6010. (a) A public benefit corporation may merge with any domestic
corporation, foreign corporation (Section 171), or other business
entity (Section 5063.5). However, without the prior written consent
of the Attorney General, a public benefit corporation may only merge
with another public benefit corporation or a religious corporation or
a foreign nonprofit corporation the articles of which provide that
its assets are irrevocably dedicated to charitable, religious, or
public purposes.
(b) At least 20 days prior to consummation of any merger allowed
by subdivision (a), the Attorney General must be provided with a copy
of the proposed agreement of merger.
(c) Without the prior written consent of the Attorney General,
when a merger occurs pursuant to subdivision (a), each member of a
constituent corporation may only receive or keep a membership in the
surviving corporation for or as a result of the member's membership
in the constituent corporation.
6011. The board of each corporation which desires to merge shall
approve an agreement of merger. The constituent corporations shall be
parties to the agreement of merger and other persons may be parties
to the agreement of merger. The agreement shall state:
(a) The terms and conditions of the merger;
(b) The amendments, subject to Sections 5810 and 5816, to the
articles of the surviving corporation to be effected by the merger,
if any; if any amendment changes the name of the surviving
corporation, the new name may be the same as or similar to the name
of a disappearing corporation, subject to subdivision (b) of Section
5122;
(c) The amendments to the bylaws of the surviving corporation to
be effected by the merger, if any;
(d) The name and place of incorporation of each constituent
corporation and which of the constituent corporations is the
surviving corporation;
(e) The manner, if any, of converting memberships of the
constituent corporations into memberships of the surviving
corporation; and
(f) Such other details or provisions as are desired, if any.
6012. The principal terms of the merger shall be approved by the
members (Section 5034) of each constituent corporation and by each
other person or persons whose approval of an amendment of articles is
required by the articles; and the approval by the members (Section
5034) or such other person or persons required by this section may be
given before or after the approval by the board.
6013. Each constituent corporation shall sign the agreement by the
chairman of its board, president or a vice president and secretary or
an assistant secretary acting on behalf of their respective
corporations.
6014. After approval of a merger by the board and any approval by
the members (Section 5034) or other person or persons required by
Section 6012, the surviving corporation shall file a copy of the
agreement of merger with an officers' certificate of each constituent
corporation attached stating the total number of memberships of each
class entitled to vote on the merger, identifying any other person
or persons whose approval is required, and stating that the principal
terms of the agreement in the form attached were duly approved by
the required vote of the members and (if applicable) such other
person or persons. The merger and any amendment of the articles of
the surviving corporation contained in the merger agreement shall
thereupon be effective (subject to subdivision (c) of Section 5008
and subject to the provisions of Section 6018) and the several
parties thereto shall be one surviving corporation. The Secretary of
State may certify a copy of the merger agreement separate from the
officers' certificates attached thereto.
6015. (a) Any amendment to the agreement may be adopted and the
agreement so amended may be approved by the board and, if it changes
any of the principal terms of the agreement, by the members (Section
5034) or other person or persons, as required by Section 6012, of any
constituent corporation in the same manner as the original
agreement.
(b) If the agreement so amended is approved as provided in
subdivision (a), the agreement so amended shall then constitute the
agreement of merger.
6016. The board may, in its discretion, abandon a merger, subject
to the contractual rights, if any, of third parties, including other
constituent corporations, without further approval by the members
(Section 5034) or other persons entitled to approve the merger at any
time before the merger is effective.
6017. A copy of an agreement of merger certified on or after the
effective date by an official having custody thereof has the same
force in evidence as the original and, except as against the state,
is conclusive evidence of the performance of all conditions precedent
to the merger, the existence on the effective date of the surviving
corporation and the performance of the conditions necessary to the
adoption of any amendment to the articles contained in the agreement
of merger.
6018. (a) Subject to the provisions of Section 6010, the merger of
any number of corporations with any number of foreign corporations
may be effected if the foreign corporations are authorized by the
laws under which they are formed to effect the merger. The surviving
corporation may be any one of the constituent corporations and shall
continue to exist under the laws of the state or place of its
incorporation.
(b) If the surviving corporation is a public benefit corporation
or a religious corporation, the merger proceedings with respect to
that corporation and any disappearing corporation shall conform to
the provisions of this chapter governing the merger of corporations,
but if the surviving corporation is a foreign corporation, then,
subject to the requirements of subdivision (d) and Section 6012, the
merger proceedings may be in accordance with the laws of the state or
place of incorporation of the surviving corporation.
(c) If the surviving corporation is a public benefit corporation
or a religious corporation, the agreement and the officers'
certificate of each constituent corporation shall be filed as
provided in Section 6014 and thereupon, subject to subdivision (c) of
Section 5008, the merger shall be effective as to each corporation;
and each foreign disappearing corporation that is qualified for the
transaction of intrastate business shall by virtue of the filing
automatically surrender its right to transact intrastate business.
(d) If the surviving corporation is a foreign corporation, the
merger shall become effective in accordance with the law of the
jurisdiction in which it is organized, but shall be effective as to
any disappearing corporation as of the time of effectiveness in the
foreign jurisdiction upon the filing in this state as required by
this subdivision. There shall be filed as to the domestic
disappearing corporation or corporations the documents described in
any one of the following paragraphs:
(1) A copy of the agreement, certificate, or other document filed
by the surviving foreign corporation in the state or place of its
incorporation for the purpose of effecting the merger, which copy
shall be certified by the public officer having official custody of
the original.
(2) An executed counterpart of the agreement, certificate, or
other document filed by the surviving corporation in the state or
place of its incorporation for the purpose of effecting the merger.
(3) A copy of the agreement of merger with an officers'
certificate of the surviving foreign corporation and of each
constituent domestic corporation attached, which officers'
certificates shall conform to the requirements of Section 6014.
(e) If the date of the filing in this state pursuant to
subdivision (d) is more than six months after the time of the
effectiveness in the foreign jurisdiction, or if the powers of the
domestic corporation are suspended at the time of effectiveness in
the foreign jurisdiction, the merger shall be effective as to the
domestic disappearing corporation or corporations as of the date of
filing in this state. Each foreign disappearing corporation that is
qualified for the transaction of intrastate business shall
automatically by the filing pursuant to subdivision (d) surrender its
right to transact intrastate business as of the date of filing in
this state regardless of the time of effectiveness as to a domestic
disappearing corporation.
