Section 304-B:16-a Merger.
I. As used in this section, ""other business entity'' means a domestic or foreign corporation, limited liability company, or partnership, whether general or limited, that is authorized by applicable statute to merge with a limited partnership.
II. Pursuant to an agreement of merger, a limited partnership may merge with or into one or more limited partnerships or other business entities, with such limited partnership or such other business entity as the agreement shall provide being the surviving limited partnership or other business entity.
III. Each such limited partnership and other entity shall enter into a written agreement or plan of merger. The agreement shall state:
(a) The terms and conditions of the merger;
(b) The mode of carrying the same into effect;
(c) The manner of converting the partnership interests of each such limited partnership and the shares or the limited liability company or partnership interests of each such other entity into shares, limited liability company or partnership interests, or other securities of the entity surviving from such merger, and if any partnership interests of any such limited partnership or any shares, limited partnership or limited liability company or partnership interests of any such other entity are not to be converted solely into shares, limited liability company or partnership interests, or other securities of the entity surviving from such merger, the cash, property, rights or securities of any other corporation or entity which the holders of such shares or limited liability company or partnership interests are to receive in exchange for, or upon conversion of, such shares or limited partnership or limited liability company interests and the surrender of any certificates evidencing such shares or interests which cash, property, rights or securities of any other corporation or entity may be in addition to or in lieu of shares, limited liability company or partnership interests, or other securities of the entity surviving from such merger; and
(d) Such other details or provisions as are deemed desirable, including, without limiting the generality of the foregoing, a provision for the payment of cash in lieu of the issuance of fractional shares or interests of the surviving corporation or other entity. Any of the terms of the agreement or plan of merger may be made dependent upon facts ascertainable outside of such agreement or plan provided that the manner in which such facts shall operate upon the terms of the agreement or plan is clearly and expressly set forth in the agreement or plan of merger.
IV. Unless otherwise provided in the partnership agreement, a merger shall be approved by each limited partnership which is to merge (1) by all general partners, and (2) by the limited partners or, if there is more than one class or group of limited partners, then by each class or group of limited partners, in either case, by limited partners who own more than 50 percent of the then current percentage or other interest in the profits of the limited partnership owned by all of the limited partners or by the limited partners in each class or group, as appropriate. In connection with a merger hereunder, rights or securities of, or interests in, a limited partnership or other business entity which is a constituent party to the merger may be exchanged for or converted into cash, property, rights or securities of, or interests in, the surviving limited partnership or other business entity or, in addition to or in lieu thereof, may be exchanged for or converted into cash, property, rights or securities of, or interests in, a limited partnership or other business entity which is not the surviving limited partnership or other business entity in the merger. Notwithstanding prior approval, an agreement of merger may be terminated or amended pursuant to a provision for such termination or amendment contained in the agreement of merger at any time before the certificate of merger is filed.
V. If a limited partnership is merging under this section, the limited partnership or other business entity surviving in the merger shall file in the office of the secretary of state a certificate of merger setting forth:
(a) The name and jurisdiction of formation or organization of each of the limited partnerships or other business entities which is to merge;
(b) That an agreement of merger has been approved and executed by each of the limited partnerships or other business entities which is to merge;
(c) The name of the surviving limited partnership or other business entity;
(d) If a corporation is the surviving entity of the merger, the plan of merger;
(e) If shareholder approval of any corporation party to the merger was not required, a statement to that effect;
(f) If approval of the shareholders of one or more corporations party to the merger or share exchange was required:
(1) The designation, number of outstanding shares, and number of votes entitled to be cast by each voting group entitled to vote separately on the plan as to each corporation; and
(2) Either the total number of votes cast for and against the plan by each voting group entitled to vote separately on the plan or the total number of undisputed votes cast for the plan separately by each voting group and a statement that the number cast for the plan by each voting group was sufficient for approval by that voting group.
