MERGER, CONVERSION, AND DOMESTICATION.

SDCL tit. 47, ch. 47-34A, art. 47-34A-Article9

in effect

SDCL § 47-34A-901 Definitions.

47-34A-901. Definitions. Terms used in this article: (1) "Constituent limited liability company" means a constituent organization that is a limited liability company; (2) "Constituent organization" means an organization that is party to a merger; (3) "Converted organization" means the organization into which a converting organization converts pursuant to §§ 47-34A-906 to 47-34A-909, inclusive; (4) "Converting limited liability company" means a converting organization that is a limited liability company; (5) "Converting organization" means an organization that converts into another organization pursuant to § 47-34A-906; (6) "Domesticated company" means the company that exists after a domesticating foreign limited liability company or limited liability company effects a domestication pursuant to §§ 47-34A-910 to 47-34A-913, inclusive; (7) "Domesticating company" means the company that effects a domestication pursuant to §§ 47-34A-910 to 47-34A-913, inclusive; (8) "Governing statute" means the statute that governs an organization's internal affairs; (9) "Organization" means a general partnership, including a limited liability partnership; limited partnership, including a limited liability limited partnership, limited liability company, business trust, corporation, or any other person having a governing statute. The term includes a domestic or foreign organization regardless of whether organized for profit; (10) "Organizational documents" means: (a) For a domestic or foreign general partnership, its partnership agreement; (b) For a limited partnership or foreign limited partnership, its certificate of limited partnership and partnership agreement; (c) For a domestic or foreign limited liability company, its certificate or articles of organization and operating agreement, or comparable records as provided in its governing statute; (d) For a business trust, its agreement of trust and declaration of trust; (e) For a domestic or foreign corporation for profit, its articles of incorporation, bylaws, and other agreements among its shareholders which are authorized by its governing statute, or comparable records as provided in its governing statute; and (f) For any other organization, the basic records 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; (11) "Personal liability" means liability for a debt, obligation, or other liability of an organization which is imposed on a person that co-owns, has an interest in, or is a member of the organization: (a) By the governing statute solely by reason of the person co-owning, having an interest in, or being a member of the organization; or (b) By the organization's organizational documents under a provision of the governing statute authorizing those documents to make one or more specified persons liable for all or specified debts, obligations, or other liabilities of the organization solely by reason of the person or persons co-owning, having an interest in, or being a member of the organization; (12) "Surviving organization" means an organization into which one or more other organizations are merged whether the organization preexisted the merger or was created by the merger. SL 1998, ch 272, § 901; SL 2013, ch 233, § 15.

SDCL § 47-34A-902 Merger.

47-34A-902. Merger. (a) A limited liability company may merge with one or more other constituent organizations pursuant to this section, §§ 47-34A-903 to 47-34A-905, inclusive, 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 the 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 a record and must include: (1) The name and form of each constituent organization; (2) The name and form of the surviving organization and, if the surviving organization is to be created by 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, interests in the surviving organization, and other consideration; (4) If the surviving organization is to be created by the merger, the surviving organization's organizational documents that are proposed to be in a record; and (5) If the surviving organization is not to be created by the merger, any amendments to be made by the merger to the surviving organization's organizational documents that are, or are proposed to be, in a record. SL 1998, ch 272, § 902; SL 2013, ch 233, § 16.

SDCL § 47-34A-903 Action on plan of merger by constituent limited liability company.

47-34A-903. Action on plan of merger by constituent limited liability company. (a) Subject to § 47-34A-914, a plan of merger must be consented to by all the members of a constituent limited liability company. (b) Subject to § 47-34A-914 and any contractual rights, after a merger is approved, and at any time before articles of merger are delivered to the secretary of state for filing under § 47-34A-904, a constituent limited liability company may amend the plan or abandon the merger: (1) As provided in the plan; or (2) Except as otherwise prohibited in the plan, with the same consent as was required to approve the plan. SL 1998, ch 272, § 903; SL 2013, ch 233, § 17.

SDCL § 47-34A-904 Filings required for merger--Effective date.

47-34A-904. Filings required for merger--Effective date. (a) After each constituent organization has approved a merger, articles of merger must be signed on behalf of: (1) Each constituent limited liability company, as provided in § 47-34A-205; and (2) Each other constituent organization, as provided in its governing statute. (b) Articles of merger under this section must include: (1) The name and form of each constituent organization and the jurisdiction of its governing statute; (2) The name and form of the surviving organization, the jurisdiction of its governing statute, and, if the surviving organization is created by 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 by the merger: (A) If it will be a limited liability company, the company's certificate of organization; or (B) If it will be an organization other than a limited liability company, the organizational document that creates the organization that is in a public record; (5) If the surviving organization preexists the merger, any amendments provided for in the plan of merger for the organizational document that created the organization that are in a public record; (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 transact business in this state, the street and mailing addresses of an office that the secretary of state may use for the purposes of § 47-34A-905(b); and (8) Any additional information required by the governing statute of any constituent organization. (c) Each constituent limited liability company shall deliver the articles of merger for filing in the Office of the Secretary of State. (d) A merger becomes effective under this article: (1) If the surviving organization is a limited liability company, upon the later of: (A) Compliance with subsection (c); or (B) Subject to § 47-34A-206, as specified in the articles of merger; or (2) If the surviving organization is not a limited liability company, as provided by the governing statute of the surviving organization. SL 1998, ch 272, § 904; SL 2013, ch 233, § 18.

