"Constituent corporation" means a corporation which, from the incorporationof the holding company until consummation of a merger governed by thissection, was at all times the sole direct parent of the holding company andwhose shares are converted into shares of the holding company in such merger.
"Holding company" means a corporation which, from its incorporation untilconsummation of a merger governed by this section, was at all times a directwholly-owned subsidiary of the constituent corporation and whose shares areissued in such merger in exchange for the shares of the constituentcorporation.
"Indirect subsidiary" means a corporation which, from its incorporationuntil consummation of a merger governed by this section, was at all times adirect wholly-owned subsidiary of the holding company.
B. Unless its articles of incorporation otherwise provide, a constituentcorporation may merge an indirect subsidiary into itself, or may merge itselfinto an indirect subsidiary, without the approval of the shareholders of theconstituent corporation or the board of directors or shareholders of theindirect subsidiary, if:
1. Such constituent corporation and indirect subsidiary are the only partiesto the merger;
2. The provisions in the articles of incorporation and bylaws of theconstituent corporation and the holding company at the effective date of themerger are identical as they relate to:
a. The designation, number, and par value of each class and series of sharesthat are authorized, and the preferences, rights and limitations of eachclass and series of shares;
b. Any terms of the shares that are dependent upon facts objectivelyascertainable outside of the articles of incorporation or that vary among theholders of the same class or series;
c. The preemptive right of the shareholders to acquire unissued shares,provided, however, that if the constituent corporation was formed on orbefore December 31, 2005, and its articles of incorporation do not deny thepreemptive right of its shareholders, and the holding company was formedafter December 31, 2005, the articles of incorporation of the holding companymust provide that its shareholders have the preemptive right to acquire theholding company's unissued shares to the same extent the shareholders of theconstituent corporation had a preemptive right to acquire unissued shares ofthe constituent corporation;
d. The definition, limitation, and regulation of the powers of thecorporation, its directors, and shareholders;
e. The management of the business and regulation of the affairs of thecorporation; and
f. For purposes of subdivision 2 c of this subsection, shares include anywarrants, rights or options to acquire any such shares or any security orother obligation of the corporation convertible into any such shares or intowarrants, rights or options to acquire any such shares.
3. Each share or fraction of a share of the constituent corporationoutstanding immediately prior to the effective date of the merger isconverted in the merger into a share or equal fraction of a share of theholding company having the same preferences, rights, and limitations as theshare or fraction of a share of the constituent corporation being convertedin the merger;
4. Each right to acquire shares of the constituent corporation outstandingimmediately prior to the effective date of the merger is converted in themerger into a right to acquire shares of the holding company having the samepreferences, rights, and limitations as the right to acquire shares of theconstituent corporation being converted in the merger; and
5. The directors of the constituent corporation become or remain thedirectors of the holding company upon the effective date of the merger.
C. Notwithstanding any provision in this chapter to the contrary, a plan ofmerger adopted pursuant to this section may include:
1. If the indirect subsidiary is the survivor:
a. An amendment or restatement of the indirect subsidiary's articles ofincorporation to change the name of the indirect subsidiary to a name thatsatisfies the requirements of this chapter; and
b. A provision that the shares of the holding company into which the sharesof the constituent corporation are converted in the merger may be representedby the share certificates that previously represented shares of theconstituent corporation, if the holding company adopts the former name of theconstituent corporation by filing articles of amendment that are effectiveimmediately following consummation of the merger; and
2. If the constituent corporation is the survivor:
a. An amendment or restatement of the constituent corporation's articles ofincorporation:
(1) To change the name of the constituent corporation to a name thatsatisfies the requirements of this chapter;
(2) To delete any existing provisions that authorize the issuance of orrelate to multiple classes or series of shares and to add one or moreprovisions that authorize a new, single class of shares with unlimited votingrights in lieu thereof;
(3) To delete any existing provision that provides for staggering the termsof directors pursuant to § 13.1-678; or
(4) To make any change permitted by § 13.1-706;
b. A provision that one or more of the directors of the constituentcorporation immediately prior to the effective date of the merger will nolonger be directors of the constituent corporation immediately following theeffective date of the merger; and
c. A provision that the shares of the holding company into which the sharesof the constituent corporation are converted in the merger may be representedby the share certificates that previously represented shares of theconstituent corporation, if the constituent corporation adopts a new name inthe merger that is distinguishable upon the records of the Commission and theholding company adopts the former name of the constituent corporation byfiling articles of amendment that are effective immediately followingconsummation of the merger.
