1100. Any two or more corporations may be merged into one of those
corporations. A corporation may merge with one or more domestic
corporations (Section 167), foreign corporations (Section 171), or
other business entities (Section 174.5) pursuant to this chapter.
Mergers in which a foreign corporation but no other business entity
is a constituent party are governed by Section 1108, and mergers in
which an other business entity is a constituent party are governed by
Section 1113.
1101. 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, including a
parent party (Section 1200), may be parties to the agreement of
merger. The agreement shall state all of the following:
(a) The terms and conditions of the merger.
(b) The amendments, subject to Sections 900 and 907, 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 domestic or foreign corporation, subject to
subdivision (b) of Section 201.
(c) The name and place of incorporation of each constituent
corporation and which of the constituent corporations is the
surviving corporation.
(d) The manner of converting the shares of each of the constituent
corporations into shares or other securities of the surviving
corporation and, if any shares of any of the constituent corporations
are not to be converted solely into shares or other securities of
the surviving corporation, the cash, rights, securities, or other
property which the holders of those shares are to receive in exchange
for the shares, which cash, rights, securities, or other property
may be in addition to or in lieu of shares or other securities of the
surviving corporation, or that the shares are canceled without
consideration.
(e) Other details or provisions as are desired, if any, including,
without limitation, a provision for the payment of cash in lieu of
fractional shares or for any other arrangement with respect thereto
consistent with the provisions of Section 407.
Each share of the same class or series of any constituent
corporation (other than the cancellation of shares held by a
constituent corporation or its parent or a wholly owned subsidiary of
either in another constituent corporation) shall, unless all
shareholders of the class or series consent and except as provided in
Section 407, be treated equally with respect to any distribution of
cash, rights, securities, or other property. Notwithstanding
subdivision (d), except in a short-form merger, and in the merger of
a corporation into its subsidiary in which it owns at least 90
percent of the outstanding shares of each class, the nonredeemable
common shares or nonredeemable equity securities of a constituent
corporation may be converted only into nonredeemable common shares of
the surviving party or a parent party if a constituent corporation
or its parent owns, directly or indirectly, prior to the merger
shares of another constituent corporation representing more than 50
percent of the voting power of the other constituent corporation
prior to the merger, unless all of the shareholders of the class
consent and except as provided in Section 407.
1101.1. Subdivision (c) of Section 1113 and the last two sentences
of Section 1101 do not apply to any transaction if the Commissioner
of Corporations, the Commissioner of Financial Institutions, the
Insurance Commissioner or, the Public Utilities Commission has
approved the terms and conditions of the transaction and the fairness
of those terms and conditions pursuant to Section 25142 or Section
696.5, 5750, or 5802 of the Financial Code, Section 838.5 of the
Insurance Code, or Section 822 of the Public Utilities Code.
1102. Each corporation shall sign the agreement by its chairman of
the board, president or a vice president and secretary or an
assistant secretary acting on behalf of their respective
corporations.
1103. After approval of a merger by the board and any approval of
the outstanding shares (Section 152) required by Chapter 12
(commencing with Section 1200), 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
outstanding shares of each class entitled to vote on the merger, that
the principal terms of the agreement in the form attached were
approved by that corporation by a vote of a number of shares of each
class which equaled or exceeded the vote required, specifying each
class entitled to vote and the percentage vote required of each
class, or that the merger agreement was entitled to be and was
approved by the board alone under the provisions of Section 1201. If
equity securities of a parent of a constituent corporation are to be
issued in the merger, the officers' certificate of that constituent
corporation shall state either that no vote of the shareholders of
the parent was required or that the required vote was obtained. 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 110 and subject to the
provisions of Section 1108) and the several parties thereto shall be
one corporation. The Secretary of State may certify a copy of the
merger agreement separate from the officers' certificates attached
thereto.
1104. 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 outstanding
shares (Section 152) (if required by Chapter 12) of any constituent
corporation in the same manner as the original agreement. If the
agreement so amended is approved by the board and the outstanding
shares (if required) of each of the corporations, the agreement so
amended shall then constitute the agreement of merger.
1105. 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 outstanding
shares (Section 152), at any time before the merger is effective.
1106. 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.
1107. (a) Upon merger pursuant to this chapter the separate
existence of the disappearing corporations ceases and the surviving
corporation shall succeed, without other transfer, to all the rights
and property of each of the disappearing corporations and shall be
subject to all the debts and liabilities of each in the same manner
as if the surviving corporation had itself incurred them.
(b) For purposes of subdivision (a), a surviving corporation may
succeed without the payment of any local agency transfer fee to all
licenses, permits, registrations, and other privileges granted by any
local agency provided the merger does not result in a change of
ownership. Examples of mergers that do not result in a change of
ownership are mergers between any of the following: (1) a corporation
and its wholly owned subsidiary; (2) a corporation and the wholly
owned subsidiary of that corporation's wholly owned subsidiary; or
(3) two wholly owned subsidiaries of the same parent corporation. The
surviving corporation shall be subject to the same duties and
obligations in connection with the license, permit, registration, or
other privileges acquired from the disappearing corporations.
(c) All rights of creditors and all liens upon the property of
each of the constituent corporations shall be preserved unimpaired,
provided that any liens upon property of a disappearing corporation
shall be limited to the property affected thereby immediately prior
to the time the merger is effective.
(d) Any action or proceeding pending by or against any
disappearing corporation may be prosecuted to judgment, which shall
bind the surviving corporation, or the surviving corporation may be
proceeded against or substituted in its place.
(e) Nothing in subdivision (b) shall limit or restrict a tax
assessor from reassessing real property upon transfer of title.
Privileges granted by any local agency do not include property tax
assessments.
(f) Nothing in subdivision (b) shall limit or restrict a local
agency from reevaluating privileges received by a successor
corporation from disappearing corporations if the local agency
determines in its sole discretion that the reevaluation is necessary
for public health, safety, or welfare purposes.
(g) For purposes of this section, "local agency" means a county,
city, city and county, political subdivision, district, or municipal
corporation.
1107.5. (a) Upon merger pursuant to this chapter, a surviving
domestic or foreign corporation or other business entity shall be
deemed to have assumed the liability of each disappearing domestic or
foreign corporation or other business entity that is taxed under
Part 10 (commencing with Section 17001) of, or under Part 11
(commencing with Section 23001) of, Division 2 of the Revenue and
Taxation Code for the following:
(1) To prepare and file, or to cause to be prepared and filed, tax
and information returns otherwise required of that disappearing
entity as specified in Chapter 2 (commencing with Section 18501) of
Part 10.2 of Division 2 of the Revenue and Taxation Code.
(2) To pay any tax liability determined to be due.
(b) If the surviving entity is a domestic limited liability
company, domestic corporation, or registered limited liability
partnership or a foreign limited liability company, foreign limited
liability partnership, or foreign corporation that is registered or
qualified to do business in California, the Secretary of State shall
notify the Franchise Tax Board of the merger.
1108. (a) The merger of any number of domestic 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 domestic corporation, the
merger proceedings with respect to that corporation and any domestic
disappearing corporation shall conform to the provisions of this
chapter governing the merger of domestic corporations, but if the
surviving corporation is a foreign corporation, then, subject to the
requirements of subdivision (d) and of Section 407 and Chapters 12
(commencing with Section 1200) and 13 (commencing with Section 1300)
(with respect to any domestic constituent corporations), 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 domestic corporation, the
agreement and the officers' certificate of each domestic or foreign
constituent corporation shall be filed as provided in Section 1103,
or the certificate of ownership shall be filed as provided in Section
1110, and thereupon, subject to subdivision (c) of Section 110, the
merger shall be effective as to each domestic constituent
corporation; and each foreign disappearing corporation that is
qualified for the transaction of intrastate business shall by virtue
of the filing, subject to subdivision (c) of Section 110,
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, except as provided in
subdivision (e), 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 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 foreign 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 1103.
(4) A certificate of ownership pursuant to Section 1110.
(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, by virtue
of the filing pursuant to subdivision (d), automatically 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.
(f) The provisions of the last two sentences of Section 1101 and
Chapter 12 (commencing with Section 1200) and Chapter 13 (commencing
with Section 1300) apply to the rights of the shareholders of any of
the constituent corporations that are domestic corporations and of
any domestic corporation that is a parent party of any foreign
constituent corporation.
1109. Whenever a domestic or foreign corporation or domestic or
foreign other business entity having any real property in this state
merges or consolidates with another domestic or foreign corporation
or other business entity pursuant to the laws of this state or of the
state or place in which any constituent party to the merger was
incorporated or organized, and the laws of the state or place of
incorporation or organization (including this state) of any
disappearing party to the merger provide substantially that the
making and filing of the agreement of merger or consolidation or
certificate of ownership or certificate of merger vests in the
surviving or consolidated party to the merger all the real property
of any disappearing party to the merger, the filing for record in the
office of the county recorder of any county in this state in which
any of the real property of that disappearing party to the merger is
located of a copy of the agreement of merger or consolidation or
certificate of ownership or certificate of merger, certified by the
Secretary of State or an authorized public official of the state or
place pursuant to the laws of which the merger or consolidation is
effected, shall evidence record ownership in the surviving or
consolidated party to the merger, of all interest of the disappearing
party to the merger in and to the real property located in that
county.
1110. (a) If a domestic corporation owns all the outstanding
shares, or owns less than all the outstanding shares but at least 90
percent of the outstanding shares of each class, of a corporation or
corporations, domestic or foreign, the merger of the subsidiary
corporation or corporations into the parent corporation or the merger
into the subsidiary corporation of the parent corporation and any
other subsidiary corporation or corporations, may be effected by a
resolution or plan of merger adopted and approved by the board of the
parent corporation and the filing of a certificate of ownership as
provided in subdivision (e). The resolution or plan of merger shall
provide for the merger and shall provide that the surviving
corporation assumes all the liabilities of each disappearing
corporation and shall include any other provisions required by this
section.
(b) If the parent corporation owns less than all the outstanding
shares but at least 90 percent of the outstanding shares of each
class of the subsidiary corporation that is a party to the merger,
the resolution or plan of merger also shall set forth the securities,
cash, property, or rights to be issued, paid, delivered, or granted
upon surrender of each outstanding share of the subsidiary
corporation not owned by the parent corporation and the entire
resolution or plan of merger as well as the consideration to be
received for each share of the subsidiary corporation not owned by
the parent corporation, shall be approved by the board of that
subsidiary corporation.
