2006 Louisiana Laws - RS 12:112 — Merger or consolidation procedure

§112.  Merger or consolidation procedure

A.  Merger or consolidation may be effected as follows:

(1)  The board of directors of each of the business, nonprofit and foreign corporations which desire to merge or consolidate shall either enter into an agreement of merger or consolidation signed by a majority of the directors of each, or adopt a resolution approving an agreement of merger or consolidation, in either case prescribing the terms and conditions of merger or consolidation and the mode of carrying the same into effect, and containing such other provisions as are deemed necessary.  If the surviving corporation is a business corporation and the agreement of merger prescribes changes to be effected by the merger in its articles, the agreement shall comply with the requirements of R.S. 12:54(A) to the extent applicable.

(2)  Any of the terms of the agreement of merger or consolidation may be made dependent upon facts ascertainable outside of the agreement, provided that the manner in which such facts shall operate upon the terms of the agreement is clearly and expressly set forth in the agreement of merger or consolidation.  The term "facts", as used in this Paragraph, includes but is not limited to the occurrence of any event, including a determination or action by any person or body, including the corporation.

B.  The agreement must be approved by the shareholders or members of any foreign corporation or corporations to be merged or consolidated, to the extent required by, and, if so required, in the manner provided by the laws under which they were formed, and by the shareholders or members of any nonprofit corporation or corporations involved, if required, in the manner provided in Chapter 2 of this Title.

C.(1)  The agreement shall be submitted to the shareholders of each of the merging or consolidating business corporations at an annual or special meeting.  Written notice shall be given by each such corporation to each shareholder of record on the record date fixed for the meeting, whether or not such shareholder is entitled to vote at the meeting, in the manner provided in R.S. 12:73(D).  A copy or a summary of the agreement shall be included in or enclosed with such notice and the notice shall include, if applicable, the following statement: "Dissenting shareholders who comply with the procedural requirements of the Business Corporation Law of Louisiana will be entitled to receive payment of the fair cash value of their shares if the merger or consolidation is effected upon approval by less than eighty per cent of the corporation's total voting power."

(2)  The agreement must be approved by the shareholders of each business corporation by vote of at least two-thirds of the voting power present, or by such larger or smaller vote (not less than a majority) of the voting power present or of the total voting power as the articles may require.  In addition, if the agreement is an agreement of merger and expressly prescribes a change in the articles of the surviving business corporation which, if contained in a proposed amendment to such corporation's articles, would entitle any class or series of shares of such corporation to vote as a class thereon, the agreement of merger must also be approved by such affirmative vote of the holders of the shares of such class or series as would be required for the adoption of such an amendment to the articles.

D.  The fact that the agreement has been approved by the shareholders or members of each party thereto as provided in this Section shall be certified on the agreement by the respective secretaries or assistant secretaries, and the agreement, so approved and certified, shall be signed and acknowledged by the president or vice-president of each of the corporate parties thereto.

E.(1)  Notwithstanding the requirements of Subsection C, unless required by its articles of incorporation, the agreement need not be submitted pursuant to Subsection C to the shareholders of a corporation surviving a merger if:

(a)  The agreement of merger does not amend in any respect the articles of incorporation of such corporation,

(b)  Each share of such corporation outstanding immediately prior to the effective date of the merger is to be an identical outstanding or treasury share of the surviving corporation after the effective date of the merger, and

(c)  Either no common shares of the surviving corporation and no shares, securities, or obligations convertible into such shares are to be issued or delivered under the agreement of merger, or the authorized unissued common shares or the treasury common shares of the surviving corporation to be issued or delivered under the agreement of merger plus those initially issuable upon conversion of any other shares, securities or obligations to be issued or delivered under such agreement do not exceed fifteen percent of the common shares of such corporation outstanding immediately prior to the effective date of the merger.

(2)  No vote of shareholders of a corporation shall be necessary to authorize a merger or consolidation if no shares of such corporation shall have been issued prior to the adoption by the board of directors of the resolution approving the agreement of merger or consolidation.  If an agreement of merger is adopted by the corporation surviving the merger by action of its board of directors and without the vote of its shareholders pursuant to this Subsection, the secretary or assistant secretary of that corporation shall certify on the agreement that the agreement has been adopted pursuant to this Subsection and that, as of the date of such certificate, the outstanding shares of the corporation were such as to render this Subsection applicable.

F.(1)  The agreement, so adopted, certified, and acknowledged, shall be filed with the secretary of state, or, in lieu thereof, the surviving or resulting corporation may file a certificate of merger or consolidation, executed and acknowledged by the president or vice president of the surviving or resulting corporation, which states:

(a)  The name and state of incorporation of each of the corporations that are parties to the merger or consolidation.

(b)  That an agreement of merger or consolidation has been approved, adopted, certified, executed, and acknowledged by each of the corporations in accordance with this Section.

(c)  The name of the surviving or resulting corporation.

(d)  In the case of a merger, 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.

(e)  In the case of a consolidation, that the articles of incorporation of the resulting corporation shall be as is set forth in an attachment to the certificate.

(f)  That the executed agreement of merger or consolidation is on file at the principal place of business of the surviving corporation, stating the address thereof.

(g)  That a copy of the agreement of merger or consolidation will be furnished by the surviving corporation, on request and without cost, to any shareholder of any corporation that is a party to the merger or consolidation.

