2021 Oklahoma Statutes
Title 18. Corporations
§18-1090.2. Merger or consolidation of a domestic corporation and an entity.

MERGER OR CONSOLIDATION OF A DOMESTIC

CORPORATION AND AN ENTITY

A. Any one or more domestic corporations may merge or consolidate with one or more domestic or foreign entities, unless the laws of the jurisdiction or jurisdictions under which such entity or entities are formed prohibit the merger or consolidation. A corporation or corporations and one or more entities may merge with or into a surviving corporation, which may be any one of the corporations, or they may merge with or into a surviving entity, which may be any one of the entities, or they may consolidate into a new resulting corporation or entity formed by the consolidation, which shall be a domestic corporation or a domestic or foreign entity formed, pursuant to an agreement of merger or consolidation, as the case may be, complying and approved in accordance with this section. As used in this section, "entity" means a domestic or foreign partnership whether general or limited, and including a limited liability partnership and a limited liability limited partnership, a limited liability company, and any unincorporated nonprofit or for-profit association, trust or enterprise having members or having outstanding shares of stock or other evidences of financial, beneficial or membership interest therein, whether formed by agreement or under statutory authority or otherwise formed under the laws of this state or the laws of any other jurisdiction. The "articles" of an entity mean the articles of organization, certificate of formation or equivalent document filed with the jurisdiction to form the entity.

B. Each corporation and entity merging or consolidating shall enter into a written agreement of merger or consolidation. The agreement shall state:

1. The terms and conditions of the merger or consolidation;

2. The mode of carrying the consolidation into effect;

3. In the case of a merger in which the surviving entity is a domestic corporation or entity, such amendments or changes in the certificate of incorporation of the surviving corporation or articles of the surviving entity as are desired to be effected by the merger, which amendments or changes may amend and restate the certificate of incorporation of the surviving corporation or articles of the surviving entity in its entirety, or, if no such amendments or changes are desired, a statement that the certificate of incorporation of the surviving corporation or articles of the surviving entity shall be its certificate of incorporation or articles;

4. In the case of a consolidation in which the resulting entity is a domestic corporation or entity, that the certificate of incorporation of the resulting corporation or articles of the resulting entity shall be as is set forth in an attachment to the agreement;

5. The manner, if any, of converting the shares of stock or memberships or membership interests of each such corporation and the memberships, or membership, economic or ownership interests of each entity into shares, memberships, or membership, economic or ownership interests, or other securities of the entity surviving or resulting from the merger or consolidation, or of canceling some or all of the shares or interests, and if any shares, memberships or interests are not to remain outstanding, to be converted solely into shares, memberships, interests, or other securities of the entity surviving or resulting from the merger or consolidation or to be canceled, the cash, property, rights, or securities of any other rights or securities of any other corporation or entity which the holders of such shares, memberships, or interests are to receive in exchange for, or upon conversion of, the shares, memberships or interests and the surrender of any certificates evidencing them, which cash, property, rights, or securities of any other corporation or entity may be in addition to or in lieu of shares, memberships, interests or other securities of the entity surviving or resulting from the merger or consolidation;

6. Other details or provisions as are deemed desirable including, but not limited to, a provision for the payment of cash in lieu of the issuance or recognition of fractional shares, rights, other securities or interests of the surviving or resulting corporation or entity or of any other corporation or entity the shares, rights, other securities or interests of which are to be received in the merger or consolidation, or for some other arrangement with respect thereto, consistent with Section 1036 of this title; and

7. Such other provisions or facts as required to be set forth in an agreement of merger or consolidation by the laws of each jurisdiction under which any of the entities is formed.

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.

C. The agreement required by subsection B of this section shall be adopted, approved, certified, executed, and acknowledged by each of the corporations in the same manner as is provided in Section 1081 of this title and, in the case of the entities, in accordance with their constituent agreements and in accordance with the laws of the jurisdiction under which they are formed, as the case may be; provided that no holder of securities, membership or an interest in a constituent entity who has not voted for or consented to the merger or consolidation shall be required to accept a membership or interest in the surviving or resulting entity if acceptance would expose the holder to personal liability for the debts of the surviving entity. The agreement shall be filed and recorded and shall become effective for all purposes of the laws of this state when and as provided in Section 1081 or 1084 of this title with respect to the merger or consolidation of domestic corporations. In lieu of filing and recording the agreement of merger or consolidation, the surviving or resulting corporation or entity may file a certificate of merger or consolidation, executed in accordance with Section 1007 of this title if the surviving or resulting entity is a corporation, or by a person authorized to act for the entity, if the surviving or resulting entity is an entity, which states:

1. The name, jurisdiction of formation or organization, and type of entity of each of the constituent entities;

2. That an agreement of merger or consolidation has been approved, adopted, certified, executed, and acknowledged by each of the constituent entities in accordance with this subsection;

