ARS § 10-11107. Merger or exchange with other entities

ARS § 10-11107. Merger or exchange with other entities2018-01-14T10:37:50+00:00

A. In addition to mergers or exchanges governed by sections 10-11101 and 10-11102, a domestic corporation may merge or enter into an exchange of memberships and interests with one or more other entities incorporated, formed or organized under the laws of this state, any other state, the United States, any foreign country or any other jurisdiction, if:

1. In a merger, the merger is permitted by the law of the jurisdiction under whose laws the other entity is incorporated, formed or organized, and each other entity complies with that law in effecting the merger. For entities incorporated, formed or organized under the laws of this state, this section constitutes permission for the merger.

2. Each domestic nonprofit corporation approves the plan of merger or exchange in the manner required by section 10-11103, subsection B.

3. Each other entity approves the plan of merger or exchange in the manner required by the laws of the jurisdiction under whose laws it is organized.

4. Rights or securities of or interests in an entity that is a party to the merger or exchange may be exchanged for or converted into cash, property, obligations, rights or securities of or interests in the surviving or resulting entity.

B. The plan of merger or exchange shall set forth:

1. The name and jurisdiction of incorporation, formation or organization of each entity that plans to merge or exchange.

2. The name of the surviving or acquiring entity.

3. The terms and conditions of the merger or exchange.

4. The manner and basis, if any, of converting or exchanging the memberships, rights or securities of or interests in each entity that is a party to the merger or to be acquired in the exchange into or for obligations, memberships, rights or securities of or interest in the surviving or acquiring entity or into or for cash or other property in whole or in part.

C. The plan of merger or exchange may set forth:

1. In a merger, amendments to the articles or certificate of incorporation or organization, the certificate of limited partnership or similar organizational document of the surviving entity.

2. Other provisions relating to the merger or exchange.

D. After a plan of merger or exchange is approved as provided in subsection A, paragraphs 2 and 3 of this section, the surviving or acquiring entity shall deliver to the commission for filing both:

1. The plan of merger or exchange, or a statement that the plan of merger or exchange is on file at a place of business of the surviving or acquiring entity, including the address of the place of business, and a statement that the surviving or acquiring entity will provide a copy of the plan of merger or exchange on request and without cost to any person who holds an interest in an entity that is a party to the merger or exchange.

2. The articles of merger or exchange setting forth:

(a) The names of the domestic nonprofit corporations and other entities that were parties to the merger or exchange.

(b) The name and a place of business of the surviving or acquiring entity.

(c) If the surviving entity in a merger is a domestic nonprofit or business corporation, any amendments to the articles of incorporation of that corporation.

3. If the surviving entity in a merger is not an entity organized under the laws of this state, both of the following:

(a) A statement that the surviving entity agrees that it may be served with process in this state in an action, suit or proceeding for the enforcement of any obligation of any entity that was organized under the laws of this state and that is a party to the merger and for the enforcement of any obligation of the surviving entity arising from the merger.

(b) A statement that the surviving entity irrevocably appoints the commission as its agent to accept service of process in the action, suit or proceeding described in subdivision (a) of this paragraph, including the address to which the commission shall mail a copy of the process.

E. The articles of merger shall serve as the articles or certificate of dissolution, termination or cancellation for an entity that is not the surviving entity in a merger.

F. A merger or exchange takes effect at the effective time and date of the articles of merger or exchange, as determined pursuant to section 10-3123.

G. If the articles of merger include amendments to the articles of incorporation of the surviving corporation as described in subsection D, paragraph 2, subdivision (c) of this section, the document required to be filed and published under this section shall be styled “articles of amendment and merger”.

H. Within sixty days after the commission approves the filing, a copy of the articles of merger or share exchange shall be published. An affidavit evidencing the publication may be filed with the commission.

I. When a merger takes effect:

1. Every other entity that is a party to the merger merges into the surviving entity and the separate existence of every entity except the surviving entity ceases.

2. The title to all real estate and other property owned by each entity that is a party to the merger is vested automatically in the surviving entity without reversion or impairment, subject to any and all conditions to which the property was subject prior to the merger.

3. The surviving entity automatically has all of the liabilities of each entity that is a party to the merger.

4. A proceeding pending against any entity that is a party to the merger may be continued as if the merger did not occur or the surviving entity may be substituted in the proceeding for the entity whose existence ceased.

5. The organizational document of the surviving entity is amended to the extent provided in the articles of amendment and merger.

6. The memberships, rights or securities of or interests in each entity that is a party to the merger that are to be converted into obligations, memberships, rights or securities of or other interests in the surviving or any other entity or into cash or other property are converted, and the former holders of the memberships, rights, securities or interests are entitled only to the rights provided in the plan of merger.

J. If an exchange takes effect, the memberships, rights or securities of or other interests in each acquired entity are exchanged as provided in the plan, and the former holders of the membership, rights, securities or interests are entitled only to the exchange rights provided in the plan of exchange.

K. Unless the plan of merger or exchange provides otherwise, each entity that is a party to the merger or exchange may abandon the proposed merger or exchange before the effective date of the merger or exchange in a manner required by the laws of the jurisdiction in which the entity is organized.

L. This section does not limit the power of an entity to acquire all or part of the memberships of one or more classes of a domestic corporation through a voluntary exchange or otherwise.

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