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  • PART I ADMINISTRATION OF THE GOVERNMENT
  • TITLE XXII CORPORATIONS
  • CHAPTER 156D BUSINESS CORPORATIONS
  • Section 11.03 Share exchange

Section 11.03. SHARE EXCHANGE

(a) Through a share exchange:

(1) a domestic corporation may acquire all of the shares of 1 or more classes or series of shares of another domestic or foreign corporation, or all of the interests of 1 or more classes or series of interests of a domestic or foreign other entity, in exchange for shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, other property, or any combination of the foregoing, pursuant to a plan of share exchange; or

(2) all of the shares of 1 or more classes or series of shares of a domestic corporation may be acquired by another domestic or foreign corporation or other entity, in exchange for shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, other property, or any combination of the foregoing, pursuant to a plan of share exchange.

(b) If the law under which a domestic other entity is organized does not provide procedures for the approval of a share exchange, a plan of share exchange may be adopted and approved, and the share exchange effectuated, in accordance with the procedures, if any, for a merger. If the law under which a domestic other entity is organized does not provide procedures for the approval of either a share exchange or a merger, a plan of share exchange may be adopted and approved, and the share exchange effectuated, by the other entity in accordance with the procedures in this Part and Part 13 applicable to domestic business corporations; and for the purposes of applying this Part and Part 13:

(1) the other entity, its interest holders, interests and filed organizational document, if any, shall be considered to be a domestic business corporation, shareholders, shares and articles of organization, respectively; and

(2) if the affairs of the other entity are managed by a group of persons that it is not identical to the interest holders, that group shall be considered to be the board of directors.

(c) A foreign corporation, or a domestic or foreign other entity, may be a party to the share exchange only if:

(1) the share exchange is permitted by the laws under which the corporation or other entity is organized or by which it is governed; and

(2) in effecting the share exchange, the corporation or other entity complies with such laws and with its articles of organization or organizational documents.

(d) The plan of share exchange shall include:

(1) the name of each corporation or other entity whose shares or interests will be acquired and the name of the corporation or other entity that will acquire those shares or interests;

(2) the terms and conditions of the share exchange;

(3) the manner and basis of exchanging shares of a corporation or interests in an other entity whose shares or interests will be acquired under the share exchange into shares or other securities, interests, obligations, rights to acquire shares or other securities, rights to acquire interests, cash, other property, or any combination of the foregoing; and

(4) any other provisions required by the laws under which any party to the share exchange is organized or by the articles of organization or organizational documents of any such party.

(e) The terms described in clauses (2) and (3) of subsection (d) may be made dependent on facts ascertainable outside the plan of share exchange, provided that those facts are objectively ascertainable. The term “facts” shall include, but shall not limited to, the occurrence of any event, including a determination or action by any person or body, including the corporation or other entity.

(f) The plan of share exchange may also include a provision that the plan may be amended prior to filing of the articles of share exchange with the secretary of state, provided that if the shareholders of a domestic corporation that is a party to the share exchange are required or permitted to vote on the plan, the plan shall provide that subsequent to approval of the plan by such shareholders the plan may not be amended to:

(1) change the amount or kind of shares or other securities, interests, obligations, rights to acquire shares or other securities, cash, or other property to be issued by the corporation or to be received by the shareholders of or owners of interests in any party to the share exchange in exchange for their shares or interests under the plan; or

(2) change any of the terms or conditions of the plan if the change would adversely affect such shareholders in any material respect.

(g) This section shall not limit the power of a domestic corporation to acquire shares of another corporation or interests in another entity in a transaction other than a share exchange.