(g) In the case of a merger in which a corporation is the surviving entity, such amendments or changes in the articles of incorporation of the surviving corporation as are desired to be effected by the merger, or, if no such amendments or changes are desired, a statement that the articles of incorporation of the surviving corporation shall be its articles of incorporation;
(h) If the surviving business entity is not a corporation, that the executed agreement of merger is on file at the principal place of business of the surviving business entity and the address thereof;
(i) That a copy of the agreement of merger will be furnished by the surviving limited partnership or other business entity, on request and without cost, to any partner or any limited partnership or any person holding an interest in any other business entity which is to merge;
VI. Upon the merger taking effect, a surviving foreign other entity of a merger is deemed:
(a) To appoint the secretary of state as its agent for service of process in a proceeding to enforce any obligation or the rights of dissenting partners of each limited partnership party to the merger; and
(b) To agree that it will promptly pay to the dissenting parties of each limited partnership party to the merger or share exchange the amount, if any, to which they are entitled under RSA 304-C:16-b.
VII. A merger shall be effective upon the effective date and time of the certificate of merger.
VIII. A certificate of merger shall act as a certificate of cancellation for a domestic limited partnership which is not the surviving entity in the merger.
IX. Notwithstanding anything to the contrary contained in a partnership agreement, a partnership agreement containing a specific reference to this paragraph may provide that an agreement of merger approved in accordance with paragraph VII of this section may (1) effect any amendment to the partnership agreement or (2) effect the adoption of a new partnership agreement for a limited partnership if it is the surviving limited partnership in the merger. Any amendment to a partnership agreement or adoption of a new partnership agreement made pursuant to the foregoing sentence shall be effective at the effective time and date of the merger. The provisions of this paragraph shall not be construed to limit the accomplishment of a merger or of any of the matters referred to herein by any other means provided for in a partnership agreement or other agreement or as otherwise permitted by law, including that the partnership agreement of any constituent limited partnership to the merger (including a limited partnership formed for the purpose of consummating a merger) shall be the partnership agreement of the surviving limited partnership.
X. When any merger shall have become effective under this section, for all purposes of the laws of the state of New Hampshire, all of the rights, privileges and powers of each of the limited partnerships and other business entities that have merged, and all property, real, personal and mixed, and all debts due to any of said limited partnerships and other business entities, as well as all other things and causes of action belonging to each of such limited partnerships and other business entities, shall be vested in the surviving limited partnership or other business entity, and shall thereafter be the property of the surviving limited partnership or other business entity as they were of each of the limited partnerships and other business entities that have merged, and the title to any real property vested by deed or otherwise, under the laws of the state of New Hampshire, in any of such limited partnerships and other business entities, shall not revert or be in any way impaired by reason of this chapter; but all rights of creditors and all liens upon any property of any of said limited partnerships and other business entities shall be preserved unimpaired, and all debts, liabilities and duties of each of the limited partnerships and other business entities that have merged shall thenceforth attach to the surviving limited partnership or other business entity, and may be enforced against it to the same extent as if said debts, liabilities, and duties had been incurred or contracted by it. Unless otherwise agreed, a merger of a limited partnership, including a limited partnership which is not the surviving entity in the merger, shall not require such limited partnership to wind up its affairs under RSA 304-B:46 or pay its liabilities and distribute its assets under RSA 304-B:47.
XI. Except as provided by agreement with a person to whom a general partner of a limited partnership is obligated, a merger of a limited partnership that has become effective shall not affect any obligation or liability existing at the time of such merger of a general partner of a limited partnership which is merging.
XII. If a limited partnership is a constituent party to a merger that shall have become effective, but the limited partnership is not the surviving entity of the merger, then a judgment creditor of a general partner of such limited partnership may not levy execution against the assets of the general partner to satisfy a judgment based on a claim against the surviving entity of the merger unless:
(a) A judgment based on the same claim has been obtained against the surviving entity of the merger and a writ of execution on the judgment has been returned unsatisfied in whole or in part;
(b) The surviving entity of the merger is a debtor in bankruptcy;
(c) The general partner has agreed that the creditor need not exhaust the assets of the limited partnership that was not the surviving entity of the merger;
(d) The general partner has agreed that the creditor need not exhaust the assets of the surviving entity of the merger;
(e) A court grants permission to the judgment creditor to levy execution against the assets of the general partner based on a finding that the assets of the surviving entity of the merger that are subject to execution are clearly insufficient to satisfy the judgment, that exhaustion of the assets of the surviving entity of the merger is excessively burdensome, or that the grant of permission is an appropriate exercise of the court's equitable powers; or
(f) Liability is imposed on the general partner by law or contract independent of the existence of the surviving entity of the merger.
Source. 1997, 120:14, eff. Aug. 8, 1997.