N.Y. Business Corporation Law § 907: Merger or consolidation of domestic and foreign corporations

§ 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 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.

(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.