6019. If an agreement of merger is entered into between a nonprofit
corporation and a business corporation: (i) Sections 6011, 6012,
6014, and 6015 shall apply to any constituent public benefit
corporation; (ii) Sections 8011, 8011.5, 8012, 8014, and 8015 shall
apply to any constituent mutual benefit corporation; (iii) Sections
6014 and 6015 and subdivisions (c) and (d) of Section 9640 shall
apply to any constituent religious corporation; and (iv) Sections
1101, 1101.1, 1103, and 1104 shall apply to any constituent business
corporation.
6019.1. (a) Subject to the provisions of Sections 6010 and 9640,
any one or more corporations may merge with one or more other
business entities (Section 5063.5). One or more other domestic
corporations and foreign corporations (Section 5053) may be parties
to the merger. Notwithstanding the provisions of this section, such a
merger may be effected only if:
(1) In a merger in which a domestic corporation or domestic other
business entity is a party, it is authorized by the laws under which
it is organized to effect the merger.
(2) In a merger in which a foreign corporation is a party, it is
authorized by the laws under which it is organized to effect the
merger.
(3) In a merger in which a foreign other business entity is a
party, it is authorized by the laws under which it is organized to
effect the merger.
(b) Each corporation and each other party which desires to merge
shall approve an agreement of merger. The board and the members
(Section 5034) of each corporation which desires to merge, and each
other person or persons, if any, whose approval of an amendment of
the articles of that corporation is required by the articles or
bylaws shall approve the agreement of merger. The agreement of merger
shall be approved on behalf of each other party by those persons
authorized or required to approve the merger by the laws under which
it is organized. The parties desiring to merge shall be parties to
the agreement of merger and other persons, including a parent party
(Section 5064.5), may be parties to the agreement of merger. The
agreement of merger shall state all of the following:
(1) The terms and conditions of the merger.
(2) The name and place of incorporation or organization of each
party and the identity of the surviving party.
(3) The amendments, if any, subject to Sections 5810 and 5816, to
the articles of the surviving corporation, if applicable, to be
effected by the merger. The name of the surviving corporation may be,
subject to subdivision (b) of Section 5122 and subdivision (b) of
Section 9122, the same as, or similar to, the name of a disappearing
party to the merger.
(4) The manner, if any, of converting the memberships of each of
the constituent corporations into shares, memberships, interests, or
other securities of the surviving party; and, if any memberships of
any of the constituent corporations are not to be converted solely
into shares, memberships, interests, or other securities of the
surviving party, the cash, rights, securities, or other property
which the holders of those memberships are to receive in exchange for
the memberships, which cash, rights, securities, or other property
may be in addition to, or in lieu of, shares, memberships, interests,
or other securities of the surviving corporation or surviving other
business entity.
(5) Any other details or provisions required by the laws under
which any party to the merger is organized, including, if a domestic
limited partnership is a party to the merger, subdivision (a) of
Section 15678.2 or 15911.12, if a domestic general partnership is a
party to the merger, subdivision (a) of Section 16911, or, if a
domestic limited liability company is a party to the merger,
subdivision (a) of Section 17551.
(6) Any other details or provisions as are desired.
(c) Notwithstanding its prior approval, an agreement of merger may
be amended prior to the filing of the agreement of merger if the
amendment is approved by each constituent corporation in the same
manner as the original agreement of merger. If the agreement of
merger as so amended and approved is also approved by each of the
other parties to the agreement of merger, as so amended it shall then
constitute the agreement of merger.
(d) The board of a constituent corporation may, in its discretion,
abandon a merger, subject to the contractual rights, if any, of
third parties, including other parties to the agreement of merger,
without further approval by the members (Section 5034) or other
persons, at any time before the merger is effective.
(e) Each constituent corporation shall sign the agreement of
merger by its chairperson of the board, president or a vice
president, and also by its secretary or an assistant secretary acting
on behalf of their respective corporations.
(f) After required approvals of the merger by each constituent
corporation and each other party to the merger, the surviving party
shall file a copy of the agreement of merger with an officers'
certificate of each constituent domestic and foreign corporation
attached stating the total number of outstanding shares or membership
interests of each class, if any, entitled to vote on the merger (and
identifying any other person or persons whose approval is required),
that the agreement of merger in the form attached or its principal
terms, as required, were approved by that corporation by a vote of a
number of shares or membership interests of each class entitled to
vote, if any, which equaled or exceeded the vote required, specifying
each class entitled to vote and the percentage vote required of each
class, and, if applicable, by that other person or persons whose
approval is required.
If equity securities of a parent party (Section 5064.5) are to be
issued in the merger, the officers' certificate or certificate of
merger of the controlled party shall state either that no vote of the
shareholders of the parent party was required or that the required
vote was obtained. The merger and any amendment of the articles of
the surviving corporation, if applicable, contained in the agreement
of merger shall be effective upon the filing of the agreement of
merger, subject to the provisions of subdivision (h). If a domestic
reciprocal insurer organized after 1974 to provide medical
malpractice insurance is a party to the merger, the agreement of
merger or certificate of merger shall not be filed until there has
been filed the certificate issued by the Insurance Commissioner
approving the merger pursuant to Section 1555 of the Insurance Code.
In lieu of an officers' certificate, a certificate of merger, on a
form prescribed by the Secretary of State, shall be filed for each
constituent other business entity. The certificate of merger shall be
executed and acknowledged by each domestic constituent limited
liability company by all of the managers of the limited liability
company (unless a lesser number is specified in its articles of
organization or operating agreement) and by each domestic constituent
limited partnership by all general partners (unless a lesser number
is provided in its certificate of limited partnership or partnership
agreement) and by each domestic constituent general partnership by
two partners (unless a lesser number is provided in its partnership
agreement) and by each foreign constituent limited liability company
by one or more managers and by each foreign constituent general
partnership or foreign constituent limited partnership by one or more
general partners, and by each constituent reciprocal insurer by the
chairperson of the board, president, or vice president, and also by
the secretary or assistant secretary, or, if a constituent reciprocal
insurer has not appointed such officers, by the chairperson of the
board, president, or vice president, and also by the secretary or
assistant secretary of the constituent reciprocal insurer's
attorney-in-fact, and by each other party to the merger by those
persons required or authorized to execute the certificate of merger
by the laws under which that party is organized, specifying for such
party the provision of law or other basis for the authority of the
signing persons.
The certificate of merger shall set forth, if a vote of the
shareholders, members, partners, or other holders of interests of a
constituent other business entity was required, a statement setting
forth the total number of outstanding interests of each class
entitled to vote on the merger and that the agreement of merger or
its principal terms, as required, were approved by a vote of the
number of interests of each class which equaled or exceeded the vote
required, specifying each class entitled to vote and the percentage
vote required of each class, and any other information required to be
set forth under the laws under which the constituent other business
entity is organized, including, if a domestic limited partnership is
a party to the merger, subdivision (a) of Section 15678.4 or
15911.14, if a domestic general partnership is a party to the merger,
subdivision (b) of Section 16915, and, if a domestic limited
liability company is a party to the merger, subdivision (a) of
Section 17552. The certificate of merger for each constituent foreign
other business entity, if any, shall also set forth the statutory or
other basis under which that foreign other business entity is
authorized by the laws under which it is organized to effect the
merger.
The Secretary of State may certify a copy of the agreement of
merger separate from the officers' certificates and certificates of
merger attached thereto.
(g) A copy of an agreement of merger certified on or after the
effective date by an official having custody thereof has the same
force in evidence as the original and, except as against the state,
is conclusive evidence of the performance of all conditions precedent
to the merger, the existence on the effective date of the surviving
party to the merger, the performance of the conditions necessary to
the adoption of any amendment to the articles, if applicable,
contained in the agreement of merger, and the merger of the
constituent corporations, either by themselves or together with other
constituent parties, into the surviving party to the merger.
(h) (1) The merger of domestic corporations with foreign
corporations or foreign other business entities in a merger in which
one or more other business entities is a party shall comply with
subdivisions (a) and (f) and this subdivision.
(2) Subject to subdivision (c) of Section 5008 and paragraph (3),
the merger shall be effective as to each domestic constituent
corporation and domestic constituent other business entity upon
filing of the agreement of merger with attachments as provided in
subdivision (f).
(3) If the surviving party is a foreign corporation or foreign
other business entity, except as provided in paragraph (4), the
merger shall be effective as to any domestic disappearing corporation
as of the time of effectiveness in the foreign jurisdiction upon the
filing in this state of a copy of the agreement of merger with an
officers' certificate of the surviving foreign corporation and of
each constituent foreign and domestic corporation and a certificate
of merger of each constituent other business entity attached, which
officers' certificates and certificates of merger shall conform to
the requirements of subdivision (f).
If one or more domestic other business entities is a disappearing
party in a merger pursuant to this subdivision in which a foreign
other business entity is the surviving entity, a certificate of
merger required by the laws under which each domestic other business
entity is organized, including subdivision (a) of Section 15678.4 or
15911.14, subdivision (b) of Section 16915, or subdivision (a) of
Section 17552, if applicable, shall also be filed at the same time as
the filing of the agreement of merger.
(4) If the date of the filing in this state pursuant to this
subdivision is more than six months after the time of the
effectiveness in the foreign jurisdiction, or if the powers of a
domestic disappearing corporation are suspended at the time of
effectiveness in the foreign jurisdiction, the merger shall be
effective as to the domestic disappearing corporation as of the date
of filing in this state.
(5) Each foreign disappearing corporation that is qualified for
the transaction of intrastate business shall automatically by the
filing pursuant to subdivision (f) surrender its right to transact
intrastate business as of the date of filing in this state or, if
later, the effective date of the merger. With respect to each foreign
disappearing other business entity previously registered for the
transaction of intrastate business in this state, the filing of the
agreement of merger pursuant to subdivision (f) automatically has the
effect of a cancellation of registration for that foreign other
business entity as of the date of filing in this state or, if later,
the effective date of the merger, without the necessity of the filing
of a certificate of cancellation.
6010. (a) A public benefit corporation may merge with any domestic
corporation, foreign corporation (Section 171), or other business
entity (Section 5063.5). However, without the prior written consent
of the Attorney General, a public benefit corporation may only merge
with another public benefit corporation or a religious corporation or
a foreign nonprofit corporation the articles of which provide that
its assets are irrevocably dedicated to charitable, religious, or
public purposes.
(b) At least 20 days prior to consummation of any merger allowed
by subdivision (a), the Attorney General must be provided with a copy
of the proposed agreement of merger.
(c) Without the prior written consent of the Attorney General,
when a merger occurs pursuant to subdivision (a), each member of a
constituent corporation may only receive or keep a membership in the
surviving corporation for or as a result of the member's membership
in the constituent corporation.
6011. The board of each corporation which desires to merge shall
approve an agreement of merger. The constituent corporations shall be
parties to the agreement of merger and other persons may be parties
to the agreement of merger. The agreement shall state:
(a) The terms and conditions of the merger;
(b) The amendments, subject to Sections 5810 and 5816, to the
articles of the surviving corporation to be effected by the merger,
if any; if any amendment changes the name of the surviving
corporation, the new name may be the same as or similar to the name
of a disappearing corporation, subject to subdivision (b) of Section
5122;
(c) The amendments to the bylaws of the surviving corporation to
be effected by the merger, if any;
(d) The name and place of incorporation of each constituent
corporation and which of the constituent corporations is the
surviving corporation;
(e) The manner, if any, of converting memberships of the
constituent corporations into memberships of the surviving
corporation; and
(f) Such other details or provisions as are desired, if any.
6012. The principal terms of the merger shall be approved by the
members (Section 5034) of each constituent corporation and by each
other person or persons whose approval of an amendment of articles is
required by the articles; and the approval by the members (Section
5034) or such other person or persons required by this section may be
given before or after the approval by the board.
6013. Each constituent corporation shall sign the agreement by the
chairman of its board, president or a vice president and secretary or
an assistant secretary acting on behalf of their respective
corporations.
