then mergers would become a popular vehicle to escape such things as regulatory enquiries and investigations.
86 Thirdly, the witnesses were taken to some legislative background to the enactment of NRS § 92A.250. Neither witness referred to the legislative background in written evidence, and it was evidently drawn to their attention only shortly before the hearing.
87 Before Mr Bogatz was taken to this material, I asked him if he knew whether NRS § 92A.250 was modelled on the laws of any other state. He said he did not, and said that he did not "know for certain if this section came from some other state, or some model rules".
88 In 1969, the merger of corporations under the NRS was regulated by § 78.495. This provision was referred to by the Supreme Court of Nevada in Lamb. At one point, NRS § 78.495(1) provided –
1. When an agreement of merger or consolidation, or a certificate of ownership and merger, has been signed, acknowledged and filed, as required by this chapter, for all purposes of the laws of this state the separate existence of all the constituent corporations, except that of the surviving corporation in case of merger, shall cease, and the constituent corporations shall thereupon be merged into the surviving corporation, in the case of merger, or shall become the consolidated corporation, in the case of consolidation, and shall possess all the rights, privileges, powers and franchises as well of a public as of a private nature, and be subject to all the restrictions, disabilities and duties of each of the constituent corporations so merged or consolidated, and all and singular, the rights, privileges, powers and franchises of each of the constituent corporations, and all property, real, personal and mixed, and all debts due to any of the constituent corporations on whatever account, as well for stock subscriptions as all other things in action or belonging to each of the constituent corporations, shall be vested in the surviving or consolidated corporation.
(Emphasis added.)
89 Pausing there, the language "subject to all the restrictions, disabilities and duties of each of the constituent corporations so merged" resembles the language in the corresponding provision of the Delaware statute to which I referred at [61] above. Mr Bogatz accepted that these words, which seem to have appeared in the 1969 version of § 78.495(1), did not expressly limit liabilities to pecuniary liabilities, but stated that he would need to read the statute to see to what it was pertaining, and to see the context. My Pyle expressed the opinion that the formulation clearly went beyond pecuniary obligations.
90 In 1991, a Bill was before the Nevada legislature to amend Chapter 78 of the NRS. Those amendments included the addition of the following –
Sec. 16. 1. When a merger takes effect:
