14A:10-5.1. Merger of subsidiary corporation

14A:10-5.1. Merger of subsidiary corporation.

(1) A domestic corporation owning at least 90% of the outstanding shares of each class and series of another domestic corporation or corporations, may merge the other corporation or corporations into itself, or may merge itself, or itself and any subsidiary corporation or corporations, into any subsidiary corporation, without approval of the shareholders of any of the corporations, except as provided in subsections 14A:10-5.1(5) and 14A:10-5.1(6). The board of the parent corporation shall approve a plan of merger setting forth those matters required to be set forth in plans of merger under section 14A:10-1. Approval by the board of any subsidiary corporation shall not be required.

(2) If the parent corporation owns less than 100% of the outstanding shares of each subsidiary corporation, it shall mail to each minority shareholder of record of each subsidiary corporation, unless waived in writing, a copy or a summary of the plan of merger. The parent corporation shall also mail to each shareholder who, under Chapter 11 of this act, is entitled to dissent, a statement informing the shareholder that he has the right to dissent and to be paid the fair value of his shares, and outlining briefly, with particular reference to the time periods within which actions shall be taken, the procedures set forth in Chapter 11 of this act with which he shall comply in order to assert and enforce that right.

(3) A certificate of merger shall be executed on behalf of the parent corporation. The certificate shall set forth:

(a) The name of the surviving corporation and the names of the merged corporations;

(b) The plan of merger;

(c) The date of approval by the board of the parent corporation of the plan of merger;

(d) The number of outstanding shares of each class and series of each subsidiary corporation which is a party to the merger and the number of shares of each class and series owned by the parent corporation;

(e) If the parent corporation owns less than 100% of the outstanding shares of each subsidiary corporation, the date of the mailing of a copy or a summary of the plan of merger to minority shareholders of each subsidiary corporation; or if all the shareholders have waived the mailing in writing, a statement that the waiver has been obtained;

(f) If approval of the shareholders of the parent corporation is required by subsection 14A:10-5.1(6), the information as to the corporation required by paragraphs 14A:10-4.1(1)(d) and (e); and

(g) If, pursuant to subsection 14A:10-5.1(4), the merger is to become effective at a time subsequent to the date of filing with the Secretary of State, the date when the merger is to become effective.

(4) The executed original and a copy of the certificate shall be filed in the office of the Secretary of State and the merger shall become effective upon the date of the filing or at a later time, not to exceed 90 days from the date of filing, as may be set forth in the certificate. The Secretary of State shall, upon filing, forward the copy of the certificate to the Director of the Division of Taxation.

(5) Approval of the shareholders of any subsidiary corporation shall be obtained pursuant to its certificate of incorporation, if the certificate requires approval of a merger by the affirmative vote of the holders of more than the percentage of the shares of any class or series of the corporation then owned by the parent corporation.

(6) Approval of the shareholders of the parent corporation shall be obtained:

(a) Whenever its certificate of incorporation requires shareholder approval of a merger; or

(b) Pursuant to section 14A:10-3 where

(i) the plan of merger contains a provision which would change any part of the certificate of incorporation of the parent corporation into which a subsidiary corporation is being merged, unless the change is one that can be made by the board without shareholder approval as referred to in subsection 14A:9-2(2); or

(ii) a subsidiary corporation is to be the surviving corporation.

(7) The grant of the power to merge under this section shall not preclude the effectuation of any merger as elsewhere provided in this Chapter.

L.1988, c.94, s.59; amended 1995,c.279,s.15.