Guide to Mergers and Consolidations of Not-for-Profit Corporations

Guide to Mergers and

Consolidations of Not-for-Proﬁt

Corporations

Under Article 9 of the New York Not-for-Proﬁt

Corporation Law

Introduction ............................................................................................................................................................................4

Deﬁnitions ................................................................................................................................................................................ 5

Mergers Requiring Approval of the Attorney General or the Court .................................................................................. 5

Mergers of Domestic and Foreign Corporations ................................................................................................................. 6

Role of the Attorney General ................................................................................................................................................. 9

Plan of Merger .........................................................................................................................................................................11

Board and Membership Approval of a Plan of Merger ...................................................................................................... 12

Certiﬁcate of Merger .............................................................................................................................................................. 13

Approvals by Government Bodies or Ofﬁcers .....................................................................................................................14

Registration with the Attorney General's Charities Bureau ............................................................................................... 15

Procedure for Approval of the Merger by the Attorney General or the Court,

on Notice to the Attorney General ........................................................................................................................................15

Veriﬁed Petition to the Attorney General or the Supreme Court .......................................................................................16

Proposed Order of the Court or Attorney General Approval ............................................................................................18

Cy Pres Relief in Connection with Merger ............................................................................................................................19

Notice to Interested Persons and Entities ............................................................................................................................19

Approval by the Attorney General........................................................................................................................................19

Hearing by the Court ............................................................................................................................................................20

Filing the Certiﬁcate of Merger ............................................................................................................................................20

Effective Date and Legal Effects of Merger .......................................................................................................................... 21

Mergers of Domestic and Foreign Corporations ................................................................................................................ 21

Mergers of Religious Corporations with Not-for-Proﬁt Corporations ............................................................................. 23

Mergers of Religious Corporations with Other Religious Corporations ......................................................................... .23

Mergers and Consolidations of Corporations Chartered by the Regents

under the Education Law .....................................................................................................................................................24

Conclusion .............................................................................................................................................................................24

APPENDIX A - Sample Petition for Court Approval of Merger ........................................................................................... 25

APPENDIX B - Sample Petition for Attorney General Approval of Merger ....................................................................... 27

APPENDIX C- Checklist of Documents and Information Required ................................................................................... 29

APPENDIX D - Sample Order Approving Merger .................................................................................................................31

APPENDIX E - Sample Attorney General's Approval of Merger ......................................................................................... 32

APPENDIX F - Ofﬁces of the Attorney General .................................................................................................................... 33

Guidance Document 2014-3, V. 1.0

Issue date: June 23, 2014 Revised: June 2021

Introduction

This booklet has been prepared to assist not-for-proﬁt corporations and their attorneys who plan to seek approval

of the Attorney General or the Court to merge or to consolidate with other organizations pursuant to Article 9 of

the Not-for-Proﬁt Corporation Law (“N-PCL”).

A well-run charitable organization and its board may consider a merger or consolidation with another where

circumstances make it appropriate. Competing organizations with similar missions may separately have higher

administrative expenses, a smaller donor pool, and lesser impact on their desired objectives. Government

agencies, legislators, donors, volunteers, or members may prefer one organization as advocate, grantee, or dues

recipient. The original goals of the organization may have been largely accomplished, or the existing leadership

may be close to retirement.

In a merger or consolidation, the parties must negotiate a variety of details, and the Not-For-Proﬁt Corporation

Law permits the parties to reach mutual agreement. Although senior managers will have responsibility for

recommending and implementing a merger or consolidation, board members and volunteer leadership play

a very important role in considering a merger or consolidation, assessing merger or consolidation partners,

conducting due diligence, reviewing the merger or consolidation agreement, assuring compliance with governing

approval requirements, and envisioning the future mission, leadership, and ﬁnances of the entities. Capable

and experienced professional advisors and counsel are usually necessary to plan, negotiate, and implement a

successful merger or consolidation.

Board members and senior leadership should also involve other stakeholders in the discussion of a possible merger

or consolidation at an early stage and keep them informed and advised throughout the process.

In New York, every merger or consolidation of a not-for-proﬁt charitable organization must be approved by the

Attorney General and/or a court. The Attorney General has been given this role in order to protect the interests of

the donors to the charity and the beneﬁciaries of the charity, and to prevent private inurement (appropriation of

assets of a charity to beneﬁt one individual).

The procedures described reﬂect amendments to the N-PCL that were included in the Nonproﬁt Revitalization Act

of 2013 ("the Act" or “NPRA”). Those amendments make changes to the procedures for seeking approval of the

merger or consolidation of New York not-for-proﬁt corporations. Those procedures give corporations the option of

submitting a veriﬁed petition for approval of a merger or consolidation to either the Attorney General or the Court,

on notice to the Attorney General.

As more fully described below, the Attorney General may determine that court review of a particular application is

appropriate. In such cases the veriﬁed petition must be submitted to the Court on notice to the Attorney General.

However, if the Attorney General has no objection to the merger or consolidation, but nevertheless determines

that court review is appropriate, the Attorney General will typically waive statutory service of the Petition since the

papers have already been submitted to and reviewed by the Ofﬁce of the Attorney General.

Each merger or consolidation is governed by its own facts and is reviewed, on a case-by-case basis, by the Attorney

General’s Charities Bureau in New York City or Albany or an Assistant Attorney General in the regional ofﬁce to

which the application should be submitted. A list of the ofﬁces of the Attorney General, their contact information

and the New York counties they serve is in Appendix F.

The information in this booklet is not a substitute for legal advice from an attorney but has been drafted to provide

guidance to those preparing applications to merge or consolidate not-for-proﬁt corporations.

Deﬁnitions

Merger and consolidation are procedures required by law when two or more corporations ("constituent"

corporations) become a single corporation. In a merger, the resulting corporation, called the surviving

corporation, is one of the merging corporations. In a consolidation, the resulting entity is a new corporation, called

the consolidated corporation.

Quick Statutory Reference Guide:

Deﬁnitions of merger, consolidation, constituent corporation, surviving corporation,

and consolidated corporation ...................................................... N-PCL §§ 102(a)(3-a) and (3-b)

Since, in the experience of the Ofﬁce of the Attorney General, mergers are more common than consolidations, for

the sake of simplicity, the term “merger” will be used for both mergers and consolidations, and the term “surviving

corporation” for both surviving and consolidated corporations, unless the context requires that merger and

consolidation be discussed separately.

Mergers Requiring Approval of the Attorney General

or the Court

N-PCL Article 9 governs mergers of New York not-for-proﬁt corporations. Approval of the Attorney General

or the Supreme Court

is required for any merger or consolidation in which any constituent corporation or the

consolidated corporation is a charitable

corporation or would be a charitable corporation if formed under the

N-PCL.

At any time, including if the Attorney General concludes that court review is appropriate or the Attorney General does not

approve an application for approval of a merger or consolidation, the applicant may apply to the Court for such approval.

The Nonproﬁt Revitalization Act of 2013 eliminated corporate Types A, B, C and D and replaced them with two categories of

not-for-proﬁt corporations, "Charitable" and "Non-Charitable."

Mergers of Domestic and Foreign Corporations

The N-PCL also covers mergers and consolidations in which one or more of the constituent corporations or the

surviving corporation is a foreign corporation. With respect to procedure, including the requirement of approval

by members, each New York corporation must comply with the provisions of the N-PCL relating to merger or

consolidation of domestic corporations, and each foreign corporation must comply with the laws of the jurisdiction

under which it is incorporated.