6014. After approval of a merger by the board and any approval by
the members (Section 5034) or other person or persons required by
Section 6012, the surviving corporation shall file a copy of the
agreement of merger with an officers' certificate of each constituent
corporation attached stating the total number of memberships of each
class entitled to vote on the merger, identifying any other person
or persons whose approval is required, and stating that the principal
terms of the agreement in the form attached were duly approved by
the required vote of the members and (if applicable) such other
person or persons. The merger and any amendment of the articles of
the surviving corporation contained in the merger agreement shall
thereupon be effective (subject to subdivision (c) of Section 5008
and subject to the provisions of Section 6018) and the several
parties thereto shall be one surviving corporation. The Secretary of
State may certify a copy of the merger agreement separate from the
officers' certificates attached thereto.
6015. (a) Any amendment to the agreement may be adopted and the
agreement so amended may be approved by the board and, if it changes
any of the principal terms of the agreement, by the members (Section
5034) or other person or persons, as required by Section 6012, of any
constituent corporation in the same manner as the original
agreement.
(b) If the agreement so amended is approved as provided in
subdivision (a), the agreement so amended shall then constitute the
agreement of merger.
6016. The board may, in its discretion, abandon a merger, subject
to the contractual rights, if any, of third parties, including other
constituent corporations, without further approval by the members
(Section 5034) or other persons entitled to approve the merger at any
time before the merger is effective.
6017. A copy of an agreement of merger certified on or after the
effective date by an official having custody thereof has the same
force in evidence as the original and, except as against the state,
is conclusive evidence of the performance of all conditions precedent
to the merger, the existence on the effective date of the surviving
corporation and the performance of the conditions necessary to the
adoption of any amendment to the articles contained in the agreement
of merger.
6018. (a) Subject to the provisions of Section 6010, the merger of
any number of corporations with any number of foreign corporations
may be effected if the foreign corporations are authorized by the
laws under which they are formed to effect the merger. The surviving
corporation may be any one of the constituent corporations and shall
continue to exist under the laws of the state or place of its
incorporation.
(b) If the surviving corporation is a public benefit corporation
or a religious corporation, the merger proceedings with respect to
that corporation and any disappearing corporation shall conform to
the provisions of this chapter governing the merger of corporations,
but if the surviving corporation is a foreign corporation, then,
subject to the requirements of subdivision (d) and Section 6012, the
merger proceedings may be in accordance with the laws of the state or
place of incorporation of the surviving corporation.
(c) If the surviving corporation is a public benefit corporation
or a religious corporation, the agreement and the officers'
certificate of each constituent corporation shall be filed as
provided in Section 6014 and thereupon, subject to subdivision (c) of
Section 5008, the merger shall be effective as to each corporation;
and each foreign disappearing corporation that is qualified for the
transaction of intrastate business shall by virtue of the filing
automatically surrender its right to transact intrastate business.
(d) If the surviving corporation is a foreign corporation, the
merger shall become effective in accordance with the law of the
jurisdiction in which it is organized, but shall be effective as to
any disappearing corporation as of the time of effectiveness in the
foreign jurisdiction upon the filing in this state as required by
this subdivision. There shall be filed as to the domestic
disappearing corporation or corporations the documents described in
any one of the following paragraphs:
(1) A copy of the agreement, certificate, or other document filed
by the surviving foreign corporation in the state or place of its
incorporation for the purpose of effecting the merger, which copy
shall be certified by the public officer having official custody of
the original.
(2) An executed counterpart of the agreement, certificate, or
other document filed by the surviving corporation in the state or
place of its incorporation for the purpose of effecting the merger.
(3) A copy of the agreement of merger with an officers'
certificate of the surviving foreign corporation and of each
constituent domestic corporation attached, which officers'
certificates shall conform to the requirements of Section 6014.
(e) If the date of the filing in this state pursuant to
subdivision (d) is more than six months after the time of the
effectiveness in the foreign jurisdiction, or if the powers of the
domestic corporation are suspended at the time of effectiveness in
the foreign jurisdiction, the merger shall be effective as to the
domestic disappearing corporation or corporations as of the date of
filing in this state. Each foreign disappearing corporation that is
qualified for the transaction of intrastate business shall
automatically by the filing pursuant to subdivision (d) surrender its
right to transact intrastate business as of the date of filing in
this state regardless of the time of effectiveness as to a domestic
disappearing corporation.
6019. If an agreement of merger is entered into between a nonprofit
corporation and a business corporation: (i) Sections 6011, 6012,
6014, and 6015 shall apply to any constituent public benefit
corporation; (ii) Sections 8011, 8011.5, 8012, 8014, and 8015 shall
apply to any constituent mutual benefit corporation; (iii) Sections
6014 and 6015 and subdivisions (c) and (d) of Section 9640 shall
apply to any constituent religious corporation; and (iv) Sections
1101, 1101.1, 1103, and 1104 shall apply to any constituent business
corporation.
6019.1. (a) Subject to the provisions of Sections 6010 and 9640,
any one or more corporations may merge with one or more other
business entities (Section 5063.5). One or more other domestic
corporations and foreign corporations (Section 5053) may be parties
to the merger. Notwithstanding the provisions of this section, such a
merger may be effected only if:
(1) In a merger in which a domestic corporation or domestic other
business entity is a party, it is authorized by the laws under which
it is organized to effect the merger.
(2) In a merger in which a foreign corporation is a party, it is
authorized by the laws under which it is organized to effect the
merger.
(3) In a merger in which a foreign other business entity is a
party, it is authorized by the laws under which it is organized to
effect the merger.
(b) Each corporation and each other party which desires to merge
shall approve an agreement of merger. The board and the members
(Section 5034) of each corporation which desires to merge, and each
other person or persons, if any, whose approval of an amendment of
the articles of that corporation is required by the articles or
bylaws shall approve the agreement of merger. The agreement of merger
shall be approved on behalf of each other party by those persons
authorized or required to approve the merger by the laws under which
it is organized. The parties desiring to merge shall be parties to
the agreement of merger and other persons, including a parent party
(Section 5064.5), may be parties to the agreement of merger. The
agreement of merger shall state all of the following:
(1) The terms and conditions of the merger.
