Agreement of Interspecies Merger documents (California)
This package includes documents for an interspecies merger between corporations and other business entities in California: Certificate of Merger, Certificate of Ownership, Agreement of Merger, Certificate of Approval of Agreement of Merger, Agreement of Merger for a corporation; Agreement of Merger, and Certificate of Approval of Agreement of Merger. The forms provided are simply a sample of what the actual forms look like.
State of California
Bill Jones
Secretary of State
OTHER BUSINESS ENTITY
CERTIFICATE OF MERGER
(Corporations Code Sections 1113(g)(1) and (2), 6019.1, 8019.1 and 12540.1)
Filing Fee - Please see instructions.
IMPORTANT - Read instructions before completing this form.
1. Name of surviving entity: ________________________________
2. Type of entity: ________________________________
3. Secretary of State File Number: ________________________________
4. Jurisdiction: ________________________________
5. Name of disappearing entity: ________________________________
6. Type of entity: ________________________________
7. Secretary of State File Number: ________________________________
8. Jurisdiction: ________________________________
9. Future effective date, if any: ________________________________ Month/Day/Year
10. If a vote was required enter the outstanding interests of each class entitled to vote on the merger and the percentage of vote required:
Surviving Entity
Each class entitled to vote ________________________________
Percentage of vote required ________________________________
Disappearing Entity
Each class entitled to vote ________________________________
Percentage of vote required ________________________________
11. The principal terms of the agreement of merger were approved by a vote of the number of interests or shares of each class that equaled or exceeded the vote required.
12. If equity securities of a parent party are to be issued in the merger:
[____] No vote of the shareholders of the parent party was required.
[____] The required vote of the shareholders of the parent party was obtained.
SECTION 13 IS ONLY APPLICABLE IF THE SURVIVING ENTITY IS A DOMESTIC LIMITED LIABILITY COMPANY, DOMESTIC LIMITED PARTNERSHIP OR PARTNERSHIP.
13. Requisite changes to the information set forth in the Articles of Organization, Certificate of Limited Partnership or Statement of Partnership Authority of the surviving limited liability company, limited partnership or partnership resulting from the merger. Attach additional pages, if necessary.
SECTION 14 IS APPLICABLE IF THE SURVIVING ENTITY IS AN OTHER BUSINESS ENTITY.
14. Principal business address of the surviving other business entity:
Address: ________________________________
City: ________________________________
State: ________________________________
Zip: ________________________________
15. Other information required to be stated in the Certificate of Merger by the laws under which each constituent other business entity is organized. Attach additional pages if necessary.
________________________________
16. Statutory or other basis under which each foreign other business entity is authorized to effect the merger:
________________________________
17. Number of pages attached, if any: ________________________________
18. I certify that the statements contained in this document are true and correct of my own knowledge. I declare that I am the person who is executing this instrument, which execution is my act and deed.
Signature of Authorized Person for the Surviving Entity
________________________________
Date ________________________________
Type or Print Name and Title of Person Signing
________________________________
Date ________________________________
Signature of Authorized Person for the Surviving Entity
________________________________
Date ________________________________
Type or Print Name and Title of Person Signing
________________________________
Date ________________________________
Signature of Authorized Person for the Surviving Entity
________________________________
Date ________________________________
For an entity that is a business trust, real estate investment trust or an unincorporated association, set forth the provision of law or other basis for the authority of the person signing.
NOTES
INTERSPECIES MERGERS
BETWEEN CORPORATIONS AND OTHER BUSINESS ENTITIES
An interspecies merger is a combining of "other business entities" in which one of two or more other business entities survives. [The term "other business entity" is defined in Corporations Code Sections 174.5, 5063.5, 12242.5, 15611(v), 16901(12) and 17001(ac).]
One or more other business entities can merge only if each entity is authorized by the laws under which it is organized to effect the merger.
