(805 ILCS 210/210)
(Section scheduled to be repealed on January 1, 2008)
Sec. 210.
Merger of limited partnership.
(a) Under a plan of merger approved under subsection (c) of this
Section, any one or more limited partnerships may merge into one of such
limited partnerships or 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 limited partnership or
partnerships and the limited liability company or companies, if any, may
merge with or
into a limited partnership, which may be any one of these limited partnerships,
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 limited partnership or
limited
liability company of this State, any other state of the United States, or the
District
of Columbia, which permits the merger.
(b) A plan of merger must set forth all of the following:
(1) The name of each entity that is a party to the
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(2) The name of the surviving entity into which the
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other entity or entities will merge.
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(3) The type of organization of the surviving entity.
(4) The terms and conditions of the merger.
(5) The manner and basis for converting the
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interests, obligations, or other securities of each party to the merger into interests, obligations, or securities of the surviving entity, or into money or other property in whole or in part.
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(6) The street address of the surviving entity's
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principal place of business.
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(c) The plan of merger required by subsection (b) of this Section must be
approved by
each party to the merger in accordance with all of the following:
(1) In the case of a domestic limited partnership,
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by all of the partners or by the number or percentage of the partners required to approve a merger in the partnership agreement.
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(2) In the case of a limited liability company, in
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accordance with the terms of the limited liability company operating agreement, if any, and in accordance with the laws under which it was formed.
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(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 of merger.
(e) If a limited partnership or partnerships are merging under this Section,
the limited partnership or partnerships and the limited liability company or
companies that are parties to the merger must sign the articles of merger. The
articles of merger shall be delivered to the Secretary of State of this State
for filing.
The articles must set forth all of the following:
(1) The name of each limited partnership and the
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name and jurisdiction of organization of each limited liability company, if any, that is a party to the merger.
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(2) For each limited partnership that is to merge,
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the date its certificate of limited partnership was filed with the Secretary of State.
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(3) That a plan of merger has been approved and
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signed by each limited partnership and each limited liability company, if any, that is a party to the merger.
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(4) The name and address of the surviving limited
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partnership or surviving limited liability company.
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(5) The effective date of the merger.
(6) If a limited partnership is the surviving
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entity, any changes in its certificate of limited partnership that are necessary by reason of the merger.
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(7) If a party to the merger is a foreign limited
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liability company, the jurisdiction and date of the filing of its articles of organization and the date when its application for authority was filed with the Secretary of State of this State or, if an application has not been filed, a statement to that effect.
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(8) If the surviving entity is not a domestic
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limited partnership or limited liability company organized under the laws of this State, an agreement that the surviving entity may be served with process in this State and is subject to liability in any action or proceeding for the enforcement of any liability or obligation of any limited partnership previously subject to suit in this State that is to merge, and for the enforcement, as provided in this Act, of the right of partners of any limited partnership to receive payment for their interest against the surviving entity.
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(f) The merger is effective upon the filing of the articles of merger with
the
Secretary of State of this State, or on a later date as specified in the
articles of
merger not later than 30 days subsequent to the filing of the plan of merger
under
subsection (e) of this Section.
(g) Upon the merger becoming effective, articles of merger shall act as a
certificate of cancellation for a domestic limited partnership which is not the
surviving entity of the merger.
(h) Upon the merger becoming effective, articles of merger may operate
as an amendment to the certificate of limited partnership of the limited
partnership
which is the surviving entity of the merger.
(i) When any merger becomes effective under this Section:
(1) the separate existence of each limited
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partnership and each limited liability company, if any, that is a party to the merger, other than the surviving entity, terminates;
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(2) all property owned by each limited partnership
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and each limited liability company, if any, that is a party to the merger vests in the surviving entity;
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(3) all debts, liabilities, and other obligations of
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each limited partnership and each limited liability company, if any, that is a party to the merger become the obligations of the surviving entity;
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(4) an action or proceeding by or against a limited
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partnership or limited liability company, if any, that is a party to the merger may be continued as if the merger had not occurred or the surviving entity may be substituted as a party to the action or proceeding; and
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(5) except as prohibited by other law, all the
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rights, privileges, immunities, powers, and purposes of each limited partnership and each limited liability company, if any, that is a party to the merger vest in the surviving entity.
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(j) The Secretary of State of this State is an agent for service of process
in an action or proceeding against the surviving foreign entity to enforce an
obligation of any party to a merger if the surviving foreign entity fails to
appoint or
maintain an agent designated for service of process in this State or the agent
for
service of process cannot with reasonable diligence be found at the designated
office. Service is effected under this subsection (j) at the earliest of:
(1) the date the surviving entity receives the
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process, notice, or demand;
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(2) the date shown on the return receipt, if signed
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on behalf of the surviving entity; or
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(3) 5 days after its deposit in the mail, if mailed
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postpaid and correctly addressed.
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(k) Service under subsection (j) of this Section shall be made
by the person instituting the action by doing all of the following:
(1) Serving on the Secretary of State of this State,
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or on any employee having responsibility for administering this Act in his or her office, a copy of the process, notice, or demand, together with any papers required by law to be delivered in connection with service and paying the fee prescribed by subsection (b) of Section 1102 of this Act.
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(2) Transmitting notice of the service on the
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Secretary of State of this State and a copy of the process, notice, or demand and accompanying papers to the surviving entity being served, by registered or certified mail at the address set forth in the articles of merger.
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(3) Attaching an affidavit of compliance with this
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Section, in substantially the form that the Secretary of State of this State may by rule prescribe, to the process, notice, or demand.
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(l) Nothing contained in this Section shall limit or affect the right to
serve any
process, notice, or demand required or permitted by law to be served upon a
limited partnership in any other manner now or hereafter permitted by law.
(m) The Secretary of State of this State shall keep, for a period of 5 years
from the date of service, a record of all processes, notices, and demands
served
upon him or her under this Section and shall record the time of the
service
and the person's action with reference to the service.
(n) 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
the merger of a general partner of a limited partnership that is merging.
(o) If a limited partnership is a constituent party to a merger that
has become effective, but the limited partnership is not the surviving entity
of the
merger, a judgment creditor of a general partner of the 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:
(1) a judgment based on the same claim has been
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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;
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(2) the surviving entity of the merger is a debtor
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(3) the general partner has agreed that the creditor
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need not exhaust the assets of the limited partnership that was not the surviving entity of the merger;
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(4) the general partner has agreed that the creditor
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need not exhaust the assets of the surviving entity of the merger;
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(5) a court grants permission to the judgment
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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 insufficient to satisfy the judgment, that exhaustion of the assets of the surviving entity of the merger is excessively burdensome, or that grant of permission is an appropriate exercise of the court's equitable powers; or
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(6) liability is imposed on the general partner by
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law or contract independent of the existence of the surviving entity of the merger.
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(Source: P.A. 92‑33, eff. 7‑1‑01; 93‑967, eff. 1‑1‑05. Repealed on 1‑1‑2008 by 805 ILCS 215/1401.)
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