Statutes > Illinois Statutes > CHAPTER 805 BUSINESS ORGANIZATIONS > 805 ILCS 5/ Business Corporation Act of 1983. > Article 11 - Merger And Consolidation - Dissenters' Rights

Article 11 - Merger And Consolidation - Dissenters' Rights


      (805 ILCS 5/Art. 11 heading)
ARTICLE 11. MERGER AND CONSOLIDATION ‑
DISSENTERS' RIGHTS

    (805 ILCS 5/11.05) (from Ch. 32, par. 11.05)
    Sec. 11.05. Procedure for merger or consolidation. Any 2 or more corporations may merge into one of such corporations or consolidate into a new corporation in the following manner:
    The board of directors of each corporation shall, by resolution adopted by a majority vote of the members of each such board, approve a plan of merger or consolidation setting forth:
    (a) The names of the corporations proposing to merge or consolidate, and the name of the corporation into which they propose to merge, which is hereinafter designated as the surviving corporation or to consolidate, which is hereinafter designated as the new corporation.
    (b) The terms and conditions of the proposed merger or consolidation and the mode of carrying the same into effect.
    (c) The manner and basis of converting the shares of each merging or consolidating corporation into shares, obligations or other securities of the surviving or new corporation, or into shares, obligations or other securities of any other corporation which immediately before or immediately after the merger or consolidation is effected is the owner of all of the outstanding voting securities of the corporation named as the surviving or new corporation, or into cash or other property, or into any combination of the foregoing.
    (d) A statement of any changes in the articles of incorporation of the surviving corporation to be effected by such merger or a statement of the articles of incorporation of the new corporation.
    (e) Such other provisions with respect to the proposed merger or consolidation as are deemed necessary or desirable, including provisions, if any, under which the proposed merger or consolidation may be abandoned prior to the filing of articles of merger or consolidation by the Secretary of State.
(Source: P.A. 84‑924.)

    (805 ILCS 5/11.10) (from Ch. 32, par. 11.10)
    Sec. 11.10. Procedure for share exchange. A corporation may acquire all of the issued or outstanding shares of one or more classes of another corporation in the following manner:
    The board of directors of each corporation shall, by resolution adopted by a majority vote of members of each such board, approve a plan of exchange setting forth:
    (a) The name of the corporation whose shares will be acquired and the name of the acquiring corporation.
    (b) The terms and conditions of the exchange.
    (c) The manner and basis of exchanging the shares to be acquired for shares, obligations, or other securities of the acquiring corporation or for cash or other property or for any combination of the foregoing.
    (d) Other provisions considered necessary or desirable with respect to the exchange, including provisions, if any, under which the proposed exchange may be abandoned prior to the filing of articles of exchange by the Secretary of State.
    This Section does not limit the power of a corporation to acquire all or part of the shares of one or more classes of another corporation through a voluntary exchange or otherwise by agreement with the shareholders.
(Source: P.A. 85‑1269.)

    (805 ILCS 5/11.15) (from Ch. 32, par. 11.15)
    Sec. 11.15. Call of shareholders' meeting. The board of directors of each corporation, upon approving such plan of merger, consolidation or exchange, shall, if shareholders are entitled to vote on such plan, by resolution, direct that the plan be submitted to a vote at a meeting of shareholders, which may be either an annual or a special meeting. Written notice shall be given to each shareholder of record within the time and in the manner provided by this Act for the giving of notice of meetings of shareholders. Such notice, whether the meeting be an annual or special meeting, shall include a copy or a summary of the plan of merger, consolidation or exchange, as the case may be, and shall also inform the shareholders of their right to dissent in accordance with Section 11.70 and either enclose a copy of Section 11.70 or otherwise provide adequate notice of the procedure to dissent.
(Source: P.A. 83‑1025.)