The N-PCL authorizes a merger or consolidation of two corporations only upon a “ﬁnding that the interests of the

constituent corporations and the public interest will not be adversely affected by the merger.” See, N-PCL Section

907-a(e) 907-b(f).

Where the surviving corporation will be the foreign corporation, in determining whether the Attorney General should

approve the merger or indicate it has no objection to approval of the merger by the Court, the Attorney General will

consider the public interest, as articulated by the Legislature in its adoption of the N-PCL, in the future governance

and regulation of the surviving corporation.

Among the factors that the Attorney General will consider in determining whether the interests of the constituent

corporations or the public interest will be adversely affected are the following:

• whether the existing New York corporation is in compliance with New York statutes and regulations;

• whether the existing foreign corporation is in compliance with applicable New York statutes and regulations;

• whether there is a pending federal or state inquiry or investigation into the conduct of either corporation,

or of its ofﬁcers, directors, donors, members or key persons;

• whether there is any order, judgment, settlement, or agreement that requires the foreign corporation

to engage in, or prohibits it from conducting, activity affecting the surviving corporation’s ability to fulﬁll

its purposes;

• whether either corporation has made a false or incomplete ﬁling with the Ofﬁce of Attorney General or any

other state or federal agency;

• whether either corporation is insolvent or unable to pay its current obligations;

• whether either corporation has ﬁled for bankruptcy;

• whether the New York corporation has signiﬁcant charitable assets currently subject to the oversight

of the Attorney General pursuant to the Estates, Powers, and Trusts Law, or any other statute;

A corporation planning to merge or consolidate has the option of seeking approval of either the Attorney General

or the Supreme Court. If court approval is sought, the application must also be submitted to the Attorney General.

The Attorney General's ofﬁce has found that it is more efﬁcient if applicants submit drafts of their papers for court

approval to the Attorney General for review prior to submission to the Court. That procedure allows an opportunity

to resolve concerns raised by the Attorney General prior to submitting the papers to the Court. Likewise,

applications to the Attorney General should be submitted in draft form initially.

• whether the New York Corporation has signiﬁcant institutional funds or restricted assets subject

to the New York Prudent Management of Institutional Funds Act (N-PCL Article 5-A);

• whether the charitable purposes of the New York Corporation, as articulated in its certiﬁcate of

incorporation, by-laws, or Forms IRS 990 are substantially connected to New York State, a region

in New York State, or a local community in New York State;

• whether the certiﬁcate of incorporation of the New York Corporation is subject to the Approvals, Notices,

and/or Consents set forth in N-PCL Section 404;

• whether the foreign corporation is incorporated in a jurisdiction which is unlikely to permit application

by the New York Attorney General of the provisions of Article 13 of the N-PCL to the surviving corporation;

• whether the foreign corporation is incorporated in a jurisdiction lacking an effective not-for-proﬁt

corporation law or regulatory scheme, including lacking the standards for governance set forth

in Article 7 of the N-PCL, the standards for disclosure and reporting set forth in the Executive Law,

or provisions allowing for dissolution by the Attorney General similar to the provisions of Article 11

of the N-PCL.

• whether there is an objection to the merger by creditors, members, directors, or beneﬁciaries.

If the surviving corporation is a foreign corporation, it must comply with the provisions of the Article 13 of the

N-PCL relating to foreign corporations. It must also deliver to the Department of State a certiﬁcate of merger

which sets forth the information required by N-PCL:

A. The name of each constituent corporation and the name of the surviving corporation. If any constituent

corporation was formed under a different name, the name under which it was formed;

B. For each constituent corporation, a description of the membership and holders of any certiﬁcates

evidencing capital contributions or subventions, including their number, classiﬁcation and voting rights,

if any. If there are none, a statement to that effect;

C. The jurisdiction and date of incorporation of the surviving foreign corporation, the date when its

application for authority to conduct activities in New York was ﬁled by the Department of State and its

ﬁctitious name used in this state. If no such application has been ﬁled, a statement conﬁrming that an

application has not been ﬁled and it will not conduct activities in this state until an application for such

authority has been ﬁled with the Department of State.

D. The date when the certiﬁcate of incorporation of each constituent New York corporation was ﬁled

by the Department of State and the jurisdiction and date of incorporation of each constituent foreign

corporation, other than the surviving foreign corporation, and, in the case of each such corporation

authorized to conduct activities in this state, the date when its application for authority was ﬁled

by the Department of State;

E. An agreement that the surviving corporation may be served with process in this state in any action or

proceeding for the enforcement of any liability or obligation of any domestic corporation or of any foreign

corporation, previously amenable to suit in this state, which is a constituent corporation in the merger,

Quick Statutory Reference Guide:

Deﬁnitions of Charitable

and Non-charitable Corporations .................................................. N-PCL §§ 102 (a)(3-a) and (3-b)

Approval of mergers and consolidations

by the Supreme Court .................................................................................................... N-PCL § 907-a

Approval of mergers and consolidations

by the Attorney General ................................................................................................ N-PCL § 907-b

and an agreement that the surviving foreign corporation may be sued in New York concerning any

property transferred or conveyed to it as provided in N-PCL § 907(c), or the use made of such property,

or any transaction in connection therewith;

F. A designation of the New York Secretary of State as its agent upon whom process against it may be served

and a post ofﬁce address within or without New York to which the Secretary of State shall mail a copy

of the process in such action or special proceeding;

G. The manner in which the plan of merger was approved with respect to each constituent domestic

corporation and that the merger is permitted by, and is in compliance with, the laws of the jurisdiction of

each constituent foreign corporation; and

H. The effective date of the merger if other than the date of ﬁling of the certiﬁcate of merger by the

Department of State. If the surviving corporation is a domestic corporation, the effect of the merger

of one or more foreign and domestic corporations is the same as in the case of a merger of domestic

corporations. If the surviving corporation is a foreign corporation, the effect of the merger is the same

as in the case of a merger of domestic corporations, except insofar as the law of the foreign jurisdiction

provides otherwise.

If the surviving corporation is a New York corporation, the certiﬁcate of merger must be delivered to the New

York Department of State for ﬁling as provided in the N-PCL (see “Certiﬁcate of Merger,” above). The certiﬁcate

of merger that is ﬁled must set forth the jurisdiction and date of incorporation of each constituent foreign

corporation, the date when its application for authority to conduct activities in New York was ﬁled by the

Department of State, and its ﬁctitious name used in this state, if applicable. If the foreign corporation has made

no application for authority to conduct activities in New York State, the certiﬁcate of merger must state no such

application for authority has been made.

In addition to mergers of New York charitable corporations, approval of the Attorney General or the Court is

required for mergers if:

A. One or more New York charitable corporations merges with one or more foreign (non-New York)

corporations, if any constituent corporation is a charitable corporation or would be such if formed under

the N-PCL;

B. One or more religious corporations (formed pursuant to the Religious Corporations Law) merges with one

or more corporations formed for religious purposes to which the N-PCL applies by virtue of N-PCL §103(a).

Quick Statutory Reference Guide:

Merger of Domestic (New York)

Charitable Corporations..................................................................................................... N-PCL § 901

Merger or Consolidation of a New York

Corporation and Foreign (Non-New York) Corporations ............................................... N-PCL § 906

Merger or Consolidation of a Religious Corporation with

a not-for-proﬁt corporation formed for religious purposes ........................................... N-PCL § 910

In addition to securing approval of the Attorney General or the Supreme Court, merging and consolidating

corporations must secure the approval or consent of any government body, ofﬁcer, or person whose approval or

consent was required to form such corporations.

