CHAPTER 24-10
MERGER, EXCHANGE, TRANSFER

24-10-1 Merger, Exchange, Transfer.

(A)    Merger. Any two or more corporations may merge, resulting in a single corporation, with or without a business purpose, pursuant to a plan of merger approved in the manner provided in Sections 24-10-2 to 24-10-8.

(B)    Exchange. A corporation may acquire all of the outstanding shares of one or more classes or series of another corporation pursuant to a plan of exchange approved in the manner provided in Sections 24-10-2 to 24-10-4, and Sections 24-10-6 to 24-10-8.

(C)    Transfer. A corporation may sell, lease, transfer, or otherwise dispose of all or substantially all of its property and assets in the manner provided in Section 24-10-9.

(D)    Other Constituent Organizations. Other constituent organizations may also merge, resulting in a single corporation, with or without a business purpose, in the manner and by the vote required by the laws applicable to the constituent organizations and their respective organizational documents. For purposes of this section “constituent organization” means an organization, including a limited liability company, an unincorporated cooperative or other tribally-formed entity, that is a party to a merger. For purposes of this section “organizational documents” means the basic records that create an entity’s organization and determine its internal governance and relations among person that own it, have an interest in it, or are owners of it.

24-10-2 Plan of Merger or Exchange.

(A)    Contents of plan. A plan of merger or exchange shall contain:

(1)    The names of the corporations proposing to merge or participate in an exchange, and:

(a)    In the case of a merger, the name of the surviving corporation;

(b)    In the case of an exchange, the name of the acquiring corporation;

(2)    The terms and conditions of the proposed merger or exchange;

(3)    In the case of a merger, the manner and basis of converting the shares of the constituent corporations into securities of the surviving corporation or of any other corporation, or, in whole or in part, into money or other property; or in the case of an exchange, the manner and basis of exchanging the shares to be acquired for securities of the acquiring corporation or any other corporation or, in whole or part, into money or other property;

(4)    In the case of a merger, a statement of any amendments to the articles of the surviving corporation proposed as part of the merger; and

(5)    Any other provisions with respect to the proposed merger or exchange that are deemed necessary or desirable.

(B)    Other agreements. The procedure authorized by this Section does not limit the power of a corporation to acquire all or part of the shares of one or more classes or series of another corporation through a negotiated agreement with the shareholders or otherwise.

24-10-3 Plan Approval.

(A)    Board approval; notice to shareholders. A resolution containing the plan of merger or exchange shall be approved by the affirmative vote of a majority of the directors present at a meeting of the board of each constituent corporation and shall then be submitted at a regular or a special meeting to the shareholders of (a) each constituent corporation, in the case of a plan of merger, and (b) the corporation whose shares will be acquired by the acquiring corporation in the exchange, in the case of a plan of exchange. If shareholders holding any class or series of stock of the corporation are entitled to vote on the plan of merger or exchange pursuant to this Section, written notice shall be given to every shareholder of a corporation, whether or not entitled to vote at the meeting, not less than 14 days nor more than 60 days before the meeting, in the manner provided in Section 24-8-13 for notice of meetings of shareholders. The written notice shall state that a purpose of the meeting is to consider the proposed plan of merger or exchange. A copy or short description of the plan of merger or exchange shall be included in or enclosed with the notice.

(B)    Approval by shareholders.

(1)    At the meeting a vote of the shareholders shall be taken on the proposed plan. The plan of merger or exchange is adopted when approved by the affirmative vote of the holders of a majority of the voting power of all shares entitled to vote. Except as provided in paragraph (b), a class or series of shares of the corporation is entitled to vote as a class or series if any provision of the plan would, if contained in a proposed amendment to the articles, entitle the class or series of shares to vote as a class or series and, in the case of an exchange, if the class or series is included in the exchange.

(2)    A class or series of shares of the corporation is not entitled to vote as a class or series solely because the plan of merger or exchange effects a cancellation of the shares of the class or series if the plan of merger or exchange effects a cancellation of all shares of the corporation of all classes and series that are outstanding immediately prior to the merger or exchange and shareholders of shares of that class or series are entitled to obtain payment for the fair value of their shares under Section 24-8-27 in the event of the merger or exchange.