(c) If the parent corporation is to be merged into one of its
subsidiary corporations, the resolution or plan of merger also shall
provide for the pro rata conversion of the outstanding shares of the
parent corporation into shares of the surviving subsidiary
corporation. In this case, the entire resolution or plan of merger
shall be approved by the board of the surviving subsidiary
corporation and, if the merger, but for the operation of this
section, would be a merger reorganization (Section 181) the principal
terms of which would be required to be approved by the outstanding
shares (Section 152) of any class of the parent corporation pursuant
to subdivision (d) of Section 1201, the principal terms of the
resolution or plan of merger shall be approved by the outstanding
shares (Section 152) of that same class of the parent corporation.
(d) In any merger pursuant to this section, the resolution or plan
of merger may provide for the amendment of the articles of the
surviving corporation to change its name, subject to Section 201,
regardless of whether the name so adopted is the same as or similar
to that of one of the disappearing corporations. The provision shall
establish the wording of the amendment pursuant to paragraph (2) of
subdivision (a) of Section 907 and the resolution or plan of merger
shall not provide for the amendment of the articles of the surviving
corporation other than to change its name.
(e) After the required approval or approvals of the resolution or
plan of merger, a certificate of ownership consisting of an officers'
certificate of the parent corporation shall be filed, and a copy
thereof for each domestic subsidiary corporation and qualified
foreign disappearing subsidiary corporation which is a party to the
merger shall also be filed. The certificate of ownership shall:
(1) Identify the parent and subsidiary corporation or
corporations.
(2) Set forth the share ownership by the parent corporation of
each subsidiary corporation as 100 percent of the outstanding shares
or as at least 90 percent of the outstanding shares of each class, as
the case may be.
(3) Set forth the resolution or plan of merger.
(4) Set forth approval of the resolution or plan of merger by the
board of the parent corporation.
(5) Set forth other approvals of the resolution or plan of merger
as required under subdivision (b) or (c), if applicable.
(f) Upon the filing of the certificate of ownership, the merger
shall be effective and any amendment of the articles of the surviving
corporation set forth in the certificate shall be effective.
(g) A merger pursuant to this section may be effected if the
parent corporation is a foreign corporation and if at least one
subsidiary corporation is a domestic corporation but in such a case
the certificate of ownership prepared as in subdivision (e) or the
document required by subdivision (d) of Section 1108 shall be filed
as to each domestic and qualified foreign subsidiary corporation, but
no filing shall be made as to the foreign parent corporation. No
merger into or with a foreign corporation may be effected as provided
by this section unless the laws of the state or place of its
incorporation permit that action.
(h) In the event all of the outstanding shares of a subsidiary
domestic corporation party to a merger effected under this section
are not owned by the parent corporation immediately prior to the
merger, the parent corporation shall, at least 20 days before the
effective date of the merger, give notice to each shareholder of such
subsidiary corporation that the merger will become effective on or
after a specified date. The notice shall contain a copy of the
resolution or plan of merger and the information required by
subdivision (a) of Section 1301. The notice shall be sent by mail
addressed to the shareholder at the address of the shareholder as it
appears on the records of the corporation. The shareholder shall have
the right to demand payment of cash for the shares of the
shareholder pursuant to Chapter 13 (commencing with Section 1300).
(i) If an agreement of merger is entered into between a parent
corporation and one or more of its subsidiary corporations and the
share ownership requirements of subdivision (a) are met, the
agreement of merger may be filed as a plan of merger with a
certificate of ownership in accordance with the requirements of this
section, in which case Sections 1101, 1102, 1103, 1200, 1201, and
1202 shall not apply; or the agreement of merger may be filed
pursuant to Section 1103, in which case this section shall not apply.
1111. If any disappearing corporation in a merger is a close
corporation and the surviving corporation is not a close corporation,
the merger shall be approved by the affirmative vote of at least
two-thirds of each class of the outstanding shares of such
disappearing corporation; provided, however, that the articles may
provide for a lesser vote, but not less than a majority of the
outstanding shares of each class.
1112. If a disappearing corporation in a merger is a corporation
governed by this division and the surviving corporation is a
nonprofit public benefit corporation, a nonprofit mutual benefit
corporation, or a nonprofit religious corporation, the merger shall
be approved by all of the outstanding shares of all classes of the
disappearing corporation, regardless of limitations or restrictions
on the voting rights thereof, notwithstanding any provision of
Chapter 12 (commencing with Section 1200).
1113. (a) Any one or more corporations may merge with one or more
other business entities (Section 174.5). One or more domestic
corporations (Section 167) not organized under this division and one
or more foreign corporations (Section 171) may be parties to the
merger. Notwithstanding the provisions of this section, the merger of
any number of corporations with any number of other business
entities may be effected only if:
(1) In a merger in which a domestic corporation not organized
under this division or a 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, and shall be a party to, an agreement of merger. Other
persons, including a parent party (Section 1200), may be parties to
the agreement of merger. The board of each corporation which desires
to merge, and, if required the shareholders, shall approve the
agreement of merger. The agreement of merger shall be approved on
behalf of each party by those persons required to approve the merger
by the laws under which it is organized. The agreement of merger
shall state:
(1) The terms and conditions of the merger.
(2) The name and place of incorporation or organization of each
party to the merger and the identity of the surviving party.
(3) The amendments, if any, subject to Sections 900 and 907, to
the articles of the surviving corporation, if applicable, to be
effected by the merger. If any amendment changes the name of the
surviving corporation, if applicable, the new name may be, subject to
subdivision (b) of Section 201, the same as or similar to the name
of a disappearing party to the merger.
(4) The manner of converting the shares of each constituent
corporation into shares, interests, or other securities of the
surviving party. If any shares of any constituent corporation are not
to be converted solely into shares, interests or other securities of
the surviving party, the agreement of merger shall state (i) the
cash, rights, securities, or other property which the holders of
those shares are to receive in exchange for the shares, which cash,
rights, securities, or other property may be in addition to or in
lieu of shares, interests or other securities of the surviving party,
or (ii) that the shares are canceled without consideration.
(5) Any other details or provisions required by the laws under
which any party to the merger is organized, including, if a public
benefit corporation or a religious corporation is a party to the
merger, Section 6019.1, or, if a mutual benefit corporation is a
party to the merger, Section 8019.1, or, if a consumer cooperative
corporation is a party to the merger, Section 12540.1, or, if a
domestic limited partnership is a party to the merger, Section
15678.2 or 15911.12, or, if a domestic partnership is a party to the
merger, Section 16911, or, if a domestic limited liability company is
a party to the merger, Section 17551.
(6) Any other details or provisions as are desired, including,
without limitation, a provision for the payment of cash in lieu of
fractional shares or for any other arrangement with respect thereto
consistent with the provisions of Section 407.
(c) Each share of the same class or series of any constituent
corporation (other than the cancellation of shares held by a party to
the merger or its parent, or a wholly owned subsidiary of either, in
another constituent corporation) shall, unless all shareholders of
the class or series consent and except as provided in Section 407, be
treated equally with respect to any distribution of cash, rights,
securities, or other property. Notwithstanding paragraph (4) of
subdivision (b), the unredeemable common shares of a constituent
corporation may be converted only into unredeemable common shares of
a surviving corporation or a parent party (Section 1200) or
unredeemable equity securities of a surviving party other than a
corporation if another party to the merger or its parent owns,
directly or indirectly, prior to the merger shares of that
corporation representing more than 50 percent of the voting power of
that corporation, unless all of the shareholders of the class consent
and except as provided in Section 407.
(d) Notwithstanding its prior approval, an agreement of merger may
be amended prior to the filing of the agreement of merger or the
certificate of merger, as is applicable, if the amendment is approved
by the board of each constituent corporation and, if the amendment
changes any of the principal terms of the agreement, by the
outstanding shares (Section 152), if required by Chapter 12
(commencing with Section 1200), 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, the agreement of merger as so amended shall then
constitute the agreement of merger.
(e) 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 outstanding shares (Section 152), at
any time before the merger is effective.
(f) 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.
(g) (1) If the surviving party is a corporation or a foreign
corporation, or if a public benefit corporation (Section 5060), a
mutual benefit corporation (Section 5059), a religious corporation
(Section 5061), or a corporation organized under the Consumer
Cooperative Corporation Law (Section 12200) is a party to the merger,
after required approvals of the merger by each constituent
corporation through approval of the board (Section 151) and any
approval of the outstanding shares (Section 152) required by Chapter
12 (commencing with Section 1200) and by the other parties 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 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
that 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, or that the merger agreement was entitled to be and was
approved by the board alone (as provided in Section 1201, in the case
of corporations subject to that section). If equity securities of a
parent party (Section 1200) are to be issued in the merger, the
officers' certificate of that controlled party shall state either
that no vote of the shareholders of the parent party was required or
that the required vote was obtained. 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 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 by the
secretary or assistant secretary, or, if a constituent reciprocal
insurer has not appointed those officers, by the chairperson of the
board, president, or vice president, and 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 that
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 the 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 in the form attached or its principal terms, as required, were
approved by a vote of the number of interests of each class that
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 subdivision (a) of Section 15911.14, if a
domestic 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 merger and
any amendment of the articles of the surviving corporation, if
applicable, contained in the agreement of merger shall be effective
upon filing of the agreement of merger with an officer's certificate
of each constituent domestic and foreign corporation and a
certificate of merger for each constituent other business entity,
subject to subdivision (c) of Section 110 and subject to the
provisions of subdivision (j), and the several parties thereto shall
be one entity. 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. The Secretary of State may certify a copy of the
agreement of merger separate from the officers' certificates and
certificates of merger attached thereto.
(2) If the surviving entity is an other business entity, and no
public benefit corporation (Section 5060), mutual benefit corporation
(Section 5059), religious corporation (Section 5061), or corporation
organized under the Consumer Cooperative Corporation Law (Section
12200) is a party to the merger, after required approvals of the
merger by each constituent corporation through approval of the board
(Section 151) and any approval of the outstanding shares (Section
152) required by Chapter 12 (commencing with Section 1200) and by the
other parties to the merger, the parties to the merger shall file a
certificate of merger in the office of, and on a form prescribed by,
the Secretary of State. The certificate of merger shall be executed
and acknowledged by each constituent domestic and foreign corporation
by its chairperson of the board, president or a vice president and
also by its secretary or an assistant secretary and by each domestic
constituent limited liability company by all 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 by the secretary or assistant secretary, or, if a
constituent reciprocal insurer has not appointed those officers, by
the chairperson of the board, president, or vice president, and by
the secretary or assistant secretary of the constituent reciprocal
insurer's attorney-in-fact. The certificate of merger shall be signed
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 that party the
provision of law or other basis for the authority of the signing
persons. The certificate of merger shall set forth all of the
following:
(A) The name, place of incorporation or organization, and the
Secretary of State's file number, if any, of each party to the
merger, separately identifying the disappearing parties and the
surviving party.