Quick Statutory Reference Guide:

Required Approvals and Consents ....................................................................... N-PCL §§ 909, 404

Approval is not required for mergers where all constituent corporations are noncharitable corporations. However,

mergers of trade or business associations, typically formed in New York as non-charitable corporations, formerly

formed as Type A corporations, must be reviewed by the Attorney General's Antitrust Bureau.

Quick Statutory Reference Guide:

Required Approvals and Consents

for Trade or Business Associations .............................................................................. N-PCL § 404(a)

Although court approval may be required for mergers where all constituent entities are corporations formed

pursuant to the Religious Corporations Law, notice to the Attorney General is not required and the Attorney

General is not a party to such court proceedings. See “Mergers of Religious Corporations With Other Religious

Corporations,” below.

Role of the Attorney General

The Attorney General is a statutory party to any proceeding seeking court approval of a merger or consolidation

where any constituent corporation or the consolidated corporation is, or would be if formed under the N-PCL,

a charitable not-forproﬁt corporation. See N-PCL § 907-a. The N-PCL provides that upon the ﬁling of the

application, the Court shall ﬁx a time for a hearing and direct that notice be given to interested persons, including

the Attorney General and any governmental body or ofﬁcer whose consent or approval is required. See N-PCL

§907-b (b).

Whether the petition seeks approval of a merger from the Court on notice to the Attorney General, or from the

Attorney General alone, the Charities Bureau in New York City or Albany or the appropriate regional ofﬁce of the

Attorney General reviews the papers to make sure that statutory requirements are met, all necessary documents

are included as exhibits to the application, and that any questions raised by the Attorney General's ofﬁce have

been answered. A sample Petition for court approval of a merger is in Appendix A, a sample Petition for Attorney

General's approval is in Appendix B and a checklist of required documents and information is in Appendix C.

Where court approval is sought, the procedure preferred by the Charities Bureau and most courts is for the

petitioner to submit the draft petition and exhibits, including the proposed plan of merger and proposed certiﬁcate

of merger, to the Charities Bureau or the appropriate regional ofﬁce for review in advance of ﬁling with the Court.

This enables the Attorney General to review the papers to ensure that all statutory requirements are met, all

necessary documents are included as exhibits, and any questions of the Attorney General are answered before the

application is submitted to the Court. Substantively, the Attorney General’s review assists the Court to determine

whether all statutory requirements have been met and whether the interests of the constituent corporations and

the public interest will not be adversely affected by the merger, as required by N-PCL § 907(e).

Whether approval is sought from the Attorney General alone or the Court, on notice to the Attorney General, the

Charities Bureau or an Assistant Attorney General in a regional ofﬁce reviews the purposes of each corporation and

whether they are compatible and consistent, or whether any restrictions on future use of funds may be necessary.

The review includes an analysis of the ﬁnancial condition of each constituent corporation, including its short-

term and long-term indebtedness, to assess the likely effect of the merger on all constituent corporations and

the surviving corporation. With respect to hospital mergers, for example, the constituent hospitals will be asked

to provide information as to any reduction in services, facilities or hospital bed counts that would result from the

merger. The Charities Bureau may consult with the Attorney General’s Health Care and Antitrust Bureaus.

The Attorney General also reviews endowment and other restricted funds held by each of the constituent

corporations to ensure that funds held for a particular purpose will continue to be used for the speciﬁed purpose

after the merger. In instances where the continued use of funds for a speciﬁc purpose will become impossible or

impracticable after the merger, the Attorney General will seek to ensure that an appropriate modiﬁcation of the

restriction is ordered by the Court in conjunction with its approval of the merger.

After the Attorney General’s review is complete, if the Attorney General has no objection to the proposed merger,

the Attorney General will, in the case of application to the Attorney General for approval of the merger, provide

the petitioner's attorney with written conﬁrmation in the form of an Attorney General Approval. In the case of an

application to the Court, on notice to the Attorney General, if the Attorney General has no objection to the merger,

the petitioner's attorney will be provided with written conﬁrmation by means of a “No Objection” endorsement.

Such endorsement, typically stamped on the proposed order approving the Certiﬁcate of Merger, will waive

statuary service of the Petition since the papers have already been submitted to and reviewed by the Ofﬁce of

the Attorney General. The petition can then be submitted to the Court and, if a hearing or other court proceeding

is scheduled, the Petitioner must give notice of such proceeding to the Attorney General. In addition, a copy of

the Certiﬁcate of Merger, with a copy of the Court’s order, must be submitted to the Attorney General when the

Certiﬁcate is ﬁled with the Department of State.

If the Attorney General does not approve the Petition or there are other parties that object to the merger and wish

to be heard by the Court, the application must then be made to the Court, on notice to the Attorney General and

any other appropriate parties, for an order approving the merger.

Circumstances in which the Attorney General may determine that court approval is appropriate, include:

• There is opposition to or complaints about the merger by members of a constituent corporation or

members of the public.

• The Attorney General does not object to the merger but, in his discretion, determines that court review is

appropriate because, for example, the merger will have a signiﬁcant impact on the public or, the merger

raises conﬂicts of interests.

• The Attorney Genera does not object to the merger, but, in his discretion, determines that court approval is

necessary because assets of a merging corporation are held for a speciﬁc purpose requiring court approval

pursuant to N-PCL § 907-a (c).

• The Attorney General has objections to the merger which have not been resolved after discussion and, if the

petitioner wishes to proceed, court review is necessary.

Plan of Merger

The ﬁrst step in a merger is adoption of a plan. The board of each corporation proposing to merge must adopt a

plan of merger or consolidation which must set forth the following:

• The name of each constituent corporation and the name of the surviving corporation. If any constituent

corporation was formed under a different name, the name under which it was formed.

• For each constituent corporation, a description of the membership and holders of any certiﬁcates evidencing

capital contributions or subventions, including their number, classiﬁcation and voting rights, if any. If there are

none, a statement to that effect.

• The terms and conditions of the proposed merger, including the manner and basis of converting membership

or other interest in each constituent corporation into membership or other interest in the surviving corporation,

or the cash or other consideration to be paid in exchange for membership or other interest in each constituent

corporation.

Guide to Mergers and Consolidations of Not-for-Proﬁt Corporations /

• In the case of a merger, a statement of any amendments or changes that the merger will effect in the

certiﬁcate of incorporation of the surviving corporation.

• In the case of a consolidation, all statements required to be included in a certiﬁcate of incorporation for

a corporation formed under the N-PCL, except statements of facts not available at the time the plan of

consolidation is adopted.

• In the case of a merger of New York and foreign (non-New York) corporations, a statement of any agreements

required by N-PCL 906(d)(2(D) conﬁrming that any surviving foreign corporation may be served with process

in New York and that the surviving foreign corporation may be sued in New York as required by the N-PCL.

Quick Statutory Reference Guide:

Contents of Plan of Merger or Consolidation .............................................. N-PCL §§ 902(a)(1) - (5)

Agreement concerning service of process on non-New

York constituent corporations........................................................................... N-PCL § 906(d)(2)(D)

Board and Membership Approval of a Plan of Merger

The plan of merger must be approved by the board of each constituent corporation.

If a constituent corporation has members with voting rights, the plan of merger must also be approved by the

members.