(C)    When approval by shareholder not required. Notwithstanding the provisions of Sections 24-10-3 (A) and 24-10-3 (B), submission of a plan of merger to a vote at a meeting of shareholders of a surviving corporation is not required if:

(1)    The articles of the corporation will not be amended in the transaction;

(2)    Each holder of shares of the corporation that were outstanding immediately before the effective date of the transaction will hold the same number of shares with identical rights immediately thereafter;

(3)    The number of shares of the corporation entitled to vote immediately after the merger, plus the number of shares of the corporation entitled to vote issuable on conversion of securities other than shares or on the exercise of rights to purchase securities issued by virtue of the terms of the transaction, will not exceed by more than 20 percent, the number of shares of the corporation entitled to vote immediately before the transaction; and

(4)    The number of participating shares of the corporation immediately after the merger, plus the number of participating shares of the corporation issuable on conversion, or on the exercise of rights to purchase, securities issued in the transaction, will not exceed by more than 20 percent, the number of participating shares of the corporation immediately before the transaction. “Participating shares” are outstanding shares of the corporation that entitle their holders to participate without imitation in distributions by the corporation.

24-10-4 Articles of Merger or Exchange; Certificate.

(A)    Contents of articles. Upon receiving the approval required by Section 24-10-3, articles of merger or exchange shall be prepared that contain:

(1)    The plan of merger or exchange; and

(2)    A statement that the plan has been approved by each corporation pursuant to this Code.

(B)    Articles signed, filed. The articles of merger or exchange shall be signed on behalf of each constituent corporation and filed with the Tribal Secretary.

(C)    Certificate. The Tribal Secretary shall issue a certificate of merger to the surviving corporation or its legal representative and a certificate of exchange to the acquiring corporation or its legal representative.

24-10-5 Merger of Subsidiary.

(A)    When authorized; contents of plan. A parent owning at least 90 percent of the outstanding shares of each class and series of a subsidiary directly, or indirectly through related corporations, may merge the subsidiary into itself or into any other subsidiary at least 90 percent of the outstanding shares of each class and series of which is owned by the parent directly, or indirectly through related corporations, without a vote of the shareholders of itself or any subsidiary or may merge itself, or itself and one or more of the subsidiaries, into one of the subsidiaries under this section. A resolution approved by the affirmative vote of a majority of the directors of the parent present shall set forth a plan of merger that contains:

(1)    The name of the subsidiary or subsidiaries, the name of the parent and the name of the surviving corporation;

(2)    The manner and basis of converting the shares of the subsidiary or subsidiaries or parent into securities of the parent, subsidiary, or of another corporation or, in whole or in part, into money or other property;

(3)    If the parent is a constituent corporation but is not the surviving corporation in the merger, a provision for the pro-rata issuance of shares of the surviving corporation to the holders of shares of the parent on surrender of any certificates for shares of the parent; and

(4)    If the surviving corporation is a subsidiary, a statement of any amendments to the articles of the surviving corporation that will be part of the merger.

If the parent is a constituent corporation but is not the surviving corporation in the merger, the resolution is not effective unless it is also approved by the affirmative vote of the holders of a majority of the voting power of all shares of the parent entitled to vote at a regular or special meeting held in accordance with Section 24-10-3 if the parent is a tribal corporation or in accordance with the laws under which it is incorporated if the parent is a foreign corporation.

(B)    Notice to shareholders of subsidiary. A copy of the plan to merger shall be mailed to each shareholder, other than the parent and any subsidiary, of each subsidiary that is a constituent corporation in the merger.

(C)    Articles of merger, contents of articles. Articles of merger shall be prepared that contain:

(1)    The plan of merger;

(2)    The number of outstanding shares of each class and series of each subsidiary that is a constituent corporation in the merger and the number of shares of each class and series of the subsidiary or subsidiaries owned by the parent directly, or indirectly through related corporations;

(3)    The date a copy of the plan of merger was mailed to shareholders, other than the parent or a subsidiary, of each subsidiary that is a constituent corporation in the merger; and

(4)    A statement that the plan of merger has been approved by the parent under this Section.

(D)    Articles signed, filed. Within 30 days after a copy of the plan of merger is mailed to shareholders of each subsidiary that is a constituent corporation to the merger, or upon waiver of the mailing by the holders of all outstanding shares of each subsidiary that is a constituent corporation to the merger, the articles of merger shall be signed on behalf of the parent and filed with the Tribal Secretary.