(B) If the approval of the outstanding shares of a constituent
corporation was required by Chapter 12 (commencing with Section
1200), a statement setting forth the total number of outstanding
shares of each class entitled to vote on the merger and that the
principal terms of the agreement of merger were approved by a vote of
the number of shares of each class entitled to vote and the
percentage vote required of each class.
(C) The future effective date or time, not more than 90 days
subsequent to the date of filing of the merger, if the merger is not
to be effective upon the filing of the certificate of merger with the
office of the Secretary of State.
(D) A statement, by each party to the merger which is a domestic
corporation not organized under this division, a foreign corporation,
or an other business entity, of the statutory or other basis under
which that party is authorized by the laws under which it is
organized to effect the merger.
(E) Any other information required to be stated in the certificate
of merger by the laws under which each party to the merger is
organized, including, if a domestic limited liability company is a
party to the merger, subdivision (a) of Section 17552, if a domestic
partnership is a party to the merger, subdivision (b) of Section
16915, and, if a domestic limited partnership is a party to the
merger, subdivision (a) of Section 15678.4 or subdivision (a) of
Section 15911.14.
(F) Any other details or provisions that may be desired.
Unless a future effective date or time is provided in a
certificate of merger, in which event the merger shall be effective
at that future effective date or time, a merger shall be effective
upon the filing of the certificate of merger in the office of the
Secretary of State and the several parties thereto shall be one
entity. The surviving other business entity shall keep a copy of the
agreement of merger at its principal place of business which, for
purposes of this subdivision, shall be the office referred to in
Section 17057 if a domestic limited liability company, at the
business address specified in paragraph (5) of subdivision (a) of
Section 17552 if a foreign limited liability company, at the office
referred to in subdivision (a) of Section 16403 if a domestic general
partnership, at the business address specified in subdivision (f) of
Section 16911 if a foreign partnership, at the office referred to in
subdivision (a) of Section 15614 or in subdivision (a) of Section
15901.14 if a domestic limited partnership, or at the business
address specified in paragraph (5) of subdivision (a) of Section
15678.4 or paragraph (3) of subdivision (a) of Section 15909.02 if a
foreign limited partnership. Upon the request of a holder of equity
securities of a party to the merger, a person with authority to do so
on behalf of the surviving other business entity shall promptly
deliver to that holder, a copy of the agreement of merger. A waiver
by that holder of the rights provided in the foregoing sentence shall
be unenforceable. 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 in accordance with
Section 1555 of the Insurance Code.
(h) (1) 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 and the performance of the conditions necessary
to the adoption of any amendment to the articles, if applicable,
contained in the agreement of merger.
(2) For all purposes for a merger in which the surviving entity is
a domestic other business entity and the filing of a certificate of
merger is required by paragraph (2) of subdivision (g), a copy of the
certificate of merger duly certified by the Secretary of State is
conclusive evidence of the merger of the constituent corporations,
either by themselves or together with the other parties to the
merger, into the surviving other business entity.
(i) (1) Upon a merger pursuant to this section, the separate
existences of the disappearing parties to the merger cease and the
surviving party to the merger shall succeed, without other transfer,
to all the rights and property of each of the disappearing parties to
the merger and shall be subject to all the debts and liabilities of
each in the same manner as if the surviving party to the merger had
itself incurred them.
(2) All rights of creditors and all liens upon the property of
each of the constituent corporations and other parties to the merger
shall be preserved unimpaired, provided that those liens upon
property of a disappearing party shall be limited to the property
affected thereby immediately prior to the time the merger is
effective.
(3) Any action or proceeding pending by or against any
disappearing corporation or disappearing party to the merger may be
prosecuted to judgment, which shall bind the surviving party, or the
surviving party may be proceeded against or substituted in its place.
(4) If a limited partnership or a general partnership is a party
to the merger, nothing in this section is intended to affect the
liability a general partner of a disappearing limited partnership or
general partnership may have in connection with the debts and
liabilities of the disappearing limited partnership or general
partnership existing prior to the time the merger is effective.
(j) (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
subdivision (a) and this subdivision.
(2) If the surviving party is a domestic corporation or domestic
other business entity, the merger proceedings with respect to that
party and any domestic disappearing corporation shall conform to the
provisions of this section. If the surviving party is a foreign
corporation or foreign other business entity, then, subject to the
requirements of subdivision (c), and of Section 407 and Chapter 12
(commencing with Section 1200) and Chapter 13 (commencing with
Section 1300), and, if applicable, corresponding provisions of the
Nonprofit Corporation Law or the Consumer Cooperative Corporation
Law, with respect to any domestic constituent corporations, Chapter
13 (commencing with Section 17600) of Title 2.5 with respect to any
domestic constituent limited liability companies, Article 6
(commencing with Section 16601) of Chapter 5 of Title 2 with respect
to any domestic constituent general partnerships, and Article 7.6
(commencing with Section 15679.1) of Chapter 3, and Article 11.5
(commencing with Section 15911.20) of Chapter 5.5 of Title 2 with
respect to any domestic constituent limited partnerships, the merger
proceedings may be in accordance with the laws of the state or place
of incorporation or organization of the surviving party.
(3) If the surviving party is a domestic corporation or domestic
other business entity, the certificate of merger or the agreement of
merger with attachments shall be filed as provided in subdivision (g)
and thereupon, subject to subdivision (c) of Section 110 or
paragraph (2) of subdivision (g), as is applicable, the merger shall
be effective as to each domestic constituent corporation and domestic
constituent other business entity.
(4) If the surviving party is a foreign corporation or foreign
other business entity, the merger shall become effective in
accordance with the law of the jurisdiction in which the surviving
party is organized, but, except as provided in paragraph (5), 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 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 paragraph
(1) of subdivision (g). 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
that domestic other business entity is organized, including
subdivision (a) of Section 15678.4, subdivision (a) of Section
15911.14, subdivision (b) of Section 16915, or subdivision (a) of
Section 17552, as is applicable, shall also be filed at the same time
as the filing of the agreement of merger.
(5) 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.
(6) In a merger described in paragraph (3) or (4), each foreign
disappearing corporation that is qualified for the transaction of
intrastate business shall by virtue of the filing pursuant to this
subdivision, subject to subdivision (c) of Section 110, automatically
surrender its right to transact intrastate business in this state.
The filing of the agreement of merger or certificate of merger, as is
applicable, pursuant to this subdivision, by a disappearing foreign
other business entity registered for the transaction of intrastate
business in this state shall, by virtue of that filing, subject to
subdivision (c) of Section 110, automatically cancels the
registration for that foreign other business entity, without the
necessity of the filing of a certificate of cancellation.
1100. Any two or more corporations may be merged into one of those
corporations. A corporation may merge with one or more domestic
corporations (Section 167), foreign corporations (Section 171), or
other business entities (Section 174.5) pursuant to this chapter.
Mergers in which a foreign corporation but no other business entity
is a constituent party are governed by Section 1108, and mergers in
which an other business entity is a constituent party are governed by
Section 1113.
1101. 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, including a
parent party (Section 1200), may be parties to the agreement of
merger. The agreement shall state all of the following:
(a) The terms and conditions of the merger.
(b) The amendments, subject to Sections 900 and 907, 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 domestic or foreign corporation, subject to
subdivision (b) of Section 201.
(c) The name and place of incorporation of each constituent
corporation and which of the constituent corporations is the
surviving corporation.
(d) The manner of converting the shares of each of the constituent
corporations into shares or other securities of the surviving
corporation and, if any shares of any of the constituent corporations
are not to be converted solely into shares or other securities of
the surviving corporation, the cash, rights, securities, or other
property which the holders of those shares are to receive in exchange
for the shares, which cash, rights, securities, or other property
may be in addition to or in lieu of shares or other securities of the
surviving corporation, or that the shares are canceled without
consideration.
(e) Other details or provisions as are desired, if any, including,
without limitation, a provision for the payment of cash in lieu of
fractional shares or for any other arrangement with respect thereto
consistent with the provisions of Section 407.
Each share of the same class or series of any constituent
corporation (other than the cancellation of shares held by a
constituent corporation or its parent or a wholly owned subsidiary of
either in another constituent corporation) shall, unless all
shareholders of the class or series consent and except as provided in
Section 407, be treated equally with respect to any distribution of
cash, rights, securities, or other property. Notwithstanding
subdivision (d), except in a short-form merger, and in the merger of
a corporation into its subsidiary in which it owns at least 90
percent of the outstanding shares of each class, the nonredeemable
common shares or nonredeemable equity securities of a constituent
corporation may be converted only into nonredeemable common shares of
the surviving party or a parent party if a constituent corporation
or its parent owns, directly or indirectly, prior to the merger
shares of another constituent corporation representing more than 50
percent of the voting power of the other constituent corporation
prior to the merger, unless all of the shareholders of the class
consent and except as provided in Section 407.
1101.1. Subdivision (c) of Section 1113 and the last two sentences
of Section 1101 do not apply to any transaction if the Commissioner
of Corporations, the Commissioner of Financial Institutions, the
Insurance Commissioner or, the Public Utilities Commission has
approved the terms and conditions of the transaction and the fairness
of those terms and conditions pursuant to Section 25142 or Section
696.5, 5750, or 5802 of the Financial Code, Section 838.5 of the
Insurance Code, or Section 822 of the Public Utilities Code.
1102. Each corporation shall sign the agreement by its chairman of
the board, president or a vice president and secretary or an
assistant secretary acting on behalf of their respective
corporations.
1103. After approval of a merger by the board and any approval of
the outstanding shares (Section 152) required by Chapter 12
(commencing with Section 1200), 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
outstanding shares of each class entitled to vote on the merger, that
the principal terms of the agreement in the form attached were
approved by that corporation by a vote of a number of shares of each
class which equaled or exceeded the vote required, specifying each
class entitled to vote and the percentage vote required of each
class, or that the merger agreement was entitled to be and was
approved by the board alone under the provisions of Section 1201. If
equity securities of a parent of a constituent corporation are to be
issued in the merger, the officers' certificate of that constituent
corporation shall state either that no vote of the shareholders of
the parent was required or that the required vote was obtained. 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 110 and subject to the
provisions of Section 1108) and the several parties thereto shall be
one corporation. The Secretary of State may certify a copy of the
merger agreement separate from the officers' certificates attached
thereto.
