§ 55-11-06. Effect of merger or share exchange. - North Carolina Statutes

§ 55‑11‑06. Effect of merger or share exchange.

(a)        When a mergerpursuant to G.S. 55‑11‑01, 55‑11‑04, 55‑11‑07,or 55‑11‑09 takes effect:

(1)        Each other mergingcorporation merges into the surviving corporation and the separate existence ofeach merging corporation except the surviving corporation ceases.

(2)        The title to allreal estate and other property owned by each merging corporation is vested inthe surviving corporation without reversion or impairment.

(3)        The survivingcorporation has all liabilities of each merging corporation.

(4)        A proceeding pendingby or against any merging corporation may be continued as if the merger did notoccur or the surviving corporation may be substituted in the proceeding for amerging corporation whose separate existence ceases in the merger.

(5)        If a domesticcorporation survives the merger, its articles of incorporation are amended tothe extent provided in the articles of merger.

(6)        The shares of eachmerging corporation that are to be converted into shares, obligations, or othersecurities of the surviving or any other corporation or into the right toreceive cash or other property are thereupon converted, and the former holdersof the shares are entitled only to the rights provided to them in the plan ofmerger or, in the case of former holders of shares in a domestic corporation,any right they may have under Article 13 of this Chapter.

(7)        If a foreigncorporation or foreign nonprofit corporation survives the merger, it is deemed:

a.         To agree that itwill promptly pay to dissenting shareholders of any merging domesticcorporation the amount, if any, to which they are entitled under Article 13 ofthis Chapter and otherwise to comply with the requirements of Article 13 as ifit were a surviving domestic corporation in the merger.

b.         To agree that it maybe served with process in this State in any proceeding for enforcement (i) ofany obligation of any merging domestic corporation, (ii) of the rights ofdissenting shareholders of any merging domestic corporation under Article 13 ofthis Chapter, and (iii) of any obligation of the surviving foreign corporationor foreign nonprofit corporation arising from the merger.

c.         To have appointedthe Secretary of State as its agent for service of process in any proceedingfor enforcement as specified in sub‑subdivision b. of this subdivision.Service of process on the Secretary of State shall be made by delivering to,and leaving with, the Secretary of State, or with any clerk authorized by theSecretary of State to accept service of process, duplicate copies of theprocess and the fee required by G.S. 55‑1‑22(b). Upon receipt ofservice of process on behalf of a surviving foreign corporation or foreignnonprofit corporation in the manner provided for in this section, the Secretaryof State shall immediately mail a copy of the process by registered orcertified mail, return receipt requested, to the surviving foreign corporationor foreign nonprofit corporation. If the surviving foreign corporation orforeign nonprofit corporation is authorized to transact business or conductaffairs in this State, the address for mailing shall be its principal officedesignated in the latest document filed with the Secretary of State that isauthorized by law to designate the principal office, or, if there is noprincipal office on file, its registered office. If the surviving foreigncorporation or foreign nonprofit corporation is not authorized to transactbusiness or conduct affairs in this State, the address for mailing shall be themailing address designated pursuant to G.S. 55‑11‑05(a).

The merger shall not affectthe liability or absence of liability of any holder of shares in a mergingcorporation for any acts, omissions, or obligations of any merging corporationmade or incurred prior to the effectiveness of the merger.

(b)        When a shareexchange for the acquisition of shares of a domestic corporation pursuant toG.S. 55‑11‑02 or G.S. 55‑11‑07 takes effect:

(1)        The shares of theacquired corporation are exchanged as provided in the plan of share exchange,and the former holders of the shares are entitled only to the exchange rightsprovided in the plan of share exchange or any right they may have under Article13 of this Chapter.

(2)        If the acquiringcorporation is not a domestic corporation, it is deemed to agree that it willpromptly pay to dissenting shareholders of the acquired corporation the amount,if any, to which they are entitled under Article 13 of this Chapter andotherwise to comply with the requirements of Article 13 as if it were anacquiring domestic corporation in the share exchange.

(3)        If the acquiringcorporation is not a domestic corporation, the acquiring corporation is deemed:

a.         To agree that it maybe served with process in this State in any proceeding for enforcement (i) ofthe rights of dissenting shareholders of the acquired corporation under Article13 of this Chapter and (ii) of any obligation of the acquiring corporationarising from the share exchange; and

b.         To have appointedthe Secretary of State as its agent for service of process in any proceedingfor enforcement as specified in sub‑subdivision a. of this subdivision.Service of process on the Secretary of State shall be made by delivering to,and leaving with, the Secretary of State, or with any clerk authorized by theSecretary of State to accept service of process, duplicate copies of theprocess and the fee required by G.S. 55‑1‑22(b). Upon receipt ofservice of process on behalf of an acquiring corporation in the manner providedfor in this section, the Secretary of State shall immediately mail a copy ofthe process by registered or certified mail, return receipt requested, to theacquiring corporation. If the acquiring corporation is authorized to transactbusiness or conduct affairs in this State, the address for mailing shall be itsprincipal office designated in the latest document filed with the Secretary ofState that is authorized by law to designate the principal office or, if thereis no principal office on file, its registered office. If the acquiringcorporation is not authorized to transact business or conduct affairs in thisState, the address for mailing shall be the mailing address designated pursuantto G.S. 55‑11‑05(a).

(c)        In the case of amerger pursuant to G.S. 55‑11‑07 or G.S. 55‑11‑09 or ashare exchange pursuant to G.S. 55‑11‑07, references in subsections(a) and (b) of this section to "corporation" shall include a domesticcorporation, a domestic nonprofit corporation, a foreign corporation, and aforeign nonprofit corporation as applicable. (1925, c. 77, s. 1; 1943, c. 270; G.S., s. 55‑166;1955, c. 1371, s. 1; 1967, c. 950, s. 1; 1989, c. 265, s. 1; 1999‑369, s.1.7; 2005‑268, s. 23; 2006‑264, s. 44(c).)