(E)    Certificate. The Tribal Secretary shall issue a certificate of merger to the parent or its legal representative or, if the parent is a constituent corporation but is not the surviving corporation in the merger, to the surviving corporation or its legal representative.

(F)    Rights of dissenting shareholders. In the event all of the stock of one or more tribal subsidiaries of the parent that is a constituent party to a merger under this Section is not owned by the parent directly, or indirectly through related corporations, immediately prior to the merger, the shareholders of each tribal subsidiary have dissenter’s rights under Section 24-8-27, without regard to Section 24-8-27 (C), and Section 24-8-28. If the parent is a constituent corporation but is not the surviving corporation in the merger, and the articles of incorporation of the surviving corporation immediately after the merger differ from the articles of incorporation of the parent immediately prior to the merger in a manner that would entitle a shareholder of the parent to dissenter’s rights under Section 24-8-27 (A), paragraph (1), if the articles of incorporation of the surviving corporation constituted an amendment to the articles of incorporation of the parent, that shareholder of the parent has dissenter’s rights as provided under Sections 24-8-27 and 24-8-28 Except as provided in this subdivision, Sections 24-8-27 and 24-8-28 do not apply to any merger effected under this Section.

(G)    Non-exclusivity. A merger among a parent and one or more subsidiaries or among two or more subsidiaries of a parent may be accomplished under Sections 24-10-2, 24-10-3, and 24-10-4 instead of this Section, in which case this Section does not apply.

24-10-6 Abandonment.

(A)    By shareholders or plan. After a plan of merger or exchange has been approved by the shareholders entitled to vote on the approval of the plan as provided in Section 24-10-3, and before the effective date of the plan, it may be abandoned:

(1)    If the shareholders of each of the constituent corporations entitled to vote on the approval of the plan as provided in Section 24-10-3 have approved the abandonment at a meeting by the affirmative vote of the holders of a majority of the voting power of the shares entitled to vote and, if the shareholders of a constituent corporation are not entitled to vote on the approval of the plan under Section 24-10-3, the board of directors of the constituent corporation has approved the abandonment by the affirmative vote of a majority of the directors present;

(2)    If the plan itself provides for abandonment and all conditions for abandonment set forth in the plan are met; or

(3)    Pursuant to Section 24-10-6 (B).

(B)    By board. A plan of merger or exchange may be abandoned, before the effective date of the plan, by a resolution of the board of directors of any constituent corporation abandoning the plan of merger or exchange approved by the affirmative vote of a majority of the directors present, subject to the contract rights of any other person under the plan.

(C)    Filing of articles. If articles of merger or exchange have been filed with the Tribal Secretary, but have not yet become effective, the constituent corporations, in the case of abandonment under Section 24-10-6 (A) paragraph (1) the constituent corporations or any one of them, in the case of abandonment under Section 24-10-6 (A) paragraph (2), or the abandoning corporation in the case of abandonment under Section 24-10-6 (B), shall file with the Tribal Secretary articles of abandonment that contain:

(1)    The names of the constituent corporations;

(2)    The provision of this Section under which the plan is abandoned; and

(3)    If the plan is abandoned under Section 24-10-6 (B), the text of the resolution approved by the affirmative vote of a majority of the directors present abandoning the plan.

24-10-7 Effective Date of Merger or Exchange; Effect.

(A)    Effective date. A merger or exchange is effective when the articles of merger or exchange are filed with the Tribal Secretary or on a later date specified in the articles of merger or exchange.

(B)    Effect on corporation. When a merger becomes effective:

(1)    The constituent corporations become a single corporation, the surviving corporation;

(2)    The separate existence of all constituent corporations except the surviving corporation ceases;

(3)    The surviving corporation has all the rights, privileges, immunities, and powers, and is subject to all the duties and liabilities, of a corporation incorporated under this Code;

(4)    The surviving corporation possesses all the rights, privileges, immunities, and franchises, of a public as well as of a private nature, of each of the constituent corporations. All property, real, personal, and mixed, and all debts due on any account, including subscriptions to shares, and all other choices in action, and every other interest of or belonging to or due to each of the constituent corporations vests in the surviving corporation without any further act or deed. Confirmatory deeds, assignments, or similar instruments to accomplish that vesting may be signed and delivered at any time in the name of a constituent corporation by its current officers or, if the corporation no longer exists, by its last officers. The title to any real estate or any interest therein vested in any of the constituent corporations does not revert nor in any way become impaired by reason of the merger;

(5)    The surviving corporation is responsible and liable for all the liabilities and obligations of each of the constituent corporations. A claim of or against or a pending proceeding by or against a constituent corporation may be prosecuted as if the merger had not taken place, or the surviving corporation may be substituted in the place of the constituent corporation. Neither the rights of creditors nor any liens upon the property of a constituent corporation are impaired by the merger; and

(6)    The articles of the surviving corporation are deemed to be amended to the extent that changes in its articles, if any, are contained in the plan of merger.