1104. 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 outstanding
shares (Section 152) (if required by Chapter 12) of any constituent
corporation in the same manner as the original agreement. If the
agreement so amended is approved by the board and the outstanding
shares (if required) of each of the corporations, the agreement so
amended shall then constitute the agreement of merger.
1105. 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 outstanding
shares (Section 152), at any time before the merger is effective.
1106. 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.
1107. (a) Upon merger pursuant to this chapter the separate
existence of the disappearing corporations ceases and the surviving
corporation shall succeed, without other transfer, to all the rights
and property of each of the disappearing corporations and shall be
subject to all the debts and liabilities of each in the same manner
as if the surviving corporation had itself incurred them.
(b) For purposes of subdivision (a), a surviving corporation may
succeed without the payment of any local agency transfer fee to all
licenses, permits, registrations, and other privileges granted by any
local agency provided the merger does not result in a change of
ownership. Examples of mergers that do not result in a change of
ownership are mergers between any of the following: (1) a corporation
and its wholly owned subsidiary; (2) a corporation and the wholly
owned subsidiary of that corporation's wholly owned subsidiary; or
(3) two wholly owned subsidiaries of the same parent corporation. The
surviving corporation shall be subject to the same duties and
obligations in connection with the license, permit, registration, or
other privileges acquired from the disappearing corporations.
(c) All rights of creditors and all liens upon the property of
each of the constituent corporations shall be preserved unimpaired,
provided that any liens upon property of a disappearing corporation
shall be limited to the property affected thereby immediately prior
to the time the merger is effective.
(d) Any action or proceeding pending by or against any
disappearing corporation may be prosecuted to judgment, which shall
bind the surviving corporation, or the surviving corporation may be
proceeded against or substituted in its place.
(e) Nothing in subdivision (b) shall limit or restrict a tax
assessor from reassessing real property upon transfer of title.
Privileges granted by any local agency do not include property tax
assessments.
(f) Nothing in subdivision (b) shall limit or restrict a local
agency from reevaluating privileges received by a successor
corporation from disappearing corporations if the local agency
determines in its sole discretion that the reevaluation is necessary
for public health, safety, or welfare purposes.
(g) For purposes of this section, "local agency" means a county,
city, city and county, political subdivision, district, or municipal
corporation.
1107.5. (a) Upon merger pursuant to this chapter, a surviving
domestic or foreign corporation or other business entity shall be
deemed to have assumed the liability of each disappearing domestic or
foreign corporation or other business entity that is taxed under
Part 10 (commencing with Section 17001) of, or under Part 11
(commencing with Section 23001) of, Division 2 of the Revenue and
Taxation Code for the following:
(1) To prepare and file, or to cause to be prepared and filed, tax
and information returns otherwise required of that disappearing
entity as specified in Chapter 2 (commencing with Section 18501) of
Part 10.2 of Division 2 of the Revenue and Taxation Code.
(2) To pay any tax liability determined to be due.
(b) If the surviving entity is a domestic limited liability
company, domestic corporation, or registered limited liability
partnership or a foreign limited liability company, foreign limited
liability partnership, or foreign corporation that is registered or
qualified to do business in California, the Secretary of State shall
notify the Franchise Tax Board of the merger.
1108. (a) The merger of any number of domestic 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 domestic corporation, the
merger proceedings with respect to that corporation and any domestic
disappearing corporation shall conform to the provisions of this
chapter governing the merger of domestic corporations, but if the
surviving corporation is a foreign corporation, then, subject to the
requirements of subdivision (d) and of Section 407 and Chapters 12
(commencing with Section 1200) and 13 (commencing with Section 1300)
(with respect to any domestic constituent corporations), 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 domestic corporation, the
agreement and the officers' certificate of each domestic or foreign
constituent corporation shall be filed as provided in Section 1103,
or the certificate of ownership shall be filed as provided in Section
1110, and thereupon, subject to subdivision (c) of Section 110, the
merger shall be effective as to each domestic constituent
corporation; and each foreign disappearing corporation that is
qualified for the transaction of intrastate business shall by virtue
of the filing, subject to subdivision (c) of Section 110,
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, except as provided in
subdivision (e), 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 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 foreign 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 1103.
(4) A certificate of ownership pursuant to Section 1110.
(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, by virtue
of the filing pursuant to subdivision (d), automatically 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.
(f) The provisions of the last two sentences of Section 1101 and
Chapter 12 (commencing with Section 1200) and Chapter 13 (commencing
with Section 1300) apply to the rights of the shareholders of any of
the constituent corporations that are domestic corporations and of
any domestic corporation that is a parent party of any foreign
constituent corporation.
1109. Whenever a domestic or foreign corporation or domestic or
foreign other business entity having any real property in this state
merges or consolidates with another domestic or foreign corporation
or other business entity pursuant to the laws of this state or of the
state or place in which any constituent party to the merger was
incorporated or organized, and the laws of the state or place of
incorporation or organization (including this state) of any
disappearing party to the merger provide substantially that the
making and filing of the agreement of merger or consolidation or
certificate of ownership or certificate of merger vests in the
surviving or consolidated party to the merger all the real property
of any disappearing party to the merger, the filing for record in the
office of the county recorder of any county in this state in which
any of the real property of that disappearing party to the merger is
located of a copy of the agreement of merger or consolidation or
certificate of ownership or certificate of merger, certified by the
Secretary of State or an authorized public official of the state or
place pursuant to the laws of which the merger or consolidation is
effected, shall evidence record ownership in the surviving or
consolidated party to the merger, of all interest of the disappearing
party to the merger in and to the real property located in that
county.
1110. (a) If a domestic corporation owns all the outstanding
shares, or owns less than all the outstanding shares but at least 90
percent of the outstanding shares of each class, of a corporation or
corporations, domestic or foreign, the merger of the subsidiary
corporation or corporations into the parent corporation or the merger
into the subsidiary corporation of the parent corporation and any
other subsidiary corporation or corporations, may be effected by a
resolution or plan of merger adopted and approved by the board of the
parent corporation and the filing of a certificate of ownership as
provided in subdivision (e). The resolution or plan of merger shall
provide for the merger and shall provide that the surviving
corporation assumes all the liabilities of each disappearing
corporation and shall include any other provisions required by this
section.
(b) If the parent corporation owns less than all the outstanding
shares but at least 90 percent of the outstanding shares of each
class of the subsidiary corporation that is a party to the merger,
the resolution or plan of merger also shall set forth the securities,
cash, property, or rights to be issued, paid, delivered, or granted
upon surrender of each outstanding share of the subsidiary
corporation not owned by the parent corporation and the entire
resolution or plan of merger as well as the consideration to be
received for each share of the subsidiary corporation not owned by
the parent corporation, shall be approved by the board of that
subsidiary corporation.
(c) If the parent corporation is to be merged into one of its
subsidiary corporations, the resolution or plan of merger also shall
provide for the pro rata conversion of the outstanding shares of the
parent corporation into shares of the surviving subsidiary
corporation. In this case, the entire resolution or plan of merger
shall be approved by the board of the surviving subsidiary
corporation and, if the merger, but for the operation of this
section, would be a merger reorganization (Section 181) the principal
terms of which would be required to be approved by the outstanding
shares (Section 152) of any class of the parent corporation pursuant
to subdivision (d) of Section 1201, the principal terms of the
resolution or plan of merger shall be approved by the outstanding
shares (Section 152) of that same class of the parent corporation.
(d) In any merger pursuant to this section, the resolution or plan
of merger may provide for the amendment of the articles of the
surviving corporation to change its name, subject to Section 201,
regardless of whether the name so adopted is the same as or similar
to that of one of the disappearing corporations. The provision shall
establish the wording of the amendment pursuant to paragraph (2) of
subdivision (a) of Section 907 and the resolution or plan of merger
shall not provide for the amendment of the articles of the surviving
corporation other than to change its name.
(e) After the required approval or approvals of the resolution or
plan of merger, a certificate of ownership consisting of an officers'
certificate of the parent corporation shall be filed, and a copy
thereof for each domestic subsidiary corporation and qualified
foreign disappearing subsidiary corporation which is a party to the
merger shall also be filed. The certificate of ownership shall:
(1) Identify the parent and subsidiary corporation or
corporations.
(2) Set forth the share ownership by the parent corporation of
each subsidiary corporation as 100 percent of the outstanding shares
or as at least 90 percent of the outstanding shares of each class, as
the case may be.
(3) Set forth the resolution or plan of merger.
(4) Set forth approval of the resolution or plan of merger by the
board of the parent corporation.
(5) Set forth other approvals of the resolution or plan of merger
as required under subdivision (b) or (c), if applicable.
(f) Upon the filing of the certificate of ownership, the merger
shall be effective and any amendment of the articles of the surviving
corporation set forth in the certificate shall be effective.
(g) A merger pursuant to this section may be effected if the
parent corporation is a foreign corporation and if at least one
subsidiary corporation is a domestic corporation but in such a case
the certificate of ownership prepared as in subdivision (e) or the
document required by subdivision (d) of Section 1108 shall be filed
as to each domestic and qualified foreign subsidiary corporation, but
no filing shall be made as to the foreign parent corporation. No
merger into or with a foreign corporation may be effected as provided
by this section unless the laws of the state or place of its
incorporation permit that action.
(h) In the event all of the outstanding shares of a subsidiary
domestic corporation party to a merger effected under this section
are not owned by the parent corporation immediately prior to the
merger, the parent corporation shall, at least 20 days before the
effective date of the merger, give notice to each shareholder of such
subsidiary corporation that the merger will become effective on or
after a specified date. The notice shall contain a copy of the
resolution or plan of merger and the information required by
subdivision (a) of Section 1301. The notice shall be sent by mail
addressed to the shareholder at the address of the shareholder as it
appears on the records of the corporation. The shareholder shall have
the right to demand payment of cash for the shares of the
shareholder pursuant to Chapter 13 (commencing with Section 1300).
(i) If an agreement of merger is entered into between a parent
corporation and one or more of its subsidiary corporations and the
share ownership requirements of subdivision (a) are met, the
agreement of merger may be filed as a plan of merger with a
certificate of ownership in accordance with the requirements of this
section, in which case Sections 1101, 1102, 1103, 1200, 1201, and
1202 shall not apply; or the agreement of merger may be filed
pursuant to Section 1103, in which case this section shall not apply.
