Section 10-15-4 Mergers of business entities.
Section 10-15-4
Mergers of business entities.
(a) Pursuant to the adoption of an approved plan of merger, a corporation, limited partnership, limited liability company, general partnership, real estate investment trust, or other business entity may merge with any other form of business entity or entities.
(b) A plan of merger shall include the following:
(1) The name of each business entity that is a party to the merger.
(2) The name of the surviving entity into which the other business entity or entities will merge.
(3) The form of business entity of the surviving business entity and the status in the surviving business entity of each equity owner of a business entity that is a party to the merger.
(4) The terms and conditions of the merger.
(5) The manner and basis of converting the interests of each party to the merger into interests or obligations of the surviving business entity, or into money or other property in whole or part.
(6) The street address of the surviving business entity's principal place of business.
(c) Equity owners shall approve and consent to a plan of merger as follows:
(1) CORPORATIONS. In the case of a corporation that is a party to a merger, the plan of merger shall be approved in accordance with the procedures and by the shareholder vote required by Section 10-2B-11.03, or any successor provision. If the articles of incorporation provide for approval of a merger by less than all of a corporation's shareholders, approval of the merger shall constitute corporate action subject to dissenter's rights pursuant to Article 13 of the Alabama Business Corporation Act, or successor law. No merger of a corporation into a general or limited partnership may be effected without the consent in writing of each shareholder who is to be a general partner in the resulting or surviving business entity, notwithstanding any provision in the articles of incorporation of the corporation that is a party to the merger providing for less than unanimous shareholder approval for such conversion.
(2) LIMITED PARTNERSHIPS. In the case of a limited partnership that is a party to the merger, the plan of merger shall be approved in writing by all of the partners or as otherwise provided in the partnership agreement. No merger of a limited partnership with a general partnership in which the general partnership is the surviving or resulting entity may be effected without the consent in writing of each limited partner who is to be a general partner in the surviving or resulting entity, notwithstanding any provision in the limited partnership agreement of the merging limited partnership providing for approval of such merger by less than all partners.
(3) LIMITED LIABILITY COMPANIES. In the case of a limited liability company that is a party to the merger, the plan of merger shall be approved in writing by all of the limited liability company's members or as otherwise provided in the limited liability company's articles of organization or operating agreement. No merger of a limited liability company with a general or limited partnership that is the surviving or resulting entity may be effected without the consent in writing of each member who is to be a general partner in the surviving or resulting entity, notwithstanding any provision in the articles of organization or operating agreement of the merging limited liability company providing for less than unanimous shareholder approval for a merger.
(4) GENERAL PARTNERSHIPS, INCLUDING REGISTERED LIMITED LIABILITY PARTNERSHIPS. In the case of a general partnership that is a party to the merger, the plan of merger shall be approved in writing by all of the partners or as otherwise provided in the partnership agreement. No merger of a registered limited liability partnership into a general or limited partnership may be effected without the consent in writing of each partner who is to be a general partner without limited liability in the surviving or resulting entity, notwithstanding any provision in the partnership agreement of the registered limited liability partnership providing for less than unanimous partner approval for a merger.
(5) REAL ESTATE INVESTMENT TRUST. In the case of a real estate investment trust that is a party to the merger, the plan of merger shall be approved in writing by all of the trust's shareholders except as otherwise provided in the trust's declaration of trust, but in no case may the vote required for shareholder approval be set at less than two-thirds of all the votes entitled to be cast. No merger of a real estate investment trust with a general or limited partnership that is to be the surviving or resulting entity may be effected without the consent in writing of each shareholder who is to be a general partner in the surviving or resulting business entity.
(6) OTHER BUSINESS ENTITY. In the case of a business entity other than a corporation, limited partnership, limited liability company, general partnership, or real estate investment trust that is a party to the merger, by approval in writing of all of the equity owners of such business entity. No merger of any such business entity shall be effected without the consent in writing of any equity owner with limited liability protection of a business entity that is a party to the merger, and who is to become an equity owner without limited liability protection of the surviving or resulting business entity.
(d) After a plan of merger is approved and before the merger takes effect, the plan may be amended or abandoned as provided in the plan, or if the plan does not provide for amendment or abandonment, in the same manner as required for the approval of the plan of merger originally.
(e) The merger takes effect on the later of the following dates and times:
(1) The filing of the certificate of merger with the Secretary of State.