There are a variety of filing requirements based not only on the types of entities involved in the merger, but also the domicile of the entities merging and whether or not any foreign (out of state) entities are qualified to transact business in the State of California. It is not feasible to provide information and sample documents for each set of circumstances.
For requirements governing the filing of documents for mergers involving corporations and other business entities, consult Corporations Code Section 1113 for stock corporations, Section 6019.1 for nonprofit public benefit corporations, Section 8019.1 for nonprofit mutual benefit corporations, Section 9640 for nonprofit religious corporations, and Section 12540.1 for consumer cooperative corporations. The "Certificate of Merger" form referenced in these code sections is attached. (Merger provisions are discussed in Corporations Code Sections 15678.1 through 15678.9 for limited partnerships, Sections 16910 through 16917 for general partnerships, and Sections 17550 through 17556 for limited liability companies.)
Documents must be drafted in accordance with applicable code sections, dependent upon the status and particular circumstances of the entities involved. Due to the complexity of merger transactions, it is recommended that the advice of private counsel, specializing in corporate matters, be sought regarding the specific needs of the merging entities.
When preparing merger documents, regardless of the type of merger, be sure the entity name included in the documents is exactly as it appears on the records of the Secretary of State, including punctuation and abbreviations. Prior to filing please verify the status of the corporation(s) being merged as merger documents cannot be filed on behalf of suspended corporations (Revenue and Taxation Code Sections 23301 and 23775).
TAX CLEARANCE REQUIREMENT
Each disappearing entity that is taxed pursuant to the Bank and Corporation Tax Law must obtain a Tax Clearance Certificate issued by the Franchise Tax Board indicating that all taxes imposed by that law have been paid or secured before the Certificate of Merger can be filed.
The Franchise Tax Board will issue the Tax Clearance Certificate and will send a copy directly to the client who requested the certificate. A copy will also be sent to the Secretary of State for filing with the merger documents. Information regarding the issuance of Tax Clearance Certificates can be obtained from the Franchise Tax Board's Internet Web site or by calling the Franchise Tax Board at (916) 845-4124.
If the Tax Clearance Certificate has been requested but not yet issued, the merger documents may be sent to the Secretary of State and the letter of transmittal should indicate that the Tax Clearance Certificate has been requested. Merger documents may not, however, be filed until all required Tax Clearance Certificates have been received.
THE FEE FOR FILING AN INTERSPECIES MERGER IS $150.00.
The Secretary of State will certify two copies of the filed merger documents without charge, provided that the copies are submitted to the Secretary of State along with the original to be filed. Any
additional copies submitted with the original will be certified upon request and payment of the $8.00 per copy certification fee.
A $15.00 special handling fee is applicable for expedited processing of documents delivered in person at the public counter in the Sacramento Headquarters Office. The $15.00 special handling fee must be remitted by separate check for each submittal and will be retained whether the documents are filed or rejected. The special handling fee does not apply to documents submitted by mail.
Merger documents are not filed in the branch offices. Documents must be mailed or hand delivered for over the counter processing to the Sacramento Headquarters Office at:
Business Programs Division
1500 11th Street
Sacramento, CA 95814
Attention: Document Filing Support Unit
(916) 653-2318
PLEASE REFER TO THE SECRETARY OF STATE FILE NUMBER(S) WHEN SUBMITTING DOCUMENTS FOR FILING TO ENSURE PROPER APPLICATION
-----------------------------
INSTRUCTIONS FOR FILLING OUT THE CERTIFICATE OF MERGER
-----------------------------
• Attach the fee for filing the Certificate of Merger with the Secretary of State. The filing fee for mergers between corporations and other business entities is one hundred and fifty dollars ($150).
• Make check(s) payable to the Secretary of State.