1111. If any disappearing corporation in a merger is a close
corporation and the surviving corporation is not a close corporation,
the merger shall be approved by the affirmative vote of at least
two-thirds of each class of the outstanding shares of such
disappearing corporation; provided, however, that the articles may
provide for a lesser vote, but not less than a majority of the
outstanding shares of each class.
1112. If a disappearing corporation in a merger is a corporation
governed by this division and the surviving corporation is a
nonprofit public benefit corporation, a nonprofit mutual benefit
corporation, or a nonprofit religious corporation, the merger shall
be approved by all of the outstanding shares of all classes of the
disappearing corporation, regardless of limitations or restrictions
on the voting rights thereof, notwithstanding any provision of
Chapter 12 (commencing with Section 1200).
1113. (a) Any one or more corporations may merge with one or more
other business entities (Section 174.5). One or more domestic
corporations (Section 167) not organized under this division and one
or more foreign corporations (Section 171) may be parties to the
merger. Notwithstanding the provisions of this section, the merger of
any number of corporations with any number of other business
entities may be effected only if:
(1) In a merger in which a domestic corporation not organized
under this division or a 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, and shall be a party to, an agreement of merger. Other
persons, including a parent party (Section 1200), may be parties to
the agreement of merger. The board of each corporation which desires
to merge, and, if required the shareholders, shall approve the
agreement of merger. The agreement of merger shall be approved on
behalf of each party by those persons required to approve the merger
by the laws under which it is organized. The agreement of merger
shall state:
(1) The terms and conditions of the merger.
(2) The name and place of incorporation or organization of each
party to the merger and the identity of the surviving party.
(3) The amendments, if any, subject to Sections 900 and 907, to
the articles of the surviving corporation, if applicable, to be
effected by the merger. If any amendment changes the name of the
surviving corporation, if applicable, the new name may be, subject to
subdivision (b) of Section 201, the same as or similar to the name
of a disappearing party to the merger.
(4) The manner of converting the shares of each constituent
corporation into shares, interests, or other securities of the
surviving party. If any shares of any constituent corporation are not
to be converted solely into shares, interests or other securities of
the surviving party, the agreement of merger shall state (i) the
cash, rights, securities, or other property which the holders of
those shares are to receive in exchange for the shares, which cash,
rights, securities, or other property may be in addition to or in
lieu of shares, interests or other securities of the surviving party,
or (ii) that the shares are canceled without consideration.
(5) Any other details or provisions required by the laws under
which any party to the merger is organized, including, if a public
benefit corporation or a religious corporation is a party to the
merger, Section 6019.1, or, if a mutual benefit corporation is a
party to the merger, Section 8019.1, or, if a consumer cooperative
corporation is a party to the merger, Section 12540.1, or, if a
domestic limited partnership is a party to the merger, Section
15678.2 or 15911.12, or, if a domestic partnership is a party to the
merger, Section 16911, or, if a domestic limited liability company is
a party to the merger, Section 17551.
(6) Any other details or provisions as are desired, including,
without limitation, a provision for the payment of cash in lieu of
fractional shares or for any other arrangement with respect thereto
consistent with the provisions of Section 407.
(c) Each share of the same class or series of any constituent
corporation (other than the cancellation of shares held by a party to
the merger or its parent, or a wholly owned subsidiary of either, in
another constituent corporation) shall, unless all shareholders of
the class or series consent and except as provided in Section 407, be
treated equally with respect to any distribution of cash, rights,
securities, or other property. Notwithstanding paragraph (4) of
subdivision (b), the unredeemable common shares of a constituent
corporation may be converted only into unredeemable common shares of
a surviving corporation or a parent party (Section 1200) or
unredeemable equity securities of a surviving party other than a
corporation if another party to the merger or its parent owns,
directly or indirectly, prior to the merger shares of that
corporation representing more than 50 percent of the voting power of
that corporation, unless all of the shareholders of the class consent
and except as provided in Section 407.
(d) Notwithstanding its prior approval, an agreement of merger may
be amended prior to the filing of the agreement of merger or the
certificate of merger, as is applicable, if the amendment is approved
by the board of each constituent corporation and, if the amendment
changes any of the principal terms of the agreement, by the
outstanding shares (Section 152), if required by Chapter 12
(commencing with Section 1200), 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, the agreement of merger as so amended shall then
constitute the agreement of merger.
(e) 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 outstanding shares (Section 152), at
any time before the merger is effective.
(f) 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.
(g) (1) If the surviving party is a corporation or a foreign
corporation, or if a public benefit corporation (Section 5060), a
mutual benefit corporation (Section 5059), a religious corporation
(Section 5061), or a corporation organized under the Consumer
Cooperative Corporation Law (Section 12200) is a party to the merger,
after required approvals of the merger by each constituent
corporation through approval of the board (Section 151) and any
approval of the outstanding shares (Section 152) required by Chapter
12 (commencing with Section 1200) and by the other parties 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 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
that 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, or that the merger agreement was entitled to be and was
approved by the board alone (as provided in Section 1201, in the case
of corporations subject to that section). If equity securities of a
parent party (Section 1200) are to be issued in the merger, the
officers' certificate of that controlled party shall state either
that no vote of the shareholders of the parent party was required or
that the required vote was obtained. 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 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 by the
secretary or assistant secretary, or, if a constituent reciprocal
insurer has not appointed those officers, by the chairperson of the
board, president, or vice president, and 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 that
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 the 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 in the form attached or its principal terms, as required, were
approved by a vote of the number of interests of each class that
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 subdivision (a) of Section 15911.14, if a
domestic 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 merger and
any amendment of the articles of the surviving corporation, if
applicable, contained in the agreement of merger shall be effective
upon filing of the agreement of merger with an officer's certificate
of each constituent domestic and foreign corporation and a
certificate of merger for each constituent other business entity,
subject to subdivision (c) of Section 110 and subject to the
provisions of subdivision (j), and the several parties thereto shall
be one entity. 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. The Secretary of State may certify a copy of the
agreement of merger separate from the officers' certificates and
certificates of merger attached thereto.
(2) If the surviving entity is an other business entity, and no
public benefit corporation (Section 5060), mutual benefit corporation
(Section 5059), religious corporation (Section 5061), or corporation
organized under the Consumer Cooperative Corporation Law (Section
12200) is a party to the merger, after required approvals of the
merger by each constituent corporation through approval of the board
(Section 151) and any approval of the outstanding shares (Section
152) required by Chapter 12 (commencing with Section 1200) and by the
other parties to the merger, the parties to the merger shall file a
certificate of merger in the office of, and on a form prescribed by,
the Secretary of State. The certificate of merger shall be executed
and acknowledged by each constituent domestic and foreign corporation
by its chairperson of the board, president or a vice president and
also by its secretary or an assistant secretary and by each domestic
constituent limited liability company by all 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 by the secretary or assistant secretary, or, if a
constituent reciprocal insurer has not appointed those officers, by
the chairperson of the board, president, or vice president, and by
the secretary or assistant secretary of the constituent reciprocal
insurer's attorney-in-fact. The certificate of merger shall be signed
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 that party the
provision of law or other basis for the authority of the signing
persons. The certificate of merger shall set forth all of the
following:
(A) The name, place of incorporation or organization, and the
Secretary of State's file number, if any, of each party to the
merger, separately identifying the disappearing parties and the
surviving party.
(B) If the approval of the outstanding shares of a constituent
corporation was required by Chapter 12 (commencing with Section
1200), a statement setting forth the total number of outstanding
shares of each class entitled to vote on the merger and that the
principal terms of the agreement of merger were approved by a vote of
the number of shares of each class entitled to vote and the
percentage vote required of each class.
(C) The future effective date or time, not more than 90 days
subsequent to the date of filing of the merger, if the merger is not
to be effective upon the filing of the certificate of merger with the
office of the Secretary of State.
(D) A statement, by each party to the merger which is a domestic
corporation not organized under this division, a foreign corporation,
or an other business entity, of the statutory or other basis under
which that party is authorized by the laws under which it is
organized to effect the merger.
(E) Any other information required to be stated in the certificate
of merger by the laws under which each party to the merger is
organized, including, if a domestic limited liability company is a
party to the merger, subdivision (a) of Section 17552, if a domestic
partnership is a party to the merger, subdivision (b) of Section
16915, and, if a domestic limited partnership is a party to the
merger, subdivision (a) of Section 15678.4 or subdivision (a) of
Section 15911.14.
(F) Any other details or provisions that may be desired.
Unless a future effective date or time is provided in a
certificate of merger, in which event the merger shall be effective
at that future effective date or time, a merger shall be effective
upon the filing of the certificate of merger in the office of the
Secretary of State and the several parties thereto shall be one
entity. The surviving other business entity shall keep a copy of the
agreement of merger at its principal place of business which, for
purposes of this subdivision, shall be the office referred to in
Section 17057 if a domestic limited liability company, at the
business address specified in paragraph (5) of subdivision (a) of
Section 17552 if a foreign limited liability company, at the office
referred to in subdivision (a) of Section 16403 if a domestic general
partnership, at the business address specified in subdivision (f) of
Section 16911 if a foreign partnership, at the office referred to in
subdivision (a) of Section 15614 or in subdivision (a) of Section
15901.14 if a domestic limited partnership, or at the business
address specified in paragraph (5) of subdivision (a) of Section
15678.4 or paragraph (3) of subdivision (a) of Section 15909.02 if a
foreign limited partnership. Upon the request of a holder of equity
securities of a party to the merger, a person with authority to do so
on behalf of the surviving other business entity shall promptly
deliver to that holder, a copy of the agreement of merger. A waiver
by that holder of the rights provided in the foregoing sentence shall
be unenforceable. 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 in accordance with
Section 1555 of the Insurance Code.
(h) (1) 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 and the performance of the conditions necessary
to the adoption of any amendment to the articles, if applicable,
contained in the agreement of merger.
(2) For all purposes for a merger in which the surviving entity is
a domestic other business entity and the filing of a certificate of
merger is required by paragraph (2) of subdivision (g), a copy of the
certificate of merger duly certified by the Secretary of State is
conclusive evidence of the merger of the constituent corporations,
either by themselves or together with the other parties to the
merger, into the surviving other business entity.
(i) (1) Upon a merger pursuant to this section, the separate
existences of the disappearing parties to the merger cease and the
surviving party to the merger shall succeed, without other transfer,
to all the rights and property of each of the disappearing parties to
the merger and shall be subject to all the debts and liabilities of
each in the same manner as if the surviving party to the merger had
itself incurred them.
