2012 Code of Alabama
Title 10A - ALABAMA BUSINESS AND NONPROFIT ENTITIES CODE.
Chapter 1 - GENERAL PROVISIONS.
Section 10A-1-8.02 - Mergers of entities.
(a) Pursuant to an approved plan of merger, a corporation, limited partnership, limited liability company, general partnership, real estate investment trust, or any other entity may merge with any other entity or entities, whether the other entity or entities are the same or another form of entity.
(b) A plan of merger shall include the following:
(1) The name of each entity that is a party to the merger.
(2) The name of the surviving entity into which the other entity or entities will merge.
(3) The form of the surviving entity and the status in the surviving entity of each owner of an 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 entity, or into money or other property in whole or part.
(6) The street address of the surviving entity's principal place of business.
(c) 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 10A-2-11.03 or Section 10A-2-11.04. 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 Chapter 2. 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 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 the 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 the 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 governing documents. 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 governing documents 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 ENTITY. In the case of an 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 owners of the entity. No merger of any the entity shall be effected without the consent in writing of any owner who has limited liability as an owner of an entity party to the merger, and who shall become an owner without limited liability of the surviving or resulting 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 entities which are to merge.
(2) The public office where the certificate of formation, 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 entities which are to merge.
(4) If the surviving or resulting entity is one in which one or more owners lack limited liability protection, a statement that each owner of an entity party to the merger who is to be an owner of the surviving or resulting entity without limited liability protection has consented in writing to the merger as required by this article.
(5) The name of the surviving or resulting 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 entity, and shall state the address thereof.
(8) That a copy of the plan of merger will be furnished by the surviving or resulting entity, on request and without cost, to any owner of any entity which is a party to the merger.
(g) A certificate of merger shall act as a certificate of termination for any entity which is not the surviving or resulting 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 certificate of formation, if any, of each domestic entity that is a party to the merger is filed. When the certificate of merger 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 entities shall have the following effects:
(1) The separate existence of every entity that is a party to the merger, other than the surviving or resulting entity, ceases.
(2) All property, real, personal, and mixed owned by each of the merged entities; all rights, immunities, and franchises of the merged entities, of a public as well as a private nature; and all debts and obligations due the merged entities, are taken and deemed to be transferred and vested in the surviving or resulting entity without the necessity of any deed or other instrument of conveyance to the surviving or resulting 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 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 filing shall evidence chain of title, but lack of filing does not affect the resulting entity's title to any real property.
(3) The surviving or resulting entity shall be responsible and liable for all the liabilities and obligations of the entities that are parties to the merger; however, neither the rights of creditors nor any liens upon the property of the 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 an 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 entity may be substituted as a party to the action or proceeding.
(5) Service of process in an action or proceeding against a surviving or resulting foreign entity to enforce an obligation of a domestic entity that is a party to a merger may be made by registered mail addressed to the principal office of the surviving entity as set forth in the plan of merger or by any method provided by the Alabama Rules of Civil Procedure. Any notice or demand required or permitted by law to be served on a domestic entity may be served on the surviving or resulting foreign entity by registered mail addressed to the principal office of the surviving entity as set forth in the plan of merger or in any other manner similar to the procedure provided by the Alabama Rules of Civil Procedure for the service of process.
(6) a. No owner of an entity with limited liability protection shall as a result of a merger become an owner of an entity without limited liability protection unless the owner with limited liability protection has given approval in writing for a merger.
b. An owner of an entity with limited liability protection remains liable for an obligation incurred prior to the merger by an entity that ceases to exist as a result of the merger to the extent, if any, the owner would have been liable, if at all, under the laws applicable to owners of the form of entity that ceased to exist if the merger had not occurred.
c. An owner with limited liability protection of an entity that is a party to the merger who becomes an owner without limited liability protection of the surviving or resulting 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 owner without limited liability protection of an entity that ceases to exist as a result of a merger and who as a result of the merger becomes an owner of a surviving or resulting entity with limited liability protection remains liable for an obligation of the entity that ceases to exist incurred before the merger takes effect.
(Act 2000-211, p. 279, §3; §10-15-4; amended and renumbered by Act 2009-513, p. 967, §71.)Disclaimer: These codes may not be the most recent version. Alabama may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
