NRS 92A.134 Circumstances under which submission to, and vote of, stockholders of constituent corporation not required to authorize restructuring merger.

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

1. Unless otherwise expressly required by the articles of incorporation of a constituent corporation, no submission to, and no vote of, the stockholders of the constituent corporation are necessary to authorize a restructuring merger if the plan of merger expressly permits or requires the merger to be effected under this section and:

(a)The constituent corporation and the merger subsidiary are the only constituent entities in the restructuring merger;

(b)Each share or fraction of a share of the capital stock of the constituent corporation outstanding immediately before the effective time of the restructuring merger is converted in the restructuring merger into a share or equal fraction of a share of a class or series of capital stock of the holding corporation that, in comparison to the class or series of capital stock of the constituent corporation being converted:

(1)Has the same voting powers, designations, preferences, limitations, restrictions and relative rights;

(2)Is likewise registered under applicable securities laws, if the class or series of such converted share or fraction of a share was so registered immediately before the effective time of the restructuring merger; and

(3)Is likewise eligible or approved for trading on each exchange and in each market, if any, as the class or series of the converted share or fraction of a share was so eligible or approved immediately before the effective time of the restructuring merger;

(c)The organizational documents of the holding corporation immediately following the effective time of the restructuring merger contain only provisions identical to the organizational documents of the constituent corporation immediately before the effective time of the restructuring merger, other than:

(1)The name of the holding corporation, if different from the constituent corporation;

(2)Any provision that could be omitted from restated articles of incorporation in accordance with NRS 78.403 ; and

(3)The provisions required by paragraph (f);

(d)As a result of the restructuring merger, the surviving company becomes a direct or indirect wholly owned subsidiary of the holding corporation;

(e)The plan of merger for the restructuring merger requires that the directors and officers of the constituent corporation are the only directors and officers, respectively, of the holding corporation at the effective time of the restructuring merger;

(f)The organizational documents of the holding corporation and the surviving company, in each case for a period of not less than 2 years after the effective time of the restructuring merger, contain provisions requiring, by specific reference to this section, that:

(1)At least a majority of the voting power of the governing body of the surviving company will be composed of individuals then serving as a director of the holding corporation, unless the surviving company is a limited-liability company managed by its members and the holding corporation then holds at least a majority of the voting power of the owner’s interests of the surviving company;

(2)If the surviving company is a limited-liability company, either:

(I)The surviving company will be managed by its members and the holding corporation then holds at least a majority of the voting power of the owner’s interests of the surviving company; or

(II)The surviving company will be managed by one or more managers and the organizational documents of the surviving company expressly provide that each such manager shall be subject to nonwaivable fiduciary duties identical to those of a director of a domestic corporation and the benefit of the entitlements, presumptions and protections afforded to such directors under chapter 78 of NRS;

(3)The approval of at least a majority of the voting power of the stockholders of the holding corporation or owners of any successor entity thereto will be required, in addition to any vote or other approval required by this chapter or the organizational documents of the holding corporation or the surviving company, for:

(I)Any other merger in which the surviving company is a constituent entity, other than a merger of the surviving company with another entity that is wholly owned by the holding corporation immediately before the effective time of such other merger, that requires the approval of the owners of the surviving company;

(II)Any sale of the assets of the surviving company that would require the approval of the stockholders pursuant to NRS 78.565 if the surviving company were a domestic corporation, regardless of whether the surviving corporation is then a domestic corporation, provided that no approval pursuant to this sub-subparagraph will be required in connection with the mortgage or pledge of such assets made in good faith and not in circumvention of any other approval required pursuant to this subparagraph;

(III)Any sale, exchange, transfer or other disposition of the owner’s interests of the surviving company holding greater than a majority of the voting power of such owner’s interests with respect to the election of the governing body of the surviving company, provided that no approval pursuant to this sub-subparagraph will be required in connection with the mortgage or pledge of such owner’s interests made in good faith and not in circumvention of any other approval required pursuant to this subparagraph; or

(IV)Dissolution or other termination of the existence of the surviving company; and

(4)The provisions of subparagraph

(3)shall not be construed to require the approval of the stockholders of the holding corporation to elect or remove any member of the governing body of the surviving entity; and

(g)The board of directors of the constituent corporation determines in good faith that the stockholders of the constituent corporation would not reasonably be expected to recognize gain or loss for United States federal income tax purposes by reason of giving effect to the restructuring merger.

2. The articles of incorporation of a domestic corporation may forbid the corporation from entering into a merger pursuant to this section.

3. Nothing in this section shall revive, extinguish or otherwise affect the standing of any person under NRS 41.520 with respect to the constituent corporation as of immediately before the effective time of the restructuring merger.

4. This section does not apply to circumvent or contravene the provisions of NRS 78.378 to 78.3793 , inclusive, or 78.411 to 78.444 , inclusive. If and to the extent the provisions of NRS 78.378 to 78.3793 , inclusive, or 78.411 to 78.444 , inclusive, applied to the constituent corporation, any class or series of its capital stock or any of its stockholders immediately before the effective time of the restructuring merger, such provisions apply correspondingly to the holding corporation, its capital stock and its stockholders immediately after the effective time of the restructuring merger. Nothing in this section shall be construed to:

(a)Affect the status of any stockholder as an interested stockholder, as defined in NRS 78.3787 or 78.423 ; or

(b)Lengthen or shorten the duration of any time period under the provisions of NRS 78.378 to 78.3793 , inclusive, or 78.411 to 78.444 , inclusive, applicable to the constituent corporation, any class or series of its capital stock or any of its stockholders immediately before the effective time of the restructuring merger, and the duration of each such time period as applicable to the holding corporation, its capital stock and its stockholders after the effective time of the restructuring merger, will be determined with reference to the constituent corporation, its capital stock and its stockholders before the effective time of the restructuring merger.

5. As used in this section:

(a)“Constituent corporation” means a domestic corporation that is a constituent entity in a restructuring merger.

(b)“Holding corporation” means a domestic corporation which, from the date of its incorporation through and until the effective time of a restructuring merger, is at all times a direct or indirect wholly owned subsidiary of the constituent corporation and whose shares will be issued to the former stockholders of the constituent corporation in the restructuring merger.

(c)“Merger subsidiary” means a domestic corporation or domestic limited-liability company in each case that is a direct or indirect wholly owned subsidiary of the constituent corporation.

(d)“Organizational documents” means, when used in reference to:

(1)A corporation, the articles of incorporation and bylaws of the corporation; and

(2)A limited-liability company, the articles of organization and operating agreement of the limited-liability company.

(e)“Restructuring merger” means the merger of a constituent corporation with a merger subsidiary effected pursuant to this section.

(f)“Surviving company” means the surviving entity of the merger of the constituent corporation and the merger subsidiary.