(2) All rights of creditors and all liens upon the property of
each of the constituent corporations and other parties to the merger
shall be preserved unimpaired, provided that those liens upon
property of a disappearing party shall be limited to the property
affected thereby immediately prior to the time the merger is
effective.
(3) Any action or proceeding pending by or against any
disappearing corporation or disappearing party to the merger may be
prosecuted to judgment, which shall bind the surviving party, or the
surviving party may be proceeded against or substituted in its place.
(4) If a limited partnership or a general partnership is a party
to the merger, nothing in this section is intended to affect the
liability a general partner of a disappearing limited partnership or
general partnership may have in connection with the debts and
liabilities of the disappearing limited partnership or general
partnership existing prior to the time the merger is effective.
(j) (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
subdivision (a) and this subdivision.
(2) If the surviving party is a domestic corporation or domestic
other business entity, the merger proceedings with respect to that
party and any domestic disappearing corporation shall conform to the
provisions of this section. If the surviving party is a foreign
corporation or foreign other business entity, then, subject to the
requirements of subdivision (c), and of Section 407 and Chapter 12
(commencing with Section 1200) and Chapter 13 (commencing with
Section 1300), and, if applicable, corresponding provisions of the
Nonprofit Corporation Law or the Consumer Cooperative Corporation
Law, with respect to any domestic constituent corporations, Chapter
13 (commencing with Section 17600) of Title 2.5 with respect to any
domestic constituent limited liability companies, Article 6
(commencing with Section 16601) of Chapter 5 of Title 2 with respect
to any domestic constituent general partnerships, and Article 7.6
(commencing with Section 15679.1) of Chapter 3, and Article 11.5
(commencing with Section 15911.20) of Chapter 5.5 of Title 2 with
respect to any domestic constituent limited partnerships, the merger
proceedings may be in accordance with the laws of the state or place
of incorporation or organization of the surviving party.
(3) If the surviving party is a domestic corporation or domestic
other business entity, the certificate of merger or the agreement of
merger with attachments shall be filed as provided in subdivision (g)
and thereupon, subject to subdivision (c) of Section 110 or
paragraph (2) of subdivision (g), as is applicable, the merger shall
be effective as to each domestic constituent corporation and domestic
constituent other business entity.
(4) If the surviving party is a foreign corporation or foreign
other business entity, the merger shall become effective in
accordance with the law of the jurisdiction in which the surviving
party is organized, but, except as provided in paragraph (5), 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 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 paragraph
(1) of subdivision (g). 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
that domestic other business entity is organized, including
subdivision (a) of Section 15678.4, subdivision (a) of Section
15911.14, subdivision (b) of Section 16915, or subdivision (a) of
Section 17552, as is applicable, shall also be filed at the same time
as the filing of the agreement of merger.
(5) 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.
(6) In a merger described in paragraph (3) or (4), each foreign
disappearing corporation that is qualified for the transaction of
intrastate business shall by virtue of the filing pursuant to this
subdivision, subject to subdivision (c) of Section 110, automatically
surrender its right to transact intrastate business in this state.
The filing of the agreement of merger or certificate of merger, as is
applicable, pursuant to this subdivision, by a disappearing foreign
other business entity registered for the transaction of intrastate
business in this state shall, by virtue of that filing, subject to
subdivision (c) of Section 110, automatically cancels the
registration for that foreign other business entity, without the
necessity of the filing of a certificate of cancellation.
1100. Any two or more corporations may be merged into one of those
corporations. A corporation may merge with one or more domestic
corporations (Section 167), foreign corporations (Section 171), or
other business entities (Section 174.5) pursuant to this chapter.
Mergers in which a foreign corporation but no other business entity
is a constituent party are governed by Section 1108, and mergers in
which an other business entity is a constituent party are governed by
Section 1113.
1101. 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, including a
parent party (Section 1200), may be parties to the agreement of
merger. The agreement shall state all of the following:
(a) The terms and conditions of the merger.
(b) The amendments, subject to Sections 900 and 907, 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 domestic or foreign corporation, subject to
subdivision (b) of Section 201.
(c) The name and place of incorporation of each constituent
corporation and which of the constituent corporations is the
surviving corporation.
(d) The manner of converting the shares of each of the constituent
corporations into shares or other securities of the surviving
corporation and, if any shares of any of the constituent corporations
are not to be converted solely into shares or other securities of
the surviving corporation, the cash, rights, securities, or other
property which the holders of those shares are to receive in exchange
for the shares, which cash, rights, securities, or other property
may be in addition to or in lieu of shares or other securities of the
surviving corporation, or that the shares are canceled without
consideration.
(e) Other details or provisions as are desired, if any, including,
without limitation, a provision for the payment of cash in lieu of
fractional shares or for any other arrangement with respect thereto
consistent with the provisions of Section 407.
Each share of the same class or series of any constituent
corporation (other than the cancellation of shares held by a
constituent corporation or its parent or a wholly owned subsidiary of
either in another constituent corporation) shall, unless all
shareholders of the class or series consent and except as provided in
Section 407, be treated equally with respect to any distribution of
cash, rights, securities, or other property. Notwithstanding
subdivision (d), except in a short-form merger, and in the merger of
a corporation into its subsidiary in which it owns at least 90
percent of the outstanding shares of each class, the nonredeemable
common shares or nonredeemable equity securities of a constituent
corporation may be converted only into nonredeemable common shares of
the surviving party or a parent party if a constituent corporation
or its parent owns, directly or indirectly, prior to the merger
shares of another constituent corporation representing more than 50
percent of the voting power of the other constituent corporation
prior to the merger, unless all of the shareholders of the class
consent and except as provided in Section 407.
1101.1. Subdivision (c) of Section 1113 and the last two sentences
of Section 1101 do not apply to any transaction if the Commissioner
of Corporations, the Commissioner of Financial Institutions, the
Insurance Commissioner or, the Public Utilities Commission has
approved the terms and conditions of the transaction and the fairness
of those terms and conditions pursuant to Section 25142 or Section
696.5, 5750, or 5802 of the Financial Code, Section 838.5 of the
Insurance Code, or Section 822 of the Public Utilities Code.
1102. Each corporation shall sign the agreement by its chairman of
the board, president or a vice president and secretary or an
assistant secretary acting on behalf of their respective
corporations.
1103. After approval of a merger by the board and any approval of
the outstanding shares (Section 152) required by Chapter 12
(commencing with Section 1200), 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
outstanding shares of each class entitled to vote on the merger, that
the principal terms of the agreement in the form attached were
approved by that corporation by a vote of a number of shares of each
class which equaled or exceeded the vote required, specifying each
class entitled to vote and the percentage vote required of each
class, or that the merger agreement was entitled to be and was
approved by the board alone under the provisions of Section 1201. If
equity securities of a parent of a constituent corporation are to be
issued in the merger, the officers' certificate of that constituent
corporation shall state either that no vote of the shareholders of
the parent was required or that the required vote was obtained. 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 110 and subject to the
provisions of Section 1108) and the several parties thereto shall be
one corporation. The Secretary of State may certify a copy of the
merger agreement separate from the officers' certificates attached
thereto.
1104. 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 outstanding
shares (Section 152) (if required by Chapter 12) of any constituent
corporation in the same manner as the original agreement. If the
agreement so amended is approved by the board and the outstanding
shares (if required) of each of the corporations, the agreement so
amended shall then constitute the agreement of merger.
1105. 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 outstanding
shares (Section 152), at any time before the merger is effective.
1106. 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.
1107. (a) Upon merger pursuant to this chapter the separate
existence of the disappearing corporations ceases and the surviving
corporation shall succeed, without other transfer, to all the rights
and property of each of the disappearing corporations and shall be
subject to all the debts and liabilities of each in the same manner
as if the surviving corporation had itself incurred them.
(b) For purposes of subdivision (a), a surviving corporation may
succeed without the payment of any local agency transfer fee to all
licenses, permits, registrations, and other privileges granted by any
local agency provided the merger does not result in a change of
ownership. Examples of mergers that do not result in a change of
ownership are mergers between any of the following: (1) a corporation
and its wholly owned subsidiary; (2) a corporation and the wholly
owned subsidiary of that corporation's wholly owned subsidiary; or
(3) two wholly owned subsidiaries of the same parent corporation. The
surviving corporation shall be subject to the same duties and
obligations in connection with the license, permit, registration, or
other privileges acquired from the disappearing corporations.
(c) All rights of creditors and all liens upon the property of
each of the constituent corporations shall be preserved unimpaired,
provided that any liens upon property of a disappearing corporation
shall be limited to the property affected thereby immediately prior
to the time the merger is effective.
(d) Any action or proceeding pending by or against any
disappearing corporation may be prosecuted to judgment, which shall
bind the surviving corporation, or the surviving corporation may be
proceeded against or substituted in its place.
(e) Nothing in subdivision (b) shall limit or restrict a tax
assessor from reassessing real property upon transfer of title.
Privileges granted by any local agency do not include property tax
assessments.
(f) Nothing in subdivision (b) shall limit or restrict a local
agency from reevaluating privileges received by a successor
corporation from disappearing corporations if the local agency
determines in its sole discretion that the reevaluation is necessary
for public health, safety, or welfare purposes.
(g) For purposes of this section, "local agency" means a county,
city, city and county, political subdivision, district, or municipal
corporation.
1107.5. (a) Upon merger pursuant to this chapter, a surviving
domestic or foreign corporation or other business entity shall be
deemed to have assumed the liability of each disappearing domestic or
foreign corporation or other business entity that is taxed under
Part 10 (commencing with Section 17001) of, or under Part 11
(commencing with Section 23001) of, Division 2 of the Revenue and
Taxation Code for the following:
(1) To prepare and file, or to cause to be prepared and filed, tax
and information returns otherwise required of that disappearing
entity as specified in Chapter 2 (commencing with Section 18501) of
Part 10.2 of Division 2 of the Revenue and Taxation Code.
(2) To pay any tax liability determined to be due.
(b) If the surviving entity is a domestic limited liability
company, domestic corporation, or registered limited liability
partnership or a foreign limited liability company, foreign limited
liability partnership, or foreign corporation that is registered or
qualified to do business in California, the Secretary of State shall
notify the Franchise Tax Board of the merger.
