direct fashion, the legal consequences of a merger or share exchange on its effective date. … On the effective date, every disappearing corporation that is a party to the merger disappears into the surviving corporation and the surviving corporation automatically becomes the owner of all real and personal property and becomes subject to all liabilities, actual or contingent, of each disappearing corporation.
94 I pause to note that Mr Bogatz did not agree that the note described the effect of the legislation to the extent that it referred to "all liabilities, actual or contingent".
95 The terms of a Revised Model Business Corporation Act adopted by the Committee on Corporate Laws of the American Bar Association's Section of Corporation, Banking and Business Law, dated Spring 1984, support the statements in other extrinsic material that the relevant provisions of the 1991 Nevada Bill were based upon the Revised Model Act.
The opinions of Mr Pyle
96 Mr Pyle prepared two reports: an initial report dated 1 March 2024, and a supplementary report dated 14 March 2024. The reports have to be read together, for the opinions given in the supplementary report are explanatory of the opinions given in the first report. Some of the opinions expressed by Mr Pyle in response to questions that he was asked went to issues that were not material to the way the case was argued, such as the proper construction of NRS § 92A.250(1)(c), the effect of the merger agreement on any obligation to comply with the reporting notice, and whether the conduct of X Corp's solicitors in responding to the reporting notice was relevant evidence under the laws of the United States. Some aspects of Mr Pyle's evidence went beyond the content of foreign law, and I will put these opinions to one side.
97 As I have already mentioned, Mr Pyle stated that both Nevada and Delaware laws govern the issue whether X Corp is obliged to respond to the reporting notice which the Commissioner gave to Twitter Inc. Mr Pyle maintained this opinion when challenged in cross-examination by senior counsel for X Corp, and maintained that the laws, although differently expressed, were to the same effect. Mr Pyle referred to ss 259 and 261 of the Delaware General Corporation Law and NRS § 92A.250. He expressed the opinion that the laws of both states provided that the obligations of a merged corporation became obligations of a surviving corporation –
In sum, both Delaware and Nevada law provide that the obligations of a merged corporation (such as Twitter, Inc.) become obligations of the surviving corporation (such as X Corp.) following a merger, and any legal proceeding against the merged corporation may continue against the surviving corporation. Neither state's laws, by their terms, exclude any type of obligation, duty or liability from becoming an obligation, duty or liability of the surviving corporation. The plain language of both states' laws indicate that all obligations of Twitter, Inc. have become obligations of X Corp. There is no basis in these laws to treat Twitter, Inc.'s obligation to respond to
