Corporate Merger and Share-Exchange Approval and Filing Requirements in New York
At a glance
| Governing law, parties, transaction, and scope | N.Y. Bus. Corp. Law art. 9; domestic business corporations; merger or consolidation of constituents into a survivor/new corporation (§§ 901-.902), and binding acquisition of all outstanding shares of one or more classes of a subject corporation by an acquiring corporation (§ 913). Ordinary private route is separate from foreign, cross-entity, nonprofit, professional, benefit, regulated, asset-sale, and contested-control provisions |
|---|---|
| Plan or agreement terms and consideration | Each merger board adopts a plan naming constituents/former names and survivor, capitalization and voting classes/series, terms, share conversion into survivor shares/bonds/securities or cash/other consideration, survivor-certificate changes or consolidation certificate, and desired provisions (§ 902). Both exchange boards adopt a plan naming acquirer/subject, capitalization/votes, exchange consideration, and desired provisions (§ 913(b)) |
| Board approval, advisability, recommendation, and conditions | Each constituent board adopts the merger/consolidation plan and submits it to shareholders (§§ 902-.903). Both acquiring and subject boards adopt a binding share-exchange plan; only the subject board submits it to holders (§ 913(b)-(c)). These provisions state no ordinary declare-advisable, recommendation, no-recommendation explanation, or board-condition formula |
| Shareholder notice, materials, meeting, and consent | Merger/exchange notice goes to every record holder, voting or nonvoting, with plan or material-feature outline; the general meeting rule gives voting holders 10-60 days, or 24-60 by third-class mail, plus appraisal materials when applicable (§§ 605, 903, 913). Written consent is unanimous unless certificate authorizes meeting-minimum votes; sufficient consents arrive within 60 days and prompt notice goes to nonconsenters (§ 615) |
| Ordinary vote, classes, series, and nonvoting rights | Merger approval uses a majority of votes of shares entitled for post-statutory-date corporations and qualifying existing corporations with express certificate language; other existing corporations use 2/3 of all outstanding shares entitled. Subject-exchange approval uses the corresponding legacy split stated in § 913. Amendment-equivalent survivor/acquirer provisions can require a majority of all outstanding shares of an affected class or series in addition (§§ 903(a)(2), 913(c)(2)); certificate may set an exchange threshold no lower than majority |
| Survivor, acquirer, no-vote, and no-shares exceptions | Article 9 states no ordinary surviving-constituent shareholder exception; each merger constituent votes unless a specialized route applies. Acquiring-corporation shareholders do not vote merely because it acquires in a § 913 exchange; the subject corporation votes. When no shareholders of record exist, § 615(e) permits action by accepted subscribers or, if none, the incorporator(s) |
| Parent-subsidiary, short-form, holding-company, and tender routes | Parent owning at least 90% of every outstanding class may merge a subsidiary into itself without any corporation's shareholder authorization, or merge into a subsidiary with parent-holder approval; minority subsidiary holders receive plan/outline and ordinarily a 30-day prefiling interval (§ 905). An acquirer owning at least 90% of outstanding common shares with full voting rights may exchange the remainder without holder authorization, after plan/outline and 30-day interval (§ 913(g)). No separate ordinary holding-company or offer-followed-by-merger shortcut is stated in §§ 901-.913 |
| Public filing, signer, contents, and effective time | Certificate signed for each merger constituent states plan names/capitalization/survivor changes, delayed date, original formation filing dates, and authorization; exchange certificate signed for both entities adds acquired shares and consideration (§§ 904, 913(d)). Officer/director/attorney-in-fact/authorized person signs with capacity (§ 104). Deliver filer-drafted certificate and $60 fee to Department of State; effect on filing or stated date within 30 days (§§ 104, 906, 913(e)) |
| Amendment, abandonment, termination, and records | Sections 902-904 and 913 do not state a general post-approval plan-amendment method; plans may contain other desired provisions. Merger or exchange may be abandoned after holder authorization and before certificate filing only under an abandonment provision in the plan (§§ 903(b), 913(c)(2)). Keep complete account books, shareholder/board/executive-committee minutes, and current holder names, addresses, classes, shares, and record dates (§ 624) |
| Appraisal, tax, securities, fiduciary, creditor, and regulatory boundaries | Section 910 payment rights depend on voting/assent, transaction, surviving-share changes, exchange-listing status, subject-share acquisition, § 905 or § 913(g), and certain nonvoting cash/other-consideration facts; § 623 controls preservation and procedure. Approval/filing does not establish fairness or satisfy tax, securities, antitrust, fiduciary, creditor, contract, employee, industry, or regulatory law |
Requirements one by one
New York's vote cannot be reduced to one statewide percentage
Each constituent board adopts the § 902 merger or consolidation plan and submits it to holders under § 903. The first-sentence threshold then depends on the corporation's statutory formation-date branch and, for specified existing corporations, an express certificate provision. The result is either a majority or two-thirds of all outstanding shares entitled to vote.
The same legacy split appears for the subject corporation in a § 913 binding share exchange. The acquiring and subject boards both adopt the plan, but only the subject board submits it to shareholders.
Notice goes beyond the voting constituency
Sections 903 and 913 send the transaction notice to every record shareholder, whether or not entitled to vote, with the plan or an outline of its material features. Business Corporation Law § 605 supplies the ordinary calendar for holders entitled to vote: 10 to 60 days before the meeting, or 24 to 60 days for third-class mail. Applicable appraisal materials must accompany the notice.
