GUAM CODE ANNOTATED, TITLE 18
BUSINESS STRUCTURE AND
FUNCTION
CHAPTER
9, MERGER AND SHARE EXCHANGE.
1
§ 9101. Merger. 1
§ 9102. Share
Exchange. 1
§ 9102.1.
Articles of Merger Fee.
2
§ 9103. Action
on Plan. 2
§ 9104. Merger
of Subsidiary. 3
§ 9105. Articles
of Merger or Share Exchange. 3
§ 9106. Effect
of Merger or Share Exchange. (a) When a merger takes
effect: 4
§ 9107. Merger
or Share Exchange with Foreign Corporation. 4
CHAPTER
9, MERGER AND SHARE EXCHANGE
Source:
Added as Civil Code § 701 by P.L. 17-56:3. Amended by P.L.
28-169:3 ( Jan. 29,
2007 ). This entire chapter was repealed and reenacted by P.L. 28-180:4
( Jan.
29, 2007 ).
§
9101. Merger.
(a) One
(1) or more corporations may merge into
another corporation if the board of directors of each corporation
adopts and
its stockholders, if so required by § 9103 of this Chapter,
approve a plan of
merger.
(b) The
Plan of Merger must set forth:
(1) The
name of each corporation planning to merge
and the name of the surviving corporation into which each other
corporation
plans to merge;
(2) The
terms and conditions of the merger; and
(3) The
manner and basis of converting the shares
of each corporation into shares, obligations, or other securities of
the surviving
corporation or any other corporation or into cash or other property in
whole or
in part.
(c) The
Plan of Merger may set forth:
(1)
Restatements of or amendments to the Articles
of Incorporation of the surviving corporation; and
(2) Other
provisions relating to the merger.
§
9102. Share Exchange.
(a) A
corporation may acquire all of the
outstanding shares of one (1)
or more
classes or series of another corporation if
the board of directors of each corporation adopts and its stockholders,
if
required by § 9103 of this Chapter, approve the plan of share
exchange.
(b) The
plan of exchange must set forth:
(1) The
name of the corporation whose shares will
be acquired and the name of the acquiring corporation;
(2) The
terms and conditions of the exchange; and
(3) The
manner and basis of exchanging the shares
to be acquired for shares, obligations, or other securities of the
acquiring
corporation, or any other corporation, or for cash or other property in
whole
or part.
(c) The
plan of exchange may set forth other
provisions relating to the exchange and, if not otherwise set forth in
the
Articles of Incorporation of the acquiring company as theretofore in
effect,
shall include an amendment to such Articles of Incorporation setting
forth any
rights, privileges, limitations and preferences of the class or series
of
securities to be issued in the exchange.
(d) This
Section does not limit the power of a
corporation to acquire all or part of the shares of one (1) or more
classes or
series of another corporation through a voluntary exchange or
otherwise.
§
9102.1. Articles of Merger Fee.
The fee
for filing Articles of Merger of Share
Exchange and a Certificate of Ownership shall be One Hundred Dollars
($100.00).
Source:
Added by P.L. 29-002:V:I:60 ( May 18, 2007 ).
§
9103. Action on Plan.
(a) After
adopting a Plan of Merger or Share
Exchange, the board of directors of a corporation whose shares will be
acquired
in a share exchange shall submit the Plan of the Merger (except as
provided in
Subsection (g) of this Section) or Share Exchange for approval by its
stockholders.
(b) For a
Plan of Merger or Share Exchange to be
approved:
(1) The
board of directors must recommend the Plan
of Merger or Share Exchange to the stockholders, unless the board of
directors
determines that because of a conflict of interest or other special
circumstance
it should make no recommendation and communicates the basis for said
determination to the stockholders with the plan; and
(2) The
stockholders entitled to vote must approve
the plan.
(c) The
board of directors may condition its
submission of the proposed merger or share exchange on any basis.
(d) The
corporation shall notify each stockholder,
whether or not entitled to vote, of the proposed stockholders' meeting
in
accordance with 18 GCA § 3105. The notice must also state that the
purpose, or
one (I) of the purposes of the meeting is to consider the plan of
merger or
share exchange and contain or be accompanied by a copy or summary of
the plan.