(C)    Effect on shareholders. When a merger or exchange becomes effective, the shares of the corporation or corporations to be converted or exchanged under the terms of the plan cease to exist in the case of a merger, or are deemed to be exchanged in the case of an exchange. The holders of those shares are entitled only to the securities money, or other property into which those shares have been converted or for which those shares have been exchanged in accordance with the plan, subject to any dissenter’s rights under Section 24-8-27.

24-10-8 Merger or exchange with foreign corporation.

(A)    When permitted. A Tribal corporation may merge with or participate in an exchange with a foreign corporation by following the procedures set forth in this Section, if:

(1)    With respect to a merger, the merger is permitted by the laws of the jurisdiction under which the foreign corporation is incorporated; and

(2)    With respect to an exchange, the corporation whose shares will be acquired is a Tribal corporation, whether or not the exchange is permitted by the laws of the jurisdiction under which the foreign corporation is incorporated.

(B)    Laws applicable before transaction. Each Tribal corporation shall comply with the provisions of Sections 24-10-1 to 24-10-8 with respect to the merger or exchange of shares of corporations and each foreign corporation shall comply with the applicable provisions of the laws under which it was incorporated or by which it is governed.

(C)    Tribal surviving corporation. If the surviving corporation in a merger will be a Tribal corporation, it shall comply with all the provisions of this Code.

(D)    Incorporation. If the surviving corporation in a merger will be a foreign corporation and will transact business on the Reservation, it shall comply with any laws of the Nation regarding qualification by a foreign corporation to do business on the Reservation. In every case the surviving corporation shall file with the Tribal Secretary:

(1)    An agreement that it may be served with process on the Reservation in a proceeding for the enforcement of an obligation of a constituent corporation and in a proceeding for the enforcement of the rights of a dissenting shareholder of a constituent corporation against the surviving corporation;

(2)    An irrevocable appointment of the Tribal Secretary as its agent to accept service of process in any proceeding and an address to which process may be forwarded; and

(3)    An agreement that it will promptly pay to the dissenting shareholders of each tribal constituent corporation the amount, if any, to which they are entitled under Section 24-8-28.

24-10-9 Transfer of Assets; When Permitted.

(A)    Shareholder approval; when not required. A corporation, by affirmative vote of a majority of the directors present, may sell, lease, transfer, or otherwise dispose of all or substantially all of its property and assets in the usual and regular course of its business and grant a security interest in all or substantially all of its property and assets whether or not in the usual and regular course of its business, upon those terms and conditions and for those considerations, which may be money, securities, or other instruments for the payment of money or other property, as the board deems expedient, in which case no shareholder approval is required.

(B)    Shareholder approval; when required. A corporation, by affirmative vote of a majority of the directors present, may sell, lease, transfer, or otherwise dispose of all or substantially all of its property and assets, including its good will, not in the usual and regular course of its business, upon those terms and conditions and for those considerations, which may be money, securities, or other instruments for the payment of money or other property, as the board deems expedient, when approved at a regular or special meeting of the shareholders by the affirmative vote of the holders of a majority of the voting power of the shares entitled to vote. Written notice of the meeting shall be given to all shareholders whether or not they are entitled to vote at the meeting. The written notice shall state that a purpose of the meeting is to consider the sale, lease, transfer, or other disposition of all or substantially all of the property and assets of the corporation.

(C)    Signing of documents. Confirmatory deeds, assignments, or similar instruments to evidence a sale, lease, transfer, or other disposition may be signed and delivered at any time in the name of the transferor by its current officers or, if the corporation no longer exists, by its last officers.

(D)    Transferee liability. The transferee is liable for the debts, obligations, and liabilities of the transferor only to the extent provided in the contract or agreement between the transferee and the transferor or to the extent provided by this Code or other laws of the Nation.