Mergers.

Ala. Code tit. 10A, ch. 3A, art. 12

in effect

Ala. Code § 10A-3A-12.01 Definitions.

10A-3A-12.01. Definitions. As used in this article, unless the context otherwise requires, the following terms mean: (1) CONSTITUENT CORPORATION means a constituent organization that is a nonprofit corporation. (2) CONSTITUENT ORGANIZATION means an organization that is party to a merger under this article. (3) GOVERNING STATUTE of an organization means the statute that governs the organization’s internal affairs. (4) ORGANIZATION means a general partnership, including a limited liability partnership; limited partnership, including a limited liability limited partnership; limited liability company; business trust; business corporation; nonprofit corporation; professional corporation; or any other person having a governing statute. The term includes domestic and foreign organizations whether or not organized for profit. (5) ORGANIZATIONAL DOCUMENTS means: (A) for a general partnership or foreign general partnership, its partnership agreement and if applicable, its registration as a limited liability partnership or a foreign limited liability partnership; (B) for a limited partnership or foreign limited partnership, its certificate of formation and partnership agreement, or comparable writings as provided in its governing statute; (C) for a limited liability company or foreign limited liability company, its certificate of formation and limited liability company agreement, or comparable writings as provided in its governing statute; (D) for a business or statutory trust or foreign business or statutory trust its agreement of trust and declaration of trust, or comparable writings as provided in its governing statute; (E) for a business corporation or foreign business corporation, its certificate of incorporation, bylaws, and other agreements among its stockholders that are authorized by its governing statute, or comparable writings as provided in its governing statute; (F) for a nonprofit corporation or foreign nonprofit corporation, its certificate of incorporation, bylaws, and other agreements that are authorized by its governing statute, or comparable writings as provided in its governing statute; (G) for a professional corporation or foreign professional corporation, its certificate of incorporation, bylaws, and other agreements among its stockholders that are authorized by its governing statute, or comparable writings as provided in its governing statute; and (H) for any other organization, the basic writings that create the organization and determine its internal governance and the relations among the persons that own it, have an interest in it, or are members of it. (6) PLAN OF MERGER. Except as set forth in Section 10A-3A-12.02(g), a plan of merger, whether referred to as a plan of merger, an agreement of merger, a merger agreement, a plan and agreement of merger, an agreement and plan of merger, or otherwise, means a writing described in Section 10A-3A-12.02 and includes any agreement, instrument, or other document referenced therein or associated therewith that sets forth the terms and conditions of the merger. (7) SURVIVING ORGANIZATION means an organization into which one or more other organizations are merged under this article, whether the organization pre-existed the merger or was created pursuant to the merger. (Act 2023-503, §1; Act 2025-281, §3.)

Ala. Code § 10A-3A-12.02 Merger.