    (805 ILCS 5/11.20) (from Ch. 32, par. 11.20)
    Sec. 11.20. Approval by shareholders.
    (a) A vote of the shareholders entitled to vote on the proposed plan of merger, consolidation or exchange shall be taken. The plan of merger, consolidation or exchange shall be approved upon receiving by each corporation the affirmative votes of at least two‑thirds of the votes of the shares entitled to vote on the plan unless any class or series of shares of any of such corporations is entitled to vote as a class on the plan in which event, as to such corporation, the plan of merger, consolidation or exchange shall be approved upon receiving the affirmative votes of at least two‑thirds of the votes of the shares of each such class or series of shares entitled to vote as a class on the plan and of the votes of the total shares entitled to vote on the plan. Any class of shares of any such corporation shall be entitled to vote as a class if the articles of incorporation so provide or if the plan of merger, consolidation or exchange, as the case may be, contains any provision which, if contained in a proposed amendment to articles of incorporation, would entitle such class of shares to vote as a class.
    (b) The articles of incorporation of any corporation may supersede the two‑thirds vote requirement of this Section as to that corporation by specifying any smaller or larger vote requirement not less than a majority of the votes of the shares entitled to vote on the issue and not less than a majority of the votes of the shares of each class or series of shares entitled to vote as a class on the issue.
    (c) No vote by the shareholders of a corporation that is a surviving party to a plan of merger or that is the acquiring corporation in a plan of exchange shall be required, unless its articles of incorporation provide to the contrary, if:
        (1) the plan of merger or exchange does not amend in
     any respect the articles of incorporation of such corporation;
        (2) each share of such corporation outstanding
     immediately prior to the effective date of the merger or exchange has the identical designations, preferences, qualifications, limitations, restrictions and special or relative rights immediately after the effective date thereof; and
        (3) either no common shares of the surviving or
     acquiring corporation and no shares, securities or obligations convertible into such shares are to be issued or delivered under the plan of merger or exchange, or the authorized unissued common shares of the surviving or acquiring corporation to be issued or delivered under the plan of merger or plan of exchange, plus those initially issuable upon conversion of any other shares, securities or obligations to be issued or delivered under such plan, do not exceed 20 per cent of the common shares of such corporation outstanding immediately prior to the effective date of the merger or exchange.
(Source: P.A. 89‑48, eff. 6‑23‑95.)

    (805 ILCS 5/11.25) (from Ch. 32, par. 11.25)
    Sec. 11.25. Articles of merger, consolidation or exchange.
    (a) Upon such approval, articles of merger, consolidation or exchange shall be executed by each corporation and filed in duplicate in accordance with Section 1.10 of this Act and shall set forth:
        (1) The plan of merger, consolidation or exchange.
        (2) As to each corporation:
            (i) a statement that the plan was adopted at a
         meeting of shareholders by the affirmative vote of the holders of outstanding shares having not less than the minimum number of votes necessary to adopt such plan, as provided by the articles of incorporation of the respective corporations; or
            (ii) a statement that the plan was adopted by a
         consent in writing signed by the holders of outstanding shares having not less than the minimum number of votes necessary to adopt such plan, as provided by the articles of incorporation of the respective corporations, and in accordance with Section 7.10 of this Act.
    (b) When the provisions of this Section have been complied with, the Secretary of State shall file the articles of merger, consolidation, or share exchange.
(Source: P.A. 92‑33, eff. 7‑1‑01.)

    (805 ILCS 5/11.30) (from Ch. 32, par. 11.30)
    Sec. 11.30. Merger of subsidiary corporation.
    (a) Any corporation, in this Section referred to as the "parent corporation", owning at least 90% of the outstanding shares of each class of shares of any other corporation or corporations, in this Section referred to as the "subsidiary corporation", may merge the subsidiary corporation or corporations into itself or into one of the subsidiary corporations, if each merging subsidiary corporation is solvent, without approval by a vote of the shareholders of the parent corporation or the shareholders of any of the merging subsidiary corporations, upon completion of the requirements of this Section.
    (b) The board of directors of the parent corporation shall, by resolution, approve a plan of merger setting forth:
        (1) The name of each merging subsidiary corporation
     and the name of the parent corporation; and
        (2) The manner and basis of converting the shares of
     each merging subsidiary corporation not owned by the parent corporation into shares, obligations or other securities of the surviving corporation or of the parent corporation or into cash or other property or into any combination of the foregoing.
    (c) A copy of such plan of merger shall be mailed to each shareholder, other than the parent corporation, of a merging subsidiary corporation who was a shareholder of record on the date of the adoption of the plan of merger, together with a notice informing such shareholders of their right to dissent and enclosing a copy of Section 11.70 or otherwise providing adequate notice of the procedure to dissent.
    (d) After 30 days following the mailing of a copy of the plan of merger and notice to the shareholders of each merging subsidiary corporation, or upon the written consent to the merger or written waiver of the 30 day period by the holders of all the outstanding shares of all shares of all such subsidiary corporations, the articles of merger shall be executed by the parent corporation and filed in duplicate in accordance with Section 1.10 of this Act and shall set forth:
        (1) The plan of merger.
        (2) The number of outstanding shares of each class
     of each merging subsidiary corporation and the number of such shares of each class owned immediately prior to the adoption of the plan of merger by the parent corporation.
        (3) The date of mailing a copy of the plan of merger
     and notice of right to dissent to the shareholders of each merging subsidiary corporation.
    (e) When the provisions of this Section have been complied with, the Secretary of State shall file the articles of merger.
    (f) Subject to Section 11.35 and provided that all the conditions hereinabove set forth have been met, any domestic corporation may be merged into or may merge into itself any foreign corporation in the foregoing manner.
(Source: P.A. 92‑33, eff. 7‑1‑01.)

    (805 ILCS 5/11.31)
    Sec. 11.31. Merger of mid‑tier bank holding company into subsidiary bank.
    (a) A mid‑tier bank holding company may merge into its subsidiary in the following manner:
        (1) The mid‑tier bank holding company shall comply
     with the provisions of this Act with respect to the merger of domestic corporations, and the surviving subsidiary bank shall comply with the provisions of Section 30.5 of the Illinois Banking Act.
        (2) Section 11.50 of this Act shall, insofar as it
     is applicable, apply to mergers between mid‑tier bank holding companies and their subsidiary banks.
    (b) For the purpose of this Section 11.31, "mid‑tier bank holding company" means a corporation (1) that owns 100% of the issued and outstanding shares of each class of stock of a State bank, (2) that has no other subsidiaries, and (3) of which 100% of the issued and outstanding shares are owned by a parent bank holding company.
(Source: P.A. 90‑301, eff. 8‑1‑97.)

    (805 ILCS 5/11.32)
    Sec. 11.32. Merger or conversion of trust company into a State bank.
    (a) A trust company may merge into a State bank in the following manner:
        (1) The trust company shall comply with the
     provisions of this Act with respect to the merger of domestic corporations, and the surviving State bank shall comply with the provisions of Section 30 of the Illinois Banking Act.
        (2) Section 11.50 of this Act shall, insofar as it
     is applicable, apply to mergers between trust companies and State banks.
    (b) Whenever a trust company shall effect a conversion into a State bank pursuant to Section 30 of the Illinois Banking Act, it shall forthwith file with the Secretary of State a copy of the certificate of conversion duly authenticated by the Commissioner of Banks and Real Estate. The filing fee shall be the same as for filing articles of merger.
    (c) For the purpose of this Section 11.32, a "trust company" means a corporation organized under this Act for the purpose of accepting and executing trusts.
(Source: P.A. 90‑301, eff. 8‑1‑97.)

