N.Y. Not-for-Profit Corporation Law § 907-a: Application for approval of the supreme court

§ 907-a. Application for approval of the supreme court.

(a) Application for an order approving the plan of merger and

authorizing the filing of the certificate 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) of

this article for each constituent corporation, (3) the objects and

purposes of each such corporation to be promoted by the merger or

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 was 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) of this

article, 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) of this article. 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 charitable purpose 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

paragraph (b) of section 906 (Merger or consolidation of domestic and

foreign corporations) of this article.

(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.

(f) A certified copy of such order shall be annexed to the certificate

of merger or consolidation.