Opinion No. 76-265 (1976) Ag ( 1976 )

SECRETARY OF STATE — CORPORATIONS — MERGER OF OKLAHOMA CORPORATION WITH FOREIGN CORPORATION All of the items set forth in 18 O.S. 1.216 [18-1.216] (1971) must be contained in the statement of merger or consolidation when an Oklahoma corporation merges into a non-domesticated foreign corporation, before such statement can be filed by the Oklahoma Secretary of State. There is no requirement in the Oklahoma Business Corporation Act that a certified copy of the statement of merger or consolidation from the certifying officer of the state of domicile of the surviving or resulting corporation, be filed along with the statement of merger or consolidation. The Business Corporation Act does not require that any document be filed with the statement of merger or consolidation to prove the existence of a foreign corporation or that the merger was actually filed in the state of domicile of the resulting or surviving corporation. The Attorney General has considered your request for an opinion wherein you ask the following questions: "1. What is required by this office when filing a merger wherein an Oklahoma corporation merges into a nondomesticated foreign corporation? "2. It is necessary to file a certified copy of the merger from the certifying officer of the State of domicile of the surviving corporation? "3. If a certified copy of the merger is not required, what must be filed to prove the existence of the foreign corporation and that the merger was actually filed in the State of domicile ?" Consolidations and mergers of corporations in this State are governed by the provisions of the Business Corporation Act, 18 O.S. 1.1 [18-1.1] et seq. (1971). 18 O.S. 1.165 [18-1.165] through 18 O.S. 1.169 [18-1.169] govern the merger and consolidation of corporations. Specifically, 18 O.S. 1.216 [18-1.216] sets forth the requirements for a statement of consolidation or merger and what must be contained in such a statement. 18 O.S. 1.216 [18-1.216] provides as follows: "Upon the approval of a plan of consolidation, or of merger, by which a constituent domestic or domesticated corporation is consolidated or merged into a foreign resulting or surviving corporation a statement of consolidation, or of merger, as the case may be, shall be executed in triplicate under the corporate seal and signed and acknowledged by the president or a vice-president and attested by the secretary or assistant secretary of such constituent corporation, and shall set forth: "(1) The name of the constituent corporation; "(2) The name of the resulting or surviving corporation into which such constituent corporation is being consolidated or merged; (3) The state, territory, or country under the laws of which such resulting or surviving corporation is being consolidated or merged; "(4) The address, including the street and number, if any, of the registered or principal office of such resulting or surviving corporation in the state, territory, or country under the laws of which it is incorporated; "(5) If such resulting or surviving corporation be domesticated in this State, the address, including the street and number, if any, of its registered office in this State; "(6) A copy of the resolution and certification of such constituent corporation required under Subsections b and c of Section 165 of this Act; "(7) A copy of the resolution and certification of such constituent corporation required under Subsections a and b of Section 166 of this Act; "(8) A copy of the notice to the shareholders of the constituent corporation required under Subsection a(2) of Section 166 of this Act; "(9) The number of shares of such constituent corporation outstanding, and, if the shares of any class be entitled to vote as a class upon such consolidation or merger, the number of — shares of each such class; "(10) The number of shares of such constituent corporation voted for and against the consolidation or merger, and, if the shares of any class be entitled to vote as a class, the number of shares of each class voted for and against the consolidation or merger; and "(11) The names and respective addresses, including the streets and numbers, if any, of the principal officers of such constituent corporation, including its directors. "Upon the execution of such statement the triplicate copies thereof shall be delivered to the Secretary of State for filing." In answer to your first question, an examination of the above statute reveals that there are eleven separate items required to be included in the statement that is filed with the Secretary of State. Further, in answer to your second question, the statute does not require a certified copy of the merger from the state of incorporation of the foreign corporation be filed along with the statement of merger. As will be noted, the last paragraph of the section states that upon completion of the statement it shall be delivered to the Secretary of State for filing. As to your third question, there is no requirement contained in the statutes that any item be filed with the statement of merger for the express purpose of proving the existence of the foreign corporation or for the purpose of proving if the merger was actually filed in the state of domicile. The only reference to the domiciliary state of the foreign corporation is found in the concluding sentence of 18 O.S. 1.165 [18-1.165](a), which provides as follows: ". . . In the event one or more of the constituent corporations or the resulting corporation be a foreign corporation, no merger or consolidation is hereby authorized except and only to the extent that such action shall be authorized by the laws of the domiciliary state of such corporation." Thus, there is no requirement that a certified copy of the merger or consolidation from the domiciliary state of the surviving or resulting foreign corporation be filed along with the statement of merger or consolidation in the Oklahoma Secretary of State's office. It is, therefore, the opinion of the Attorney General that your questions be answered as follows: 1. All of the items set forth in 18 O.S. 1.216 [18-1.216] (1971) must be contained in the statement of merger or consolidation when an Oklahoma corporation merges into a nondomesticated foreign corporation, before such statement can be filed by the Oklahoma Secretary of State. 2. There is no requirement in the Oklahoma Business Corporation Act that a certified copy of the statement of merger or consolidation from the certifying officer of the state of domicile of the surviving or resulting corporation, be filed along with the statement of merger or consolidation. 3. The Business Corporation Act does not require that any document be filed with the statement of merger or consolidation to prove the existence of a foreign corporation or that the merger was actually filed in the state of domicile of the resulting or surviving corporation. (JAMES C. PECK) (ksg)