D. Articles of merger filed with respect to a merger authorized by thissection shall include a statement that the plan of merger did not requireapproval by the shareholders of the constituent corporation or by the boardof directors or shareholders of the indirect subsidiary because the mergerwas authorized by this section and that the conditions specified insubsection B of this section have been satisfied.
E. Except as provided in this section, a merger governed by this sectionshall comply with the provisions of this article applicable to mergersgenerally.
F. From and after the effective date of a merger adopted by a constituentcorporation pursuant to this section:
1. To the extent the restrictions of § 13.1-725.1 or § 13.1-728.2 applied tothe constituent corporation and its shareholders at the effective date of themerger, such restrictions shall apply to the holding company and itsshareholders immediately after the effective date of the merger as though itwere the constituent corporation, and all shares of the holding companyacquired in the merger shall for purposes of §§ 13.1-725.1 and 13.1-728.2 bedeemed to have been acquired at the time that the shares of the constituentcorporation converted in the merger were acquired, and provided further that:
a. Any shareholder who immediately prior to the effective date of the mergerwas not an interested shareholder within the meaning of § 13.1-725 shall notsolely by reason of the merger become an interested shareholder of theholding company; and
b. Any shares which immediately prior to the effective date of the mergerwere not interested shares within the meaning of § 13.1-728.1 shall notsolely by reason of the merger become interested shares of the holdingcompany; and
2. To the extent a shareholder of the constituent corporation immediatelyprior to the effective date of the merger had standing to institute ormaintain a derivative proceeding on behalf of the constituent corporation,consummation of the merger shall not be deemed to limit or extinguish suchstanding.
3. To the extent a voting trust authorized by § 13.1-670, a voting agreementauthorized by § 13.1-671, a shareholder agreement authorized by § 13.1-671.1,a proxy or any similar agreement or instrument applied to the constituentcorporation, its shares or its shareholders at the effective date of themerger, such voting trust, voting agreement, shareholder agreement, proxy orother agreement or instrument shall apply to the holding company and itsshares and shareholders immediately following consummation of the merger tothe same extent that it applied to the constituent corporation and its sharesand shareholders immediately prior to consummation of the merger.
"Constituent corporation" means a corporation which, from the incorporationof the holding company until consummation of a merger governed by thissection, was at all times the sole direct parent of the holding company andwhose shares are converted into shares of the holding company in such merger.
"Holding company" means a corporation which, from its incorporation untilconsummation of a merger governed by this section, was at all times a directwholly-owned subsidiary of the constituent corporation and whose shares areissued in such merger in exchange for the shares of the constituentcorporation.
"Indirect subsidiary" means a corporation which, from its incorporationuntil consummation of a merger governed by this section, was at all times adirect wholly-owned subsidiary of the holding company.