(2) The name and place of incorporation or organization of each
party and the identity of the surviving party.
(3) The amendments, if any, subject to Sections 5810 and 5816, to
the articles of the surviving corporation, if applicable, to be
effected by the merger. The name of the surviving corporation may be,
subject to subdivision (b) of Section 5122 and subdivision (b) of
Section 9122, the same as, or similar to, the name of a disappearing
party to the merger.
(4) The manner, if any, of converting the memberships of each of
the constituent corporations into shares, memberships, interests, or
other securities of the surviving party; and, if any memberships of
any of the constituent corporations are not to be converted solely
into shares, memberships, interests, or other securities of the
surviving party, the cash, rights, securities, or other property
which the holders of those memberships are to receive in exchange for
the memberships, which cash, rights, securities, or other property
may be in addition to, or in lieu of, shares, memberships, interests,
or other securities of the surviving corporation or surviving other
business entity.
(5) Any other details or provisions required by the laws under
which any party to the merger is organized, including, if a domestic
limited partnership is a party to the merger, subdivision (a) of
Section 15678.2 or 15911.12, if a domestic general partnership is a
party to the merger, subdivision (a) of Section 16911, or, if a
domestic limited liability company is a party to the merger,
subdivision (a) of Section 17551.
(6) Any other details or provisions as are desired.
(c) Notwithstanding its prior approval, an agreement of merger may
be amended prior to the filing of the agreement of merger if the
amendment is approved by each constituent corporation in the same
manner as the original agreement of merger. If the agreement of
merger as so amended and approved is also approved by each of the
other parties to the agreement of merger, as so amended it shall then
constitute the agreement of merger.
(d) The board of a constituent corporation may, in its discretion,
abandon a merger, subject to the contractual rights, if any, of
third parties, including other parties to the agreement of merger,
without further approval by the members (Section 5034) or other
persons, at any time before the merger is effective.
(e) Each constituent corporation shall sign the agreement of
merger by its chairperson of the board, president or a vice
president, and also by its secretary or an assistant secretary acting
on behalf of their respective corporations.
(f) After required approvals of the merger by each constituent
corporation and each other party to the merger, the surviving party
shall file a copy of the agreement of merger with an officers'
certificate of each constituent domestic and foreign corporation
attached stating the total number of outstanding shares or membership
interests of each class, if any, entitled to vote on the merger (and
identifying any other person or persons whose approval is required),
that the agreement of merger in the form attached or its principal
terms, as required, were approved by that corporation by a vote of a
number of shares or membership interests of each class entitled to
vote, if any, which equaled or exceeded the vote required, specifying
each class entitled to vote and the percentage vote required of each
class, and, if applicable, by that other person or persons whose
approval is required.
If equity securities of a parent party (Section 5064.5) are to be
issued in the merger, the officers' certificate or certificate of
merger of the controlled party shall state either that no vote of the
shareholders of the parent party was required or that the required
vote was obtained. The merger and any amendment of the articles of
the surviving corporation, if applicable, contained in the agreement
of merger shall be effective upon the filing of the agreement of
merger, subject to the provisions of subdivision (h). If a domestic
reciprocal insurer organized after 1974 to provide medical
malpractice insurance is a party to the merger, the agreement of
merger or certificate of merger shall not be filed until there has
been filed the certificate issued by the Insurance Commissioner
approving the merger pursuant to Section 1555 of the Insurance Code.
In lieu of an officers' certificate, a certificate of merger, on a
form prescribed by the Secretary of State, shall be filed for each
constituent other business entity. The certificate of merger shall be
executed and acknowledged by each domestic constituent limited
liability company by all of the managers of the limited liability
company (unless a lesser number is specified in its articles of
organization or operating agreement) and by each domestic constituent
limited partnership by all general partners (unless a lesser number
is provided in its certificate of limited partnership or partnership
agreement) and by each domestic constituent general partnership by
two partners (unless a lesser number is provided in its partnership
agreement) and by each foreign constituent limited liability company
by one or more managers and by each foreign constituent general
partnership or foreign constituent limited partnership by one or more
general partners, and by each constituent reciprocal insurer by the
chairperson of the board, president, or vice president, and also by
the secretary or assistant secretary, or, if a constituent reciprocal
insurer has not appointed such officers, by the chairperson of the
board, president, or vice president, and also by the secretary or
assistant secretary of the constituent reciprocal insurer's
attorney-in-fact, and by each other party to the merger by those
persons required or authorized to execute the certificate of merger
by the laws under which that party is organized, specifying for such
party the provision of law or other basis for the authority of the
signing persons.
The certificate of merger shall set forth, if a vote of the
shareholders, members, partners, or other holders of interests of a
constituent other business entity was required, a statement setting
forth the total number of outstanding interests of each class
entitled to vote on the merger and that the agreement of merger or
its principal terms, as required, were approved by a vote of the
number of interests of each class which equaled or exceeded the vote
required, specifying each class entitled to vote and the percentage
vote required of each class, and any other information required to be
set forth under the laws under which the constituent other business
entity is organized, including, if a domestic limited partnership is
a party to the merger, subdivision (a) of Section 15678.4 or
15911.14, if a domestic general partnership is a party to the merger,
subdivision (b) of Section 16915, and, if a domestic limited
liability company is a party to the merger, subdivision (a) of
Section 17552. The certificate of merger for each constituent foreign
other business entity, if any, shall also set forth the statutory or
other basis under which that foreign other business entity is
authorized by the laws under which it is organized to effect the
merger.
The Secretary of State may certify a copy of the agreement of
merger separate from the officers' certificates and certificates of
merger attached thereto.
(g) A copy of an agreement of merger certified on or after the
effective date by an official having custody thereof has the same
force in evidence as the original and, except as against the state,
is conclusive evidence of the performance of all conditions precedent
to the merger, the existence on the effective date of the surviving
party to the merger, the performance of the conditions necessary to
the adoption of any amendment to the articles, if applicable,
contained in the agreement of merger, and the merger of the
constituent corporations, either by themselves or together with other
constituent parties, into the surviving party to the merger.
(h) (1) The merger of domestic corporations with foreign
corporations or foreign other business entities in a merger in which
one or more other business entities is a party shall comply with
subdivisions (a) and (f) and this subdivision.
