§ 7-13-68 - Merger and consolidation.
SECTION 7-13-68
§ 7-13-68 Merger and consolidation. –(a) As used in this section, "other business entity" means a corporation, abusiness trust or association, a real estate investment trust, a common-lawtrust, a limited liability corporation, whether foreign or domestic, or anunincorporated business, including a partnership, whether general or limited,but excluding a domestic limited partnership.
(b) Pursuant to an agreement of merger or consolidation, adomestic limited partnership may merge or consolidate with or into one or moredomestic limited partnerships or other business entities formed or organizedunder the laws of the state of Rhode Island or any other state or the UnitedStates or any foreign country or other foreign jurisdiction, with any domesticlimited partnership or other business entity that the agreement provides beingthe surviving or resulting domestic limited partnership or other businessentity. Unless otherwise provided in the partnership agreement, a merger orconsolidation shall be approved by each domestic limited partnership which isto merge or consolidate:
(i) By all general partners; and
(ii) By the limited partners or, if there is more than oneclass or group of limited partners, then by each class or group of limitedpartners, in either case, by limited partners who own more than fifty percent(50%) of the then current percentage or other interest in the profits of thedomestic limited partnership owned by all of the limited partners or by thelimited partners in each class or group, as appropriate.
(2) In connection with a merger or consolidation under thissection, rights or securities of, or interests in, a limited partnership orother business entity which is not a limited partnership or other businessentity which is a constituent party to the merger or consolidation may beexchanged for or converted into cash, property, rights or securities of, orinterests in, the surviving or resulting limited partnership or other businessentity in the merger or consolidation. Despite prior approval, an agreement ofmerger or consolidation may be terminated or amended pursuant to a provisionfor termination or amendment contained in the agreement of merger orconsolidation.
(c) If a domestic limited partnership is merging orconsolidating under this section, the domestic limited partnership or otherbusiness entity surviving or resulting in or from the merger or consolidationshall file a certificate of merger or consolidation in the office of thesecretary of state, stating:
(1) The name and jurisdiction of formation or organization ofeach of the domestic limited partnerships or other business entities which isto merge or consolidate;
(2) That an agreement of merger or consolidation has beenapproved and executed by each of the domestic limited partnerships or otherbusiness entities which is to merge or consolidate;
(3) The name of the surviving or resulting domestic limitedpartnership or other business entity;
(4) The future effective date or time, which shall be a dateor time certain, of the merger or consolidation if it is not to be effectiveupon the filing of the certificate of merger or consolidation;
(5) That the agreement of merger or consolidation is on fileat a place of business of the surviving or resulting domestic limitedpartnership or other business entity, and shall state the address of that placeof business;
(6) That a copy of the agreement of merger or consolidationwill be furnished by the surviving or resulting domestic limited partnership orother business entity, on request and without cost, to any partner of anydomestic limited partnership or any person holding an interest in any otherbusiness entity which is to merge or consolidate; and
(7) If the surviving or resulting entity is not a domesticlimited partnership or corporation organized under the laws of Rhode Island, astatement that the surviving or resulting other business entity agrees that itmay be served with process in Rhode Island in any action, suit or proceedingfor the enforcement of any obligation of any domestic limited partnership whichis to merge or consolidate, irrevocably appointing the secretary of state asits agent to accept service of process in the action, suit or proceeding andspecifying the address to which a copy of the process is to be mailed to it bythe secretary of state. In the event of service under this section on thesecretary of state, the procedures set forth in § 7-1.2-503 areapplicable, except that the plaintiff in any action, suit or proceeding shallfurnish the secretary of state with the address specified in the certificate ofmerger or consolidation provided for in this section and any other addresswhich the plaintiff elects to furnish, together with copies of the process asrequired by the secretary of state, and the secretary of state shall notify thesurviving or resulting other business entity at all addresses furnished by theplaintiff in accordance with the procedures set forth in § 7-1.2-503.
(d) Any failure to file a certificate of merger orconsolidation in connection with a merger or consolidation pursuant to thissection which was effective prior to the effective date of this section doesnot affect the validity or effectiveness of the merger or consolidation.
(e) Unless a future effective date or time is provided in acertificate of merger or consolidation, in which event a merger orconsolidation is effective at that future effective date or time, a merger orconsolidation is effective upon the filing in the office of the secretary ofstate of a certificate of merger or consolidation.
(f) A certificate of merger or consolidation acts as acertificate of cancellation for a domestic limited partnership which is not thesurviving or resulting entity in the merger or consolidation.
(g) Notwithstanding anything to the contrary contained in apartnership agreement, a partnership agreement containing a specific referenceto this subsection may provide that an agreement of merger or consolidationapproved in accordance with subsection (b) may:
(i) Effect any amendment to the partnership agreement; or
(ii) Effect the adoption of a new partnership agreement for alimited partnership if it is the surviving or resulting limited partnership inthe merger or consolidation.
(2) Any amendment to a partnership agreement or adoption of anew partnership agreement made pursuant to the preceding sentence is effectiveat the effective time or date of the merger or consolidation. The provisions ofthis subsection shall not be construed to limit the accomplishment of a mergeror of any of the matters referred to in this section by any other meansprovided for in a partnership agreement or other agreement or as otherwisepermitted by law, including that the partnership agreement of any constituentlimited partnership to the merger or consolidation (including a limitedpartnership formed for the purpose of consummating a merger or consolidation)is the partnership agreement of the surviving or resulting limited partnership.
(h) When any merger or consolidation has become effectiveunder this section, for all purposes of the laws of the state of Rhode Island,all of the rights, privileges and powers of each of the domestic limitedpartnerships and other business entities that have merged or consolidated, andall property, real, personal, and mixed, and all debts due to any of thosedomestic limited partnerships and other business entities, as well as all otherthings and causes of action belonging to each of those domestic limitedpartnerships and other business entities, are vested in the surviving orresulting domestic limited partnership or other business entity, and aresubsequently the property of the surviving or resulting domestic limitedpartnership or other business entity as they were of each of the domesticlimited partnerships and other business entities that have merged orconsolidated. The title to any real property vested by deed or otherwise, underthe laws of the state of Rhode Island, in any of those domestic limitedpartnerships and other business entities, does not revert or in any way becomeimpaired because of this chapter; but all rights of creditors and all liensupon any property of the domestic limited partnerships and other businessentities are preserved unimpaired, and all debts, liabilities and duties ofeach of the domestic limited partnerships and other business entities that havemerged or consolidated subsequently attach to the surviving or resultingdomestic limited partnership or other business entity, and may be enforcedagainst it to the same extent as if the debts, liabilities and duties had beenincurred or contracted by it. Unless otherwise agreed, a merger orconsolidation of a domestic limited partnership, including a domestic limitedpartnership which is not the surviving or resulting entity in the merger orconsolidation, does not require the domestic limited partnership to wind up itsaffairs under § 7-13-46 or pay its liabilities and distribute its assetsunder § 7-13-47.