    (805 ILCS 5/11.35) (from Ch. 32, par. 11.35)
    Sec. 11.35. Merger, consolidation or share exchange of domestic and foreign corporations. One or more foreign corporations and one or more domestic corporations may be merged or consolidated or their shares exchanged in the following manner, provided such merger, consolidation or exchange is permitted by the laws of the state under which each such foreign corporation is organized:
    (a) Each domestic corporation shall comply with the provisions of this Act with respect to the merger, consolidation or exchange, as the case may be, of domestic corporations and each foreign corporation shall comply with the applicable provisions of the laws of the state under which it is organized.
    (b) If the surviving or new corporation, as the case may be, is to be governed by the laws of any state other than this State, it shall comply with the provisions of this Act with respect to foreign corporations if it is to do business in this State, and in every case it shall file with the Secretary of State of this State:
    (1) an agreement that it may be served with process in this State in any proceeding for the enforcement of any obligation of any domestic corporation which is a party to such merger or consolidation and in any proceeding for the enforcement of the rights of a dissenting shareholder of any such domestic corporation against the surviving or new corporation,
    (2) an irrevocable appointment of the Secretary of State of this State as its agent to accept service of process in any such proceeding, and
    (3) an agreement that it will promptly pay to the dissenting shareholders of any such domestic corporation the amount, if any, to which they shall be entitled under the provisions of this Act with respect to the rights of dissenting shareholders.
    The effect of such merger or consolidation shall be the same as in the case of the merger or consolidation of domestic corporations.
    (c) If the acquiring corporation in a share exchange is governed by the laws of any state other than this State, it shall comply with the provisions of this Act with respect to foreign corporations if it is to do business in this State and, in every case, it shall file with the Secretary of State of this State:
    (1) an agreement that it may be served with process in this State in any proceeding for the enforcement of the rights of a dissenting shareholder of a domestic corporation whose shares are acquired against the acquiring corporation.
    (2) an irrevocable appointment of the Secretary of State of this State as its agent to accept service of process in any such proceeding, and
    (3) an agreement that it will promptly pay to the dissenting shareholders of such domestic corporation the amount, if any, to which they shall be entitled under the provisions of this Act with respect to the rights of dissenting shareholders.
(Source: P.A. 84‑1308.)

    (805 ILCS 5/11.37)(from Ch. 32, par. 11.37)
    Sec. 11.37. Merger or consolidation of domestic or foreign corporations and domestic not for profit corporations.
    (a) One or more domestic corporations or one or more foreign corporations may merge into a domestic not for profit corporation subject to the provisions of the General Not For Profit Corporation Act of 1986, as amended, provided that in the case of a foreign corporation for profit, such merger is permitted by the laws of the State or country under which such foreign corporation for profit is organized.
    (b) Each domestic corporation shall comply with the provisions of this Act with respect to the merger of domestic corporations, each domestic not for profit corporation shall comply with the provisions of the General Not For Profit Corporation Act of 1986, as amended. With respect to merger of domestic not for profit corporations, each foreign corporation for profit shall comply with the laws of the state or country under which it is organized, and each foreign corporation for profit having authority to transact business in this State under the provisions of this Act shall comply with the provisions of this Act with respect to merger of foreign corporations for profit.
    (c) The plan of merger shall set forth, in addition to all matters required by Section 11.05 of this Act, the manner and basis of converting shares of each merging domestic or foreign corporation for profit into membership or other interests of the surviving domestic not for profit corporation, or into cash, or into property, or into any combination of the foregoing.
    (d) The effect of a merger under this Section shall be the same as in the case of a merger of domestic corporations as set forth in subsection (a) of Section 11.50 of this Act.
    (e) When such merger has been effected, the shares of the corporation or corporations to be converted under the terms of the plan cease to exist. The holders of those shares are entitled only to the membership or other interests, cash, or other property or combination thereof, into which those shares have been converted in accordance with the plan, subject to any dissenters' rights under Section 11.70 of this Act.
(Source: P.A. 96‑66, eff. 1‑1‑10.)