For any constituent corporation that has members, notice of a meeting at which a vote on the merger shall take

place must be given to each member, whether or not entitled to vote, with a copy of the plan of merger or an

outline of the plan. The plan of merger must be approved by a two-thirds vote of the members at a meeting where

a quorum is present, provided that the "yes" votes are at least equal to the quorum.

If any constituent corporation has no members entitled to vote, a plan of merger is approved when it is adopted by

the board of such corporation.

Quick Statutory Reference Guide:

Approval of Plan of Merger or Consolidation by the Board ........................................ N-PCL § 903(a)

Notice of Meeting to Members ................................................................ N-PCL §§ 605 and 903(a)(1)

Submission of Plan of Merger or Consolidation to Members ................................. N-PCL § 903(a)(1)

Approval of the Plan of Merger or Consolidation by Members ............... N-PCL §§ 903(a)(2), 613(c)

Certiﬁcate of Merger

After the plan of merger or consolidation is approved, a certiﬁcate of merger or consolidation must be signed on

behalf of each constituent corporation. The certiﬁcate of merger must set forth the following:

• The name of each constituent corporation and, if the name of any constituent corporation has been

changed, the name under which it was formed.

• The name of the surviving corporation.

• For each constituent corporation, a description of the membership and holders of any certiﬁcates

evidencing capital contributions or subventions, including their number, classiﬁcation and voting rights, if

any. If there are none, a statement to that effect.

• In the case of merger, a statement of any amendments or changes in the certiﬁcate of incorporation of the

surviving corporation to be effected by the merger.

• In the case of a consolidation, all statements required to be included in a certiﬁcate of incorporation for

a corporation formed under the N-PCL except statements as to facts not available at the time the plan of

consolidation was adopted by the board.

• The effective date of the merger or consolidation if other than the date of ﬁling of the certiﬁcate of merger

or consolidation by the Department of State.

• The date when the certiﬁcate of incorporation of each constituent corporation was ﬁled by the Department

of State or, in the case of constituent corporations created by special law, the chapter number and year of

passage of such law.

• The manner in which the merger or consolidation was authorized with respect to each constituent

corporation, including the date of the meeting of the directors or members and whether the approval was by

a vote at a meeting or by unanimous written consent.

Quick Statutory Reference Guide:

Contents of Certiﬁcate

of Merger or Consolidation ........................................ N-PCL § 902(a)(1), (2) and (4) and § 904(a)

Approvals by Government Agencies ............................................................. N-PCL§§ 404 and 909

Effective Date of the Certiﬁcate

of Merger or Consolidation ..................................................................................... N-PCL § 904(a)(2)

Statement Required in Certain

Certiﬁcates of Consolidation ................................................................................... N-PCL § 904(a)(3)

Date When Each Constituent Corporation's Certiﬁcate was Filed

and the Chapter Number and Year of Any Law

that Created Any Constituent Corporation ........................................................... N-PCL § 904(a)(4)

Manner in Which each Corporation Authorized

the Merger or Consolidation ................................................................................... N-PCL § 904(a)(5)

Approvals by Government Bodies or Ofﬁcers

If the purposes of any constituent or consolidated corporation would require the approval or consent of any

governmental body or agency to the ﬁling of its certiﬁcate of incorporation, the approval or consent of such

governmental agency must be attached to the certiﬁcate of merger or consolidation before ﬁling with the

Department of State.

Quick Statutory Reference Guide:

Approvals Required for Filing a Certiﬁcate of Incorporation ........................ N-PCL §§ 404, 909

Registration with the Attorney General's Charities

Bureau

If any constituent corporation is required to register with the Attorney General pursuant to Executive Law Article

7-A ("Article 7-A") or Estates, Powers and Trusts Law § 8-1.4 ("EPTL"), it should be registered and its annual

reports should be up to date prior to the merger.

If any such corporation is required to register but has not, or if its reports are delinquent, the Ofﬁce of the Attorney

General will generally require the corporation to register and ﬁle all required annual ﬁnancial reports before

completing its review.

Certain corporations, such as religious corporations, may be exempt from registration. A detailed summary of the

registration and reporting requirements for charitable organizations and a list of statutory exemptions are posted

at charitiesnys.com. Effective November 2018, charities must register online.

Quick Statutory Reference Guide:

Registration of Corporations

Holding Assets in New York ................................................................................................. EPTL § 8-1.4

Registration of Corporations

Soliciting Contributions in New York .........................................................Executive Law, Article 7-A

Procedure for Approval of the Merger by the

Attorney General or the Court, on Notice to the

Attorney General

Venue

An application to obtain Supreme Court approval of the proposed merger may be made in the judicial district in

New York in which the principal ofﬁce of the surviving or consolidated corporation is to be located or in which the

ofﬁce of one of the domestic constituent corporations is located.

An application to obtain the Attorney General's approval of the proposed merger must be submitted to the

Charities Bureau in New York City or Albany or to the appropriate regional ofﬁce of the Attorney General.

Quick Statutory Reference Guide:

Application for Approval of the Court ....................................................... N-PCL §§ 907 and 907-a

Application for approval

of the Attorney General ...............................................................................N-PCL §§ 907 and 907-b

Veriﬁed Petition to the Attorney General or the

Supreme Court

The parties to a proposed merger must prepare a joint afﬁdavit, signed on behalf of both corporations, or a

veriﬁed petition to the Attorney General or the Court seeking approval of the merger. The following documents

must be submitted by the constituent corporations in their application to the Attorney General alone or the Court,

on notice to the Attorney General:

• The plan of merger must be attached as an exhibit.

• Certiﬁcates of incorporation, by-laws and any other governing instruments, including any amendments for

each constituent corporation and any proposed amendments or changes to the certiﬁcate of incorporation or

by-laws of the surviving corporation as a result of the merger and, for non-New York corporations, a certiﬁcate

of good standing from the jurisdiction of incorporation, must be attached as an exhibit.

• For each constituent corporation, a statement that the plan of merger was approved by a vote of the

directors in accordance with law, at a meeting duly called and held. Include a statement of the total number

of directors, the number of the directors present at the meeting, the vote pro and con, and what constitutes a

quorum. A copy of the board resolution, certiﬁed by the secretary, should be attached as an exhibit.

• If there were members entitled to vote, for each such constituent corporation, a statement that the plan of

merger was approved by a vote of the members in accordance with law, at a meeting duly called and held.

Include a statement of the total number of members, the number of the members present at the meeting,

the vote pro and con, and what constitutes a quorum. A copy of the membership resolution, certiﬁed by the

secretary, should be attached as an exhibit.

• The objects and purposes of each corporation that will be promoted by the merger. Include a description

of the purposes and activities of each constituent corporation, an explanation of why the corporations are

merging, and how their purposes will be promoted by the merger.

• A statement describing all property held by the constituent corporations and the manner in which it is

held; and a statement of all liabilities and the amount and sources of the annual income of each constituent

corporation, usually provided in the form of ﬁnancial statements and IRS Form 990 for each corporation, which

should be attached as exhibits.

• A statement whether any votes against adoption of the resolution approving the plan of merger were cast at

the meeting of members or directors at which the resolution was adopted by each constituent corporation.

• A statement of the facts conﬁrming that the merger is authorized by the laws of the jurisdiction in which each

of the constituent corporations was formed. Provide the citation for any jurisdiction outside New York.