10A-3A-12.02. Merger. (a) A nonprofit corporation may merge with one or more other constituent organizations pursuant to this article, and a plan of merger, if: (1) the governing statute of each of the other organizations authorizes the merger; (2) the merger is not prohibited by the law of a jurisdiction that enacted any of those governing statutes; and (3) each of the other organizations complies with its governing statute in effecting the merger. (b) A plan of merger must be in writing and must include: (1) the name, type of organization, and mailing address of the principal office of each constituent organization, the jurisdiction of the governing statute of each constituent organization, and the respective unique identifying number or other designation as assigned by the Secretary of State, if any, of each constituent organization; (2) the name, type of organization, and mailing address of the principal office of the surviving organization, the unique identifying number or other designation as assigned by the Secretary of State, if any, of the surviving organization, the jurisdiction of the governing statute of the surviving organization, and, if the surviving organization is created pursuant to the merger, a statement to that effect; (3) the terms and conditions of the merger, including the manner and basis for converting the interests in each constituent organization into any combination of money, securities, interests in the surviving organization, and other consideration as allowed by subsection (c); (4) if the surviving organization is to be created pursuant to the merger, the surviving organization’s organizational documents; and (5) if the surviving organization is not to be created pursuant to the merger, any amendments to be made by the merger to the surviving organization’s organizational documents. (c) In connection with a merger, rights, securities, or interests, if any, in a constituent organization may be exchanged for or converted into cash, property, rights, securities, or interests, if any, in the surviving organization, or, in addition to or in lieu thereof, may be exchanged for or converted into cash, property, rights, securities, or interests, if any, in another organization, or may be cancelled. (d) In addition to the requirements of subsection (b), a plan of merger may contain any other provision not prohibited by law. (e) Terms of a plan of merger may be made dependent on facts objectively ascertainable outside the plan in accordance with Section 10A-3A-1.04(c)(5). (f) A plan of merger may be amended only with the consent of each constituent organization, except as provided in the plan. A domestic constituent organization may approve an amendment to a plan: (1) in the same manner as the plan was approved, if the plan does not provide for the manner in which it may be amended; or (2) in the manner provided in the plan, except that if the plan has been approved by the interest holders that were entitled to vote on, consent to, or approve of, the plan, then those interest holders are entitled to vote on, consent to, or approve of any amendment of the plan that will change: (i) the amount or kind of securities, interests, obligations, rights to acquire other interests or securities, cash, or other property to be received under the plan by the interest holders of a constituent organization; (ii) the certificate of incorporation of any nonprofit corporation, foreign nonprofit corporation, business corporation, or foreign business corporation, or the organizational documents of any other organization, that will be the surviving organization, except for changes permitted by Section 10A-3A-9.03(g) or by comparable provisions of the governing statute of the foreign nonprofit corporation, business corporation, foreign business corporation, or other organization; or (iii) any of the other terms or conditions of the plan if the change would adversely affect the interest holders in any material respect. (g) At the time of the approval of the plan of merger in accordance with this chapter, the plan of merger is not required to contain or have attached thereto any disclosure letter, disclosure schedules, or similar documents or instruments contemplated by the plan of merger that modify, supplement, qualify, or make exceptions to representations, warranties, covenants, or conditions contained in the plan of merger. (Act 2023-503, §1; Act 2025-281, §3.)

Ala. Code § 10A-3A-12.03 Action on a Plan of Merger in a Membership Nonprofit Corporation.

10A-3A-12.03. Action on a Plan of Merger in a Membership Nonprofit Corporation. In the case of a membership nonprofit corporation that is a constituent organization, the plan of merger shall be adopted in the following manner: (a) The plan of merger shall first be adopted by the board of directors. (b) Except as provided in subsection (h), the plan of merger shall then be approved by the members entitled to vote thereon. In submitting the plan of merger to the members for approval, the board of directors shall recommend that the members approve the plan of merger, unless the board of directors makes a determination that because of conflicts of interest or other special circumstances it should not make a recommendation, in which case the board of directors shall inform the members of the basis for its so proceeding. (c) The board of directors may set conditions for the approval of the plan of merger by the members or the effectiveness of the plan of merger. (d) If the plan of merger is required to be approved by the members, and if the approval is to be given at a meeting, the membership nonprofit corporation shall notify each member who is entitled to vote, of the meeting of the members at which the plan of merger is to be submitted for approval. The notice must state that the purpose, or one of the purposes, of the meeting is to consider the plan of merger and must contain or be accompanied by a copy or summary of the plan of merger. If the membership nonprofit corporation is to be merged into an existing nonprofit corporation; foreign nonprofit corporation, or other organization, the notice must also include or be accompanied by a copy or summary of the certificate of incorporation and bylaws or the organizational documents of that nonprofit corporation, foreign nonprofit corporation, or other organization. If the membership nonprofit corporation is to be merged with a nonprofit corporation, foreign nonprofit corporation, or other organization and a new nonprofit corporation, foreign nonprofit corporation, or organization is to be created pursuant to the merger, the notice must include or be accompanied by a copy or a summary of the certificate of incorporation and bylaws or the organizational documents of the new nonprofit corporation, foreign nonprofit corporation, or other organization. (e) Unless the certificate of incorporation, or the board of directors acting pursuant to subsection (c), requires a greater vote or a greater quorum, approval of the plan of merger requires the approval of the members entitled to vote at a meeting at which a quorum exists consisting of a majority of the votes entitled to be cast on the plan of merger, and, if any class of membership interests entitled to vote as a separate group on the plan of merger, the approval of each separate voting group at a meeting at which a quorum of the voting group is present consisting of a majority of the votes entitled to be cast on the merger by that voting group. (f) Subject to subsection (g), separate voting by voting groups is required: (1) on a plan of merger, by each class of membership interests that: (i) are to be converted under the plan of merger into securities, interests, obligations, rights to acquire other securities or interests, cash, other property, or any combination of the foregoing; or (ii) are entitled to vote as a separate group on a provision in the plan of merger that constitutes a proposed amendment to the certificate of incorporation of a surviving nonprofit corporation that requires action by separate voting groups under Section 10A-3A-9.04; and (2) on a plan of merger, if the voting group is entitled under the certificate of incorporation or bylaws to vote as a voting group to approve a plan of merger, respectively. (g) The certificate of incorporation may expressly limit or eliminate the separate voting rights provided in subsection (f)(1)(i) and subsection (f)(2) as to any class of membership, except when the plan of merger includes what is or would be in effect an amendment subject to subsection (f)(1)(ii). (h) Unless the certificate of incorporation otherwise provides, approval by the membership nonprofit corporation’s members of a plan of merger is not required if: (1) the membership nonprofit corporation will survive the merger; (2) except for amendments that do not require member approval under Section 10A-3A-9.03(g) or the approval of a person or group of persons under Section 10A-3A-9.30, its certificate of incorporation will not be changed; (3) except for amendments that do not require member approval under Section 10A-3A-9.22 or the approval of a person or group of persons under Section 10A-3A-9.30, its bylaws will not be changed; and (4) each member of the membership nonprofit corporation whose membership interest was outstanding immediately before the effective date of the merger will hold the same number of membership interests, with identical preferences, rights, and limitations, immediately after the effective date of the merger. (i) In addition to the adoption and approval of the plan of merger as required by this section, the plan must also be approved in writing by a person or group of persons, if any, whose approval is required under Section 10A-3A-12.08. EndFragment (Act 2023-503, §1.)

Ala. Code § 10A-3A-12.04 Action on a Plan of Merger in a Nonmembership Nonprofit Corporation.

10A-3A-12.04. Action on a Plan of Merger in a Nonmembership Nonprofit Corporation. In the case of a merger of a nonmembership nonprofit corporation the plan of merger shall be adopted in the following manner: (a) The plan of merger shall be adopted by the board of directors; and (b) A plan of merger adopted by the board of directors under this section must also be approved in writing by a person or group of persons, if any, whose approval is required under Section 10A-3A-12.08. EndFragment (Act 2023-503, §1.)

Ala. Code § 10A-3A-12.05 Statement of Merger.