    (805 ILCS 5/11.39)
    Sec. 11.39. Merger of domestic corporation and limited liability company.
    (a) Any one or more domestic corporations may merge with or into one or more limited liability companies of this State, any other state or states of the United States, or the District of Columbia, if the laws of the other state or states or the District of Columbia permit the merger. The domestic corporation or corporations and the limited liability company or companies may merge with or into a corporation, which may be any one of these corporations, or they may merge with or into a limited liability company, which may be any one of these limited liability companies, which shall be a domestic corporation or limited liability company of this State, any other state of the United States, or the District of Columbia, which permits the merger pursuant to a plan of merger complying with and approved in accordance with this Section.
    (b) The plan of merger must set forth the following:
        (1) The names of the domestic corporation or
    corporations and limited liability company or companies proposing to merge and the name of the domestic corporation or limited liability company into which they propose to merge, which is designated as the surviving entity.
        (2) The terms and conditions of the proposed merger
    and the mode of carrying the same into effect.
        (3) The manner and basis of converting the shares of
    each domestic corporation and the interests of each limited liability company into shares, interests, obligations, other securities of the surviving entity or into cash or other property or any combination of the foregoing.
        (4) In the case of a merger in which a domestic
    corporation is the surviving entity, a statement of any changes in the articles of incorporation of the surviving corporation to be effected by the merger.
        (5) Any other provisions with respect to the proposed
    merger that are deemed necessary or desirable, including provisions, if any, under which the proposed merger may be abandoned prior to the filing of the articles of merger by the Secretary of State of this State.
    (c) The plan required by subsection (b) of this Section shall be adopted and approved by the constituent corporation or corporations in the same manner as is provided in Sections 11.05, 11.15, and 11.20 of this Act and, in the case of a limited liability company, in accordance with the terms of its operating agreement, if any, and in accordance with the laws under which it was formed.
    (d) Upon this approval, articles of merger shall be executed by each constituent corporation and limited liability company and filed with the Secretary of State. The merger shall become effective for all purposes of the laws of this State when and as provided in Section 11.40 of this Act with respect to the merger of corporations of this State.
    (e) If the surviving entity is to be governed by the laws of the District of Columbia or any state other than this State, it shall file with the Secretary of State of this State an agreement that it may be served with process in this State in any proceeding for enforcement of any obligation of any constituent corporation or limited liability company of this State, as well as for enforcement of any obligation of the surviving corporation or limited liability company arising from the merger, including any suit or other proceeding to enforce the shareholders right to dissent as provided in Section 11.70 of this Act, and shall irrevocably appoint the Secretary of State of this State as its agent to accept service of process in any such suit or other proceedings.
    (f) Section 11.50 of this Act shall, insofar as it is applicable, apply to mergers between domestic corporations and limited liability companies.
    (g) In any merger under this Section, the surviving entity shall not engage in any business or exercise any power that a domestic corporation or domestic limited liability company may not otherwise engage in or exercise in this State. Furthermore, the surviving entity shall be governed by the ownership and control restrictions in Illinois law applicable to that type of entity.
(Source: P.A. 96‑1121, eff. 1‑1‑11.)

    (805 ILCS 5/11.40) (from Ch. 32, par. 11.40)
    Sec. 11.40. Effective date of merger, consolidation or exchange. The merger, consolidation or exchange shall become effective upon filing of the articles of merger, consolidation or exchange by the Secretary of State or on a later specified date, not more than 30 days subsequent to the filing of the articles of merger, consolidation or exchange by the Secretary of State, as may be provided for in the plan.
(Source: P.A. 92‑33, eff. 7‑1‑01.)

    (805 ILCS 5/11.45)
    Sec. 11.45. (Repealed).
(Source: P.A. 93‑59, eff. 7‑1‑03. Repealed by P.A. 96‑1121, eff. 1‑1‑11.)