(2) Subject to subdivision (c) of Section 5008 and paragraph (3),
the merger shall be effective as to each domestic constituent
corporation and domestic constituent other business entity upon
filing of the agreement of merger with attachments as provided in
subdivision (f).
(3) If the surviving party is a foreign corporation or foreign
other business entity, except as provided in paragraph (4), the
merger shall be effective as to any domestic disappearing corporation
as of the time of effectiveness in the foreign jurisdiction upon the
filing in this state of a copy of the agreement of merger with an
officers' certificate of the surviving foreign corporation and of
each constituent foreign and domestic corporation and a certificate
of merger of each constituent other business entity attached, which
officers' certificates and certificates of merger shall conform to
the requirements of subdivision (f).
If one or more domestic other business entities is a disappearing
party in a merger pursuant to this subdivision in which a foreign
other business entity is the surviving entity, a certificate of
merger required by the laws under which each domestic other business
entity is organized, including subdivision (a) of Section 15678.4 or
15911.14, subdivision (b) of Section 16915, or subdivision (a) of
Section 17552, if applicable, shall also be filed at the same time as
the filing of the agreement of merger.
(4) If the date of the filing in this state pursuant to this
subdivision is more than six months after the time of the
effectiveness in the foreign jurisdiction, or if the powers of a
domestic disappearing corporation are suspended at the time of
effectiveness in the foreign jurisdiction, the merger shall be
effective as to the domestic disappearing corporation as of the date
of filing in this state.
(5) Each foreign disappearing corporation that is qualified for
the transaction of intrastate business shall automatically by the
filing pursuant to subdivision (f) surrender its right to transact
intrastate business as of the date of filing in this state or, if
later, the effective date of the merger. With respect to each foreign
disappearing other business entity previously registered for the
transaction of intrastate business in this state, the filing of the
agreement of merger pursuant to subdivision (f) automatically has the
effect of a cancellation of registration for that foreign other
business entity as of the date of filing in this state or, if later,
the effective date of the merger, without the necessity of the filing
of a certificate of cancellation.
6010. (a) A public benefit corporation may merge with any domestic
corporation, foreign corporation (Section 171), or other business
entity (Section 5063.5). However, without the prior written consent
of the Attorney General, a public benefit corporation may only merge
with another public benefit corporation or a religious corporation or
a foreign nonprofit corporation the articles of which provide that
its assets are irrevocably dedicated to charitable, religious, or
public purposes.
(b) At least 20 days prior to consummation of any merger allowed
by subdivision (a), the Attorney General must be provided with a copy
of the proposed agreement of merger.
(c) Without the prior written consent of the Attorney General,
when a merger occurs pursuant to subdivision (a), each member of a
constituent corporation may only receive or keep a membership in the
surviving corporation for or as a result of the member's membership
in the constituent corporation.
6011. The board of each corporation which desires to merge shall
approve an agreement of merger. The constituent corporations shall be
parties to the agreement of merger and other persons may be parties
to the agreement of merger. The agreement shall state:
(a) The terms and conditions of the merger;
(b) The amendments, subject to Sections 5810 and 5816, to the
articles of the surviving corporation to be effected by the merger,
if any; if any amendment changes the name of the surviving
corporation, the new name may be the same as or similar to the name
of a disappearing corporation, subject to subdivision (b) of Section
5122;
(c) The amendments to the bylaws of the surviving corporation to
be effected by the merger, if any;
(d) The name and place of incorporation of each constituent
corporation and which of the constituent corporations is the
surviving corporation;
(e) The manner, if any, of converting memberships of the
constituent corporations into memberships of the surviving
corporation; and
(f) Such other details or provisions as are desired, if any.
6012. The principal terms of the merger shall be approved by the
members (Section 5034) of each constituent corporation and by each
other person or persons whose approval of an amendment of articles is
required by the articles; and the approval by the members (Section
5034) or such other person or persons required by this section may be
given before or after the approval by the board.
6013. Each constituent corporation shall sign the agreement by the
chairman of its board, president or a vice president and secretary or
an assistant secretary acting on behalf of their respective
corporations.
6014. After approval of a merger by the board and any approval by
the members (Section 5034) or other person or persons required by
Section 6012, the surviving corporation shall file a copy of the
agreement of merger with an officers' certificate of each constituent
corporation attached stating the total number of memberships of each
class entitled to vote on the merger, identifying any other person
or persons whose approval is required, and stating that the principal
terms of the agreement in the form attached were duly approved by
the required vote of the members and (if applicable) such other
person or persons. The merger and any amendment of the articles of
the surviving corporation contained in the merger agreement shall
thereupon be effective (subject to subdivision (c) of Section 5008
and subject to the provisions of Section 6018) and the several
parties thereto shall be one surviving corporation. The Secretary of
State may certify a copy of the merger agreement separate from the
officers' certificates attached thereto.
6015. (a) Any amendment to the agreement may be adopted and the
agreement so amended may be approved by the board and, if it changes
any of the principal terms of the agreement, by the members (Section
5034) or other person or persons, as required by Section 6012, of any
constituent corporation in the same manner as the original
agreement.
(b) If the agreement so amended is approved as provided in
subdivision (a), the agreement so amended shall then constitute the
agreement of merger.
6016. The board may, in its discretion, abandon a merger, subject
to the contractual rights, if any, of third parties, including other
constituent corporations, without further approval by the members
(Section 5034) or other persons entitled to approve the merger at any
time before the merger is effective.
6017. A copy of an agreement of merger certified on or after the
effective date by an official having custody thereof has the same
force in evidence as the original and, except as against the state,
is conclusive evidence of the performance of all conditions precedent
to the merger, the existence on the effective date of the surviving
corporation and the performance of the conditions necessary to the
adoption of any amendment to the articles contained in the agreement
of merger.
6018. (a) Subject to the provisions of Section 6010, the merger of
any number of corporations with any number of foreign corporations
may be effected if the foreign corporations are authorized by the
laws under which they are formed to effect the merger. The surviving
corporation may be any one of the constituent corporations and shall
continue to exist under the laws of the state or place of its
incorporation.