10A-3A-12.05. Statement of Merger. (a) After a plan of merger has been adopted and approved as required by this article, then a statement of merger shall be signed by each party to the merger. The statement of merger must set forth: (1) the name, type of organization, and mailing address of the principal office of each constituent organization, the jurisdiction of the governing statute of each constituent organization, and the respective unique identifying number or other designation as assigned by the Secretary of State, if any, of each constituent organization; (2) the name, type of organization, and mailing address of the principal office of the surviving organization, the unique identifying number or other designation as assigned by the Secretary of State, if any, of the surviving organization, the jurisdiction of the governing statute of the surviving organization, and, if the surviving organization is created pursuant to the merger, a statement to that effect; (3) the date the merger is effective under the governing statute of the surviving organization; (4) if the surviving organization is to be created pursuant to the merger: (A) if it will be a nonprofit corporation, the nonprofit corporation’s certificate of incorporation; or (B) if it will be an organization other than a nonprofit corporation, any organizational document that creates the organization that is required to be in a public writing or in the case of a limited liability partnership, its statement of limited liability partnership; (5) if the surviving organization exists before the merger, any amendments provided for in the plan of merger for the organizational document that created the organization that are in a public writing; (6) a statement as to each constituent organization that the merger was approved as required by the organization’s governing statute; (7) if the surviving organization is a foreign organization not authorized to conduct activities and affairs in this state, the street and mailing address of an office for the purposes of Section 10A-3A-12.06(b); (8) any additional information required by the governing statute of any constituent organization; (9) if the plan of merger required approval by the members of a membership nonprofit corporation that is a constituent organization, a statement that the plan was duly approved by the members and, if voting by any separate voting group was required, by each separate voting group, in the manner required by this chapter, the certificate of incorporation or bylaws; (10) if the plan of merger required approval by a person or group of persons as specified in the certificate of incorporation pursuant to Section 10A-3A-12.08, a statement that the plan was duly approved by that person or group of persons; (11) if the plan of merger did not require approval by the members of a membership nonprofit corporation that is a constituent organization, a statement to that effect; and (12) a statement that the plan of merger will be furnished by the surviving organization, on request and without cost, to any member or owner of any constituent organization which is a party to the merger. (b) In addition to the requirements of subsection (a), a statement of merger may contain any other provision not prohibited by law. (c) The statement of merger shall be delivered to the Secretary of State for filing and, subject to subsection (d), the merger shall take effect at the effective date and time determined in accordance with Article 4 of Chapter 1. (d) With respect to a merger in which one or more foreign organizations is a constituent organization or a foreign organization created by the merger is the surviving organization, the merger itself shall become effective at the later of: (1) when all documents required to be filed in foreign jurisdictions to effect the merger have become effective, or (2) when the statement of merger takes effect. (e) A statement of merger filed under this section may be combined with any filing required under the governing statute governing any domestic organization involved in the transaction if the combined filing satisfies the requirements of this section, the other governing statute, and Article 4 of Chapter 1. (f) A certified copy of the statement of merger required to be filed under this section may be filed in the real estate records in the office of the judge of probate in any county in which any constituent organization owned real property, without payment and without collection by the judge of probate of any deed or other transfer tax or fee. The judge of probate, however, shall be entitled to collect the filing fee of five dollars ($5). Any filing shall evidence chain of title, but lack of filing shall not affect the surviving organization’s title to real property. (g) A statement of conversion is a filing instrument under Chapter 1. (h) The filing fees for a statement of conversion shall be as set forth in Chapter 1. EndFragment (Act 2023-503, §1.)

Ala. Code § 10A-3A-12.06 Effect of Merger.

