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Section: Existing boards, commissions and public bodies continued

Statute: 14A:10-13

(1) A domestic or foreign corporation may acquire all of the outstanding shares, or all of the outstanding shares of one or more classes or series, of a domestic corporation if the board of each corporation adopts and the shareholders of the acquired corporation approve a plan of exchange. (2) The plan of exchange shall set forth: (a) The name of the acquired corporation, and the name of the acquiring corporation; (b) All classes and series of shares of the acquired corporation which are proposed to be acquired by exchange; (c) The terms and conditions of the proposed exchange; (d) The manner and basis of exchanging the shares of the acquired corporation for shares, obligations or other securities of the acquiring corporation or any other corporation or for cash or other property or for any combination of securities, cash or property; and (e) Other provisions considered necessary or desirable with respect to the exchange. (3) The board of the acquired corporation upon approving the plan of exchange shall submit it to a vote at a meeting of its shareholders. If the plan of exchange provides for the acquisition of all of the outstanding shares of the acquired corporation, the shareholders of the acquired corporation shall be entitled to all the voting rights they would have if the exchange were a merger. If less than all of the classes or series of shares of the acquired corporation are to be acquired, only the holders of shares of those classes or series of shares of the acquired corporation which are proposed to be acquired shall be entitled to vote at the meeting. Written notice shall be given not less than 20 and not more than 60 days before the meeting to each shareholder of record, whether or not entitled to vote at the meeting, in the manner provided in this act for the giving of notices of meetings of shareholders. The notice shall include or be accompanied by: (a) A copy or summary of the plan of exchange; and (b) A statement informing shareholders who, under Chapter 11 of this act, are entitled to dissent, that they have the right to dissent and to be paid the fair value of their 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 they shall comply in order to assert and enforce that right. (4) The plan of exchange shall be approved upon receiving the affirmative vote of a majority of the votes cast by the holders of shares which are entitled to vote on the plan of exchange. In the case of a corporation organized prior to January 1, 1969, the plan of exchange shall be approved upon receiving the affirmative vote of two-thirds of the votes so cast unless the corporation has adopted the majority voting requirements prescribed in this subsection or in subsection 14A:10-3(3) by an amendment of its certificate of incorporation adopted by the affirmative vote of two-thirds of the votes cast by the holders of shares entitled to vote thereon. (5) After approval of the plan of exchange, a certificate of exchange shall be executed on behalf of each corporation which shall set forth: (a) The name of the acquired corporation and the name of the acquiring corporation; (b) The plan of exchange; (c) The dates of the approval of the plan of exchange by the boards of directors of each corporation; (d) The date of the approval of shareholders of the acquired corporation and, if necessary, the acquiring corporation; (e) As to the acquired corporation whose shareholders are entitled to vote: the number of shares entitled to vote thereon, and if the shares of any class or series are entitled to vote thereon as a class, the designation and number of shares entitled to vote thereon of each said class or series; the number of shares voted for and against the plan respectively, and, if the shares of any class are entitled to vote as a class, the number of shares of each class or series voted for and against the plan, respectively; (f) That the plan of exchange was approved by the boards of directors of each corporation; and (g) If the exchange is to be effective at a time subsequent to the date of filing with the Secretary of State, the date when the exchange is to be effective, which date may be no more than 90 days after the filing of the certificate. (6) The certificate of exchange shall be filed in the office of the Secretary of State and the exchange shall become effective upon the date of the filing or at a later time, not to exceed 90 days after the date of filing, as may be set forth in the certificate. (7) Upon the effective date of the exchange, the terms of the plan of exchange shall automatically become effective. Without limiting the foregoing, upon the effective date all of the outstanding shares of the acquired corporation, which the plan of exchange provides shall be acquired, automatically shall become the property of the acquiring corporation; share certificates which formerly evidenced the acquired shares shall only evidence the right of the holder thereof to receive the consideration provided for in the plan. The acquiring corporation may condition the payment of the consideration provided for in the plan upon the surrender of the share certificate evidencing the acquired shares. (8) Any shareholder of an acquired corporation whose shares are acquired pursuant to the plan of exchange shall have all of the rights of a dissenting shareholder under Chapter 11 of this act to the extent the shareholder would have those rights if the plan of exchange were treated as a merger under paragraph 14A:11-1(1)(a). (added) 1988,c.94,s.63.

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