2023 New York Laws › NPC - Not-For-Profit Corporation › Article 9 - Merger or Consolidation › 908 - Merger or Consolidation of Business and Not-for-Profit Corporations.

§ 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  non-charitable  corporation,  or  any
corporation  formed  as  a  type  A corporation prior to July first, two
thousand fourteen, 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  (Power  of  merger  or  consolidation)  of this article or
paragraph (b) of section 901 (Power of merger or consolidation)  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.
(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.