1108. (a) The merger of any number of domestic 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 domestic corporation, the
merger proceedings with respect to that corporation and any domestic
disappearing corporation shall conform to the provisions of this
chapter governing the merger of domestic corporations, but if the
surviving corporation is a foreign corporation, then, subject to the
requirements of subdivision (d) and of Section 407 and Chapters 12
(commencing with Section 1200) and 13 (commencing with Section 1300)
(with respect to any domestic constituent corporations), 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 domestic corporation, the
agreement and the officers' certificate of each domestic or foreign
constituent corporation shall be filed as provided in Section 1103,
or the certificate of ownership shall be filed as provided in Section
1110, and thereupon, subject to subdivision (c) of Section 110, the
merger shall be effective as to each domestic constituent
corporation; and each foreign disappearing corporation that is
qualified for the transaction of intrastate business shall by virtue
of the filing, subject to subdivision (c) of Section 110,
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, except as provided in
subdivision (e), 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 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 foreign 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 1103.
(4) A certificate of ownership pursuant to Section 1110.
(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, by virtue
of the filing pursuant to subdivision (d), automatically 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.
(f) The provisions of the last two sentences of Section 1101 and
Chapter 12 (commencing with Section 1200) and Chapter 13 (commencing
with Section 1300) apply to the rights of the shareholders of any of
the constituent corporations that are domestic corporations and of
any domestic corporation that is a parent party of any foreign
constituent corporation.
1109. Whenever a domestic or foreign corporation or domestic or
foreign other business entity having any real property in this state
merges or consolidates with another domestic or foreign corporation
or other business entity pursuant to the laws of this state or of the
state or place in which any constituent party to the merger was
incorporated or organized, and the laws of the state or place of
incorporation or organization (including this state) of any
disappearing party to the merger provide substantially that the
making and filing of the agreement of merger or consolidation or
certificate of ownership or certificate of merger vests in the
surviving or consolidated party to the merger all the real property
of any disappearing party to the merger, the filing for record in the
office of the county recorder of any county in this state in which
any of the real property of that disappearing party to the merger is
located of a copy of the agreement of merger or consolidation or
certificate of ownership or certificate of merger, certified by the
Secretary of State or an authorized public official of the state or
place pursuant to the laws of which the merger or consolidation is
effected, shall evidence record ownership in the surviving or
consolidated party to the merger, of all interest of the disappearing
party to the merger in and to the real property located in that
county.
1110. (a) If a domestic corporation owns all the outstanding
shares, or owns less than all the outstanding shares but at least 90
percent of the outstanding shares of each class, of a corporation or
corporations, domestic or foreign, the merger of the subsidiary
corporation or corporations into the parent corporation or the merger
into the subsidiary corporation of the parent corporation and any
other subsidiary corporation or corporations, may be effected by a
resolution or plan of merger adopted and approved by the board of the
parent corporation and the filing of a certificate of ownership as
provided in subdivision (e). The resolution or plan of merger shall
provide for the merger and shall provide that the surviving
corporation assumes all the liabilities of each disappearing
corporation and shall include any other provisions required by this
section.
(b) If the parent corporation owns less than all the outstanding
shares but at least 90 percent of the outstanding shares of each
class of the subsidiary corporation that is a party to the merger,
the resolution or plan of merger also shall set forth the securities,
cash, property, or rights to be issued, paid, delivered, or granted
upon surrender of each outstanding share of the subsidiary
corporation not owned by the parent corporation and the entire
resolution or plan of merger as well as the consideration to be
received for each share of the subsidiary corporation not owned by
the parent corporation, shall be approved by the board of that
subsidiary corporation.
(c) If the parent corporation is to be merged into one of its
subsidiary corporations, the resolution or plan of merger also shall
provide for the pro rata conversion of the outstanding shares of the
parent corporation into shares of the surviving subsidiary
corporation. In this case, the entire resolution or plan of merger
shall be approved by the board of the surviving subsidiary
corporation and, if the merger, but for the operation of this
section, would be a merger reorganization (Section 181) the principal
terms of which would be required to be approved by the outstanding
shares (Section 152) of any class of the parent corporation pursuant
to subdivision (d) of Section 1201, the principal terms of the
resolution or plan of merger shall be approved by the outstanding
shares (Section 152) of that same class of the parent corporation.
(d) In any merger pursuant to this section, the resolution or plan
of merger may provide for the amendment of the articles of the
surviving corporation to change its name, subject to Section 201,
regardless of whether the name so adopted is the same as or similar
to that of one of the disappearing corporations. The provision shall
establish the wording of the amendment pursuant to paragraph (2) of
subdivision (a) of Section 907 and the resolution or plan of merger
shall not provide for the amendment of the articles of the surviving
corporation other than to change its name.
(e) After the required approval or approvals of the resolution or
plan of merger, a certificate of ownership consisting of an officers'
certificate of the parent corporation shall be filed, and a copy
thereof for each domestic subsidiary corporation and qualified
foreign disappearing subsidiary corporation which is a party to the
merger shall also be filed. The certificate of ownership shall:
(1) Identify the parent and subsidiary corporation or
corporations.
(2) Set forth the share ownership by the parent corporation of
each subsidiary corporation as 100 percent of the outstanding shares
or as at least 90 percent of the outstanding shares of each class, as
the case may be.
(3) Set forth the resolution or plan of merger.
(4) Set forth approval of the resolution or plan of merger by the
board of the parent corporation.
(5) Set forth other approvals of the resolution or plan of merger
as required under subdivision (b) or (c), if applicable.
(f) Upon the filing of the certificate of ownership, the merger
shall be effective and any amendment of the articles of the surviving
corporation set forth in the certificate shall be effective.
(g) A merger pursuant to this section may be effected if the
parent corporation is a foreign corporation and if at least one
subsidiary corporation is a domestic corporation but in such a case
the certificate of ownership prepared as in subdivision (e) or the
document required by subdivision (d) of Section 1108 shall be filed
as to each domestic and qualified foreign subsidiary corporation, but
no filing shall be made as to the foreign parent corporation. No
merger into or with a foreign corporation may be effected as provided
by this section unless the laws of the state or place of its
incorporation permit that action.
(h) In the event all of the outstanding shares of a subsidiary
domestic corporation party to a merger effected under this section
are not owned by the parent corporation immediately prior to the
merger, the parent corporation shall, at least 20 days before the
effective date of the merger, give notice to each shareholder of such
subsidiary corporation that the merger will become effective on or
after a specified date. The notice shall contain a copy of the
resolution or plan of merger and the information required by
subdivision (a) of Section 1301. The notice shall be sent by mail
addressed to the shareholder at the address of the shareholder as it
appears on the records of the corporation. The shareholder shall have
the right to demand payment of cash for the shares of the
shareholder pursuant to Chapter 13 (commencing with Section 1300).
(i) If an agreement of merger is entered into between a parent
corporation and one or more of its subsidiary corporations and the
share ownership requirements of subdivision (a) are met, the
agreement of merger may be filed as a plan of merger with a
certificate of ownership in accordance with the requirements of this
section, in which case Sections 1101, 1102, 1103, 1200, 1201, and
1202 shall not apply; or the agreement of merger may be filed
pursuant to Section 1103, in which case this section shall not apply.
1111. If any disappearing corporation in a merger is a close
corporation and the surviving corporation is not a close corporation,
the merger shall be approved by the affirmative vote of at least
two-thirds of each class of the outstanding shares of such
disappearing corporation; provided, however, that the articles may
provide for a lesser vote, but not less than a majority of the
outstanding shares of each class.
1112. If a disappearing corporation in a merger is a corporation
governed by this division and the surviving corporation is a
nonprofit public benefit corporation, a nonprofit mutual benefit
corporation, or a nonprofit religious corporation, the merger shall
be approved by all of the outstanding shares of all classes of the
disappearing corporation, regardless of limitations or restrictions
on the voting rights thereof, notwithstanding any provision of
Chapter 12 (commencing with Section 1200).
1113. (a) Any one or more corporations may merge with one or more
other business entities (Section 174.5). One or more domestic
corporations (Section 167) not organized under this division and one
or more foreign corporations (Section 171) may be parties to the
merger. Notwithstanding the provisions of this section, the merger of
any number of corporations with any number of other business
entities may be effected only if:
(1) In a merger in which a domestic corporation not organized
under this division or a 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, and shall be a party to, an agreement of merger. Other
persons, including a parent party (Section 1200), may be parties to
the agreement of merger. The board of each corporation which desires
to merge, and, if required the shareholders, shall approve the
agreement of merger. The agreement of merger shall be approved on
behalf of each party by those persons required to approve the merger
by the laws under which it is organized. The agreement of merger
shall state:
(1) The terms and conditions of the merger.
(2) The name and place of incorporation or organization of each
party to the merger and the identity of the surviving party.
(3) The amendments, if any, subject to Sections 900 and 907, to
the articles of the surviving corporation, if applicable, to be
effected by the merger. If any amendment changes the name of the
surviving corporation, if applicable, the new name may be, subject to
subdivision (b) of Section 201, the same as or similar to the name
of a disappearing party to the merger.
(4) The manner of converting the shares of each constituent
corporation into shares, interests, or other securities of the
surviving party. If any shares of any constituent corporation are not
to be converted solely into shares, interests or other securities of
the surviving party, the agreement of merger shall state (i) the
cash, rights, securities, or other property which the holders of
those shares are to receive in exchange for the shares, which cash,
rights, securities, or other property may be in addition to or in
lieu of shares, interests or other securities of the surviving party,
or (ii) that the shares are canceled without consideration.
(5) Any other details or provisions required by the laws under
which any party to the merger is organized, including, if a public
benefit corporation or a religious corporation is a party to the
merger, Section 6019.1, or, if a mutual benefit corporation is a
party to the merger, Section 8019.1, or, if a consumer cooperative
corporation is a party to the merger, Section 12540.1, or, if a
domestic limited partnership is a party to the merger, Section
15678.2 or 15911.12, or, if a domestic partnership is a party to the
merger, Section 16911, or, if a domestic limited liability company is
a party to the merger, Section 17551.
(6) Any other details or provisions as are desired, including,
without limitation, a provision for the payment of cash in lieu of
fractional shares or for any other arrangement with respect thereto
consistent with the provisions of Section 407.
