907. Approval by the supreme court. (a) Where any constituent corporation or the consolidated corporation is, or would be if formed under this chapter, a Type B or a Type C corporation under section 201 (Purposes) of this chapter, no certificate shall be filed pursuant to section 904 (Certificate of merger or consolidation; contents) or section 906 (Merger or consolidation of domestic and foreign corporations) 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 this section. A certified copy of such order shall be annexed to the certificate of merger or consolidation. Application for the order may be made in the judicial district in which the principal office of the surviving or consolidated corporation is to be located, or in which the office of one of the domestic constituent corporations is located. The application shall be made by all the constituent corporations jointly and shall set forth by affidavit (1) the plan of merger or consolidation, (2) the approval required by section 903 (Approval of plan) or paragraph (b) of section 906 (Merger or consolidation of domestic and foreign corporations) for each constituent corporation, (3) the objects and purposes of each such corporation to be promoted by the consolidation, (4) a statement of all property, and the manner in which it is held, and of all liabilities and of the amount and sources of the annual income of each such corporation, (5) whether any votes against adoption of the resolution approving the plan of merger or consolidation were cast at the meeting at which the resolution as adopted by each constituent corporation, and (6) facts showing that the consolidation is authorized by the laws of the jurisdictions under which each of the constituent corporations is incorporated. (b) Upon the filing of the application the court shall fix a time for hearing thereof and shall direct that notice thereof be given to such persons as may be interested, including the attorney general, any governmental body or officer and any other person or body whose consent or approval is required by section 909 (Consent to filing), in such form and manner as the court may prescribe. If no votes against adoption of the resolution approving the plan of merger or consolidation were cast at the meeting at which the resolution was adopted by any constituent corporation the court may dispense with notice to anyone except the attorney-general, any governmental body or officer and any other person or body whose consent or approval is required by section 909 (Consent to filing). Any person interested may appear and show cause why the application should not be granted. (c) If the court shall find that any of the assets of any of the constituent corporations are held for a purpose specified as Type B in paragraph (b) of section 201 or are legally required to be used for a particular purpose, but not upon a condition requiring return, transfer or conveyance by reason of the merger or consolidation, the court may, in its discretion, direct that such assets be transferred or conveyed to the surviving or consolidated corporation subject to such purpose or use, or that such assets be transferred or conveyed to the surviving or consolidated corporation or to one or more other domestic or foreign corporations or organizations engaged in substantially similar activities, upon an express trust the terms of which shall be approved by the court. (d) If the court shall find that the interests of non-consenting members are or may be substantially prejudiced by the proposed merger or consolidation, the court may disapprove the plan or may direct a modification thereof. In the event of a modification, if the court shall find that the interests of any members may be substantially prejudiced by the proposed merger or consolidation as modified, the court shall direct that the modified plan be submitted to vote of the members of the constituent corporations, or if the court shall find that there is not such substantial prejudice, it shall approve the agreement as so modified without further approval by the members. If the court, upon directing a modification of the plan of merger or consolidation, shall direct that a further approval be obtained from members of the constituent corporations or any of them, such further approval shall be obtained in the manner specified in section 903 (Approval of plan) or section 906(b) (Merger or consolidation of domestic and foreign corporations) of this chapter. (e) If it shall appear, to the satisfaction of the court, that the provisions of this section have been complied with, and that the interests of the constituent corporations and the public interest will not be adversely affected by the merger or consolidation, it shall approve the merger or consolidation upon such terms and conditions as it may prescribe. S 908. Merger or consolidation of business and not-for-profit corporations. (a) One or more domestic or foreign corporations which is, or would be if formed under this chapter, a type A or type C corporation under section 201 (Purposes) may be merged or consolidated into a domestic or foreign corporation which is, or would be if formed under the laws of this state, a corporation formed under the business corporation law of this state if such merger or consolidation is not contrary to the law of the state of incorporation of any constituent corporation. With respect to such merger or consolidation, any reference in paragraph (b) of section 901 of this article or paragraph (b) of section 901 of the business corporation law to a corporation shall, unless the context otherwise requires, include both domestic and foreign corporations. (b) With respect to procedure including authorization by shareholders or approval by members, each domestic business corporation shall comply with the business corporation law, each domestic not-for-profit corporation shall comply with the provisions of this chapter and each foreign corporation shall comply with the applicable provisions of the law of the jurisdiction under which it is incorporated. (c) The plan of merger or consolidation shall set forth all matter required by section 902 of the business corporation law or section 902 of this chapter and the terms and conditions of the proposed merger or consolidation, including the manner and basis of converting shares, membership or other interest in 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, membership or other interest in each constituent corporation, or a combination thereof. (d) After adoption of the plan of merger or consolidation by the board and members or shareholders of each constituent corporation, unless the merger or consolidation is abandoned in accordance with paragraph (b) of section 903 (Approval by members) and paragraph (b) of section 903 (Authorization by shareholders) of the business corporation law, a certificate of merger or consolidation, entitled "Certificate of merger (or consolidation) of .......... and .......... into .............. (names of corporations) under section 908 of the Not-for-Profit Corporation Law", shall be signed on behalf of each constituent corporation and delivered