N.Y. Business Corporation Law § 904-a: Merger or consolidation of corporations with other business entities; certificate of merger or consolidation

§ 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, and the surviving or

resulting entity is a corporation, foreign corporation, or other

business entity for which the laws of this state do not provide for the

filing of a certificate of merger or consolidation with the department

of state, a certificate of merger or consolidation, entitled

"Certificate of merger (or consolidation) of ..... and..... into .....

(names of constituent entities) under 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 or

other business entity, an agreement that the surviving or consolidated

foreign corporation or other business entity may be served with process

in this state in any action or special proceeding for the enforcement of

any liability or obligation of any domestic or foreign entity,

previously amenable to suit in this state, which is a constituent entity

in such merger or consolidation, and for the enforcement, as provided in

this chapter, of the right of shareholders or members of any constituent

domestic entity to receive payment for their interests against the

surviving or consolidated corporation;

(8) If the surviving or resulting entity is a foreign corporation or

other business entity, a designation of the secretary of state as its

agent upon whom process against it may be served in the manner set forth

in paragraph (b) of section three hundred six of this chapter, in any

action or special proceeding, and a post office address, within or

without this state, to which the secretary of state shall mail a copy of

any process against it served upon him or her. The corporation may

include an email address to which the secretary of state shall email a

notice of the fact that process against it has been electronically

served upon him or her. Such post office address shall supersede any

prior address designated as the address to which process shall be mailed

and such email address shall supersede any prior email address

designated as the email address to which a notice shall be sent;

(9) If the surviving or resulting entity is a foreign corporation, an

agreement that, subject to the provisions of section six hundred

twenty-three of this chapter, 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.