• A statement whether or not any of the constituent corporations has restricted funds. If there are restricted

funds, an exhibit should be annexed which identiﬁes for each such restricted fund (a) the amount of the fund,

(b) the historic dollar value of any endowment fund, (c) the nature of the restriction and whether the restriction

is temporary or permanent, (d) the gift instrument or other document(s) containing the restriction and (e) the

provisions of any applicable reversionary or remainder provision. The afﬁdavit or petition should state that

no restricted funds will be required to be returned, transferred or conveyed to any third party by reason of the

merger except as speciﬁcally identiﬁed therein. The afﬁdavit or petition may and should seek cy pres relief

pursuant to N-PCL §907(c) with respect to restrictions which have become obsolete or which would become

impossible or impracticable after the merger. The facts and circumstances supporting cy pres relief, and the

precise nature of the relief requested, should be set forth in detail (see also “Cy Pres Relief in Connection with

Merger,” below).

• All required consents and approvals of any governmental body or ofﬁcer should be attached as exhibits.

• If the application is to the Attorney General for approval, a statement as to whether anyone raised, or has

a reasonable basis to raise, objections to the merger or consolidation, the names and addresses of such

persons, the nature of their interest, and a description of their objections.

Quick Statutory Reference Guide:

Application for Approval of the Supreme Court ....................................... N-PCL §§ 907(a), 907-a(a)

Application for Approval of the Attorney General ................................... N-PCL §§ 907(a), 907-b(b)

In addition, the afﬁdavit or petition should include:

• A list of the names of the directors (sometimes called trustees) of each constituent corporation, and any

anticipated changes in the membership or directors of the constituent corporations that would result from

the merger; as well as any changes in the membership or directors of any such corporation that have already

occurred in connection with pre-merger governance and organizational changes. Copies of supporting

documentation should be attached as exhibits.

• Any letter of intent and any other agreements entered into by any constituent corporation in connection

with the proposed merger. A copy should be attached as an exhibit.

• A description of all governance or organizational changes made by the constituent corporations in

advance of the merger, including changes to or restructuring of their boards of directors and executive

management, with supporting documentation attached as an exhibit.

The Ofﬁce of the Attorney General may request additional documents and information needed in order to review

the application, such as IRS form 1023 or the IRS letter of determination of exempt status.

Proposed Order of the Court or Attorney General

Approval

If the application is made to the Court, it must be accompanied by a proposed order which should include the

following provisions:

• A ﬁnding that the interests of the constituent corporations and the public interest will not be adversely

affected by the merger.

• Any proposed terms and conditions for the merger that the Court has discretion to impose.

• One or more paragraphs granting cy pres relief with respect to assets that require such relief (see “Cy Pres

Relief in Connection with Merger,” below)

• Direction that copies of (a) the order as signed and (b) the certiﬁcate of merger as ﬁled by the Department of

State shall be served on the Attorney General.

If the application is made to the Attorney General, it must be accompanied by a proposed Attorney General

Approval including the following:

• A ﬁnding that the interests of the constituent corporations and the public interest will not be adversely

affected by the merger.

• Any proposed terms and conditions for the merger that the Attorney General in his discretion may prescribe.

• Direction that a copy of the certiﬁcate of merger as ﬁled by the Department of State shall be served on the

Attorney General.

Quick Statutory Reference Guide:

Order of the Supreme Court .......................................................................................N-PCL § 907-a(e)

Approval of the Attorney General .............................................................................N-PCL § 907-b(f)

Cy Pres Relief in Connection with Merger

If any assets of any of the constituent corporations are held for a charitable purpose or if any assets are required

to be used for a particular purpose, but not upon a condition requiring return, transfer or conveyance because

of the merger, the Court may, in its discretion, direct that such assets be transferred or conveyed to the surviving

corporation or to one or more other New York or foreign corporations or organizations engaged in substantially

similar activities, upon an express trust the terms of which shall be approved by the Court. N-PCL § 907-a(c);

see also N-PCL § 513, which generally provides that a charitable corporation holds “full ownership rights” in

any assets held by a corporation “in trust for, or with a direction to apply the same to, any purpose speciﬁed in its

certiﬁcate of incorporation, and shall not be deemed a trustee of an express trust of such assets.”

Notice to Interested Persons and Entities

If the application is made to the Court, after the petition is ﬁled, the Court shall direct that notice of the application

be given to interested persons, including any governmental body or ofﬁcer and any other person or body whose

consent or approval is required by N-PCL § 909. If the Attorney General believes that any individual or body

should receive such notice, he will so inform the petitioners in connection with his review of the proposed merger.

If application is made to the Attorney General alone, the ofﬁce may also direct that notice be given to interested

individuals or entities or may conclude that court approval of the application is necessary.

Quick Statutory Reference Guide:

Attorney General may require notice of application

to interested parties and government agencies ....................................................... N-PCL § 907-b(c)

Notice to Interested Parties ............................................................................. N-PCL §§ 907-a(b), 909

Approval by the Attorney General

Upon completion of the review of the application for approval of the plan and certiﬁcate of merger or

consolidation, the Attorney General may provide approval of the application on the Attorney General Approval, a

sample of which is Appendix E.

Quick Statutory Reference Guide:

Attorney General's Approval of the Application ............................................................N-PCL § 907-b

Disapproval or Conditional Approval

of the Attorney General ................................................................................................N-PCL § 907-b(e)

Attorney General May Conclude that Court

Review is Required ..................................................................................................... N-PCL §§ 907-b(h)

Hearing by the Court

If court approval of the merger is sought, the Court will set a time for a hearing and direct the applicants to give

notice to any interested party, including the Attorney General, any governmental body or ofﬁcer and any other

person or entity whose consent to ﬁling is required. However, as noted above, the procedure preferred by the

Attorney General and most courts is for a draft petition and required attachments to be submitted to the Attorney

General prior to submission to the Court.

If the Court ﬁnds that the applicants have complied with provisions of law applicable to mergers, and that the

interests of the constituent corporations and the public interest will not be adversely affected by the merger, it will

grant an order approving the plan and certiﬁcate of merger. A certiﬁed copy of the court order must be attached

to the certiﬁcate of merger when it is ﬁled with the ofﬁce of the Secretary of State.

If the Court ﬁnds that the interests of non-consenting members are or may be substantially prejudiced by

the proposed merger, the Court may disapprove the plan or may direct a modiﬁcation of it. In the event of a

modiﬁcation, if the Court shall ﬁnd that the interests of any members may be substantially prejudiced by the

proposed merger as modiﬁed, the Court must direct that the modiﬁed plan be submitted to a vote of the members

of the constituent corporations, or if the Court ﬁnds that there is no substantial prejudice, it shall approve the

agreement as so modiﬁed without further approval by the members. Any further vote of members must be

obtained in the same manner as the original vote of the members.

Filing the Certiﬁcate of Merger

After the Supreme Court or the Attorney General has approved the merger, the certiﬁcate of merger must be must

be ﬁled with the Department of State. If the certiﬁcate has been approved by the Attorney General, the Attorney

General's written approval must be attached to the certiﬁcate. If the Supreme Court has approved the certiﬁcate, a

certiﬁed copy of the court's order must be attached to the certiﬁcate.

After the certiﬁcate of merger is ﬁled by the Department of State, the surviving corporation must ﬁle a certiﬁed

copy of the certiﬁcate with the county clerk of each county in which the ofﬁce of a constituent corporation, other

than the surviving corporation, is located, and with the ofﬁce of the recording ofﬁcer in each county in which real

property of a constituent corporation, other than the surviving corporation, is situated.