B. Unless its articles of incorporation otherwise provide, a constituentcorporation may merge an indirect subsidiary into itself, or may merge itselfinto an indirect subsidiary, without the approval of the shareholders of theconstituent corporation or the board of directors or shareholders of theindirect subsidiary, if:
1. Such constituent corporation and indirect subsidiary are the only partiesto the merger;
2. The provisions in the articles of incorporation and bylaws of theconstituent corporation and the holding company at the effective date of themerger are identical as they relate to:
a. The designation, number, and par value of each class and series of sharesthat are authorized, and the preferences, rights and limitations of eachclass and series of shares;
b. Any terms of the shares that are dependent upon facts objectivelyascertainable outside of the articles of incorporation or that vary among theholders of the same class or series;
c. The preemptive right of the shareholders to acquire unissued shares,provided, however, that if the constituent corporation was formed on orbefore December 31, 2005, and its articles of incorporation do not deny thepreemptive right of its shareholders, and the holding company was formedafter December 31, 2005, the articles of incorporation of the holding companymust provide that its shareholders have the preemptive right to acquire theholding company's unissued shares to the same extent the shareholders of theconstituent corporation had a preemptive right to acquire unissued shares ofthe constituent corporation;
d. The definition, limitation, and regulation of the powers of thecorporation, its directors, and shareholders;
e. The management of the business and regulation of the affairs of thecorporation; and
f. For purposes of subdivision 2 c of this subsection, shares include anywarrants, rights or options to acquire any such shares or any security orother obligation of the corporation convertible into any such shares or intowarrants, rights or options to acquire any such shares.
3. Each share or fraction of a share of the constituent corporationoutstanding immediately prior to the effective date of the merger isconverted in the merger into a share or equal fraction of a share of theholding company having the same preferences, rights, and limitations as theshare or fraction of a share of the constituent corporation being convertedin the merger;
4. Each right to acquire shares of the constituent corporation outstandingimmediately prior to the effective date of the merger is converted in themerger into a right to acquire shares of the holding company having the samepreferences, rights, and limitations as the right to acquire shares of theconstituent corporation being converted in the merger; and
5. The directors of the constituent corporation become or remain thedirectors of the holding company upon the effective date of the merger.
C. Notwithstanding any provision in this chapter to the contrary, a plan ofmerger adopted pursuant to this section may include:
1. If the indirect subsidiary is the survivor:
a. An amendment or restatement of the indirect subsidiary's articles ofincorporation to change the name of the indirect subsidiary to a name thatsatisfies the requirements of this chapter; and
b. A provision that the shares of the holding company into which the sharesof the constituent corporation are converted in the merger may be representedby the share certificates that previously represented shares of theconstituent corporation, if the holding company adopts the former name of theconstituent corporation by filing articles of amendment that are effectiveimmediately following consummation of the merger; and
2. If the constituent corporation is the survivor:
a. An amendment or restatement of the constituent corporation's articles ofincorporation:
(1) To change the name of the constituent corporation to a name thatsatisfies the requirements of this chapter;
(2) To delete any existing provisions that authorize the issuance of orrelate to multiple classes or series of shares and to add one or moreprovisions that authorize a new, single class of shares with unlimited votingrights in lieu thereof;
(3) To delete any existing provision that provides for staggering the termsof directors pursuant to § 13.1-678; or
(4) To make any change permitted by § 13.1-706;
b. A provision that one or more of the directors of the constituentcorporation immediately prior to the effective date of the merger will nolonger be directors of the constituent corporation immediately following theeffective date of the merger; and
c. A provision that the shares of the holding company into which the sharesof the constituent corporation are converted in the merger may be representedby the share certificates that previously represented shares of theconstituent corporation, if the constituent corporation adopts a new name inthe merger that is distinguishable upon the records of the Commission and theholding company adopts the former name of the constituent corporation byfiling articles of amendment that are effective immediately followingconsummation of the merger.
D. Articles of merger filed with respect to a merger authorized by thissection shall include a statement that the plan of merger did not requireapproval by the shareholders of the constituent corporation or by the boardof directors or shareholders of the indirect subsidiary because the mergerwas authorized by this section and that the conditions specified insubsection B of this section have been satisfied.
E. Except as provided in this section, a merger governed by this sectionshall comply with the provisions of this article applicable to mergersgenerally.
