Mass. Gen. Laws ch. 156B, sec. 79 — MA Code / Part I / Title XXII / Chapter 156B / Section 79
Consolidation or merger with foreign corporation
Status: in_force

Section 79. (a) Any one or more corporations may consolidate or merge with one or more other corporations organized under the laws of any other state or states of the United States, if the laws of such other state or states permit. The constituent corporations may consolidate to form a new corporation, which may be a corporation of the state under the law of which any one of the constituent corporations is organized, or they may merge into a single corporation, which may be any one of the constituent corporations. (b) Such corporations as desire to consolidate or merge shall enter into an agreement of consolidation or merger which shall specify the state under the laws of which the resulting or surviving corporation is organized. If the resulting or surviving corporation is to be a Massachusetts corporation such agreement of consolidation or merger shall comply with the provisions of section seventy-eight, and if the resulting or surviving corporation is to be governed by the laws of another state the agreement of consolidation or merger shall comply with the applicable provisions of the laws of such other state. If the resulting or surviving corporation is to be governed by the laws of another state the resulting or surviving corporation shall agree that it may be sued in this commonwealth for any prior obligation of any constituent domestic corporation, any prior obligation of any constituent foreign corporation qualified under Part 15 of chapter 156D, and any obligation thereafter incurred by the resulting or surviving corporation, including the obligation established by section 85, so long as any liability remains outstanding against the corporation in this commonwealth, and it shall irrevocably appoint the secretary as its agent to accept service of process in any action for the enforcement of any such obligation, including taxes, in the same manner as provided in subsections (d), (e), (f) and (g) of section 15.10 of subdivision A of Part 15 of chapter 156D. (c) The agreement of consolidation or merger shall be adopted by each of the constituent corporations in accordance with the laws of the state under which it is organized, and in the case of a Massachusetts corporation in the manner provided in section seventy-eight. Unless such agreement is abandoned pursuant to provisions contained therein: (1) an original or attested copy thereof shall be kept in the commonwealth by the resulting or surviving corporation in one of the offices specified in section thirty-two if the resulting or surviving corporation is to be a Massachusetts corporation, or if said corporation is to be governed by the laws of another state, wherever the records of meetings of its stockholders are required or permitted by such laws to be kept, and shall be made available at said location for inspection by any stockholder of the resulting or surviving corporation or any person who was a stockholder of any constituent corporation; (2) the resulting or surviving corporation shall furnish a copy of the agreement of consolidation or merger to any such stockholder or person upon written request and without charge; (3) articles of consolidation or merger shall be submitted to the state secretary, which shall set forth the information required by clauses (i) to (iv), inclusive, of subsection (d) of section seventy-eight, and shall be signed by the president or a vice president and the clerk or an assistant clerk of each constituent corporation, or, in the case of a corporation organized under the laws of another state, by officers having corresponding powers and duties, who shall make affidavit or state under the penalties of perjury (i) in the case of each constituent corporation not organized under the laws of Massachusetts, that the agreement has been duly adopted under the laws of the state under which such constituent corporation is organized, and (ii) in the case of each constituent corporation organized under the laws of Massachusetts, that the agreement has been duly executed by the officers and has been approved in the manner required by section seventy-eight by the stockholders of such corporation or, if permitted under subsection (c) of section seventy-eight, by the directors of such corporation. If the resulting or surviving corporation is to be governed by the laws of Massachusetts, the form on which articles of consolidation or merger are filed shall contain the further information required by subsection (d) of section seventy-eight in the case of articles of consolidation or merger filed thereunder, which as set forth in said subsection (d) shall not for any purpose be treated as a permanent part of the articles of organization of the resulting or surviving corporation. The consolidation or merger shall become effective when the articles of consolidation or merger are filed in accordance with section six, unless said articles specify a later effective date not more than thirty days after such filing, in which event the consolidation or merger shall become effective on such later date. (d) The resulting or surviving corporation shall file a copy of the articles of consolidation or merger certified by the state secretary in the registry of deeds in each district within the commonwealth in which real property of any constituent corporation is situated, or in lieu of such certified copy a certificate issued pursuant to section eighty-four, except that no filing need be made with respect to real property of a constituent corporation which is the surviving corporation of a merger.

