2023 New York Laws › BSC - Business Corporation › Article 9 - Merger or Consolidation; Guarantee; Disposition of Assets; Share Exchanges › 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.