(2)(a)  The secretary of state, after all incorporation taxes, fees and charges have been paid, as required by law, shall record the agreement, or certificate in lieu thereof, in his office, endorse thereon the date and, if requested, the hour of filing thereof with him, and issue a certificate of merger or consolidation, which shall recite the names of all of the merging and consolidating corporations, the name of the state or country under the laws of which each was formed, whether a merger or consolidation is involved, the name of the surviving or consolidated corporation, the name of the state or country under the laws of which the consolidated corporation is formed, the date and, if endorsed on the agreement, the hour of filing of the agreement with him, and the effective time of the merger or consolidation, if stated in the agreement or certificate.

(b)  The agreement or certificate may be delivered to the secretary of state in advance, for filing as of any specified date, and, if specified upon such delivery, as of any given time on such date, within thirty days after the date of delivery.  A duplicate original of the certificate of merger or consolidation issued by the secretary of state, shall, within thirty days after issuance of the certificate, be filed for record in the office of the recorder of mortgages in each parish in this state in which any of the corporate parties to the agreement has its registered office, and in the conveyance records of each parish in this state in which any of the corporate parties to the agreement has immovable property, title to which will be transferred as a result of the merger or consolidation.

G.(1)  If a business, nonprofit, or foreign corporation owns at least ninety percent of the outstanding shares of each class of one or more business, nonprofit, or foreign corporations, none of the subsidiary nonprofit corporations has any nonshareholding members, and the laws under which any foreign corporations involved were formed permit merger by the procedure prescribed in this Subsection, the parent may:

(a)  Merge itself, or itself and one or more of such subsidiaries, into one of such subsidiaries, by filing with the secretary of state, who shall record it after all fees and charges have been paid as required by law, a certificate, signed and acknowledged by its president or a vice-president and its secretary or an assistant secretary, setting forth a copy of the resolution of its board of directors effecting such merger and the date of adoption thereof, and stating, if the parent is a business corporation, that the resolution has been approved by the parent's shareholders in the manner and by the vote prescribed in Subsection C of this Section for approval of agreements of merger or consolidation or that no such approval was required by virtue of Subsection E of this Section, or

(b)  Merge into itself one or more such subsidiaries by delivering to the secretary of state, who shall record it after all fees and charges have been paid as required by law, a certificate, signed and acknowledged by its president or a vice-president and its secretary or an assistant secretary, setting forth a copy of the resolution of its board of directors effecting such merger and the date of adoption thereof.

(2)  If the parent owns less than all of the outstanding shares of any subsidiary merged into itself, the resolution of the board of directors shall also state the terms and conditions of the merger, including the shares, secured or unsecured obligations, cash or other consideration to be delivered to the other shareholders of such subsidiary.  If the parent is merged into a subsidiary, the resolution of the board of directors shall also state the shares, secured or unsecured obligations, cash or other consideration to be delivered to the shareholders or members of the parent and any merged subsidiaries.

(3)  A duplicate original of the certificate, issued by the secretary of state, shall be filed for record with the recorder of mortgages of each parish in this state in which each business corporation involved has its registered office, and with the recorder of conveyances of each parish in this state in which any business, nonprofit, or foreign corporation involved owns immovable property, title to which will be transferred as a result of the merger.  A copy of the certificate shall, within twenty days after filing thereof with the secretary of state, be mailed to each shareholder, other than the parent corporation, of each subsidiary involved in the merger, at his last known address.  If the surviving corporation is a business corporation, its name may be changed, effective upon effectiveness of the merger, by inclusion of a provision to that effect in the resolution of the parent corporation's board of directors.

H.(1)  Any agreement of merger or consolidation may contain a provision that at any time prior to the filing of the agreement, or certificate in lieu thereof, with the secretary of state, the agreement may be terminated by the board of directors of any corporation that is a party thereto notwithstanding approval of the agreement by the shareholders of all or any of the corporations that are parties thereto.

(2)  Any agreement of merger or consolidation may contain a provision that the boards of directors of the corporations that are parties thereto may amend the agreement at any time prior to the filing of the agreement, or a certificate in lieu thereof, with the secretary of state, provided that an amendment made subsequent to the adoption of the agreement by the shareholders of any corporation that is a party thereto shall not:

(a)  Alter or change the amount or kind of shares, securities, cash, property and/or rights to be received in exchange for or on conversion of all or any of the shares of any class or series thereof of such corporation,

(b)  Alter or change any term of the articles of incorporation of the surviving corporation to be effected by the merger or consolidation, or

(c)  Alter or change any of the terms and conditions of the agreement if such alteration or change would adversely affect the holders of any class or series thereof of such corporation.

I.  An agreement of merger or consolidation or the certificate referred to in Subsection G may provide that any consideration to be delivered to shareholders or members of any party to the consolidation or merger may consist of cash, property rights, shares or secured or unsecured obligations of any business, nonprofit, or foreign corporation, whether or not a party to the consolidation or merger.

Acts 1968, No. 105, §1; Acts 1970, No. 50, §§7-9, emerg. eff. June 18, 1970, at 5:05 P.M.; Acts 1988, No. 455, §1, eff. July 10, 1988; Acts 1989, No. 612, §1, eff. July 6, 1989; Acts 1990, No. 849, §1, eff. for taxable years after Dec. 31, 1989; Acts 1997, No. 914, §1.


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