to the department of state. (1) If the surviving or consolidated corporation is, or is to be, a domestic corporation such certificate shall set forth the statements required by section 904(a) of the business corporation law or section 904(a) of this chapter and, as to each constituent foreign corporation the jurisdiction and date of its incorporation and the date when its application for authority to conduct activities or do business in this state was filed by the department of state or, if no such application has been filed, a statement to such effect. (2) If the surviving or consolidated corporation is, or is to be formed under the law of any jurisdiction other than this state such certificate shall set forth: (A) The statements required by subparagraphs (a)(1) and (2) of section 902 of the business corporation law or subparagraphs (a)(1) and (2) of section 902 (Plan of merger or consolidation) of this chapter, and the manner in which the merger or consolidation was authorized with respect to each constituent domestic corporation. (B) 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 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. (C) 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 or conduct activities in this state, the date when its application for authority was filed by the department of state. (D) 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 the business corporation law, of the rights of shareholders of any constituent domestic business corporation to receive payment for their shares against the surviving or consolidated corporation. (E) An agreement that, subject to the provisions of section 623 of the business corporation law, the surviving or consolidated foreign corporation will promptly pay to the shareholders of each constituent domestic business corporation the amount, if any, to which they shall be entitled under the provisions of the business corporation law relating to the right of shareholders to receive payment for their shares. (F) A designation of the secretary of state as his 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 described in subparagraph (D) and a post office address, within or without the state, to which the secretary of state shall mail a copy of the process in such action or special proceeding. (e) The department of state shall not file a certificate delivered to it under subparagraph (d) (2) unless the consent of the state tax commission to the merger or consolidation is attached thereto. (f) Where any constituent corporation is, or would be if formed under this chapter, a Type C corporation under section 201 (Purposes), 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 907 (Approval by the supreme court). (g) Upon the filing of the certificate of merger or consolidation by the department of state or on such dates 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 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. (i) When such merger or consolidation has been effected: (A) If the surviving or consolidated corporation is, or is to be, formed under the law of this state, it shall be subject to the business 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 906 (Effect of merger or consolidation) of the business corporation law, except that in subparagraph (b) (3) of such section the word "shareholder" shall be read to include the word "member" as the latter is defined in this chapter. (B) 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 as provided in subparagraph (A), except insofar as the law of such other jurisdiction provides otherwise. S 909. Consent to filing. If the purposes of any constituent or consolidated corporation would require the approval or consent of any governmental body or officer or any other person or body under section 404 (Approvals and consents) no certificate of merger or consolidation shall be filed pursuant to this article unless such approval or consent is endorsed thereon or annexed thereto. S 910. Merger or consolidation of corporations formed under the religious corporations law and certain other corporations formed for religious purposes. (a) One or more corporations formed under the religious corporations law and one or more corporations formed for religious purposes to which the not-for-profit corporation law applies by virtue of paragraph (a) of section one hundred three of this chapter may be merged or consolidated pursuant to section nine hundred one, with the effect provided in section nine hundred one and paragraph (b) of section nine hundred five of this chapter. (b) Each corporation which is a party to such merger or consolidation shall comply with the provisions of this section and of sections 902, 903, 904 and 907 of this chapter and, if and to the extent applicable, sections 906 and 909 of this chapter. (c) If the surviving corporation or consolidated corporation is a domestic or authorized foreign corporation not formed under the religious corporations law, then, a certificate of merger or consolidation shall be filed with the department of state, and 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 the county in which each constituent corporation other than the surviving corporation is located, the county in which the certificate of incorporation of each constituent domestic corporation or application for authority of each constituent authorized foreign corporation, other than the surviving corporation, is filed and the office of the official who is the recording officer of such county in this state in which real property of a constituent corporation other than the surviving corporation, is located. (d) If the surviving corporation or consolidated corporation is a corporation formed under the religious corporations law, then, the certificate of merger or consolidation shall be filed with the office of the official in which the certificate of incorporation of the surviving or consolidated corporation was filed, and the surviving or consolidated corporation shall thereafter cause a copy of such certificate, certified by such office, to be filed in the office in which the certificate of incorporation of each constituent domestic corporation or application for authority of each authorized foreign corporation other than the surviving corporation was filed, 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 or consolidated corporation, is located. (e) Such merger or consolidation shall become effective with respect to each constituent corporation upon the filing of a certificate of merger or consolidation or certified copy thereof pursuant to paragraph (c) or paragraph (d) of this section with the appropriate state or county official therein specified. With respect to the surviving corporation, such merger may become effective on such date subsequent thereto, not to exceed thirty days, as shall be set forth in such certificate. The filing of a certified copy with the office of a recording officer of a county in which real property is located shall not be a condition precedent to such merger or consolidation becoming effective.

Not-for-Profit Corporation Law

Article 9, Merger or Consolidation

Article 9 Continued . . .