(e)
Unless this Section, the Articles of
Incorporation, or the board of directors acting pursuant to Subsection
(c) of
this Section, requires a greater vote or a vote by voting groups, the
plan of
merger or share exchange to be authorized requires the approval of the
shareholders by a majority of all the votes entitled to be cast on the
plan.
(f)
Action by the stockholders of the surviving
corporation on a plan of merger is not required if:
(1) The
Articles of Incorporation of the surviving
corporation will not differ except for amendments enumerated in 18 GCA
§
9104(e) from its articles before the merger;
(2) Each
stockholder of the surviving corporation
whose shares were outstanding immediately before the effective date of
the merger
will hold the same number of shares, with identical designations,
preferences,
limitations, and relative rights immediately after;
(3) The
number of voting shares outstanding
immediately after the merger, plus the number of voting shares issuable
as a result
of the merger either by the conversion of securities issued pursuant to
the
merger or the exercise of rights and warrants issued pursuant to the
merger,
will not exceed by more than twenty percent (20%) the total number of
voting
shares of the surviving corporation outstanding immediately before the
merger;
and
(4) The
number of participating shares outstanding
immediately after the merger, plus the number of participating shares
issuable
as a result of the merger either by the conversion of securities issued
pursuant to the merger or the exercise of rights and warrants issued
pursuant
to the merger, will not exceed by more than twenty percent (20%) the
total
number of participating shares outstanding immediately before the
merger.
(g) As
used in Subsection (f) of this Section:
(1)
"Participating shares" means shares
that entitle their holders to participate without limitation in
distributions.
(2)
"Voting shares" means shares that
entitle their holders to vote unconditionally in elections of
directors.
(A) After
a merger or share
exchange is authorized, and at any time before articles of merger or
share
exchange are filed, the planned merger or share exchange may be
abandoned,
subject to any contractual rights, without further stockholder action,
in
accordance with the procedure set forth in the plan of merger or share
exchange
or, if none is set forth, in the manner determined by the board of
directors.
§
9104. Merger of Subsidiary.
(a) A
parent corporation owning at least ninety
percent (90%) of the outstanding shares of each class of a subsidiary
corporation may merge the subsidiary into itself, or itself into the
subsidiary, without approval of the stockholders of either constituent
corporation if the constituent corporation adopts a plan of merger that
sets
forth:
(1) The
names of the parent and subsidiary; and
(2) The
manner and basis of converting the shares
of the disappearing corporation into shares, obligations, or other
securities
of the surviving corporation or any other corporation or into cash or
other
property in whole or in part.
(c) The
surviving corporation shall mail a copy or
summary of the plan of merger to each stockholder of the disappearing
corporation who does not waive the mailing requirement in writing.
(d) The
surviving corporation may not deliver
Articles of Merger to the Director of Revenue and Taxation for filing
until at
least thirty (30) days after the date it mailed a copy of the plan of
merger to
each stockholder of the disappearing corporation who did not waive the
mailing
requirement.
(e)
Articles of merger under this Section may not
contain amendments to the Articles of Incorporation of the surviving
corporation, except for the following:
(1) To
extend the duration of the corporation if it
was incorporated at a time when limited duration was required by law;
(2) To
delete the names and addresses of the
initial directors;
(3) To
delete the name and address of the initial
registered agent or registered office, if a statement of change is on
file with
the Director;
(4) To
change each issued and unissued authorized
share of an outstanding class into a greater number of whole shares if
the
corporation has only shares of that class outstanding;
(5) To
change the corporate name by substituting
the word "corporation," "incorporated,"
"company," "limited," or the abbreviation
"corp.", "inc.", "co.", or "ltd." for a
similar word or abbreviation in the name, or by adding, deleting, or
changing a
geographical attribution for the name; or
(6) To
change the name of the surviving
corporation, provided the name does not otherwise violate general
corporation
law, regardless of whether the name so adopted is the same as or
similar to
that of the parent corporation.