F. From and after the effective date of a merger adopted by a constituentcorporation pursuant to this section:
1. To the extent the restrictions of § 13.1-725.1 or § 13.1-728.2 applied tothe constituent corporation and its shareholders at the effective date of themerger, such restrictions shall apply to the holding company and itsshareholders immediately after the effective date of the merger as though itwere the constituent corporation, and all shares of the holding companyacquired in the merger shall for purposes of §§ 13.1-725.1 and 13.1-728.2 bedeemed to have been acquired at the time that the shares of the constituentcorporation converted in the merger were acquired, and provided further that:
a. Any shareholder who immediately prior to the effective date of the mergerwas not an interested shareholder within the meaning of § 13.1-725 shall notsolely by reason of the merger become an interested shareholder of theholding company; and
b. Any shares which immediately prior to the effective date of the mergerwere not interested shares within the meaning of § 13.1-728.1 shall notsolely by reason of the merger become interested shares of the holdingcompany; and
2. To the extent a shareholder of the constituent corporation immediatelyprior to the effective date of the merger had standing to institute ormaintain a derivative proceeding on behalf of the constituent corporation,consummation of the merger shall not be deemed to limit or extinguish suchstanding.
3. To the extent a voting trust authorized by § 13.1-670, a voting agreementauthorized by § 13.1-671, a shareholder agreement authorized by § 13.1-671.1,a proxy or any similar agreement or instrument applied to the constituentcorporation, its shares or its shareholders at the effective date of themerger, such voting trust, voting agreement, shareholder agreement, proxy orother agreement or instrument shall apply to the holding company and itsshares and shareholders immediately following consummation of the merger tothe same extent that it applied to the constituent corporation and its sharesand shareholders immediately prior to consummation of the merger.
"Constituent corporation" means a corporation which, from the incorporationof the holding company until consummation of a merger governed by thissection, was at all times the sole direct parent of the holding company andwhose shares are converted into shares of the holding company in such merger.
"Holding company" means a corporation which, from its incorporation untilconsummation of a merger governed by this section, was at all times a directwholly-owned subsidiary of the constituent corporation and whose shares areissued in such merger in exchange for the shares of the constituentcorporation.
"Indirect subsidiary" means a corporation which, from its incorporationuntil consummation of a merger governed by this section, was at all times adirect wholly-owned subsidiary of the holding company.
B. Unless its articles of incorporation otherwise provide, a constituentcorporation may merge an indirect subsidiary into itself, or may merge itselfinto an indirect subsidiary, without the approval of the shareholders of theconstituent corporation or the board of directors or shareholders of theindirect subsidiary, if:
1. Such constituent corporation and indirect subsidiary are the only partiesto the merger;
2. The provisions in the articles of incorporation and bylaws of theconstituent corporation and the holding company at the effective date of themerger are identical as they relate to:
a. The designation, number, and par value of each class and series of sharesthat are authorized, and the preferences, rights and limitations of eachclass and series of shares;
b. Any terms of the shares that are dependent upon facts objectivelyascertainable outside of the articles of incorporation or that vary among theholders of the same class or series;
c. The preemptive right of the shareholders to acquire unissued shares,provided, however, that if the constituent corporation was formed on orbefore December 31, 2005, and its articles of incorporation do not deny thepreemptive right of its shareholders, and the holding company was formedafter December 31, 2005, the articles of incorporation of the holding companymust provide that its shareholders have the preemptive right to acquire theholding company's unissued shares to the same extent the shareholders of theconstituent corporation had a preemptive right to acquire unissued shares ofthe constituent corporation;
d. The definition, limitation, and regulation of the powers of thecorporation, its directors, and shareholders;
e. The management of the business and regulation of the affairs of thecorporation; and
f. For purposes of subdivision 2 c of this subsection, shares include anywarrants, rights or options to acquire any such shares or any security orother obligation of the corporation convertible into any such shares or intowarrants, rights or options to acquire any such shares.
3. Each share or fraction of a share of the constituent corporationoutstanding immediately prior to the effective date of the merger isconverted in the merger into a share or equal fraction of a share of theholding company having the same preferences, rights, and limitations as theshare or fraction of a share of the constituent corporation being convertedin the merger;
4. Each right to acquire shares of the constituent corporation outstandingimmediately prior to the effective date of the merger is converted in themerger into a right to acquire shares of the holding company having the samepreferences, rights, and limitations as the right to acquire shares of theconstituent corporation being converted in the merger; and
5. The directors of the constituent corporation become or remain thedirectors of the holding company upon the effective date of the merger.