3. The name of the surviving or resulting corporation or entity;

4. In the case of a merger in which a corporation is the surviving entity, any amendments or changes in the certificate of incorporation of the surviving corporation, which may be amended and restated, that are desired to be effected by the merger, which amendments or changes may amend and restate the certificate of incorporation of the surviving corporation in its entirety, or, if no amendments or changes are desired, a statement that the certificate of incorporation of the surviving corporation shall be its certificate of incorporation;

5. In the case of a consolidation in which a corporation is the resulting entity, that the certificate of incorporation of the resulting corporation shall be as set forth in an attachment to the certificate;

6. In the case of a consolidation in which an entity other than a corporation is the resulting entity, that the articles of the resulting entity shall be as set forth in an attachment to the certificate;

7. That the executed agreement of consolidation or merger is on file at the principal place of business of the surviving or resulting corporation or entity and the address thereof;

8. That a copy of the agreement of consolidation or merger shall be furnished by the surviving or resulting entity, on request and without cost, to any shareholder of any constituent corporation or any member of any constituent entity; and

9. The agreement, if any, required by subsection D of this section.

D. If the entity surviving or resulting from the merger or consolidation is a foreign entity, the entity shall agree that it may be served with process in this state in any proceeding for enforcement of any obligation of any constituent domestic corporation or domestic entity, as well as for enforcement of any obligation of the surviving or resulting corporation or entity arising from the merger or consolidation, including any suit or other proceeding to enforce the right of any shareholders as determined in appraisal proceedings pursuant to the provisions of Section 1091 of this title, and shall irrevocably appoint the Secretary of State as its agent to accept service of process in any such suit or other proceedings and shall specify the address to which a copy of any process shall be mailed by the Secretary of State. In the event of service upon the Secretary of State pursuant to Section 2004 of Title 12 of the Oklahoma Statutes, the Secretary of State shall forthwith notify the surviving or resulting corporation or entity by a letter, sent by certified mail with return receipt requested, directed to the surviving or resulting corporation or entity at its specified address, unless the surviving or resulting corporation or entity shall have designated in writing to the Secretary of State a different address for that purpose, in which case it shall be mailed to the last address designated. Such letter shall enclose a copy of the process and any other papers served on the Secretary of State pursuant to this subsection. It shall be the duty of the plaintiff in the event of any service to serve process and any other papers in duplicate, to notify the Secretary of State that service is being effected pursuant to this subsection and to pay the Secretary of State the fee provided for in paragraph 7 of subsection A of Section 1142 of this title, which fee shall be taxed as part of the costs in the proceeding, if the plaintiff shall prevail therein. The Secretary of State shall maintain an alphabetical record of any such service, setting forth the name of the plaintiff and the defendant, the title, docket number, and nature of the proceeding in which process has been served upon the Secretary of State, the fact that service has been served upon the Secretary of State, the fact that service has been effected pursuant to this subsection, the return date thereof, and the date service was made. The Secretary of State shall not be required to retain this information longer than five (5) years from the date of receipt of the service of process by the Secretary of State.

E. Subsections C, D, E and F of Section 1081 of this title, subsections C, D, E and F of Section 1084 of this title, and Sections 1088 through 1090 and 1127 of this title, insofar as they are applicable, shall apply to mergers or consolidations between corporations and entities; provided, however, that for purposes of a nonstock corporation or entity, references to the board of directors shall be deemed to be references to the governing body of the corporation or entity, references to shareholders shall be deemed to be references to the members or owners of the corporation or entity, and references to shares shall be deemed to be references to memberships or membership, economic or ownership interests in the corporation or entity, as applicable.

F. Nothing in this section shall be deemed to authorize the merger of a charitable nonstock corporation into an entity, if the charitable status of such nonstock corporation would thereby be lost or impaired; but an entity may be merged into a charitable nonstock corporation, which shall continue as the surviving corporation.

Added by Laws 1990, c. 328, § 12, eff. Sept. 1, 1990. Amended by Laws 1998, c. 422, § 19, eff. Nov. 1, 1998; Laws 1999, c. 421, § 16, eff. Nov. 1, 1999; Laws 2001, c. 405, § 24, eff. Nov. 1, 2001; Laws 2004, c. 255, § 26, eff. Nov. 1, 2004; Laws 2008, c. 253, § 11; Laws 2019, c. 88, § 22, eff. Nov. 1, 2019.

NOTE: Laws 2008, c. 382, § 315, which changed the effective date of Laws 2008, c. 253, §§ 1-47 to Jan. 1, 2010, was held unconstitutional by the Oklahoma Supreme Court in the case of Weddington v. Henry, 202 P.3d 143, 2008 OK 102 (2009).