A copy of the certiﬁcate of merger must also be ﬁled with the Ofﬁce of the Attorney General.

Quick Statutory Reference Guide:

Delivery of Certiﬁcate to Department of State with Information

Concerning Constituent Foreign Corporations ...................................... N-PCL §§ 904 and 906(c)

Filing Certiﬁcate with Secretary of State with Supreme

Court Order or the Attorney General Approval .......................................................... N-PCL § 907(a)

Filing of Certiﬁcates of Religious Corporations ..........................................................................RCL§ 3

Effective Date and Legal Effects of Merger

Effective Date. A merger becomes effective upon the ﬁling of the certiﬁcate of merger by the Department of State,

or on a later date, as stated in the certiﬁcate of merger, which may not be more than 30 days after such ﬁling.

Legal Effects of Merger or Consolidation. The legal effects of merger and consolidation are set forth in the N-PCL

§ 905(b). In brief, the surviving corporation, in a manner consistent with its certiﬁcate of incorporation, acquires

all of the assets, rights and privileges, and assumes all of the obligations, liabilities and penalties, of each of the

constituent corporations, including but not limited to all debts owed to creditors.

In the case of a merger, the certiﬁcate of incorporation of the surviving corporation is automatically amended to

the extent, if any, that changes in its certiﬁcate of incorporation are set forth in the plan of merger and certiﬁcate of

merger.

In the case of a consolidation, the statements set forth in the certiﬁcate of consolidation and which are

required or permitted to be set forth in a certiﬁcate of incorporation of a not-for-proﬁt corporation formed under

the N-PCL constitute the certiﬁcate of incorporation of the consolidated corporation.

Quick Statutory Reference Guide:

Effect of Merger or Consolidation - Date ..................................................................... N-PCL § 905(a)

Effects of Merger or Consolidation - Certiﬁcate,

Property, Liabilities.......................................................................................................... N-PCL § 905(b)

Mergers of Domestic and Foreign Corporations

The N-PCL also covers mergers and consolidations in which one or more of the constituent corporations or the

surviving corporation is a foreign corporation. With respect to procedure, including the requirement of approval

by members, each New York corporation must comply with the provisions of the N-PCL relating to merger

or consolidation of domestic corporations, and each foreign corporation must comply with the laws of the

jurisdiction under which it is incorporated.

If the surviving corporation is a New York corporation, the certiﬁcate of merger must be delivered to the New York

Department of State as provided in N-PCL (see “Certiﬁcate of Merger,” above). In addition, the certiﬁcate must

set forth the jurisdiction and date of incorporation of each constituent foreign corporation and the date when its

application for authority to conduct activities in New York was ﬁled by the Department of State, and its ﬁctitious

name used in this state, if applicable, or, if no such application has been ﬁled, a statement to that effect.

If the surviving corporation is a foreign corporation, it must comply with the provisions of the Article 13 of the

N-PCL relating to foreign corporations. It must also deliver to the Department of State a certiﬁcate of merger

which sets forth the information required by N-PCL:

A. The name of each constituent corporation and the name of the surviving corporation. If any constituent

corporation was formed under a different name, the name under which it was formed;

B. For each constituent corporation, a description of the membership and holders of any certiﬁcates

evidencing capital contributions or subventions, including their number, classiﬁcation and voting rights, if any.

If there are none, a statement to that effect;

C. The jurisdiction and date of incorporation of the surviving foreign corporation, the date when its application

for authority to conduct activities in New York was ﬁled by the Department of State and its ﬁctitious name used

in this state, or, if no such application has been ﬁled, a statement to that effect and that it is not to conduct

activities in this state until an application for such authority has been ﬁled by the Department of State;

D. The date when the certiﬁcate of incorporation of each constituent New York corporation was ﬁled by the

Department of State and the jurisdiction and date of incorporation of each constituent foreign corporation,

other than the surviving foreign corporation, and, in the case of each such corporation authorized to conduct

activities in this state, the date when its application for authority was ﬁled by the Department of State;

E. An agreement that the surviving corporation may be served with process in this state in any action or

proceeding for the enforcement of any liability or obligation of any domestic corporation or of any foreign

corporation, previously amenable to suit in this state, which is a constituent corporation in the merger, and

an agreement that the surviving foreign corporation may be sued in New York in respect of any property

transferred or conveyed to it as provided in N-PCL § 907(c), or the use made of such property, or any

transaction in connection therewith;

F. A designation of the New York Secretary of State as its agent upon whom process against it may be served

and a post ofﬁce address within or without New York to which the Secretary of State shall mail a copy of the

process in such action or special proceeding; and

G. The manner in which the plan of merger was approved with respect to each constituent domestic

corporation and that the merger is permitted by, and is in compliance with, the laws of the jurisdiction of each

constituent foreign corporation, and

H. The effective date of the merger if other than the date of ﬁling of the certiﬁcate of merger by the Department

of State.

If the surviving corporation is a domestic corporation, the effect of the merger of one or more foreign and domestic

corporations is the same as in the case of a merger of domestic corporations. If the surviving corporation is a

foreign corporation, the effect is the same as in the case of a merger of domestic corporations, except insofar as

the law of the foreign jurisdiction provides otherwise.

Quick Statutory Reference Guide:

Merger or Consolidations of Domestic

and Foreign Corporations .............................................................................................. N-PCL § 906(a)

Contents of Certiﬁcate

or Merger or Consolidation .................................................................... N-PCL §§ 904 and 906(d)(2)

Foreign Corporations .................................................................................................... N-PCL Article 13

Mergers of Religious Corporations with Not-for-Proﬁt

Corporations

A corporation formed under the Religious Corporations Law (“RCL”) may merge with a not-for-proﬁt

corporation with religious purposes. Each constituent corporation must comply with the procedures applicable to

mergers of not-for-proﬁt corporations. See "Procedure for Approval of the Merger by the Attorney General or the

Court, on Notice to the Attorney General" above.

The certiﬁcate of merger must be ﬁled with the Department of State or, if the surviving corporation is a religious

corporation, with the county clerk of the county where the corporation maintains its principal ofﬁce. N-PCL §

910(c), (d); RCL § 3.

Quick Statutory Reference Guide:

Merger or Consolidation of Religious Corporations and Not-for-Proﬁt

Corporations Formed for Religious Purposes ..................................................................... N-PCL § 910

Filing of Certiﬁcate of Merger ..............................................................N-PCL § 910(c)(d) and RCL § 3

Mergers of Religious Corporations with Other

Religious Corporations

The Attorney General does not review mergers or consolidations of incorporated churches and other corporations

formed under the Religious Corporations Law. Mergers and consolidations of such corporations are governed by

the applicable provisions of the RCL.

Although Supreme Court approval is required for certain mergers and consolidations of religious corporations,

notice to the Attorney General is not required and the Attorney General does not play a role in such proceedings

(unless requested to do so by the Court).

Quick Statutory Reference Guide:

Consolidation of Incorporated Churches .............................................................................RCL §§ 13

Consolidation of incorporated presbyteries .......................................................................RCL §15-a

Consolidation or Merger of Incorporated

Presbyterian and Lutheran synods ......................................................................................... RCL 15-b

Trusts for Shakers and Friends ..............................................................................................RCL § 202

Consolidation of Jewish Congregations ................................................................... RCL §§ 208-209

Merger and consolidation of Unitarian and Universalist

Societies Unitarian and Universalist Societies ......................................................................RCL § 412

Mergers and Consolidations of Corporations

Chartered by the Regents under the Education Law

Mergers and Consolidation of corporations chartered by the Regents of The University of the State of New York are

governed by Education Law and Article 9 of the N-PCL (except § 907). The Attorney General does not review

such consolidations.