    (805 ILCS 5/11.50) (from Ch. 32, par. 11.50)
    Sec. 11.50. Effect of merger, consolidation or exchange. (a) When such merger or consolidation has been effected:
    (1) The several corporations parties to the plan of merger or consolidation shall be a single corporation, which, in the case of a merger, is that corporation designated in the plan of merger as the surviving corporation, and, in the case of a consolidation, is the new corporation provided for in the plan of consolidation.
    (2) The separate existence of all corporations parties to the plan of merger or consolidation, except the surviving or new corporation, shall cease.
    (3) Such surviving or new corporation has all the rights, privileges, immunities, and powers and is subject to all the duties and liabilities of a corporation organized under this Act.
    (4) Such surviving or new corporation shall thereupon and thereafter possess all the rights, privileges, immunities, and franchises, as of a public or a private nature, of each of the merging or consolidating corporations; and all property, real, personal, and mixed, and all debts due on whatever account, including subscriptions to shares, and all other choses in action, and all and every other interest, of or belonging to or due to each of the corporations so merged or consolidated, shall be taken and deemed to be transferred to and vested in such single corporation without further act or deed; and the title to any real estate, or any interest therein, vested in any of such corporations shall not revert or be in any way impaired by reason of such merger or consolidation.
    (5) Such surviving or new corporation shall thenceforth be responsible and liable for all the liabilities and obligations of each of the corporations so merged or consolidated; and any claim existing or action or proceeding pending by or against any of such corporations may be prosecuted to judgment as if such merger or consolidation had not taken place, or such surviving or new corporation may be substituted in its place. Neither the rights of creditors nor any liens upon the property of any such corporations shall be impaired by such merger or consolidation.
    (6) In case of a merger, the articles of incorporation of the surviving corporation are deemed to be amended to the extent, if any, that changes in its articles are stated in the articles of merger; and, in the case of a consolidation, the articles of incorporation of the new corporation are set forth in the articles of consolidation.
    (b) When such merger, consolidation or exchange has been effected, the shares of the corporation or corporations to be converted or exchanged under the terms of the plan cease to exist in the case of a merger or consolidation, or are deemed to be exchanged in the case of an exchange. The holders of those shares are entitled only to the money, securities or other property into which those shares have been converted or for which those shares have been exchanged in accordance with the plan, subject to any dissenters' rights under Section 11.70 of this Act.
    (c) The merger, consolidation or exchange of shares of a corporation shall not: (i) prohibit the State from prosecuting a corporation criminally by indictment, information or complaint filed subsequent to its merger, consolidation or exchange for any offenses it committed prior thereto; or (ii) abate or suspend a criminal proceeding which is pending against a corporation on the effective date of said merger, consolidation or exchange.
    (d) Where a corporation has been criminally prosecuted pursuant to subsection (c) herein, and has been convicted and fined for a criminal offense, the surviving or new corporation shall be responsible for the payment of the fine only to the extent of any assets contributed to the merger, consolidation or exchange of shares by the convicted corporation, provided that the surviving or new corporation, at the time of acquisition, did not know, or have reason to know, of the criminal acts which were the basis for the criminal action. In the event the surviving or new corporation did know, or have reason to know, of the criminal acts which were the basis for the criminal action, it shall be responsible for the entire amount of the fine. Nothing herein shall prohibit the State from collecting a fine which was assessed against a corporation from a shareholder to the extent that the corporation may have distributed assets to the shareholder.
(Source: P.A. 85‑1440.)

    (805 ILCS 5/11.55) (from Ch. 32, par. 11.55)
    Sec. 11.55. Sale, lease, exchange, or mortgage of assets in usual and regular course of business. The sale, lease, exchange, mortgage, pledge, or other disposition of all, or substantially all, the property and assets of a corporation, when made in the usual and regular course of the business of the corporation, may be made upon such terms and conditions and for such considerations, which may consist, in whole or in part, of money or property, real or personal, including shares of any other corporation, domestic or foreign, as shall be authorized by its board of directors; and in such case no authorization or consent of the shareholders shall be required.
(Source: P.A. 83‑1025.)