• Send the executed document and filing fee to:
Business Programs Division
1500 11th Street
Sacramento, CA 95814
Attention: Document Filing Support Unit
• Fill in the items as follows:
Item 1-4. Enter the following information for the surviving entity: name, type of entity: (corporation, public benefit corporation, mutual benefit corporation, religious corporation, consumer cooperative corporation, limited partnership, limited liability company, general partnership business trust, real estate investment trust, unincorporated association), file number issued by the California Secretary of State (if any), and jurisdiction under which the entity was organized.
Item 5-8. Enter the following information for the disappearing entity: name, type of entity: (corporation, public benefit corporation, mutual benefit corporation, religious corporation, consumer cooperative corporation, limited partnership, limited liability company, general partnership, business trust, real estate investment trust, unincorporated association), file number issued by the California Secretary of State (if any), and jurisdiction under which the entity was organized. If more than one entity is disappearing, attach additional pages with required information.
Item 9. Enter the future effective date of the Certificate of Merger, if any. If none is indicated, the merger shall be effective upon filing with the California Secretary of State.
Item 10. If a vote of the members or shareholders was required pursuant to applicable law, specify the outstanding interests of each class which are entitled to vote on the merger and the percentage of the vote required for each class. Attach additional pages if necessary.
Item 11. Execution of this document confirms the following statement which has been preprinted on the form and may not be altered: "The principal terms of the agreement of merger were approved by a vote of the number of interests or shares of each class that equaled or exceeded the vote required."
Item 12. If equity securities of a parent party are to be issued in the merger, check the appropriate box regarding the vote of the shareholders of the parent party.
Item 13. If the surviving entity is a domestic limited liability company, domestic partnership, or domestic limited partnership, complete Item 13. Enter only the information which, as a result of the merger, is required to be set forth in the Articles of Organization of the surviving limited liability company, Certificate of Limited Partnership, or changes to the information set forth in any filed Statement of Partnership Authority (GP-1). Provide the text of each amendment adopted. Attach additional pages if necessary.
Item 14. If the surviving entity is another business entity, enter the address of the principal place of business of the surviving entity. (See Section 174.5 for definition of "other business entity")
Item 15. If the surviving entity is a foreign limited liability company or other business entity, enter any other information required to be stated in the Certificate of Merger by the laws under which each constituent other business entity was organized. Attach additional pages if necessary.
Item 16. Set forth the statutory authority or other basis under which each foreign business entity is authorized by law to effect the merger.
Item 17. Enter the number of pages attached, if any. All attachments should be 81/2" x 11", one-sided and legible.
Item 18. A Certificate of Merger shall be executed and acknowledged with original signatures by each constituent other business entity or corporation as set forth in Section 1113(g)(1) or (2). A facsimile or photocopy of the signature is not acceptable for the purpose of filing with the California Secretary of State.
If the Certificate of Merger is signed by an entity, the person signing for the entity must note the exact entity name, his/her name, and his/her position/title.
If the Certificate of Merger is signed by a trust, the Certificate must be signed by a trustee as follows: _____________________ , trustee for _ ________________ trust (including the date of the trust, if applicable). Example: Mary Todd, trustee of the Lincoln Family Trust (U/T/A 5/1/94).
• If the surviving entity is a foreign other business entity in a merger in which a domestic corporation is a disappearing other business entity, a copy of the agreement of merger and attachments pursuant to Section 1113(g)(1) must be filed at the same time as filing the Certificate of Merger.
• If the surviving entity is a foreign limited liability company or foreign other business entity, the surviving entity shall file with the Secretary of State (1) an agreement that it may be served in this state in a proceeding for the enforcement of an obligation of any constituent entity and in a proceeding to enforce the rights of any holder of a dissenting interest or dissenting shares in a constituent domestic limited liability company or domestic other business entity (Section 17555(g)(1); (2) an irrevocable appointment of the Secretary of State as its agent for service of process, and an address to which process may be forwarded (Section 17555(g)(2); and (3) agreement that it will promptly pay the holder of any dissenting interest or dissenting share in a constituent domestic limited liability company or domestic other business entity the amount to which that person is entitled under California law [Section 17555(g)(3)] .