Quick Statutory Reference Guide:

Application of the Not-for-Proﬁt Corporation

Law to Education Corporations ............................................. Education Law §§ 216-a(4) and 223

Conclusion

If you have any questions about the information in this booklet or about the procedures for obtaining Attorney

General review and/or court approval of a proposed merger or consolidation, you may contact the Attorney

General’s Charities Bureau by email to [email protected].gov or any of the Attorney General’s Regional

Ofﬁces for assistance. The addresses and telephone numbers of the Attorney General's regional ofﬁces may be

found at the end of this booklet.

Additional guidance and information for charities as well as forms and instructions for registration are posted at

charitiesnys.com.

Appendix A

Sample Petition for Court Approval of Merger

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF __________________

---------------------------------------------------------------------------- X

In the Matter of the Application of :

(NAME OF CORPORATION) VERIFIED PETITION

Index No.

For an Order Approving Their Plan of Merger Under :

Section 907-a of the Not-for-Proﬁt Corporation Law

and Authorizing the Filing of a Certiﬁcate of Merger :

under Section (904/906) of the Not-for-Proﬁt

Corporation Law :

----------------------------------------------------------------------------- X

TO: THE SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF _________________

Petitioners, (NAME OF CORPORATION and NAME OF CORPORATION) by (NAME

AND TITLE OF OFFICER OF EACH CORPORATION) for their Veriﬁed Petition

herein respectfully allege:

TEXT OF THE PETITION

WHEREFORE, petitioners request an order of this Court, pursuant to Section 907-a of the Not-for-Proﬁt Corporation

Law, approving the Plan of Merger attached as Exhibit __ and authorizing the ﬁling of a Certiﬁcate of Merger, a

copy of which is attached as Exhibit __, and for such other and further relief as may be appropriate.

IN WITNESS WHEREFORE, the corporation has caused this Petition to be executed this

day of (Month) , 20 by

___________________________

(Name of Ofﬁcer and Title)

Name of Attorney

Address of Attorney

Telephone Number of Attorney

Email Address of Attorney

Veriﬁcation

STATE OF NEW YORK )

COUNTY OF _________)

(Name ) , being duly sworn, deposes and says:

I am the (Title) of (Name of Corporation), a corporation named in the above Petition and make this veriﬁcation at

the direction of its Board of Directors. I have read the foregoing Petition and know the contents thereof to be true

of my own knowledge, except those matters that are stated on information and belief and as to those matters I

believe them to be true.

___________________________________

(Signature)

Sworn to before me this

day of (Month) , 20 .

Notary Public

STATE OF NEW YORK )

COUNTY OF _________)

(Name ) , being duly sworn, deposes and says:

I am the (Title) of (Name of Corporation), a corporation named in the above Petition and make this veriﬁcation at

the direction of its Board of Directors. I have read the foregoing Petition and know the contents thereof to be true

of my own knowledge, except those matters that are stated on information and belief and as to those matters I

believe them to be true.

___________________________________

(Signature)

Sworn to before me this

day of (Month) , 20 .

Notary Public

Appendix B

Sample Petition for Attorney General Approval of Merger

ATTORNEY GENERAL OF THE STATE OF NEW YORK

COUNTY OF__________________

------------------------------------------------------------------------------X

In the Matter of the Application of :

(NAME OF CORPORATION) VERIFIED PETITION

For an Order Approving Their Plan of Merger Under :

Section 907-a of the Not-for-Proﬁt Corporation Law

and Authorizing the Filing of a Certiﬁcate of Merger :

under Section (904/906) of the Not-for-Proﬁt

Corporation Law :

----------------------------------------------------------------------------- X

TO: OFFICE OF THE ATTORNEY GENERAL

(Street Address)

(City/Town) , New York (Zip Code)

Petitioners, (NAME OF CORPORATION and NAME OF CORPORATION) by

(NAMES AND TITLES OF OFFICERS) for their Veriﬁed Petition herein respectfully

allege:

TEXT OF THE PETITION (See Appendix A)

WHEREFORE, Petitioners request that the Attorney General, pursuant to Section 907-b of the Not-for-Proﬁt

Corporation Law, approve the Plan of Merger attached as Exhibit __ and authorizing the ﬁling of a Certiﬁcate of

Merger, a copy of which is attached as Exhibit __, and for such other and further relief as may be appropriate.

IN WITNESS WHEREFORE, the corporation has caused this Petition to be executed this

day of (Month) , 20 by

_____________________________________

(Name of Ofﬁcer and Title)

Name of Attorney

Address of Attorney

Telephone Number of Attorney

Email Address of Attorney

Veriﬁcation

STATE OF NEW YORK )

COUNTY OF _________)

(Name ) , being duly sworn, deposes and says:

I am the (Title) of (Name of Corporation), a corporation named in the above Petition, and make this veriﬁcation at

the direction of its Board of Directors. I have read the Petition and know the contents thereof to be true of my own

knowledge, except those matters that are stated on information and belief and as to those matters I believe them

to be true.

___________________________________

(Signature)

Sworn to before me this

day of (Month) , 20 .

Notary Public

STATE OF NEW YORK )

COUNTY OF _________)

(Name ) , being duly sworn, deposes and says:

I am the (Title) of (Name of Corporation), a corporation named in the above Petition, and make this veriﬁcation at

the direction of its Board of Directors. I have read the Petition and know the contents thereof to be true of my own

knowledge, except those matters that are stated on information and belief and as to those matters I believe them

to be true.

___________________________________

(Signature)

Sworn to before me this

day of (Month) , 20 .

Notary Public

Appendix C

Checklist for Documents and Information

Required to be Submitted to the Attorney General in Connection with an Application for the Attorney General's or

the Court's Approval of a Merger.

Following is a checklist of documents required by the Attorney General, whether the application is submitted to the

Attorney General or the Court:

Veriﬁed Petition or Joint Afﬁdavit to the Attorney General or the Court

____ Petition or joint afﬁdavit (initial submission should be in draft form)

Attachments to Petition

___ Plan of merger

___ Proposed certiﬁcate of merger, including the effective date if other than the date it is ﬁled with the Secretary of

State

___ Copies of certiﬁcates of incorporation, by-laws and any other governing instruments for the constituent

corporations and any surviving corporation, and certiﬁcate of good standing for foreign corporations.

____ Board, committee and membership minutes and resolutions, certiﬁed by the secretary, relating to the merger

and any governance or organizational changes that have already taken place or are under consideration.

____ Any letter of intent and any other agreements entered into by any constituent corporation in connection with

the proposed merger.

_____ IRS Form 990 and audited ﬁnancial statements for the past year for each constituent corporation.

____ A list of the endowments or other restricted funds of each constituent corporation; for each fund, specify the

fund’s purposes, the amount in the fund, the historic dollar value of any endowment funds, the name and address

of the custodian, whether any portion of the fund has been pledged or otherwise used to secure loans or other

indebtedness, and the provisions of any applicable reversionary clause; identify funds for which cy pres relief is

sought, including any funds which have not been used for three years or more.

