Secretary of State Business Programs Division

1 Page 1 of 4 MRG/OWN-CORP (Rev. 12/2020) 2020 california Secretary of State Corporate Mergers A corporate merger is a combining of corporations in which one of two or more corporations survives. There are several types of mergers with a variety of filing requirements based not only on the number of corporations merging and the type of merger, but also the domicile of the corporations merging and whether or not any foreign (out-of- State ) corporations are qualified to transact Business in california . There is no way to provide information and sample documents for each set of circumstances. The following definitions and samples contain basic information and requirements for the type of merger identified and are provided as guidelines only. Documents must be drafted in accordance with applicable code sections, dependent upon the particular circumstances of the corporations involved.

2 Due to the complexity of merger transactions, it is recommended that the advice of private legal 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 corporate name included in the documents is exactly as it appears on the records of the Secretary of State , including corporate ending, if any, punctuation and abbreviations. Prior to filing please verify the status of the corporations being merged, as merger documents cannot be filed on behalf of suspended/forfeited corporations. ( california Revenue and Taxation Code sections 23301, and 23775.) The status of the corporation can be checked online on the Secretary of State 's california Business Search at Short Form Merger Certificate of Ownership california Corporations Code section 1110 allows the merger of a subsidiary corporation into the parent by a simplified procedure if the parent owns 100 percent of the outstanding shares of the subsidiary.

3 The merger is accomplished by filing a Certificate of Ownership with the Secretary of State . Two or more subsidiary corporations can be merged using a single Certificate of Ownership by adding appropriate statements in the certificate. A sample document follows these instructions. Either the parent corporation or one or more of the subsidiary corporations can be foreign corporations, whether or not qualified in california , as long as either the parent corporation or at least one of the subsidiary corporations is a california corporation, and the laws of the place of incorporation of the foreign corporation permit a merger to be effected in the manner provided by california Corporations Code section 1110. While california Corporations Code section 1110 also allows a merger of a parent corporation into its subsidiary corporation and allows a merger where the parent corporation owns less than 100 percent, but at least 90 percent of the outstanding shares of each class, the statutory requirements for the filing are more complex.

4 As the number of such filings is few compared to the number of 100 percent owned mergers, a sample of this format is not included in the information provided. For further information, refer to california Corporations Code section 1110. Secretary of State Business Programs Division Business entities , 1500 11th Street, Sacramento, CA 95814 Page 2 of 4 MRG/OWN-CORP (Rev. 12/2020) 2020 california Secretary of State By Agreement of Merger When there is a merger by Agreement of Merger with a california corporation as the survivor, there must be filed a copy of the Agreement of Merger with a separate officers certificate for the surviving corporation and for each merging corporation. ( california Corporations Code sections 173, 1101 and 1103.) The documents should be stapled together with the Agreement of Merger on top followed by the separate officers certificates for the survivor and for each merging corporation.

5 A sample of an Agreement of Merger and an officers certificate are included and have been designed to meet minimum statutory requirements in a situation when there is only one class of shares and 100% shareholder approval is received. It is preferable to State the basis for converting the shares of the merging corporation in terms of each share, , On the effective date of the merger, each outstanding share of common stock of the Merging Corporation shall be converted into one share of common stock of the Surviving Corporation. Triangular Merger In many instances of a corporate acquisition by merger, the transaction will be structured as a merger of the corporation being acquired into a subsidiary of the acquiring corporation. This type of merger is referred to as a triangular merger and is specifically recognized in california Corporations Code section 1101.

6 A variation on the triangular merger is the reverse triangular merger in which the subsidiary is merged into the corporation being acquired. In a triangular merger there usually are two agreements which typically might be called Agreement of Merger and Agreement of Reorganization , respectively. The Agreement of Merger is the statutory agreement drafted, executed and filed with the Secretary of State pursuant to california Corporations Code sections 1101 and 1103. The Agreement of Merger (sample attached) is intended to meet minimum statutory requirements and normally is much shorter than the Agreement of Reorganization. The Agreement of Reorganization sets forth the entire agreement of the parties. It is generally the Agreement of Merger and not the Agreement of Reorganization that is filed with the Secretary of State pursuant to california Corporations Code section 1103.

7 Filing Procedures Relating To Mergers Involving Domestic and Foreign Corporations Foreign corporation survives the merger: If at least one california corporation is a party (disappearing) to the merger, there are three alternatives for completing the merger filing in california . ( california Corporations Code section 1108(d).) a certified copy of the merger document filed in the foreign jurisdiction (thecertification must be made by the public official having custody over the original fileddocument).OR 2. Submit merger documents meeting the requirements of california law, including a copy of the Agreement of Merger and officers' certificates for the surviving foreign corporation and EACH domestic merging corporation ( california Corporations Code Page 3 of 4 MRG/OWN-CORP (Rev.))

8 12/2020) 2020 california Secretary of State 1103), or, if appropriate, a Certificate of Ownership ( california Corporations Code section 1110). OR 3. Submit an executed counterpart of the merger document filed in the foreign jurisdiction (in the form required by the laws of the foreign jurisdiction); submitter must provide proof that the merger document has been filed in the foreign jurisdiction. If no california corporation is a party to the merger (all parties are foreign corporations), the correct filing is a Certificate of Surrender of Right to Transact Intrastate Business filed on behalf of each qualified disappearing foreign corporation. ( california Corporations Code section 2112.) There is no filing fee for the Certificate of Surrender of Right to Transact Intrastate Business .

9 In cases when the party surviving the merger is a foreign corporation and the merger filing is made in accordance with the laws of the foreign jurisdiction, the merger proceedings are nevertheless subject to shareholder approval and dissenters rights with respect to the disappearing california corporations. ( california Corporations Code sections 1200 et seq. and 1300 et seq.) When the surviving corporation in a merger is a foreign corporation, the merger is effective in accordance with the laws of the foreign jurisdiction. The filing is generally effective with regard to a domestic disappearing corporation as of the time of effectiveness in the foreign jurisdiction, but only after an appropriate merger filing is made in california . However, if the date of filing in california is more than six months after the time of effectiveness in the foreign jurisdiction, or if the california corporation is suspended at the time of effectiveness in the foreign jurisdiction, the merger shall be effective as to the california disappearing corporation as of the date of filing in california .

10 The Secretary of State does not have authority to accept appointment as a corporation s Agent for Service of Process in california . california corporation survives the merger: If a california corporation is the survivor in a merger, there are two alternatives for completing the merger filing. ( california Corporations Code section 1108(c).) an Agreement of Merger and officers' certificate for the surviving corporationand for EACH merging corporation. ( california Corporations Code sections 1101 and 1103.) An officers' certificate must be prepared and attached for the survivor and for each merging corporation, even if the merging corporation is a foreign corporation not qualified in 2. If appropriate, submit a Certificate of Ownership. ( california Corporations Code section 1110.)