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| Home > Statutes > Usa Arizona |
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USA Statutes : arizona
Title : Corporations and Associations
Chapter : MERGER AND SHARE EXCHANGE
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10-1101 Merger
A. One or more corporations may merge into another corporation if the board of
directors of each corporation adopts, and, if required by section 10-1103, its
shareholders approve, a plan of merger.
B. The plan of merger shall set forth all of the following:
1. The name of each corporation planning to merge and the name of the surviving
corporation into which each other corporation plans to merge.
2. The terms and conditions of the merger.
3. The manner and basis of converting the shares of each corporation into shares,
obligations or other securities of the surviving or any other corporation or into cash or
other property in whole or part.
C. The plan of merger may set forth:
1. Amendments to the articles of incorporation of the surviving corporation.
2. Other provisions relating to the merger.
10-1102 Share exchange
A. A corporation may acquire all of the outstanding shares of one or more classes
or series of another corporation if the board of directors of each corporation adopts,
and, if required by section 10-1103, its shareholders approve, the exchange.
B. The plan of exchange shall set forth all of the following:
1. The name of the corporation whose shares will be acquired and the name of the
acquiring corporation.
2. The terms and conditions of the exchange.
3. The manner and basis of exchanging the shares to be acquired for shares,
obligations or other securities of the acquiring or any other corporation or for cash or
other property in whole or part.
C. The plan of exchange may set forth other provisions relating to the exchange.
D. This section does not limit the power of a corporation to acquire all or part of
the shares of one or more classes or series of another corporation through a voluntary
exchange or otherwise.
10-1103 Action on plan of merger or share exchange
A. Except as provided in subsection G of this section, after adopting a plan of
merger or share exchange, the board of directors of each corporation that is a party to
the merger and the board of directors of the corporation whose shares will be acquired in
the share exchange shall submit the plan of merger or share exchange for approval by its
shareholders.
B. For a plan of merger or share exchange to be approved both:
1. The board of directors shall recommend the plan of merger or share exchange to
the shareholders, unless the board of directors determines that because of a conflict of
interest or other special circumstances it should not make a recommendation and
communicates the basis for its determination to the shareholders with the plan.
2. The shareholders entitled to vote on the plan of merger or share exchange shall
approve the plan.
C. The board of directors may condition its submission of the proposed merger or
share exchange on any basis.
D. The corporation shall notify each shareholder, whether or not entitled to vote,
of the proposed shareholders' meeting at which the plan of merger or share exchange is to
be submitted for approval in accordance with section 10-705. The notice shall state that
the purpose or one of the purposes of the meeting is to consider the plan of merger or
share exchange and shall contain or be accompanied by a copy or summary of the plan.
E. Unless chapters 1 through 17 of this title, the articles of incorporation or the
board of directors acting pursuant to subsection C of this section requires a greater
vote or a vote by voting groups, the plan of merger or share exchange to be authorized
shall be approved by each voting group entitled to vote separately on the plan by a
majority of all the votes entitled to be cast on the plan by that voting group.
F. Separate voting by voting groups is required:
1. On a plan of merger if either:
(a) The plan contains a provision that, if contained in a proposed amendment to the
articles of incorporation, would require action by one or more separate voting groups on
the proposed amendment under section 10-1004.
(b) One or more voting groups are entitled under the articles of incorporation to
vote as a voting group on the plan of merger.
2. On a plan of share exchange by each class or series of shares included in the
exchange, with each class or series constituting a separate voting group.
G. Unless the articles of incorporation otherwise require, action by the
shareholders of the surviving corporation on a plan of merger is not required if all of
the following conditions exist:
1. The articles of incorporation of the surviving corporation will not differ,
except for amendments enumerated in section 10-1002, from its articles of incorporation
before the merger.
2. Each shareholder of the surviving corporation whose shares were outstanding
immediately before the effective date of the merger will hold the same number of shares
with identical designations, preferences, limitations and relative rights immediately
after the effective date of the merger.
