N.D. Cent. Code § 10-19.1-100.1

10-19.1-100.1. Merger to effect a holding company reorganization

1. For purposes of this section:

a. "Holding company" means the corporation that is or becomes the direct parent of

the surviving corporation of a merger accomplished under this section.

b. "Parent constituent corporation" means the parent corporation that merges with

or into the subsidiary constituent corporation.

c. "Subsidiary constituent corporation" means the subsidiary corporation that the

parent constituent corporation merges with or into in the merger.

2. Unless its articles expressly provide otherwise, and subject to subsection 3, a parent

constituent corporation may merge with or into a subsidiary constituent corporation

without a vote of the shareholders of the parent constituent corporation.

3. A merger may be accomplished under this section only if each of the following

requirements is met:

a. The holding company and the constituent corporations to the merger are each

organized under this chapter;

b. At all times following the issuance of shares until the consummation of a merger

under this section, the holding company was a direct wholly owned subsidiary of

the parent constituent corporation;

c. Immediately before the consummation of a merger under this section, the

subsidiary constituent corporation is an indirect wholly owned subsidiary of the

parent constituent corporation and a direct wholly owned subsidiary of the holding

company;

d. The parent constituent corporation and the subsidiary constituent corporation are

the only constituent corporations to the merger;

e. Immediately after the merger becomes effective, the surviving corporation

becomes or remains a direct wholly owned subsidiary of the holding company;

f. Each share or fraction of a share of the parent constituent corporation

outstanding immediately before the effective time of the merger is converted in

the merger into a share or equal fraction of a share of the holding company

having the same designation and relative rights and preferences, and the same

restrictions thereon, as the share or fraction of a share of the parent constituent

corporation being converted in the merger;

g. The articles and bylaws of the holding company immediately following the

effective time of the merger contain provisions identical to the articles and bylaws

of the parent constituent corporation immediately before the effective time of the

merger, other than provisions, if any, regarding the incorporator or incorporators,

the corporate name, the registered office and agent, the initial board, and the

initial subscribers for shares and the provisions contained in any amendment to

the articles of the parent constituent corporation that were necessary to effect an

exchange, reclassification, or cancellation of shares if the exchange,

reclassification, or cancellation has become effective;

h. The articles and bylaws of the surviving corporation immediately following the

effective time of the merger are identical to the articles and bylaws of the parent

constituent corporation immediately before the effective time of the merger, other

than provisions, if any, regarding the incorporator or incorporators, the corporate

name, the registered office and agent, the initial board, and the initial subscribers

for shares and the provisions contained in any amendment to the articles of the

parent constituent corporation that were necessary to effect an exchange,

reclassification, or cancellation of shares if the exchange, reclassification, or

cancellation has become effective, except that:
orporators, the corporate

name, the registered office and agent, the initial board, and the initial subscribers

for shares and the provisions contained in any amendment to the articles of the

parent constituent corporation that were necessary to effect an exchange,

reclassification, or cancellation of shares if the exchange, reclassification, or

cancellation has become effective, except that:

(1) The articles of the surviving corporation shall be amended in the merger to

contain a provision requiring that any act or transaction by or involving the

surviving corporation, other than the election or removal of directors of the

surviving corporation, that requires for its adoption under this chapter or its

articles the approval of the shareholders of the surviving corporation shall,

by specific reference to this section, require, in addition, the approval of the

shareholders of the holding company, or any successor by merger, by the

same vote as is required by this chapter or the articles of the surviving

corporation; and

(2) The articles of the surviving corporation may be amended in the merger to

reduce the number of classes, series, and shares that the surviving

corporation is authorized to issue;

i. The directors of the parent constituent corporation become or remain the

directors of the holding company immediately after the merger becomes effective;

j. The board of the parent constituent corporation determines that the shareholders

of the parent constituent corporation will not recognize gain or loss for United

States federal income tax purposes; and

k. A resolution approved by the affirmative vote of a majority of the directors of the

parent constituent corporation present sets forth a plan of merger that contains

provisions addressing the requirements of subdivisions a through j.

4. Neither paragraph 1 of subdivision h of subsection 3, nor any provisions of the

surviving corporation's articles required by that item may be construed to require

approval of the shareholders of the holding company to elect or remove directors of

the surviving corporation.

5. If the name of the holding company at the time the merger takes effect is the same as

the name of the parent constituent corporation immediately before that time, the

shares of the holding company into which the shares of the parent constituent

corporations are converted in the merger must, unless new certificates are issued, be

represented by the share certificates that previously represented shares of the parent

constituent corporation.

6. Articles of merger must be:

a. Prepared that contain:

(1) The plan of merger; and

(2) A statement that the plan of merger was adopted under this section.

b. Signed on behalf of the parent constituent corporation and filed with the secretary

of state.

7. The secretary of state shall issue a certificate of merger to the surviving corporation or

its legal representative.

8. A merger between a parent and a subsidiary may be accomplished under sections

10-19.1-97, 10-19.1-98, 10-19.1-99, and 10-19.1-100 instead of this section, in which

case this section does not apply.