(c) Each share of the same class or series of any constituent
corporation (other than the cancellation of shares held by a party to
the merger or its parent, or a wholly owned subsidiary of either, in
another constituent corporation) shall, unless all shareholders of
the class or series consent and except as provided in Section 407, be
treated equally with respect to any distribution of cash, rights,
securities, or other property. Notwithstanding paragraph (4) of
subdivision (b), the unredeemable common shares of a constituent
corporation may be converted only into unredeemable common shares of
a surviving corporation or a parent party (Section 1200) or
unredeemable equity securities of a surviving party other than a
corporation if another party to the merger or its parent owns,
directly or indirectly, prior to the merger shares of that
corporation representing more than 50 percent of the voting power of
that corporation, unless all of the shareholders of the class consent
and except as provided in Section 407.
(d) Notwithstanding its prior approval, an agreement of merger may
be amended prior to the filing of the agreement of merger or the
certificate of merger, as is applicable, if the amendment is approved
by the board of each constituent corporation and, if the amendment
changes any of the principal terms of the agreement, by the
outstanding shares (Section 152), if required by Chapter 12
(commencing with Section 1200), 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, the agreement of merger as so amended shall then
constitute the agreement of merger.
(e) 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 outstanding shares (Section 152), at
any time before the merger is effective.
(f) 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.
(g) (1) If the surviving party is a corporation or a foreign
corporation, or if a public benefit corporation (Section 5060), a
mutual benefit corporation (Section 5059), a religious corporation
(Section 5061), or a corporation organized under the Consumer
Cooperative Corporation Law (Section 12200) is a party to the merger,
after required approvals of the merger by each constituent
corporation through approval of the board (Section 151) and any
approval of the outstanding shares (Section 152) required by Chapter
12 (commencing with Section 1200) and by the other parties 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 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
that 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, or that the merger agreement was entitled to be and was
approved by the board alone (as provided in Section 1201, in the case
of corporations subject to that section). If equity securities of a
parent party (Section 1200) are to be issued in the merger, the
officers' certificate of that controlled party shall state either
that no vote of the shareholders of the parent party was required or
that the required vote was obtained. 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 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 by the
secretary or assistant secretary, or, if a constituent reciprocal
insurer has not appointed those officers, by the chairperson of the
board, president, or vice president, and 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 that
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 the 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 in the form attached or its principal terms, as required, were
approved by a vote of the number of interests of each class that
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 subdivision (a) of Section 15911.14, if a
domestic 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 merger and
any amendment of the articles of the surviving corporation, if
applicable, contained in the agreement of merger shall be effective
upon filing of the agreement of merger with an officer's certificate
of each constituent domestic and foreign corporation and a
certificate of merger for each constituent other business entity,
subject to subdivision (c) of Section 110 and subject to the
provisions of subdivision (j), and the several parties thereto shall
be one entity. 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. The Secretary of State may certify a copy of the
agreement of merger separate from the officers' certificates and
certificates of merger attached thereto.
(2) If the surviving entity is an other business entity, and no
public benefit corporation (Section 5060), mutual benefit corporation
(Section 5059), religious corporation (Section 5061), or corporation
organized under the Consumer Cooperative Corporation Law (Section
12200) is a party to the merger, after required approvals of the
merger by each constituent corporation through approval of the board
(Section 151) and any approval of the outstanding shares (Section
152) required by Chapter 12 (commencing with Section 1200) and by the
other parties to the merger, the parties to the merger shall file a
certificate of merger in the office of, and on a form prescribed by,
the Secretary of State. The certificate of merger shall be executed
and acknowledged by each constituent domestic and foreign corporation
by its chairperson of the board, president or a vice president and
also by its secretary or an assistant secretary and by each domestic
constituent limited liability company by all 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 by the secretary or assistant secretary, or, if a
constituent reciprocal insurer has not appointed those officers, by
the chairperson of the board, president, or vice president, and by
the secretary or assistant secretary of the constituent reciprocal
insurer's attorney-in-fact. The certificate of merger shall be signed
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 that party the
provision of law or other basis for the authority of the signing
persons. The certificate of merger shall set forth all of the
following:
(A) The name, place of incorporation or organization, and the
Secretary of State's file number, if any, of each party to the
merger, separately identifying the disappearing parties and the
surviving party.
(B) If the approval of the outstanding shares of a constituent
corporation was required by Chapter 12 (commencing with Section
1200), a statement setting forth the total number of outstanding
shares of each class entitled to vote on the merger and that the
principal terms of the agreement of merger were approved by a vote of
the number of shares of each class entitled to vote and the
percentage vote required of each class.
(C) The future effective date or time, not more than 90 days
subsequent to the date of filing of the merger, if the merger is not
to be effective upon the filing of the certificate of merger with the
office of the Secretary of State.
(D) A statement, by each party to the merger which is a domestic
corporation not organized under this division, a foreign corporation,
or an other business entity, of the statutory or other basis under
which that party is authorized by the laws under which it is
organized to effect the merger.
(E) Any other information required to be stated in the certificate
of merger by the laws under which each party to the merger is
organized, including, if a domestic limited liability company is a
party to the merger, subdivision (a) of Section 17552, if a domestic
partnership is a party to the merger, subdivision (b) of Section
16915, and, if a domestic limited partnership is a party to the
merger, subdivision (a) of Section 15678.4 or subdivision (a) of
Section 15911.14.
(F) Any other details or provisions that may be desired.
Unless a future effective date or time is provided in a
certificate of merger, in which event the merger shall be effective
at that future effective date or time, a merger shall be effective
upon the filing of the certificate of merger in the office of the
Secretary of State and the several parties thereto shall be one
entity. The surviving other business entity shall keep a copy of the
agreement of merger at its principal place of business which, for
purposes of this subdivision, shall be the office referred to in
Section 17057 if a domestic limited liability company, at the
business address specified in paragraph (5) of subdivision (a) of
Section 17552 if a foreign limited liability company, at the office
referred to in subdivision (a) of Section 16403 if a domestic general
partnership, at the business address specified in subdivision (f) of
Section 16911 if a foreign partnership, at the office referred to in
subdivision (a) of Section 15614 or in subdivision (a) of Section
15901.14 if a domestic limited partnership, or at the business
address specified in paragraph (5) of subdivision (a) of Section
15678.4 or paragraph (3) of subdivision (a) of Section 15909.02 if a
foreign limited partnership. Upon the request of a holder of equity
securities of a party to the merger, a person with authority to do so
on behalf of the surviving other business entity shall promptly
deliver to that holder, a copy of the agreement of merger. A waiver
by that holder of the rights provided in the foregoing sentence shall
be unenforceable. 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 in accordance with
Section 1555 of the Insurance Code.
(h) (1) 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 and the performance of the conditions necessary
to the adoption of any amendment to the articles, if applicable,
contained in the agreement of merger.
(2) For all purposes for a merger in which the surviving entity is
a domestic other business entity and the filing of a certificate of
merger is required by paragraph (2) of subdivision (g), a copy of the
certificate of merger duly certified by the Secretary of State is
conclusive evidence of the merger of the constituent corporations,
either by themselves or together with the other parties to the
merger, into the surviving other business entity.
(i) (1) Upon a merger pursuant to this section, the separate
existences of the disappearing parties to the merger cease and the
surviving party to the merger shall succeed, without other transfer,
to all the rights and property of each of the disappearing parties to
the merger and shall be subject to all the debts and liabilities of
each in the same manner as if the surviving party to the merger had
itself incurred them.
(2) All rights of creditors and all liens upon the property of
each of the constituent corporations and other parties to the merger
shall be preserved unimpaired, provided that those liens upon
property of a disappearing party shall be limited to the property
affected thereby immediately prior to the time the merger is
effective.
(3) Any action or proceeding pending by or against any
disappearing corporation or disappearing party to the merger may be
prosecuted to judgment, which shall bind the surviving party, or the
surviving party may be proceeded against or substituted in its place.
(4) If a limited partnership or a general partnership is a party
to the merger, nothing in this section is intended to affect the
liability a general partner of a disappearing limited partnership or
general partnership may have in connection with the debts and
liabilities of the disappearing limited partnership or general
partnership existing prior to the time the merger is effective.
(j) (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
subdivision (a) and this subdivision.
(2) If the surviving party is a domestic corporation or domestic
other business entity, the merger proceedings with respect to that
party and any domestic disappearing corporation shall conform to the
provisions of this section. If the surviving party is a foreign
corporation or foreign other business entity, then, subject to the
requirements of subdivision (c), and of Section 407 and Chapter 12
(commencing with Section 1200) and Chapter 13 (commencing with
Section 1300), and, if applicable, corresponding provisions of the
Nonprofit Corporation Law or the Consumer Cooperative Corporation
Law, with respect to any domestic constituent corporations, Chapter
13 (commencing with Section 17600) of Title 2.5 with respect to any
domestic constituent limited liability companies, Article 6
(commencing with Section 16601) of Chapter 5 of Title 2 with respect
to any domestic constituent general partnerships, and Article 7.6
(commencing with Section 15679.1) of Chapter 3, and Article 11.5
(commencing with Section 15911.20) of Chapter 5.5 of Title 2 with
respect to any domestic constituent limited partnerships, the merger
proceedings may be in accordance with the laws of the state or place
of incorporation or organization of the surviving party.
(3) If the surviving party is a domestic corporation or domestic
other business entity, the certificate of merger or the agreement of
merger with attachments shall be filed as provided in subdivision (g)
and thereupon, subject to subdivision (c) of Section 110 or
paragraph (2) of subdivision (g), as is applicable, the merger shall
be effective as to each domestic constituent corporation and domestic
constituent other business entity.
(4) If the surviving party is a foreign corporation or foreign
other business entity, the merger shall become effective in
accordance with the law of the jurisdiction in which the surviving
party is organized, but, except as provided in paragraph (5), 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 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 paragraph
(1) of subdivision (g). 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
that domestic other business entity is organized, including
subdivision (a) of Section 15678.4, subdivision (a) of Section
15911.14, subdivision (b) of Section 16915, or subdivision (a) of
Section 17552, as is applicable, shall also be filed at the same time
as the filing of the agreement of merger.
(5) 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.
(6) In a merger described in paragraph (3) or (4), each foreign
disappearing corporation that is qualified for the transaction of
intrastate business shall by virtue of the filing pursuant to this
subdivision, subject to subdivision (c) of Section 110, automatically
surrender its right to transact intrastate business in this state.
The filing of the agreement of merger or certificate of merger, as is
applicable, pursuant to this subdivision, by a disappearing foreign
other business entity registered for the transaction of intrastate
business in this state shall, by virtue of that filing, subject to
subdivision (c) of Section 110, automatically cancels the
registration for that foreign other business entity, without the
necessity of the filing of a certificate of cancellation.
