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The 190th General Court of the Commonwealth of Massachusetts

Section 46D: Merger or consolidation with foreign corporation; method; liability of directors

Section 46D. A corporation may be consolidated or merged with a business corporation organized under the laws of any other state, if the laws of such other state permit, to form one corporation, which may be a new corporation or one of the constituent corporations, by the filing of articles of amendment, approved as hereinafter provided, which shall be entitled ''Amendment?Articles of consolidation of and into , pursuant to section forty-six D of chapter one hundred and fifty-six of the General Laws'', the blank spaces, other than the last blank space, being filled with the names of the constituent corporations and the states in which they are incorporated, and the last blank space being filled in with the name of the consolidated corporation. Said articles shall set forth:

(a) If the consolidated corporation is to be a domestic corporation:

1. The name of each corporation included in the consolidation and, in the case of a corporation incorporated under the laws of another state, the name of such state, the date of incorporation, and, if it is authorized to transact business in this commonwealth, the date on which it qualified in accordance with chapter one hundred and eighty-one.

2. Such further information as is required to be or may be set forth in accordance with section forty-six B.

(b) If the consolidated corporation is to be incorporated under the laws of another state:

1. The information required under clause (a) hereof.

2. The consolidated corporation shall agree that it may be sued in this commonwealth for any prior obligation of any constituent domestic corporation, any prior obligations of any constituent foreign corporation qualified under subdivision A of Part 15 of chapter 156D and any obligation thereafter incurred by the consolidated corporation, including the obligation established by section 46E of this chapter, so long as any liability remains outstanding against the corporation in this commonwealth, and it shall irrevocably appoint the secretary as its agent to accept service of process in the same manner as provided in said subdivision A of said Part 15 of said chapter 156D.

The articles of consolidation shall be approved by each constituent corporation by the affirmative vote, at a meeting called for the purpose, of two thirds of each class of stock outstanding and entitled to vote, or by a larger vote if the agreement of association or act of incorporation so requires. Notice of such meeting shall be given as provided in section forty-six B and in compliance with the laws of the state under which such constituent corporation was organized. The articles of consolidation shall be signed and sworn to by the president, treasurer and a majority of the board of directors of each constituent corporation, who shall make affidavit stating that they have been authorized to execute and file such articles by vote of the stockholders in accordance with the foregoing requirements. The articles of consolidation shall be submitted to the secretary within thirty days of the last of said stockholders' meetings. The secretary shall examine them as in the case of articles of organization and, if he finds that they conform to law, he shall so certify and endorse his approval thereon. Thereupon the articles of consolidation shall be filed in the office of the state secretary and the consolidation shall become effective.

If the consolidated corporation is to be a domestic corporation or a foreign corporation, the fee to be paid to the state secretary for filing the articles of consolidation shall be determined annually by the commissioner of administration under the provision of section three B of chapter seven.

When any consolidation becomes effective the articles of organization, charter, or special act incorporating any constituent domestic corporation surviving the consolidation shall be deemed amended to the extent necessary to make the same conform to the articles of consolidation.

The consolidated corporation shall, within twenty days of the filing of the articles of consolidation with the state secretary, file a certified copy thereof in the registry of deeds in every district in which real property of any constituent corporation is situated, or, in lieu of such certified copy, a certificate issued pursuant to section forty-six F evidencing the filing of such articles with the state secretary.

Section forty-six C shall apply to corporations consolidated pursuant to this section.

The directors who sign articles of consolidation as provided in sections forty-six B to forty-six D, inclusive, and the officers and directors who sign any amendment thereof, shall be jointly and severally liable to any stockholder of the consolidated corporation for actual damages caused by any statement therein which is false and which they know, or on reasonable examination could have known, to be false.