The Nevada statute
63 The relevant Nevada provision is § 250(1) of Chapter 92A of the Nevada Revised Statutes (NRS), which provides –
92A.250 Effect of merger, conversion or exchange.
1. When a merger takes effect:
- (a) Every other entity that is a constituent entity merges into the surviving entity and the separate existence of every entity except the surviving entity ceases;
- (b) The title to all real estate and other property owned by each merging constituent entity is vested in the surviving entity without reversion or impairment;
- (c) An owner of a constituent entity remains liable for all the obligations of such constituent entity existing at the time of the merger to the extent the owner was liable before the merger;
- (d) The surviving entity has all of the liabilities of each other constituent entity;
- (e) A proceeding pending against any constituent entity may be continued as if the merger had not occurred or the surviving entity may be substituted in the proceeding for the entity whose existence has ceased;
- (f) The articles of incorporation, articles of organization, certificate of limited partnership or certificate of trust of the surviving entity are amended to the extent provided in the plan of merger; and
- (g) The owner's interests of each constituent entity that are to be converted into owner's interests, obligations or other securities of the surviving or any other entity or into cash or other property are converted, and the former holders of the owner's interests are entitled only to the rights provided in the articles of merger or any created pursuant to NRS 92A.300 to 92A.500, inclusive.
The opinions of Mr Bogatz
64 Much of the evidence of Mr Bogatz was directed to the construction that a Nevada court would give to the term "obligations" in NRS § 92A.250(1)(c). That was because this was an issue that he was asked to address. That provision was not relied on by X Corp in final submissions, with senior counsel for X Corp characterising it as a "red herring".
65 Nevertheless, in answering questions about the construction of NRS § 92A.250(1)(c), Mr Bogatz referred to legislative history and public policy as matters that may inform statutory interpretation, citing Nevada case law. In particular, Mr Bogatz cited the following passage