• Each disappearing entity that is taxed pursuant to the Bank and Corporation Tax Law must file a certificate of satisfaction issued by the Franchise Tax Board indicating that all taxes imposed by that law have been paid or secured before filing a Certificate of Merger.
• If a disappearing foreign other business entity is qualified to transact intrastate business in California, a certificate of satisfaction from the Franchise Tax Board pursuant to Revenue and Taxation Code Section 23334 may be required to be filed with the Certificate of Merger.
By filing the Certificate of Merger, the foreign other business entity will automatically surrender its right to transact intrastate business in California.
• For further information contact the Document Filing Support Unit at (916) 653-2318.
All statutory references are to the California Corporations Code, unless otherwise stated.
SAMPLE
CERTIFICATE OF OWNERSHIP
________________________ and ________________________ certify that:
1. They are the president and the secretary, respectively, of ___(NAME OF SURVIVING CORPORATION)___, a California corporation.
2. This corporation owns all the outstanding shares of ___(NAME OF DISAPPEARING CORPORATION)___, a California corporation.
3. The board of directors of this corporation duly adopted the following resolution:
RESOLVED, that this corporation merge (NAME OF DISAPPEARING CORPORATION) , its wholly-owned subsidiary corporation, into itself and assume all its obligations pursuant to Section 1110, California Corporations Code.
We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge.
DATE: ________________________________
___(Signature of President)___ (Typed Name of President), President
___(Signature of Secretary)___ (Typed Name of Secretary), Secretary
The sample Certificate of Ownership is for use by a parent corporation owning 100 percent of the outstanding shares of the subsidiary. The sample is provided to be used as a guideline ONLY in the preparation of original documents for filing with the Secretary of State for other situations, refer to Section 1110, Corporations Code, or to a textbook.
SAMPLE
AGREEMENT OF MERGER
This Agreement of Merger is entered into
between ___(NAME OF SURVIVING CORPORATION)___, a California corporation (herein "Surviving Corporation")
and ___(NAME OF DISAPPEARING CORPORATION)___, a California corporation (herein "Merging Corporation").
1. Merging Corporation shall be merged into Surviving Corporation.
2. The outstanding shares of Merging Corporation shall be canceled without consideration.
OR
2. Each outstanding share of Merging Corporation shall be converted to ___________ shares of Surviving Corporation.
3. The outstanding shares of Surviving Corporation shall remain outstanding and are not affected by the merger.
4. Merging Corporation shall from time to time, as and when requested by Surviving Corporation, execute and deliver all such documents and instruments and take all such action necessary or desirable to evidence or carry out this merger.
5. The effect of the merger and the effective date of the merger are as prescribed by law.
IN WITNESS WHEREOF the parties have executed this Agreement.
(NAME OF SURVIVING CORPORATION)
By ___(Signature of President)___ (Typed Name of President), President
By ___(Signature of Secretary)___ (Typed Name of Secretary), Secretary
(NAME OF DISAPPEARING CORPORATION)
By ___(Signature of President)___ (Typed Name of President), President
By ___(Signature of Secretary)___ (Typed Name of Secretary), Secretary
This sample Agreement of Merger for use by stock corporations where there is only one class of shares and 100% shareholder approval is received. The sample is provided to be used as a guideline ONLY in the preparation of original documents for filing with the Secretary of State. For other situations, refer to Section 1103, Corporations Code, or to a textbook.
SAMPLE
CERTIFICATE OF APPROVAL
OF
AGREEMENT OF MERGER
______________________ and ________________________ certify that:
1. They are the president and the secretary, respectively,
of ___(NAME OF CORPORATION)___, a California corporation.
2. The Agreement of Merger in the form attached was duly approved by the board of directors and shareholders of the corporation.
