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| Home > Statutes > Usa-Arizona |
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USA Statutes : arizona
Title : Corporations and Associations
Chapter : MERGERS-NONPROFIT CORPORATIONS
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10-11101 Approval of plan of merger
A. One or more nonprofit corporations may merge into a business or nonprofit
corporation if the board of directors of each corporation adopts, and, if required by
section 10-11103, its members and other persons 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, if any, of converting memberships of each merging
corporation into memberships, obligations or securities of the surviving or any other
corporation or into cash or other property in whole or in 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.
10-11102 Membership exchange
A. A corporation may acquire all of the outstanding memberships of one or more
classes or series of another corporation if the board of directors of each corporation
adopts, and, if required by section 10-11103, its members and other persons approve, the
exchange.
B. The plan of exchange shall set forth all of the following:
1. The name of the corporation whose memberships 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 memberships to be acquired for
memberships, obligations or other interests in the acquiring or any other corporation or
for cash or other property in whole or in 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, and a
corporation has the power and authority to acquire, all or part of the memberships of one
or more classes or series of another corporation through a voluntary exchange or
otherwise.
10-11103 Action on plan by board, members and third persons
A. If the members of any merging corporation or other persons are entitled to vote
on or approve the plan, except as provided in subsection G of this section, after
adopting a plan of merger or membership exchange, the board of directors of the
corporation shall submit the plan of merger or membership exchange for approval by its
members and the other persons.
B. For a plan of merger or membership exchange to be approved all of the following
shall have occurred:
1. The board of directors shall recommend the plan of merger or membership exchange
to the members, 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 members with the plan.
2. The members entitled to vote on the plan of merger or membership exchange shall
approve the plan.
3. Each person whose approval is required by the articles of incorporation for a
merger shall approve the plan in writing.
C. The board of directors may condition its submission of the proposed merger or
membership exchange on any basis.
D. If the corporation submits the transaction for member action at a membership
meeting, the corporation shall notify each member of the proposed membership meeting at
which the plan of merger or membership exchange is to be submitted for approval in
accordance with section 10-3705. The notice shall state that the purpose or one of the
purposes of the meeting is to consider the plan of merger or membership and shall contain
or be accompanied by a copy or summary of the plan.
E. Unless chapters 24 through 40 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 voting by class, the plan of merger or membership exchange to be authorized shall
be approved by a majority of the votes cast or a majority of the voting power of the
class, whichever is less.
F. Voting by a class of members is required on a plan of merger or membership
exchange if the plan contains a provision that, if contained in a proposed amendment to
articles of incorporation or bylaws, would entitle the class of members to vote as a
class on the proposed amendment under section 10-11004 or 10-11022. The plan is approved
by a class of members by two-thirds of the votes cast by the class or a majority of the
voting power of the class, whichever is less.
G. Unless the articles of incorporation otherwise require, action by the members 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 10-11002, from its articles of incorporation
before the merger.
2. Each member of the surviving corporation who was a member immediately before the
effective date of merger will hold the same number of memberships with identical
designations, preferences, limitations and relative rights immediately after the
effective date of merger.
3. The number of voting members existing immediately after the merger, plus the
number of voting memberships issuable as a result of the merger, will not exceed more
than twenty per cent the total number of voting memberships of the surviving corporation
existing immediately before the merger.
4. The number of memberships, if any, that entitle the holders of the memberships
to participate without limitation in distributions existing immediately after the merger,
plus the number of participating memberships issuable as a result of the merger, will not
exceed the total number of participating memberships existing immediately before the
merger by more than ninety per cent.
H. At any time before the filing of the articles of merger, the plan of merger or
membership exchange may be abandoned, subject to any contractual rights, without further
action by the members or other persons who approved the plan, in accordance with the
procedure set forth in the plan of merger or membership exchange or, if none is set
forth, in the manner determined by the board of directors.
10-11105 Articles of merger or membership exchange; publication
A. After a plan of merger or membership exchange is approved by the board of
directors and, if required by section 10-11103, by the members and any other persons, the
surviving or acquiring corporation shall deliver to the commission for filing both:
1. The plan of merger or membership exchange.
2. Articles of merger or membership exchange setting forth:
(a) The names of the corporations that were parties to the merger or membership
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) A statement that the amendment was duly adopted by act of the board of
directors and, if required by section 10-11103, by act of the members and any other
persons.
B. A merger takes effect at the effective time and date of the articles of merger,
as determined pursuant to section 10-3123.
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
membership 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
membership exchange.
10-11106 Effect of merger or membership 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, subject to any and all conditions to which the property was
subject prior to the merger.
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 memberships of each corporation that is a party to merger that are to be
converted into memberships, obligations or other interests in the surviving or any other
corporation or into cash or other property are converted, and the former holders of the
memberships are entitled only to the rights provided in the plan of merger.
B. When a membership exchange takes effect, the memberships of each acquired
corporation are exchanged as provided in the plan, and the former members are entitled
only to the exchange rights provided in the plan of membership exchange.
10-11107 Merger or exchange with other entities
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 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.
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.
10-11108 Requests, devises and gifts
Any bequest, devise, gift, grant or promise contained in a will or other instrument
of donation, subscription or conveyance, that is made to a constituent corporation and
that takes effect or remains payable after the merger, inures to the surviving
corporation unless the will or other instrument otherwise specifically provides.
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