(b) If the surviving corporation is a public benefit corporation
or a religious corporation, the merger proceedings with respect to
that corporation and any disappearing corporation shall conform to
the provisions of this chapter governing the merger of corporations,
but if the surviving corporation is a foreign corporation, then,
subject to the requirements of subdivision (d) and Section 6012, the
merger proceedings may be in accordance with the laws of the state or
place of incorporation of the surviving corporation.
(c) If the surviving corporation is a public benefit corporation
or a religious corporation, the agreement and the officers'
certificate of each constituent corporation shall be filed as
provided in Section 6014 and thereupon, subject to subdivision (c) of
Section 5008, the merger shall be effective as to each corporation;
and each foreign disappearing corporation that is qualified for the
transaction of intrastate business shall by virtue of the filing
automatically surrender its right to transact intrastate business.
(d) If the surviving corporation is a foreign corporation, the
merger shall become effective in accordance with the law of the
jurisdiction in which it is organized, but shall be effective as to
any disappearing corporation as of the time of effectiveness in the
foreign jurisdiction upon the filing in this state as required by
this subdivision. There shall be filed as to the domestic
disappearing corporation or corporations the documents described in
any one of the following paragraphs:
(1) A copy of the agreement, certificate, or other document filed
by the surviving foreign corporation in the state or place of its
incorporation for the purpose of effecting the merger, which copy
shall be certified by the public officer having official custody of
the original.
(2) An executed counterpart of the agreement, certificate, or
other document filed by the surviving corporation in the state or
place of its incorporation for the purpose of effecting the merger.
(3) A copy of the agreement of merger with an officers'
certificate of the surviving foreign corporation and of each
constituent domestic corporation attached, which officers'
certificates shall conform to the requirements of Section 6014.
(e) If the date of the filing in this state pursuant to
subdivision (d) is more than six months after the time of the
effectiveness in the foreign jurisdiction, or if the powers of the
domestic corporation are suspended at the time of effectiveness in
the foreign jurisdiction, the merger shall be effective as to the
domestic disappearing corporation or corporations as of the date of
filing in this state. Each foreign disappearing corporation that is
qualified for the transaction of intrastate business shall
automatically by the filing pursuant to subdivision (d) surrender its
right to transact intrastate business as of the date of filing in
this state regardless of the time of effectiveness as to a domestic
disappearing corporation.
6019. If an agreement of merger is entered into between a nonprofit
corporation and a business corporation: (i) Sections 6011, 6012,
6014, and 6015 shall apply to any constituent public benefit
corporation; (ii) Sections 8011, 8011.5, 8012, 8014, and 8015 shall
apply to any constituent mutual benefit corporation; (iii) Sections
6014 and 6015 and subdivisions (c) and (d) of Section 9640 shall
apply to any constituent religious corporation; and (iv) Sections
1101, 1101.1, 1103, and 1104 shall apply to any constituent business
corporation.
6019.1. (a) Subject to the provisions of Sections 6010 and 9640,
any one or more corporations may merge with one or more other
business entities (Section 5063.5). One or more other domestic
corporations and foreign corporations (Section 5053) may be parties
to the merger. Notwithstanding the provisions of this section, such a
merger may be effected only if:
(1) In a merger in which a domestic corporation or domestic other
business entity is a party, it is authorized by the laws under which
it is organized to effect the merger.
(2) In a merger in which a foreign corporation is a party, it is
authorized by the laws under which it is organized to effect the
merger.
(3) In a merger in which a foreign other business entity is a
party, it is authorized by the laws under which it is organized to
effect the merger.
(b) Each corporation and each other party which desires to merge
shall approve an agreement of merger. The board and the members
(Section 5034) of each corporation which desires to merge, and each
other person or persons, if any, whose approval of an amendment of
the articles of that corporation is required by the articles or
bylaws shall approve the agreement of merger. The agreement of merger
shall be approved on behalf of each other party by those persons
authorized or required to approve the merger by the laws under which
it is organized. The parties desiring to merge shall be parties to
the agreement of merger and other persons, including a parent party
(Section 5064.5), may be parties to the agreement of merger. The
agreement of merger shall state all of the following:
(1) The terms and conditions of the merger.
(2) The name and place of incorporation or organization of each
party and the identity of the surviving party.
(3) The amendments, if any, subject to Sections 5810 and 5816, to
the articles of the surviving corporation, if applicable, to be
effected by the merger. The name of the surviving corporation may be,
subject to subdivision (b) of Section 5122 and subdivision (b) of
Section 9122, the same as, or similar to, the name of a disappearing
party to the merger.
(4) The manner, if any, of converting the memberships of each of
the constituent corporations into shares, memberships, interests, or
other securities of the surviving party; and, if any memberships of
any of the constituent corporations are not to be converted solely
into shares, memberships, interests, or other securities of the
surviving party, the cash, rights, securities, or other property
which the holders of those memberships are to receive in exchange for
the memberships, which cash, rights, securities, or other property
may be in addition to, or in lieu of, shares, memberships, interests,
or other securities of the surviving corporation or surviving other
business entity.
(5) Any other details or provisions required by the laws under
which any party to the merger is organized, including, if a domestic
limited partnership is a party to the merger, subdivision (a) of
Section 15678.2 or 15911.12, if a domestic general partnership is a
party to the merger, subdivision (a) of Section 16911, or, if a
domestic limited liability company is a party to the merger,
subdivision (a) of Section 17551.
(6) Any other details or provisions as are desired.
(c) Notwithstanding its prior approval, an agreement of merger may
be amended prior to the filing of the agreement of merger if the
amendment is approved by each constituent corporation in the same
manner as the original agreement of merger. If the agreement of
merger as so amended and approved is also approved by each of the
other parties to the agreement of merger, as so amended it shall then
constitute the agreement of merger.
(d) The board of a constituent corporation may, in its discretion,
abandon a merger, subject to the contractual rights, if any, of
third parties, including other parties to the agreement of merger,
without further approval by the members (Section 5034) or other
persons, at any time before the merger is effective.
(e) Each constituent corporation shall sign the agreement of
merger by its chairperson of the board, president or a vice
president, and also by its secretary or an assistant secretary acting
on behalf of their respective corporations.
