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  • PART I ADMINISTRATION OF THE GOVERNMENT
  • TITLE XXII CORPORATIONS
  • CHAPTER 156B CERTAIN BUSINESS CORPORATIONS
  • Section 78 Consolidation or merger of corporations

Section 78. (a) Any two or more corporations may consolidate to form a new corporation, or may merge into a single corporation, which may be any one of the constituent corporations, in the manner specified in this section.

(b) Such corporations as desire to consolidate or merge shall enter into an agreement of consolidation or merger signed by the president or a vice president and the treasurer or an assistant treasurer and under the corporate seals of the respective corporations, which shall set forth:

(1) The names of the corporations proposing to consolidate or merge and the name of the resulting or surviving corporation;

(2) The purposes of the resulting or surviving corporation;

(3) The total number of shares and the par value, if any, of each class of stock which the resulting or surviving corporation is authorized to issue;

(4) If more than one class of stock is to be authorized at the effective date of the agreement, a description of each class, with the preferences, voting powers, qualifications, special or relative rights or privileges as to each class and any series thereof then established;

(5) The terms and conditions of the consolidation or merger;

(6) The manner of converting the shares of each of the constituent corporations into shares or securities of the resulting or surviving corporation, or the cash or other consideration to be paid or delivered in exchange for shares of each constituent corporation; provided, however, that the aggregate par value of the shares with a par value of the resulting or surviving corporation plus the aggregate principal amount of any securities representing indebtedness of the surviving or resulting corporation substituted upon conversion for previously issued and outstanding shares of the constituent corporations shall not exceed the aggregate value of the assets less the aggregate amount of the liabilities of the constituent corporations; and

(7) The manner of fixing the effective date of the consolidation or merger, which may be the date of filing the articles of consolidation or articles of merger with the state secretary pursuant to subsection (d), or any specified date not more than thirty days after such filing.

The agreement of consolidation or merger may contain such other provisions as are permitted by section thirteen of this chapter to be included in the articles of organization of a corporation, together with any provisions deemed necessary or desirable in connection with the consolidation or merger, including without limitation a provision permitting the abandonment thereof, which are not inconsistent with the provisions of this chapter.

(c)(1) Except as provided in paragraph (2) of this subsection:

(i) The agreement of consolidation or merger shall be submitted to the stockholders of each constituent corporation at a meeting thereof called for the purpose of considering and acting upon the same.

(ii) Notice of the time, place and purposes of such meeting shall be given to each stockholder of record, whether or not entitled to vote thereat, of each such corporation in the manner provided in section thirty-six but at least twenty days prior to the date of such meeting.

(iii) Subject to the provisions of section eight, the vote of two-thirds of the shares of each class of stock of each constituent corporation outstanding and entitled to vote on the question, or, if the articles of organization so provide, the vote of a lesser proportion but not less than a majority of each class of stock of each constituent corporation outstanding and entitled to vote on the question, shall be necessary for the approval of such agreement. For this purpose, if any such agreement would adversely affect the rights of any class of stock of either constituent corporation, the vote in the proportion provided for in this section of the shares of such class then outstanding, voting separately, shall also be necessary to authorize such agreement. Any series of a class which is adversely affected in a manner different from other series of the same class shall, together with any other series of the same class adversely affected in the same manner, be treated as a separate class.

(2) Unless required by its articles of organization, the agreement of merger need not be submitted to the stockholders of a constituent corporation surviving the merger but may be approved by vote of its directors if:

(i) The agreement of merger does not change the name, the amount of shares authorized of any class of stock or other provisions of the articles of organization of such corporation;

(ii) The authorized unissued shares or shares held in the treasury of such corporation of any class of stock of such corporation to be issued or delivered pursuant to the agreement of merger do not exceed fifteen per centum of the shares of such corporation of the same class outstanding immediately prior to the effective date of the merger; and

(iii) The issue by vote of the directors of any unissued stock to be issued pursuant to the agreement of merger has been authorized in accordance with section twenty-one.

(d) Unless such agreement to consolidate or merge is abandoned pursuant to provisions contained therein: (1) an original or attested copy thereof shall be kept in the commonwealth by the resulting or surviving corporation in one of the offices specified in section thirty-two for inspection by any of its stockholders or by any person who was a stockholder of any constituent corporation; (2) the resulting or surviving corporation shall furnish a copy of the agreement of consolidation or merger to any such stockholder or person upon written request and without charge; (3) articles of consolidation or merger shall be submitted to the state secretary which shall set forth the due adoption of an agreement of consolidation or merger in accordance with subsections (b) and (c) and shall state: (i) the names of the constituent corporations and the name of the resulting or surviving corporation; (ii) the effective date of the consolidation or merger determined pursuant to the agreement of consolidation or merger; (iii) any amendment to the articles of organization of the surviving corporation to be effected pursuant to the agreement of merger; or the following information in respect of the resulting corporation:

(A) the purposes of the resulting corporation;

(B) the total number of shares and the par value, if any, of each class of stock which the resulting corporation is authorized to issue;

(C) if more than one class of stock is to be authorized, a description of each class, with the preferences, voting powers, qualifications, special or relative rights or privileges as to each class and any series thereof then established; and

(D) such other provisions as are permitted by section thirteen to be included in the articles of organization of a corporation and are contained in the agreement of consolidation; and (iv) that the resulting or surviving corporation will furnish a copy of the agreement of consolidation or merger to any of its stockholders or to any person who was a stockholder of any constituent corporation upon written request and without charge. Such articles of consolidation or merger shall be signed by the president or a vice president and the clerk or an assistant clerk of each constituent corporation, who shall state under the penalties of perjury that the agreement of consolidation or merger has been duly executed on behalf of such corporation and has been approved in the manner required by this section by the stockholders of such corporation or, if permitted under subsection (c), by the directors of such corporation.

The form on which articles of consolidation or merger are filed shall also contain the following information which shall not for any purpose be treated as a permanent part of the articles of organization of the resulting or surviving corporation:

(1) the street address of the initial principal office of the resulting or surviving corporation in the commonwealth;

(2) the name, residence and post-office address of each of the initial directors and president, treasurer and clerk of the resulting or surviving corporation;

(3) the fiscal year of the resulting or surviving corporation initially adopted.

The consolidation or merger shall become effective when the articles of consolidation or merger are filed in accordance with section six, unless said articles specify a later effective date not more than thirty days after such filing, in which event the consolidation or merger shall become effective on such later date.

(e) The resulting or surviving corporation shall file a copy of the articles of consolidation or merger certified by the state secretary in the registry of deeds in each district within the commonwealth in which real property of any constituent corporation is situated, or in lieu of such certified copy a certificate issued pursuant to section eighty-four, except that no filing need be made with respect to real property of a constituent corporation which is the surviving corporation of a merger.