____ Copies of all approvals or consents of governmental bodies or ofﬁcers whose approval or consent is required

for the merger pursuant to N-PCL §§ 909 and 404.

____ A list of the names of the directors (sometimes called trustees) of each constituent corporation, and any

anticipated changes in the membership or directors of the constituent corporations that would result from the

merger; as well as any changes in the membership or directors of any such corporation that have already occurred

in connection with pre-merger governance and organizational changes.

____ Any letter of intent and any other agreements entered into by any constituent corporation in connection with

the proposed merger.

____ Documents supporting all governance or organizational changes made by the constituent corporations

in advance of the merger, including changes to or restructuring of their boards of directors and executive

management.

Court Order or Attorney General Approval

___ If a court order approving the merger is sought, a proposed Order.

___ If the Attorney General's approval is sought, a proposed Attorney General Approval.

Appendix D

Sample Order Approving Merger

At the Supreme Court of

the State of New York,

held in and for the County of

on the __ day of (Month) , 20___.

P R E S E N T :

HON.

Justice.

---------------------------------------------------------------------------- X

In the Matter of the Application of :

(NAME OF CORPORATION) VERIFIED PETITION

Index No.

For an Order Approving Their Plan of Merger Index No.

under Section 907-a of the Not-for-Proﬁt Corporation :

Law and Authorizing the Filing of a Certiﬁcate of

Merger under Section (904/906) of the Not-for-Proﬁt :

Corporation Law

-----------------------------------------------------------------X

ADD BODY OF ORDER WITH RECITATIONS

AND DECRETAL PARAGRAPHS, including

ORDERED, that a signed copy of this Order shall be sent to the New York State Attorney General’s ofﬁce; and it is

further

ORDERED, that a copy of the Certiﬁcate of Merger as ﬁled with the Department of State of New York shall be sent to

the New York State Attorney General’s ofﬁce.

E N T E R:

______________________________________

Justice of the Supreme Court

_____________________________________

Date

Appendix E

Sample Attorney General's Approval of Merger

ATTORNEY GENERAL OF THE STATE OF NEW YORK

COUNTY OF__________________

------------------------------------------------------------------------------X

In the Matter of the Application of :

(NAME OF CORPORATION and NAME OF ATTORNEY GENERAL

CORPORATION) :

For an Approval of Their Plan of Merger

under Section 907-b of the Not-for-Proﬁt Corporation : APPROVAL

Law and Authorizing the Filing of a Certiﬁcate of

Merger under Section (904/906) of the Not-for-Proﬁt :

Corporation Law

------------------------------------------------------------------------------X

1. By Petition veriﬁed on (Date) , (NAMES OF CORPORATIONS) applied to the Attorney General pursuant to Article 9

of the Not-for-Proﬁt Corporation Law for approval of an application to (MERGE OR CONSOLIDATE)

2. The name of the (SURVIVING OR CONSOLIDATED) corporation is (NAME OF CORPORATION)

ADD RECITALS AS WOULD APPEAR IN ORDER

Based on a review of the Petition and the exhibits thereto (and the additional documents and information

requested by the Attorney General), and the veriﬁcations of (NAMES OF CERTIFIERS) , the Attorney General has

determined that the petitioners have complied with the provisions of Article 9 the Not-for-Proﬁt Corporation Law

applicable to the merger of not-for-proﬁt corporations, and neither the Petitioners nor any third party having

raised with the Attorney General any objections to the proposed merger, and it appearing to the satisfaction of

the Attorney General that the interests of the constituent corporations and the public interest will not be adversely

affected by the

merger, the Plan of Merger is approved and the Certiﬁcate of Merger is authorized to be ﬁled with the Department

of State.

A copy of the Certiﬁcate of Merger, as ﬁled with the Department of State shall be sent to

the Attorney General's ofﬁce within 10 days of its ﬁling.

___________________________________________

New York State Attorney General

By:_______________________________________ Date: _______________

Assistant Attorney General

Ofﬁces of the New York State Attorney General

and the Counties Covered by Each:

Albany, Charities Bureau

The Capitol

Albany, NY 12224-0341

(518) 473-5049

Counties: Albany, Columbia, Fulton, Greene,

Hamilton, Montgomery, Rensselaer, Saratoga,

Schenectady, Schoharie, Warren and Washington

*Sullivan and Ulster for trusts and estates

matters only

Binghamton Regional Ofﬁce

44 Hawley Street, 17th Floor

Binghamton, NY 13901-4433

(607) 721-8771

Counties: Broome, Chemung, Chenango,

Delaware, Otsego, Schuyler, Tioga

and Tompkins

Buffalo Regional Ofﬁce

Main Place Tower, Suite 300A

Buffalo, NY 14202

(716) 853-8400

Counties: Allegheny, Cattaraugus, Chautauqua, Erie,

Genesee, Niagara, Orleans and Wyoming

Nassau Regional Ofﬁce

200 Old Country Road, Suite 240

Mineola, NY 11501-4241

(516) 248-3302

Counties: Nassau

*Not for trusts & estates matters. Trusts

and estates matters are handled by NYC.

NYC Charities Bureau,

Transactions Section

28 Liberty Street, 19th Floor

New York, NY 10005

(212) 416-8401

Counties: Bronx, Kings, New York,

Queens and Richmond

*NYC also handles Dutchess, Nassau, Orange,

Putnam, Rockland, Suffolk and Westchester

– trusts and estates matters

Plattsburgh Regional Ofﬁce

43 Durkee Street, Suite 700

Plattsburgh, NY 12901-2818

(518) 562-3288

Counties: Clinton, Essex and Franklin

Poughkeepsie Regional Ofﬁce

One Civic Center Plaza, Suite 401

Poughkeepsie, NY 12601-3157

(845) 485-3900

Counties: Dutchess, Orange, Sullivan & Ulster

*Not for trusts & estates matters. Dutchess and

Orange County trusts and estates matters are

handled by NYC;

Sullivan and Ulster County trusts and estates

matters are handled by Albany

Rochester Regional Ofﬁce

144 Exchange Boulevard

Rochester, NY 14614-2176

(716) 546-7430

Counties: Livingston, Monroe, Ontario, Seneca,

Steuben, Wayne and Yates

Suffolk Regional Ofﬁce

300 Motor Parkway

Hauppauge, NY 11788-5127

(631) 231-2424

Counties: Suffolk

*Trusts and estates matters are handled by NYC

Syracuse Regional Ofﬁce

615 Erie Blvd. West, Suite 102

Syracuse, NY 13204

(315) 448-4800

Counties: Cayuga, Cortland, Madison,

Onondaga and Oswego

Utica Regional Ofﬁce

207 Genesee Street, Room 508

Utica, NY 13501-2812

(315) 793-2225

Counties: Herkimer and Oneida

Watertown Regional Ofﬁce

Dulles State Ofﬁce Building

317 Washington Street

Watertown, NY 13601-3744

(315) 785-2444

Counties: Jefferson, Lewis and St. Lawrence

Westchester Regional Ofﬁce

44 South Broadway

White Plains, NY 10601

(914) 422-8755

Counties: Putnam, Rockland and Westchester

*Not for trusts & estates matters. Trusts and

estates matters are handled by NYC

Charities Bureau Guidance

28 Liberty Street / New York, NY 10005

Ofﬁce of the New York Attorney General

Letitia James

charitiesnys.com / (212) 416-8401 / charities.bureau@ag.ny.gov