SDCL § 47-34A-905 Effect of merger.

47-34A-905. Effect of merger. (a) When a merger becomes effective: (1) The surviving organization continues or comes into existence; (2) Each constituent organization that merges into the surviving organization ceases to exist as a separate entity; (3) All property owned by each constituent organization that ceases to exist vests in the surviving organization; (4) All debts, obligations, or other liabilities of each constituent organization that ceases to exist continue as debts, obligations, or other liabilities of the surviving organization; (5) An action or proceeding pending by or against any constituent organization that ceases to exist may be continued as if the merger had not occurred; (6) Except as prohibited by other law, all of the rights, privileges, immunities, powers, and purposes of each constituent organization that ceases to exist 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 limited liability company ceases to exist, the merger does not dissolve the limited liability company for the purposes of §§ 47-34A-801 to 47-34A-812, inclusive; (9) If the surviving organization is created by the merger: (A) If it is a limited liability company, the certificate of organization becomes effective; or (B) If it is an organization other than a limited liability company, the organizational document that creates the organization becomes effective; and (10) If the surviving organization preexisted the merger, any amendments provided for in the articles of merger for the organizational document that created the organization become effective. (b) A surviving organization that is a foreign organization consents to the jurisdiction of the courts 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. A surviving organization that is a foreign organization and not authorized to transact business in this state appoints the secretary of state as its agent for service of process for the purposes of enforcing a debt, obligation, or other liability under this subsection. Service on the secretary of state under this subsection must be made in the same manner as in § 47-34A-206. SL 1998, ch 272, § 905; SL 2013, ch 233, § 19.

SDCL § 47-34A-906 Conversion.

47-34A-906. Conversion. (a) An organization other than a limited liability company or a foreign limited liability company may convert to a limited liability company, and a limited liability company may convert to an organization other than a foreign limited liability company pursuant to §§ 47-34A-907 to 47-34A-909, inclusive, and a plan of conversion, if: (1) The other organization's governing statute authorizes the conversion; (2) The conversion is not prohibited by the law of the jurisdiction that enacted the other organization's governing statute; and (3) The other organization complies with its governing statute in effecting the conversion. (b) A plan of conversion must be in a record and must include: (1) The name and form of the organization before conversion; (2) The name and form of the organization after conversion; (3) The terms and conditions of the conversion, including the manner and basis for converting interests in the converting organization into any combination of money, interests in the converted organization, and other consideration; and (4) The organizational documents of the converted organization that are, or are proposed to be, in a record. SL 1998, ch 272, § 906; SL 2008, ch 275, § 78; SL 2013, ch 233, § 20.

SDCL § 47-34A-907 Action on plan of conversion by converting limited liability company.

47-34A-907. Action on plan of conversion by converting limited liability company. (a) Subject to § 47-34A-914, a plan of conversion must be consented to by all the members of a converting limited liability company. (b) Subject to § 47-34A-914 and any contractual rights, after a conversion is approved, and at any time before articles of conversion are delivered to the secretary of state for filing under § 47-34A-908, a converting limited liability company may amend the plan or abandon the conversion: (1) As provided in the plan; or (2) Except as otherwise prohibited in the plan, by the same consent as was required to approve the plan. SL 1998, ch 272, § 907; SL 2013, ch 233, § 21.

SDCL § 47-34A-908 Filings required for conversion--Effective date.

47-34A-908. Filings required for conversion--Effective date. (a) After a plan of conversion is approved: (1) A converting limited liability company shall deliver to the secretary of state for filing articles of conversion, which must be signed as provided in § 47-34A-205 and must include: (A) A statement that the limited liability company has been converted into another organization; (B) The name and form of the organization and the jurisdiction of its governing statute; (C) The date the conversion is effective under the governing statute of the converted organization; (D) A statement that the conversion was approved as required by this chapter; (E) A statement that the conversion was approved as required by the governing statute of the converted organization; and (F) If the converted organization is a foreign organization not authorized to transact business in this state, the street and mailing addresses of an office which the secretary of state may use for the purposes of § 47-34A-909(c); and (2) If the converting organization is not a converting limited liability company, the converting organization shall deliver to the secretary of state for filing a certificate of organization, which must include, in addition to the information required by § 47-34A-203(a): (A) A statement that the converted organization was converted from another organization; (B) The name and form of that converting organization and the jurisdiction of its governing statute; and (C) A statement that the conversion was approved in a manner that complied with the converting organization's governing statute. (b) A conversion becomes effective: (1) If the converted organization is a limited liability company, when the certificate of organization takes effect; and (2) If the converted organization is not a limited liability company, as provided by the governing statute of the converted organization. SL 2010, ch 218, § 9; SL 2013, ch 233, § 22; SL 2021, ch 198, § 1.

