48-249-702. Merger.
(a) General. One (1) or more domestic LLCs may, under an agreement or plan of merger, merge with or into one (1) or more domestic LLCs or other entities by complying with this section. Any constituent party to the merger may be the surviving entity, as the agreement or plan of merger shall provide.
(b) Compliance with other applicable law. If any constituent party to a merger is a foreign entity, the merger shall be permitted under the laws of the jurisdiction of the foreign entity, and the foreign entity shall comply with such laws. If any constituent party to a merger is a domestic entity, the merger shall be permitted under the other laws of this state that apply to the domestic entity, and the domestic entity shall comply with such laws. Notwithstanding the absence of any express provision in the Revised Uniform Partnership Act, compiled in title 61, chapter 1, permitting or authorizing a partnership formed under that act to merge with or into an LLC, a partnership formed under the Revised Uniform Partnership Act is authorized to merge with or into one (1) or more LLCs, upon the approval by all of the partners of the partnership or by the number or percentage of partners specified for merger in the partnership agreement of the partnership.
(c) Approval.
(1) The agreement or plan of merger shall be approved on behalf of any domestic LLC that is a constituent party to the merger, by:
(A) A majority vote of the managers, if the LLC is a manager-managed LLC, or a majority vote of the directors, if the LLC is a director-managed LLC; and
(B) A majority vote of the members, whether the LLC is a member-managed LLC, a manager-managed LLC or a director-managed LLC.
(2) In the event a domestic LLC merges with or into a domestic or foreign partnership or limited partnership and the partnership or limited partnership is the surviving entity, the agreement or plan of merger shall be subject to the approval of any member or holder of the domestic LLC who, at the effective date or time of the merger, becomes a partner of the domestic or foreign partnership or a general partner of the domestic or foreign limited partnership, as applicable.
(d) Merger consideration. In connection with a merger under this section, rights or securities of, or other equity interests in, a domestic LLC or other entity that is a constituent party to the merger may be exchanged for or converted into cash, property, rights or securities of, or interests in, the surviving domestic LLC or other entity, or, in addition to or in lieu of that merger consideration, may be exchanged for or converted into cash, property, rights or securities of or interests in a domestic LLC or other entity that is not the surviving domestic LLC or other surviving entity in the merger.
(e) Certificate of merger. A domestic LLC merging under this section shall file a certificate of merger with the secretary of state. The certificate of merger shall state the following:
(1) The name and jurisdiction of each constituent party to the merger;
(2) That an agreement or plan of merger has been approved and executed by each constituent party to the merger;
(3) The name of the surviving constituent party;
(4) In the case of a merger in which a domestic LLC is the surviving entity, such amendments, if any, to the articles of organization of the surviving domestic LLC as are desired to be effected by the merger;
(5) The future effective date or time of the merger, if it is not to be effective upon the filing of the certificate of merger;
(6) That the agreement or plan of merger is on file at a place of business of the surviving constituent party, and the address of that place of business;
(7) That a copy of the agreement or plan of merger shall be furnished by the surviving constituent party, on request and without cost, to any person holding an interest in a constituent party to the merger; and
(8) If the surviving entity is a foreign entity, a statement that the surviving foreign entity agrees that it may be served with process in this state in any proceeding for the enforcement of any obligation of any domestic LLC that is a constituent party to the merger, irrevocably appointing the secretary of state as its agent to accept service of process in any such proceeding, and specifying the address to which a copy of such process shall be mailed to it by the secretary of state. In the event of service under this subdivision (e)(8) upon the secretary of state, the procedures set forth in § 48-249-113 shall be applicable, except that the plaintiff in any such proceeding shall furnish the secretary of state with the address specified in the certificate of merger provided for in this subdivision (e)(8), and any other address that the plaintiff may elect to furnish, together with copies of the process as required by the secretary of state, and the secretary of state shall notify the surviving other entity at all the addresses furnished by the plaintiff, in accordance with the procedures set forth in § 48-249-113.
(f) Effective time. Unless a future effective date or time is provided in a certificate of merger, in which event a merger shall be effective at that future effective date or time, a merger shall be effective upon filing a certificate of merger with the secretary of state.
(g) Effect on nonsurviving domestic LLC. A certificate of merger, as filed with the secretary of state, shall act as notice of dissolution and articles of termination for a domestic LLC that is not the surviving entity in the merger. A merger of a domestic LLC, including a domestic LLC that is not the surviving entity in the merger, shall not require the domestic LLC to wind up its affairs under § 48-249-610, or to pay its liabilities and distribute its assets under § 48-249-620.
(h) Amendment of articles of organization. A certificate of merger that sets forth any amendment, in accordance with subdivision (e)(4), shall be deemed to be an amendment to the articles of organization of the surviving domestic LLC, and the surviving domestic LLC shall not be required to take any further action to amend its articles of organization under § 48-249-204, with respect to the amendments set forth in the certificate of merger.
(i) Amendment of operating agreement. An agreement or plan of merger approved in accordance with subsection (c) may effect any amendment to the operating agreement of the surviving LLC in the merger, or the adoption of a new operating agreement for the surviving LLC in the merger; provided, that the amendment or new operating agreement receives the approval required for amendment of the operating agreement under § 48-249-204(c). Any amendment to an operating agreement or adoption of a new operating agreement made pursuant to this subsection (i) shall be effective at the effective date and time of the merger.
(j) Effect of merger. When any merger has become effective under this section, for all purposes of the laws of this state:
(1) All of the rights, privileges and powers of each constituent party to the merger and all property, real, personal and mixed, of, and all debts due to, any constituent party to the merger, as well as all other things and causes of action belonging to each constituent party to the merger, shall be vested in the surviving constituent party, and thereafter shall be the property of the surviving constituent party as they were of each constituent party to the merger prior to the merger;
(2) The title to any real property vested, by deed or otherwise, in any constituent party to the merger shall not revert or be in any way impaired by reason of this section;
(3) All rights of creditors, and all liens upon any property of any constituent party to the merger, shall be preserved unimpaired;
(4) All debts, liabilities and obligations of each of the constituent parties that have merged shall thenceforth attach to the surviving constituent party and may be enforced against it to the same extent as if the debts, liabilities and obligations had been incurred or contracted by it; and
(5) A proceeding pending against an entity that is a constituent party to the merger may be continued as if the merger had not occurred, or the surviving entity may be substituted as a party for any entity whose existence ceased in the merger.
(k) Abandonment of merger.
(1) After an agreement or plan of merger has been approved as required by this section, and at any time before the merger has become effective, the merger may be abandoned, subject to any contractual rights, by any entity that is a constituent party to the merger, in accordance with the procedures set forth in the agreement or plan of merger, or, if no such procedures are set forth in the agreement or plan of merger by:
(A) Any domestic LLC that is a constituent party to the merger, in a manner determined by the members with respect to a member-managed LLC, by the managers with respect to a manager-managed LLC, or by the directors with respect to a director-managed LLC; and
(B) Another entity that is a constituent party to the merger in accordance with applicable law with respect to the other entity.
(2) If the merger is abandoned after the certificate of merger has been filed with the secretary of state, but before the merger has become effective, a statement, executed by each constituent party to the merger, stating that the merger has been abandoned in accordance with the agreement or plan of merger or this section, shall be filed with the secretary of state prior to the effectiveness of the merger.
(l) Nonexclusivity. This section is nonexclusive. A domestic LLC may be merged in any other manner provided by law.
Acts 2005, ch. 286, § 1; 2006, ch. 620, §§ 37-39.