§
9105. Articles of Merger or
Share Exchange.
(a) After
a plan of merger or share exchange is
approved by the stockholders, or adopted by the board of directors if
stockholder approval is not required, the surviving or acquiring
corporation
shall deliver to the Director for filing Articles of Merger or Share
Exchange
setting forth:
(1) The
plan of merger or share exchange;
(2) If
stockholder approval was not required, a
statement to that effect;
(3) If
approval of the stockholders of one (1) or
more corporations party to the merger or share exchange was required:
(A) The
designation, number of
outstanding shares, and number of votes entitled to be cast by each
voting
group entitled to vote separately on the plan as to each corporation;
and
(B)
Either the total number of
votes cast for and against the
plan by
each voting group
entitled to vote separately on the plan or the total number of
undisputed votes
cast for the plan separately by each voting group and a statement that
the
number cast for the plan by each voting group was sufficient for
approval by
that voting group.
(b) A
merger or share exchange takes effect upon
the later to occur of the date the plan of merger or share exchange is
accepted
for filing by the Director or the effective date specified in such plan
of
merger or share exchange.
§
9106. Effect of Merger or Share
Exchange.
(a) When
a merger takes effect:
(1) Every
other corporation that is a party to the
merger merges into the surviving corporation and the separate existence
of
every corporation except the surviving corporation ceases;
(2) The
title to all real estate and other property
owned by each corporate party to the merger is vested in the surviving
corporation without reversion or impairment;
(3) The
surviving corporation assumes all
liabilities of each corporation party to the merger;
(4) A
legal proceeding pending against any
corporation party to the merger may be continued as if the merger did
not occur
or the surviving corporation may be substituted in the proceeding for
the
corporation whose existence ceased;
(5) The
Articles of Incorporation of the surviving
corporation are amended to the extent provided in the plan of merger;
and
(6) The
shares of each corporate party to the
merger that are to be converted into shares, obligations, or other
securities
of the surviving or any other corporation into cash or other property
are
converted, and the former holders of the shares are entitled only to
the rights
provided in the articles of merger or to their rights under 18 GCA
§§ 3301
through 3502.
(b) When
a share exchange takes effect, the shares
of each acquired corporation are exchanged as provided in the plan, and
the
former holders of the shares are entitled only to the exchange rights
provided
in the articles of share exchange or to their rights under 18 GCA
§§ 3301
through 3502.
§
9107. Merger or Share Exchange
with Foreign Corporation.
(a) One
(1) or more foreign corporations may merge
or enter into a share exchange with one (1) or more domestic
corporations if:
(1) In a
merger, the merger is permitted by the law
of the state or country under whose law each foreign corporation is
incorporated and each foreign corporation complies with that law in
effecting
the merger;
(2) In a
share exchange, the corporation whose
shares will be acquired is a domestic corporation, whether or not a
share
exchange is permitted by the law of the state or country under whose
law the
acquiring corporation is incorporated;
(3) The
foreign corporation complies with § 9105 of
this Chapter if it is the surviving corporation of the merger or
acquiring
corporation of the share exchange; and
(4) Each
domestic corporation complies with the
applicable provisions of §§ 9101 through 9104 of this Chapter
and, if it is the
surviving corporation of the merger or acquiring corporation of the
share
exchange, with § 9105.
(b) Upon
the effectiveness of a merger or share
exchange in which the surviving corporation of a merger or the
acquiring
corporation in a share exchange is a foreign corporation, the surviving
corporation
or the acquiring corporation, as the case may be, is deemed:
(1) To
appoint the Director as its agent for
service of process in a proceeding to enforce any obligation or the
rights of
dissenting stockholders of each domestic corporation party to the
merger or
share exchange; and
(2) To
agree that it will promptly pay to the
dissenting stockholder of each domestic corporate party to the merger
or share
exchange the amount, if any, to which he is entitled under 18 GCA
§ § 3301
through 3502.
(c) This
Section does not limit the power of a
foreign corporation to acquire all or part of the shares of one (1) or
more
classes or series of a domestic corporation through a voluntary
exchange or
otherwise.
|