10A-3A-12.06. Effect of Merger. (a) When a merger becomes effective: (1) the surviving organization continues or, in the case of a surviving organization created pursuant to the merger, comes into existence; (2) each constituent organization that merges into the surviving organization ceases to exist as a separate entity; (3) except as provided in the plan of merger, all property owned by, and every contract right possessed by, each constituent organization that ceases to exist vests in the surviving organization without transfer, reversion, or impairment and the title to any property and contract rights vested by deed or otherwise in the surviving organization shall not revert, be in any way impaired, or be deemed to be a transfer by reason of the merger; (4) all debts, obligations, and other liabilities of each constituent organization, other than the surviving organization, are debts, obligations, and liabilities of the surviving organization, and neither the rights of creditors, nor any liens upon the property of any constituent organization, shall be impaired by the merger; (5) an action or proceeding pending by or against any constituent organization continues as if the merger had not occurred and the name of the surviving organization may, but need not be, substituted in any pending proceeding for the name of any constituent organization whose separate existence ceased in the merger; (6) except as prohibited by law other than this chapter or as provided in the plan of merger, all the rights, privileges, franchises, immunities, powers, and purposes of each constituent organization, other than the surviving organization, vest in the surviving organization; (7) except as otherwise provided in the plan of merger, the terms and conditions of the plan of merger take effect; (8) except as otherwise agreed, if a constituent organization that is a nonprofit corporation ceases to exist, the merger does not dissolve the nonprofit corporation; (9) if the surviving organization is created pursuant to the merger: (A) if it is a nonprofit corporation, the certificate of incorporation and bylaws become effective; or (B) if it is an organization other than a nonprofit corporation, the organizational documents that create the organization becomes effective; (10) if the surviving organization existed before the merger, any amendments provided for in the statement of merger for the organizational documents of that organization become effective; (11) the membership interests, if any, of each nonprofit corporation or foreign nonprofit corporation that is a constituent organization to the merger, and the interests in an organization that is a constituent organization, that are to be converted in accordance with the terms of the merger into securities, interests, obligations, rights to acquire other securities or interests, cash, other property, or any combination of the foregoing, are converted, and the former holders of membership interests, if any, or interests are entitled only to the rights provided to them by those terms or to any rights they may have under the governing statute governing that constituent organization; (12) if the surviving organization exists before the merger: (A) except as provided in the plan of merger, all property and contract rights of the surviving organization remain its property and contract rights without transfer, reversion, or impairment; (B) the surviving organization remains subject to all its debts, obligations, and other liabilities; and (C) except as provided by law other than this chapter or the plan of merger, the surviving organization continues to hold all of its rights, privileges, franchises, immunities, powers, and purposes. (b) A surviving organization that is a foreign organization: (1) consents to the jurisdiction of this state to enforce any debt, obligation, or other liability owed by a constituent organization, if before the merger the constituent organization was subject to suit in this state on the debt, obligation, or other liability; and (2) consents that if it fails to designate or maintain a registered agent, or the designated registered agent cannot with reasonable diligence be served, then the service of process on that surviving organization for the purposes of enforcing a debt, obligation, or other liability under this subsection and for enforcing the rights, if any, of members of each nonprofit corporation that is a constituent organization may be made in the same manner and has the same consequences as provided in Section 10A-1-5.35. EndFragment (Act 2023-503, §1.)

Ala. Code § 10A-3A-12.07 Abandonment of a Merger.

10A-3A-12.07. Abandonment of a Merger. (a) After a plan of merger has been adopted and approved as required by this Article 12, and before the statement of merger has become effective, the plan may be abandoned by a nonprofit corporation that is a party to the plan without action by its members, if any, or a person or group of persons under Section 10A-3A-12.08, if any, in accordance with any procedures set forth in the plan of merger or, if no procedures are set forth in the plan, in the manner determined by the board of directors. (b) If a merger is abandoned under subsection (a) after the statement of merger has been delivered to the Secretary of State for filing but before the merger has become effective, a statement of abandonment signed by all the parties that signed the statement of merger shall be delivered to the Secretary of State for filing before the statement of merger becomes effective. The statement shall take effect on filing and the merger shall be deemed abandoned and shall not become effective. The statement of abandonment must contain: (1) the name of each party to the merger; (2) the date on which the statement of merger was filed by the Secretary of State; and (3) a statement that the merger has been abandoned in accordance with this section. EndFragment (Act 2023-503, §1.)

Ala. Code § 10A-3A-12.08 Approval by Specified Person or Group of Persons.

10A-3A-12.08. Approval by Specified Person or Group of Persons. (a) The certificate of incorporation of a membership nonprofit corporation may require that a merger under this article or under Article 8 of Chapter 1 be approved in writing by a specified person or group of persons in addition to the board of directors and members. (b) The certificate of incorporation of a nonmembership nonprofit corporation may require that a merger under this article or under Article 8 of Chapter 1 be approved in writing by a specified person or group of persons in addition to the board of directors. (c) A requirement in the certificate of incorporation described in subsections (a) or (b) of this section may only be approved by the written approval of the specified person or group of persons. EndFragment (Act 2023-503, §1.)

Ala. Code § 10A-3A-12.09 Nonexclusive.

10A-3A-12.09. Nonexclusive. This article is not exclusive. This article does not preclude a nonprofit corporation from merging under law other than this chapter. EndFragment (Act 2023-503, §1.)

Source: Alabama Legislature (alison.legislature.state.al.us)URL: https://alison.legislature.state.al.us/code-of-alabamaFetched: 10/20/2026