July 2, 2022

Volume XII, Number 183

Advertisement
Advertisement

July 01, 2022

Subscribe to Latest Legal News and Analysis

June 30, 2022

Subscribe to Latest Legal News and Analysis

June 29, 2022

Subscribe to Latest Legal News and Analysis

Must An Officer's Certificate Always State That The Board Approval?

Recently, I was looking at the form of Officer’s Certificate of Approval of Agreement of Merger on the Secretary of State’s website.  Paragraph 2 of the form states:

“The principal terms of the Agreement of Merger in the form attached were duly approved by the board of directors and by the shareholders of the corporation by a vote that equaled or exceeded the vote required.”

Corporations Code Section 1103 provides that after approval of a merger by the board and any approval of the outstanding shares (Section 152) required by Chapter 12 (commencing with Section 1200), the surviving corporation must file a copy of the agreement of merger with an officers’ certificate of each constituent corporation attached stating that:

  • the total number of outstanding shares of each class entitled to vote on the merger,

  • the principal terms of the agreement in the form attached were approved by that corporation by a vote of a number of shares of each class which equaled or exceeded the vote required, specifying each class entitled to vote and the percentage vote required of each class, or

  •  the merger agreement was entitled to be and was approved by the board alone under the provisions of Section 1201.

If equity securities of a parent of a constituent corporation are to be issued in the merger, the officers’ certificate of that constituent corporation must state either that:

  • no vote of the shareholders of the parent was required, or

  • the required vote was obtained. 

While Corporations Code Section 1200(a) requires board approval of each constituent corporation in a merger reorganization, Section 1103 specifically requires that the officers’ certificate specify board approval only when the merger is entitled to be approved by the board alone. 

© 2010-2022 Allen Matkins Leck Gamble Mallory & Natsis LLP National Law Review, Volume XII, Number 138
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement
Advertisement

About this Author

Keith Paul Bishop, Corporate Transactions Lawyer, finance securities attorney, Allen Matkins Law Firm
Partner

Keith Bishop works with privately held and publicly traded companies on federal and state corporate and securities transactions, compliance, and governance matters. He is highly-regarded for his in-depth knowledge of the distinctive corporate and regulatory requirements faced by corporations in the state of California.

While many law firms have a great deal of expertise in federal or Delaware corporate law, Keith’s specific focus on California corporate and securities law is uncommon. A former California state regulator of securities and financial institutions, Keith has decades of...

949-851-5428
Advertisement
Advertisement
Advertisement