3. The shareholder approval was by the holders of 100% of the outstanding shares of the corporation.
4. There is only one class of shares and the number of shares outstanding is ______________.
We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge.
DATE: ________________________________
By ___(Signature of President)___ (Typed Name of President), President
By ___(Signature of Secretary)___ (Typed Name of Secretary), Secretary
This sample Certificate of Approval of Agreement of Merger is for use by stock corporations where there is only one class of shares and 100% shareholder approval is received. The sample is provided to be used as a guideline ONLY in the preparation of original documents for filing with the Secretary of State. For other situations, refer to Section 1103, Corporations Code, or to a textbook.
A Certificate of Approval for each corporation MUST accompany the Agreement of Merger.
SAMPLE
AGREEMENT OF MERGER
This Agreement of Merger is entered into
between ___(NAME OF SURVIVING CORPORATION)___, a California Nonprofit (PUBLIC BENEFIT, MUTUAL BENEFIT OR RELIGIOUS), corporation (herein "Surviving Corporation")
and ___(NAME OF DISAPPEARING CORPORATION)___, a California Nonprofit (PUBLIC BENEFIT, MUTUAL BENEFIT OR RELIGIOUS), corporation (herein "Merging Corporation").
1. Merging Corporation shall be merged into Surviving Corporation.
2. The memberships of Merging Corporation shall be converted into memberships of Surviving Corporation.
3. Merging Corporation shall from time to time, as and when requested by Surviving Corporation, execute and deliver all such documents and instruments and take all such action necessary or desirable to evidence or carry out this merger.
4. The effect of the merger and the effective date of the merger are as prescribed by law.
IN WITNESS WHEREOF the parties have executed this Agreement.
(NAME OF SURVIVING CORPORATION)
By ___(Signature of President)___ (Typed Name of President), President
By ___(Signature of Secretary)___ (Typed Name of Secretary), Secretary
(NAME OF DISAPPEARING CORPORATION)
By ___(Signature of President)___ (Typed Name of President), President
By ___(Signature of Secretary)___ (Typed Name of Secretary), Secretary
This sample Agreement of Merger is for use by nonprofit corporations having members. The sample is provided to be used as a guideline
ONLY in the preparation of original documents for filing with the Secretary of state. For other situations, refer to Sections 6010 et. seq., 8010 et. seq. or 9640 et. seq., Corporations Code, or a textbook.
SAMPLE
CERTIFICATE OF APPROVAL
OF
AGREEMENT OF MERGER
_______________________ and _______________________ certify that:
1. They are the president and the secretary, respectively,
of ___(NAME OF CORPORATION)___, a California Nonprofit (PUBLIC BENEFIT, MUTUAL BENEFIT OR RELIGIOUS) corporation.
2. The principal terms of the Agreement of Merger in the form attached were duly approved by the required vote of the members of the corporation.
3. There is only one class of members and the total number of members of the corporation entitled to vote on the merger is ______________________.
4. No other approvals are required.
OR
4. ___(IDENTIFY OTHERS WHOSE APPROVAL IS REQUIRED)___
_____________________________________________________
The principal terms of the Agreement of Merger in the form attached were duly approved by the required vote of such other person(s).
5. The Attorney General of the State of California has been given notice of the merger.
OR
5. The Attorney General of the State of California has approved the merger.
OR
5. The Attorney General of the State of California is not required to be given notice of the merger.
We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge.
DATE: ________________________________
___(Signature of President)___ (Typed Name of President), President
___(Signature of Secretary)___ (Typed Name of Secretary), Secretary
This sample Certificate of Approval of Agreement of Merger is for use by nonprofit corporations having members. The sample is provided to be used as a guideline ONLY in the preparation of original documents for filing with the Secretary of State. For other situations, refer to Sections 6010 et. seq., 8010 et. seq. or 9640 et. seq., Corporations Code, or to a textbook.
A Certificate of Approval for each corporation MUST accompany the Agreement of Merger.