Section 10-13-15 Merger.
Section 10-13-15
Merger.
(a) For purposes of this section, the following words shall have the respective meanings ascribed to them:
(1) ALABAMA REAL ESTATE INVESTMENT TRUST. A real estate investment trust organized in compliance with the provisions of this chapter.
(2) BUSINESS TRUST.
a. An entity described in Section 19-3-60.
b. An unincorporated trust or association, including an Alabama real estate investment trust, a common-law trust, or a Massachusetts trust, which is engaged in business and in which property is acquired, held, managed, administered, controlled, invested, or disposed of for the benefit and profit of any person who may become a holder of a transferable unit of beneficial interest in the trust.
(3) FOREIGN BUSINESS TRUST. A business trust organized under the laws of the United States, another state of the United States, or a territory, possession, or district of the United States.
(4) DOMESTIC LIMITED PARTNERSHIP. A partnership formed by two or more persons under the laws of the state and having one or more general partners and one or more limited partners.
(5) FOREIGN LIMITED PARTNERSHIP. A partnership formed under the laws of any state other than the State of Alabama or under the laws of a foreign country and having as partners one or more general partners and one or more limited partners.
(6) DOMESTIC LIMITED LIABILITY COMPANY. A limited liability company formed under the laws of this state.
(7) FOREIGN LIMITED LIABILITY COMPANY. A limited liability company formed under the laws of any state other than the State of Alabama or under the laws of a foreign country.
(b) Unless the declaration of trust provides otherwise, an Alabama real estate investment trust may merge into an Alabama or foreign business trust, into an Alabama or foreign corporation having capital stock, or into a domestic or foreign limited partnership or limited liability company; or one or more business trusts, corporations, domestic or foreign limited partnerships, or limited liability companies may merge into an Alabama real estate investment trust.
(c) A merger shall be approved in the manner provided by this section, except that:
(1) A foreign business trust, an Alabama business trust, other than an Alabama real estate investment trust, a corporation, a domestic or foreign limited partnership, or a domestic or foreign limited liability company party to the merger shall have the merger advised, authorized, and approved in the manner and by the vote required by its declaration of trust, charter, or partnership agreement, and the laws of the place where it is organized.
(2) A merger needs to be approved by an Alabama real estate investment trust successor only by a majority of its entire board of trustees if:
a. The merger does not reclassify or change its outstanding shares or otherwise amend its declaration of trust.
b. The number of shares to be issued or delivered in the merger is not more than 15 percent of the number of its shares of the same class or series outstanding immediately before the merger becomes effective.
(d) The board of trustees of each Alabama real estate investment trust proposing to merge shall:
(1) Adopt a resolution that declares the proposed transaction is advisable in substantially the terms and conditions set forth or referred to in the resolution.
(2) Direct that the proposed transaction be submitted for consideration at either an annual or special meeting of shareholders.
(e) Notice which states that a purpose of a meeting will be to act upon the proposed merger shall be given by each Alabama real estate investment trust in the manner provided for corporations by Chapter 2B of this title, to:
(1) Each of its shareholders entitled to vote on the proposed transaction.
(2) Each of its shareholders not entitled to vote on the proposed transaction, except the shareholders of a successor in a merger if the merger does not alter the contract rights of their shares as expressly set forth in the declaration of trust.
(f) Except as provided in subsection (c) of Section 10-13-6, the proposed merger shall be approved by the shareholders of each Alabama real estate investment trust by the affirmative vote of two-thirds of all the votes entitled to be cast on the matter.
(g) Articles of merger containing the information required by Section 10-2B-11.05, and the other provisions as permitted by that section shall be:
(1) Executed for each party to the articles of merger in the manner required by Article 1 of Chapter 2B of this title.
(2) Filed for the record in the Office of the Secretary of State in accordance with the provisions of Article 1 of Chapter 2B of this title.
(h)(1) A proposed merger may be abandoned before the effective date of the articles of merger:
a. If the articles of merger so provide, by majority vote of the entire board of trustees of any one business trust party to the articles or by a majority of the entire board of directors of any one corporation party to the articles.
b. Unless the articles of merger provide otherwise by a majority vote of the entire board of trustees of each Alabama real estate investment trust party to the articles.
c. By unanimous consent of the members of a limited liability company party to the articles of merger.
d. By unanimous consent of the partners of a limited partnership party to the articles of merger.
(2) If the articles of merger have been filed in the Office of the Secretary of State, notice of the abandonment shall be given promptly to the Secretary of State.
(3)a. If the proposed merger is abandoned as provided in this subsection, no legal liability arises under the articles of merger.
b. An abandonment does not prejudice the rights of any person under any other contract made by a business trust, corporation, limited partnership, or limited liability company party to the proposed articles of merger in connection with the proposed merger.
c. Each shareholder of an Alabama real estate investment trust objecting to a merger of the Alabama real estate investment trust shall have the same rights as an objecting shareholder of an Alabama corporation under Article 13, Chapter 2B of this title, and under the same procedures.
(i) The Secretary of State shall prepare certificates of merger that specify:
(1) The name of each party to the articles of merger.
(2) The name of the successor and the location of its principal office in this state or, if it has none, its principal place of business.
(3) The time the articles of merger are accepted for record by the Secretary of State.
(j) If the successor in a merger is an Alabama real estate investment trust, a merger is effective as of the later of:
(1) The time the Secretary of State accepts the articles of merger for record.
(2) The time established under the articles of merger, not to exceed 30 days after the articles are accepted for record.
(k)(1) If the successor in a merger is a foreign corporation, a foreign limited partnership, a foreign limited liability company, or an Alabama or foreign business trust, other than an Alabama real estate investment trust, the merger is effective as of the later of:
a. The time specified by the law of the place where the successor is organized.
b. The time the Secretary of State accepts the articles of merger for record.
(2) A foreign successor in a merger shall file for record with the judge of probate a certificate from the place where it is organized which certifies the date the articles of merger were filed. However, the failure to file this certificate does not invalidate the merger.
(l)(1) Consummation of a merger has the effects provided in this subsection.
(2) The separate existence of each business trust, corporation, limited partnership, or limited liability company party to the articles of merger, except the successor, ceases.
(3) The shares of each business trust party to the articles of merger which are to be converted or exchanged under the terms of the articles cease to exist, subject to the rights of an objecting shareholder under this section.
(4) In addition to any other purposes and powers set forth in the articles, if the articles of merger provide, the successor has the purposes and powers of each party to the articles.
(5)a. The assets of each party to the articles of merger, including any legacies which it would have been capable of taking, transfer to, vest in, and devolve on the successor without further act or deed.
b. Confirmatory deeds, assignments, or similar instruments to evidence the transfer may be executed and delivered at any time in the name of the transferring party to the articles of merger by its last acting officers or trustees or by the appropriate officers or trustees of the successor.
(6)a. The successor is liable for all the debts and obligations of each nonsurviving party to the articles of merger. An existing claim, action, or proceeding pending by or against any nonsurviving party to the articles of merger may be prosecuted to judgment as if the merger had not taken place, or, on motion of the successor or any party, the successor may be substituted as a party and the judgment against the nonsurviving party to the articles of merger constitutes a lien on the property of the successor.
b. A merger does not impair the rights of creditors or any liens on the property of any business trust, corporation, limited partnership, or limited liability company which is a party to the articles of merger.
(Acts 1995, No. 95-628, p. 1317, §15.)