3. The number of voting shares outstanding immediately after the merger, plus the
number of voting shares issuable as a result of the merger either by the conversion of
securities issued pursuant to the merger or the exercise of rights and warrants issued
pursuant to the merger, will not exceed by more than twenty per cent the total number of
voting shares of the surviving corporation outstanding immediately before the merger.
4. The number of participating shares outstanding immediately after the merger,
plus the number of participating shares issuable as a result of the merger either by the
conversion of securities issued pursuant to the merger or the exercise of rights and
warrants issued pursuant to the merger, will not exceed by more than twenty per cent the
total number of participating shares outstanding immediately before the merger.
H. As used in subsection G of this section:
1. "Participating shares" means shares that entitle their holders to participate
without limitation in distributions.
2. "Voting shares" means shares that entitle their holders to vote unconditionally
in elections of directors.
I. At any time before the filing of the articles of merger or share exchange, the
plan of merger or share exchange may be abandoned, subject to any contractual rights,
without further shareholder action, in accordance with the procedure set forth in the
plan of merger or share exchange or, if none is set forth, in the manner determined by
the board of directors.
10-1104 Merger of subsidiary
A. A parent corporation owning at least ninety per cent of the outstanding shares
of each class of a subsidiary corporation may merge the subsidiary into itself without
approval of the shareholders of the parent or the subsidiary.
B. The board of directors of the parent shall adopt a plan of merger that sets
forth:
1. The names of the parent and subsidiary.
2. The manner and basis of converting the shares of the subsidiary into shares,
obligations or other securities of the parent or any other corporation or into cash or
other property in whole or in part.
C. The parent shall mail a copy or summary of the plan of merger to each
shareholder, other than the parent, of the subsidiary who does not waive the mailing
requirement in writing.
D. The parent may not deliver articles of merger to the commission for filing until
at least thirty days after the date it mailed a copy of the plan of merger to each
shareholder of the subsidiary who did not waive the mailing requirement.
E. Articles of merger under this section shall not contain amendments to the
articles of incorporation of the parent corporation.
10-1105 Articles of merger or share exchange; publication
A. After a plan of merger or share exchange is approved by the shareholders or
adopted by the board of directors if shareholder approval is not required, the surviving
or acquiring corporation shall deliver to the commission for filing both:
1. The plan of merger or share exchange.
2. Articles of merger or share exchange setting forth:
(a) The names of the corporations that were parties to the merger or share
exchange.
(b) The name and address of the known place of business of the surviving or
acquiring corporation.
(c) The name and address of the statutory agent of the surviving or acquiring
corporation.
(d) Any amendments to the articles of incorporation of the surviving corporation.
(e) If shareholder approval was not required, a statement to that effect.
(f) If approval of the shareholders of one or more corporations party to the merger
or share exchange was required:
(i) The designation, number of outstanding shares and number of votes entitled to
be cast by each voting group entitled to vote separately on the plan as to each
corporation.
(ii) Either the total number of votes cast for and against the plan by each voting
group entitled to vote separately on the plan or the total number of undisputed votes
cast for the plan separately by each voting group and a statement that the number cast
for the plan by each voting group was sufficient for approval by that voting group.
B. A merger or share exchange takes effect at the effective time and date of the
articles of merger or share exchange, as determined pursuant to section 10-123.
C. If the articles of merger include amendments to the articles of incorporation of
the surviving corporation, the document required to be filed and published under this
section shall be styled "articles of amendment and merger".
D. Within sixty days after the filing, a copy of the articles of merger or share
exchange shall be published. An affidavit evidencing the publication shall be filed with
the commission within ninety days after filing the articles of merger or share exchange.
10-1106 Effect of merger or share exchange
A. When a merger takes effect:
1. Every other corporation that is a party to the merger merges into the surviving
corporation and the separate existence of every corporation except the surviving
corporation ceases.
2. The title to all real estate and other property owned by each corporation that
is a party to the merger is vested automatically in the surviving corporation without
reversion or impairment.
3. The surviving corporation automatically has all of the liabilities of each
corporation that is a party to the merger.
4. A proceeding pending against any corporation that is a party to the merger may
be continued as if the merger did not occur or the surviving corporation may be
substituted in the proceeding for the corporation whose existence ceased.
5. The articles of incorporation of the surviving corporation are amended to the
extent provided in the articles of amendment and merger.
6. The shares of each corporation that is a party to the merger that are to be
converted into shares, obligations or other securities of the surviving or any other
corporation or into cash or other property are converted, and the former holders of the
shares are entitled only to the rights provided in the plan of merger or to their rights
under chapter 13 of this title.
B. When a share exchange takes effect, the shares of each acquired corporation are
exchanged as provided in the plan, and the former holders of the shares are entitled only
to the exchange rights provided in the plan of share exchange or to their rights under
chapter 13 of this title.
10-1107 Merger or share exchange with foreign corporation
A. One or more foreign corporations may merge or enter into a share exchange with
one or more domestic corporations if:
1. In a merger, the merger is permitted by the law of the state or country under
whose law each foreign corporation is incorporated and each foreign corporation complies
with that law in effecting the merger.
2. In a share exchange, the corporation whose shares will be acquired is a domestic
corporation, whether or not a share exchange is permitted by the law of the state or
country under whose law the acquiring corporation is incorporated.
3. The foreign corporation complies with section 10-1105 if it is the surviving
corporation of the merger or acquiring corporation of the share exchange.
4. Each domestic corporation complies with the applicable provisions of sections
10-1101 through 10-1104 and, if it is the surviving corporation of the merger or
acquiring corporation of the share exchange, with section 10-1105.
B. On the merger or share exchange taking effect, the surviving foreign corporation
of a merger and the acquiring foreign corporation of a share exchange are deemed to:
1. Appoint the commission as the corporation's agent for service of process in a
proceeding to enforce any obligation or the rights of dissenting shareholders of each
domestic corporation that is a party to the merger or share exchange.
2. Agree that the corporation will promptly pay to the dissenting shareholder of
each domestic corporation that is a party to the merger or share exchange the amount, if
any, to which the shareholder is entitled under chapter 13 of this title.
C. This section does not limit the power of a foreign corporation to acquire all or
part of the shares of one or more classes or series of a domestic corporation through a
voluntary exchange or otherwise.
10-1108 Merger or exchange of shares and interests with a limited liability company, limited partnership or registered limited liability partnership
A. One or more domestic or foreign limited liability companies, limited
partnerships or registered limited liability partnerships may merge with or enter into an
exchange of shares and interests with one or more domestic corporations if:
1. In a merger, the merger is permitted by the law of the state or country under
whose law each limited liability company, limited partnership or registered limited
liability partnership is formed and each limited liability company, limited partnership
or registered limited liability partnership complies with that law in effecting the
merger.
2. In an exchange of shares and interests, the corporation whose shares will be
acquired is a domestic corporation, whether or not an exchange of shares or interests is
permitted by the law of the state or country under whose law the acquiring entity is
formed.
3. If a foreign corporation is also party to the transaction, the foreign
corporation complies with section 10-1105 if it is the surviving corporation of the
merger or acquiring corporation of the exchange of shares and interests.
4. Each domestic corporation complies with the applicable provisions of sections
10-1101 through 10-1104 and, if it is the surviving corporation of the merger or
acquiring corporation of the exchange of shares and interests, with section 10-1105.
B. On the merger or exchange taking effect, the surviving entity of a merger and
the acquiring entity of an exchange are deemed to both:
1. Appoint the commission as its agent for service of process in a proceeding to
enforce any obligation or the rights of dissenting shareholders of each domestic
corporation that is a party to the merger or exchange.
2. Agree that it will promptly pay to the dissenting shareholder of each domestic
corporation that is a party to the merger or exchange the amount, if any, to which the
shareholder is entitled under chapter 13 of this title.
C. This section does not limit the power of a limited liability company, limited
partnership or registered limited liability partnership to acquire all or part of the
shares of one or more classes or series of a domestic corporation through a voluntary
exchange or otherwise.
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