(f) After required approvals of the merger by each constituent
corporation and each other party to the merger, the surviving party
shall file a copy of the agreement of merger with an officers'
certificate of each constituent domestic and foreign corporation
attached stating the total number of outstanding shares or membership
interests of each class, if any, entitled to vote on the merger (and
identifying any other person or persons whose approval is required),
that the agreement of merger in the form attached or its principal
terms, as required, were approved by that corporation by a vote of a
number of shares or membership interests of each class entitled to
vote, if any, which equaled or exceeded the vote required, specifying
each class entitled to vote and the percentage vote required of each
class, and, if applicable, by that other person or persons whose
approval is required.
If equity securities of a parent party (Section 5064.5) are to be
issued in the merger, the officers' certificate or certificate of
merger of the controlled party shall state either that no vote of the
shareholders of the parent party was required or that the required
vote was obtained. The merger and any amendment of the articles of
the surviving corporation, if applicable, contained in the agreement
of merger shall be effective upon the filing of the agreement of
merger, subject to the provisions of subdivision (h). If a domestic
reciprocal insurer organized after 1974 to provide medical
malpractice insurance is a party to the merger, the agreement of
merger or certificate of merger shall not be filed until there has
been filed the certificate issued by the Insurance Commissioner
approving the merger pursuant to Section 1555 of the Insurance Code.
In lieu of an officers' certificate, a certificate of merger, on a
form prescribed by the Secretary of State, shall be filed for each
constituent other business entity. The certificate of merger shall be
executed and acknowledged by each domestic constituent limited
liability company by all of the managers of the limited liability
company (unless a lesser number is specified in its articles of
organization or operating agreement) and by each domestic constituent
limited partnership by all general partners (unless a lesser number
is provided in its certificate of limited partnership or partnership
agreement) and by each domestic constituent general partnership by
two partners (unless a lesser number is provided in its partnership
agreement) and by each foreign constituent limited liability company
by one or more managers and by each foreign constituent general
partnership or foreign constituent limited partnership by one or more
general partners, and by each constituent reciprocal insurer by the
chairperson of the board, president, or vice president, and also by
the secretary or assistant secretary, or, if a constituent reciprocal
insurer has not appointed such officers, by the chairperson of the
board, president, or vice president, and also by the secretary or
assistant secretary of the constituent reciprocal insurer's
attorney-in-fact, and by each other party to the merger by those
persons required or authorized to execute the certificate of merger
by the laws under which that party is organized, specifying for such
party the provision of law or other basis for the authority of the
signing persons.
The certificate of merger shall set forth, if a vote of the
shareholders, members, partners, or other holders of interests of a
constituent other business entity was required, a statement setting
forth the total number of outstanding interests of each class
entitled to vote on the merger and that the agreement of merger or
its principal terms, as required, were approved by a vote of the
number of interests of each class which equaled or exceeded the vote
required, specifying each class entitled to vote and the percentage
vote required of each class, and any other information required to be
set forth under the laws under which the constituent other business
entity is organized, including, if a domestic limited partnership is
a party to the merger, subdivision (a) of Section 15678.4 or
15911.14, if a domestic general partnership is a party to the merger,
subdivision (b) of Section 16915, and, if a domestic limited
liability company is a party to the merger, subdivision (a) of
Section 17552. The certificate of merger for each constituent foreign
other business entity, if any, shall also set forth the statutory or
other basis under which that foreign other business entity is
authorized by the laws under which it is organized to effect the
merger.
The Secretary of State may certify a copy of the agreement of
merger separate from the officers' certificates and certificates of
merger attached thereto.
(g) A copy of an agreement of merger certified on or after the
effective date by an official having custody thereof has the same
force in evidence as the original and, except as against the state,
is conclusive evidence of the performance of all conditions precedent
to the merger, the existence on the effective date of the surviving
party to the merger, the performance of the conditions necessary to
the adoption of any amendment to the articles, if applicable,
contained in the agreement of merger, and the merger of the
constituent corporations, either by themselves or together with other
constituent parties, into the surviving party to the merger.
(h) (1) The merger of domestic corporations with foreign
corporations or foreign other business entities in a merger in which
one or more other business entities is a party shall comply with
subdivisions (a) and (f) and this subdivision.
(2) Subject to subdivision (c) of Section 5008 and paragraph (3),
the merger shall be effective as to each domestic constituent
corporation and domestic constituent other business entity upon
filing of the agreement of merger with attachments as provided in
subdivision (f).
(3) If the surviving party is a foreign corporation or foreign
other business entity, except as provided in paragraph (4), the
merger shall be effective as to any domestic disappearing corporation
as of the time of effectiveness in the foreign jurisdiction upon the
filing in this state of a copy of the agreement of merger with an
officers' certificate of the surviving foreign corporation and of
each constituent foreign and domestic corporation and a certificate
of merger of each constituent other business entity attached, which
officers' certificates and certificates of merger shall conform to
the requirements of subdivision (f).
If one or more domestic other business entities is a disappearing
party in a merger pursuant to this subdivision in which a foreign
other business entity is the surviving entity, a certificate of
merger required by the laws under which each domestic other business
entity is organized, including subdivision (a) of Section 15678.4 or
15911.14, subdivision (b) of Section 16915, or subdivision (a) of
Section 17552, if applicable, shall also be filed at the same time as
the filing of the agreement of merger.
(4) If the date of the filing in this state pursuant to this
subdivision is more than six months after the time of the
effectiveness in the foreign jurisdiction, or if the powers of a
domestic disappearing corporation are suspended at the time of
effectiveness in the foreign jurisdiction, the merger shall be
effective as to the domestic disappearing corporation as of the date
of filing in this state.
(5) Each foreign disappearing corporation that is qualified for
the transaction of intrastate business shall automatically by the
filing pursuant to subdivision (f) surrender its right to transact
intrastate business as of the date of filing in this state or, if
later, the effective date of the merger. With respect to each foreign
disappearing other business entity previously registered for the
transaction of intrastate business in this state, the filing of the
agreement of merger pursuant to subdivision (f) automatically has the
effect of a cancellation of registration for that foreign other
business entity as of the date of filing in this state or, if later,
the effective date of the merger, without the necessity of the filing
of a certificate of cancellation.