C. Notwithstanding any provision in this chapter to the contrary, a plan ofmerger adopted pursuant to this section may include:
1. If the indirect subsidiary is the survivor:
a. An amendment or restatement of the indirect subsidiary's articles ofincorporation to change the name of the indirect subsidiary to a name thatsatisfies the requirements of this chapter; and
b. A provision that the shares of the holding company into which the sharesof the constituent corporation are converted in the merger may be representedby the share certificates that previously represented shares of theconstituent corporation, if the holding company adopts the former name of theconstituent corporation by filing articles of amendment that are effectiveimmediately following consummation of the merger; and
2. If the constituent corporation is the survivor:
a. An amendment or restatement of the constituent corporation's articles ofincorporation:
(1) To change the name of the constituent corporation to a name thatsatisfies the requirements of this chapter;
(2) To delete any existing provisions that authorize the issuance of orrelate to multiple classes or series of shares and to add one or moreprovisions that authorize a new, single class of shares with unlimited votingrights in lieu thereof;
(3) To delete any existing provision that provides for staggering the termsof directors pursuant to § 13.1-678; or
(4) To make any change permitted by § 13.1-706;
b. A provision that one or more of the directors of the constituentcorporation immediately prior to the effective date of the merger will nolonger be directors of the constituent corporation immediately following theeffective date of the merger; and
c. A provision that the shares of the holding company into which the sharesof the constituent corporation are converted in the merger may be representedby the share certificates that previously represented shares of theconstituent corporation, if the constituent corporation adopts a new name inthe merger that is distinguishable upon the records of the Commission and theholding company adopts the former name of the constituent corporation byfiling articles of amendment that are effective immediately followingconsummation of the merger.
D. Articles of merger filed with respect to a merger authorized by thissection shall include a statement that the plan of merger did not requireapproval by the shareholders of the constituent corporation or by the boardof directors or shareholders of the indirect subsidiary because the mergerwas authorized by this section and that the conditions specified insubsection B of this section have been satisfied.
E. Except as provided in this section, a merger governed by this sectionshall comply with the provisions of this article applicable to mergersgenerally.
F. From and after the effective date of a merger adopted by a constituentcorporation pursuant to this section:
1. To the extent the restrictions of § 13.1-725.1 or § 13.1-728.2 applied tothe constituent corporation and its shareholders at the effective date of themerger, such restrictions shall apply to the holding company and itsshareholders immediately after the effective date of the merger as though itwere the constituent corporation, and all shares of the holding companyacquired in the merger shall for purposes of §§ 13.1-725.1 and 13.1-728.2 bedeemed to have been acquired at the time that the shares of the constituentcorporation converted in the merger were acquired, and provided further that:
a. Any shareholder who immediately prior to the effective date of the mergerwas not an interested shareholder within the meaning of § 13.1-725 shall notsolely by reason of the merger become an interested shareholder of theholding company; and
b. Any shares which immediately prior to the effective date of the mergerwere not interested shares within the meaning of § 13.1-728.1 shall notsolely by reason of the merger become interested shares of the holdingcompany; and
2. To the extent a shareholder of the constituent corporation immediatelyprior to the effective date of the merger had standing to institute ormaintain a derivative proceeding on behalf of the constituent corporation,consummation of the merger shall not be deemed to limit or extinguish suchstanding.
3. To the extent a voting trust authorized by § 13.1-670, a voting agreementauthorized by § 13.1-671, a shareholder agreement authorized by § 13.1-671.1,a proxy or any similar agreement or instrument applied to the constituentcorporation, its shares or its shareholders at the effective date of themerger, such voting trust, voting agreement, shareholder agreement, proxy orother agreement or instrument shall apply to the holding company and itsshares and shareholders immediately following consummation of the merger tothe same extent that it applied to the constituent corporation and its sharesand shareholders immediately prior to consummation of the merger.