Section 79. (a) Any one or more corporations may consolidate or merge with one or more other corporations organized under the laws of any other state or states of the United States, if the laws of such other state or states permit. The constituent corporations may consolidate to form a new corporation, which may be a corporation of the state under the law of which any one of the constituent corporations is organized, or they may merge into a single corporation, which may be any one of the constituent corporations.

(b) Such corporations as desire to consolidate or merge shall enter into an agreement of consolidation or merger which shall specify the state under the laws of which the resulting or surviving corporation is organized. If the resulting or surviving corporation is to be a Massachusetts corporation such agreement of consolidation or merger shall comply with the provisions of section seventy-eight, and if the resulting or surviving corporation is to be governed by the laws of another state the agreement of consolidation or merger shall comply with the applicable provisions of the laws of such other state. If the resulting or surviving corporation is to be governed by the laws of another state the resulting or surviving corporation shall agree that it may be sued in this commonwealth for any prior obligation of any constituent domestic corporation, any prior obligation of any constituent foreign corporation qualified under Part 15 of chapter 156D, and any obligation thereafter incurred by the resulting or surviving corporation, including the obligation established by section 85, so long as any liability remains outstanding against the corporation in this commonwealth, and it shall irrevocably appoint the secretary as its agent to accept service of process in any action for the enforcement of any such obligation, including taxes, in the same manner as provided in subsections (d), (e), (f) and (g) of section 15.10 of subdivision A of Part 15 of chapter 156D.

(c) The agreement of consolidation or merger shall be adopted by each of the constituent corporations in accordance with the laws of the state under which it is organized, and in the case of a Massachusetts corporation in the manner provided in section seventy-eight. Unless such agreement is abandoned pursuant to provisions contained therein: (1) an original or attested copy thereof shall be kept in the commonwealth by the resulting or surviving corporation in one of the offices specified in section thirty-two if the resulting or surviving corporation is to be a Massachusetts corporation, or if said corporation is to be governed by the laws of another state, wherever the records of meetings of its stockholders are required or permitted by such laws to be kept, and shall be made available at said location for inspection by any stockholder of the resulting or surviving corporation or any person who was a stockholder of any constituent corporation; (2) the resulting or surviving corporation shall furnish a copy of the agreement of consolidation or merger to any such stockholder or person upon written request and without charge; (3) articles of consolidation or merger shall be submitted to the state secretary, which shall set forth the information required by clauses (i) to (iv), inclusive, of subsection (d) of section seventy-eight, and shall be signed by the president or a vice president and the clerk or an assistant clerk of each constituent corporation, or, in the case of a corporation organized under the laws of another state, by officers having corresponding powers and duties, who shall make affidavit or state under the penalties of perjury (i) in the case of each constituent corporation not organized under the laws of Massachusetts, that the agreement has been duly adopted under the laws of the state under which such constituent corporation is organized, and (ii) in the case of each constituent corporation organized under the laws of Massachusetts, that the agreement has been duly executed by the officers and has been approved in the manner required by section seventy-eight by the stockholders of such corporation or, if permitted under subsection (c) of section seventy-eight, by the directors of such corporation. If the resulting or surviving corporation is to be governed by the laws of Massachusetts, the form on which articles of consolidation or merger are filed shall contain the further information required by subsection (d) of section seventy-eight in the case of articles of consolidation or merger filed thereunder, which as set forth in said subsection (d) shall not for any purpose be treated as a permanent part of the articles of organization of the resulting or surviving corporation. The consolidation or merger shall become effective when the articles of consolidation or merger are filed in accordance with section six, unless said articles specify a later effective date not more than thirty days after such filing, in which event the consolidation or merger shall become effective on such later date.

(d) The resulting or surviving corporation shall file a copy of the articles of consolidation or merger certified by the state secretary in the registry of deeds in each district within the commonwealth in which real property of any constituent corporation is situated, or in lieu of such certified copy a certificate issued pursuant to section eighty-four, except that no filing need be made with respect to real property of a constituent corporation which is the surviving corporation of a merger.