(2) Any delayed effective date and time specified in the certificate of merger. If a delayed effective date is specified but no time is specified, the merger is effective at the close of business on that day.
(f) The certificate of merger shall include the following:
(1) The names of each of the business entities which are to merge.
(2) The public office where the formation document, if any, of each of the parties to the merger is filed.
(3) A statement that a plan of merger has been approved and executed by each of the business entities which are to merge.
(4) If the surviving or resulting entity is one in which one or more equity owners lack limited liability protection, a statement that each equity owner with limited liability protection of a business entity that is a party to the merger who is to become an equity owner without limited liability protection of the surviving or resulting business entity has consented in writing to the conversion as required by this chapter.
(5) The name of the surviving or resulting business entity.
(6) The date, or date and time, on which the merger becomes effective if it is not to be effective upon the filing of the certificate of merger.
(7) That the plan of merger is on file at a place of business of the surviving or resulting business entity, and shall state the address thereof.
(8) That a copy of the plan of merger will be furnished by the surviving or resulting business entity, on request and without cost, to any equity owner of any business entity which is a party to the merger.
(g) A certificate of merger shall act as a termination document for any business entity which is not the surviving or resulting business entity in the merger.
(h) The certificate of merger shall be filed with the Secretary of State and shall also be recorded in the office of the judge of probate in the county in which the formation document, if any, of each domestic business entity that is a party to such merger is filed. When the certificate is filed with the Secretary of State, the matters covered by the certificate shall be effective as stated therein, and a copy of the certificate certified by the Secretary of State shall be conclusive evidence of the matters covered therein.
(i) The merger of business entities shall have the following effects:
(1) The separate existence of every business entity that is a party to the merger, other than the surviving or resulting business entity, ceases.
(2) All property, real, personal, and mixed owned by each of the merged business entities; all rights, immunities, and franchises of the merged business entities, of a public as well as a private nature; and all debts and obligations due the merged business entities, are taken and deemed to be transferred and vested in the surviving or resulting business entity without the necessity of any deed or other instrument of conveyance to the surviving or resulting business entity and without payment and without collection by any filing officer of any deed or other transfer tax or fee. A certified copy of the certificate of merger may be filed in the real estate records in the office of the judge of probate in any county in which any business entity a party to the merger owned real property, to be recorded without payment and without collection by the judge of probate of any deed or other transfer tax or fee. The judge of probate shall, however, be entitled to collect the filing fees prescribed by Section 12-19-90. Any such filing shall evidence chain of title, but lack of filing does not affect the resulting business entity's title to such real property.
(3) The surviving or resulting business entity shall be responsible and liable for all the liabilities and obligations of the business entities that are parties to the merger; however, neither the rights of creditors nor any liens upon the property of the business entities that are parties to the merger shall be impaired by the merger.
(4) Any claim existing or action or proceeding, of any kind, pending by or against a business entity that is a party to the merger may be prosecuted or continued as if the merger had not occurred, or the surviving or resulting business entity may be substituted as a party to the action or proceeding.
(5) The Secretary of State of this state shall be the agent for service of process in an action or proceeding against a surviving or resulting foreign business entity to enforce an obligation of a domestic business entity that is a party to a merger. The surviving or resulting business entity shall promptly notify the Secretary of State of the mailing address of its chief executive office and any change of address. Upon receipt of process, the Secretary of State shall mail a copy of the process to the surviving or resulting foreign business entity.
(6) a. No equity owner with limited liability protection shall as a result of a merger become an equity owner without limited liability protection unless such equity owner with limited liability protection has given approval in writing for such a merger.
b. An equity owner with limited liability protection remains liable for an obligation incurred prior to the merger by a business entity that ceases to exist as a result of the merger to the extent, if any, such equity owner would have been liable, if at all, under the laws applicable to equity owners of the form of business entity that ceased to exist if such merger had not occurred.
c. An equity owner with limited liability protection of a business entity that is a party to the merger who becomes an equity owner without limited liability protection of the surviving or resulting business entity is liable for an obligation of the surviving or resulting entity incurred after merger to the extent provided for by the laws applicable to the surviving or resulting entity.
(7) An equity owner without limited liability protection of a business entity that ceases to exist as a result of a merger and who as a result of the merger becomes an equity owner with limited liability protection of a surviving or resulting business entity remains liable for an obligation of the business entity that ceases to exist incurred before the merger takes effect.
(Act 2000-211, p. 279, §3.)