A separate class or affected series can vote when its shares remain outstanding or convert into specified shares and the post-transaction certificate contains an amendment-equivalent provision. That group approves by a majority of all its outstanding shares in addition to the general vote.
Written consent and no-record-shareholder action use § 615
Unanimous written consent is the default. The certificate of incorporation may authorize consent by the minimum votes that would act if all entitled shares were present and voted. The necessary consents must be delivered within 60 days of the earliest dated consent, and prompt notice goes to nonconsenting holders.
If there are no shareholders of record, § 615(e) uses written consent from a majority in interest of accepted subscribers or, if no subscription was accepted, the incorporator or majority of incorporators.
Merger and exchange plans have different actor maps
Business Corporation Law § 901 authorizes two or more domestic corporations to merge into one constituent survivor or consolidate into a newly formed corporation.
Section 902 requires each merger constituent's board to state names and former names, survivor, capitalization and voting classes, terms, conversion or cash/ other consideration, surviving-certificate changes, and desired provisions.
Section 913 requires both boards to adopt the binding exchange plan, but the subject corporation's shareholders act. New York does not give an ordinary surviving merger constituent a no-vote exception comparable to many Model Act states. Nor do §§ 901-.913 state a separate ordinary holding-company or offer- followed-by-merger shortcut.
The two 90% routes are not identical
Under § 905, a domestic parent owning at least 90% of each outstanding class may merge the subsidiary into itself without shareholder authorization of any corporation. If the parent instead merges into a subsidiary, parent shareholders approve under § 903. A surviving parent sends minority subsidiary holders the plan or outline, and ordinarily waits at least 30 days before filing unless all minority holders waive.
Section 913(g) uses a different ownership object: at least 90% of the subject's outstanding common shares having full voting rights. The acquirer may exchange the remainder without shareholder authorization, after the plan/outline and the same basic 30-day prefiling interval unless waived.
The filed certificate controls effectiveness
Business Corporation Law § 904 requires a certificate signed for each constituent and delivered to the Department of State. It states the plan's names, capitalization/voting and survivor-certificate items, any delayed date, each original incorporation filing date, and the manner of authorization. Under § 104, an officer, director, attorney-in-fact, or other authorized person signs and states capacity.
Section 913(d) similarly requires both exchange corporations to sign and adds the acquired shares and consideration. A merger or exchange takes effect on filing or on a stated later date no more than 30 days afterward (§§ 906, 913(e)). The Department of State confirms that merger certificates are filer- drafted, use a white cover sheet, and carry a $60 filing fee.
Abandonment, records, and appraisal remain separate
After shareholder authorization and before filing, §§ 903(b) and 913(c) allow abandonment only under an abandonment provision contained in the plan. The surveyed sections state no general post-approval amendment method, so plan and agreement provisions should not be treated as statutory permission to change holder economics or approval facts.
Business Corporation Law § 624 separately requires complete account books, shareholder/board/ executive-committee minutes, and the current shareholder record.
Business Corporation Law § 910 appraisal rights turn on the transaction, vote and assent, whether survivor shares change, market listing, subject shares acquired, the § 905 or § 913(g) route, and specified nonvoting consideration. Business Corporation Law § 623 then governs preservation and procedure. This page identifies the boundary without deciding fair value or entitlement for a particular holder.
What trips people up
- Formation date and certificate language matter. Do not state “majority” or “two-thirds” until § 903 or § 913 is matched to the corporation's history.
- The ordinary merger has no survivor exception. Every constituent remains in the § 903 holder-approval sequence unless a specialized provision applies.
- The 90% tests use different denominators. Section 905 covers every class; § 913(g) covers common shares having full voting rights.
- Abandonment must be built into the plan. Sections 903(b) and 913(c) do not supply a free-standing board abandonment power after holder authorization.
- The certificate is filer-drafted. The Department of State page is an instruction page, not a substitute statutory form.
Common questions
Do nonvoting holders receive meeting notice?
Yes. Sections 903(a)(1) and 913(c)(1) require notice to each record shareholder, whether or not entitled to vote.
May merger approval occur by less-than-unanimous consent?
Only if the certificate of incorporation permits the § 615 meeting-minimum route. Otherwise all outstanding shares entitled to vote must sign.
Do the acquiring corporation's shareholders vote on a binding exchange?
Section 913 requires the acquiring board to adopt the plan, but its ordinary holder-submission rule applies to the subject corporation. Separate certificate, issuance, contract, securities, or fiduciary requirements may still matter.
May the filing use a delayed effective date?
Yes, but the merger and binding-exchange provisions cap the stated date at 30 days after Department of State filing.
Statutes and sources
- N.Y. Bus. Corp. Law §§ 902-906 and 913 — plans, boards, notice, legacy holder thresholds, class votes, certificates, effectiveness, 90% exchange, and abandonment. Official New York Senate law pages, accessed August 26, 2026.
- N.Y. Bus. Corp. Law §§ 104, 605, 615, and 624 — signer/effectiveness defaults, meeting notice, consent and no-holder action, and records. Official New York Senate law pages, accessed August 26, 2026.
- N.Y. Bus. Corp. Law §§ 910 and 623 — conditional payment rights and appraisal procedure boundary. Official § 910 and § 623, accessed August 26, 2026.
- New York Department of State merger filing page — filer-drafted certificate, white cover sheet, mailing route, and $60 fee. Official filing page, accessed August 26, 2026.
Source links
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