SDCL § 47-34A-909 Effect of conversion.

47-34A-909. Effect of conversion. (a) An organization that has been converted pursuant to this Article is for all purposes the same entity that existed before the conversion. (b) When a conversion takes effect: (1) All property owned by the converting organization remains vested in the converted organization; (2) All debts, obligations, or other liabilities of the converting organization continue as debts, obligations, or other liabilities of the converted organization; (3) An action or proceeding pending by or against the converting organization may be continued as if the conversion had not occurred; (4) Except as prohibited by law other than this chapter, all of the rights, privileges, immunities, powers, and purposes of the converting organization remain vested in the converted organization; (5) Except as otherwise provided in the plan of conversion, the terms and conditions of the plan of conversion take effect; and (6) Except as otherwise agreed, the conversion does not dissolve a converting limited liability company for the purposes of §§ 47-34A-801 to 47-34A-812, inclusive. (c) A converted organization that is a foreign organization consents to the jurisdiction of the courts of this state to enforce any debt, obligation, or other liability for which the converting limited liability company is liable if, before the conversion, the converting limited liability company was subject to suit in this state on the debt, obligation, or other liability. A converted organization that is a foreign organization and not authorized to transact business in this state appoints the secretary of state as its agent for service of process for purposes of enforcing a debt, obligation, or other liability under this subsection. Service on the secretary of state under this subsection must be made in the same manner and has the same consequences as set forth in this chapter. SL 2010, ch 218, § 10; SL 2013, ch 233, § 23.

SDCL § 47-34A-910 Domestication.

47-34A-910. Domestication. (a) A foreign limited liability company may become a limited liability company pursuant to §§ 47-34A-911 to 47-34A-913, inclusive, and a plan of domestication, if: (1) The foreign limited liability company's governing statute authorizes the domestication; (2) The domestication is not prohibited by the law of the jurisdiction that enacted the governing statute; and (3) The foreign limited liability company complies with its governing statute in effecting the domestication. (b) A limited liability company may become a foreign limited liability company pursuant to §§ 47-34A-911 to 47-34A-913, inclusive, and a plan of domestication, if: (1) The foreign limited liability company's governing statute authorizes the domestication; (2) The domestication is not prohibited by the law of the jurisdiction that enacted the governing statute; and (3) The foreign limited liability company complies with its governing statute in effecting the domestication. (c) A plan of domestication must be in a record and must include: (1) The name of the domesticating company before domestication and the jurisdiction of its governing statute; (2) The name of the domesticated company after domestication and the jurisdiction of its governing statute; (3) The terms and conditions of the domestication, including the manner and basis for converting interests in the domesticating company into any combination of money, interests in the domesticated company, and other consideration; and (4) The organizational documents of the domesticated company that are, or are proposed to be, in a record. SL 2010, ch 218, § 11; SL 2013, ch 233, § 24.

SDCL § 47-34A-911 Action on plan of domestication by domesticating limited liability company.

47-34A-911. Action on plan of domestication by domesticating limited liability company. (a) A plan of domestication must be consented to: (1) By all the members, subject to § 47-34A-912, if the domesticating company is a limited liability company; and (2) As provided in the domesticating company's governing statute, if the company is a foreign limited liability company. (b) Subject to any contractual rights, after a domestication is approved, and at any time before articles of domestication are delivered to the secretary of state for filing under § 47-34A-912, a domesticating limited liability company may amend the plan or abandon the domestication: (1) As provided in the plan; or (2) Except as otherwise prohibited in the plan, by the same consent as was required to approve the plan. SL 2010, ch 218, § 12; SL 2013, ch 233, § 25.

SDCL § 47-34A-912 Filings required for domestication--Effective date.

47-34A-912. Filings required for domestication--Effective date. (a) After a plan of domestication is approved, a domesticating company shall deliver to the secretary of state for filing articles of domestication, which must include: (1) A statement, as the case may be, that the company has been domesticated from or into another jurisdiction; (2) The name of the domesticating company and the jurisdiction of its governing statute; (3) The name of the domesticated company and the jurisdiction of its governing statute; (4) The date the domestication is effective under the governing statute of the domesticated company; (5) If the domesticating company was a limited liability company, a statement that the domestication was approved as required by this chapter; (6) If the domesticating company was a foreign limited liability company, a statement that the domestication was approved as required by the governing statute of the other jurisdiction; (7) If the domesticated company was a foreign limited liability company not authorized to transact business in this state, the street and mailing addresses of an office that the secretary of state may use for the purposes of § 47-34A-913(b); and (8) If the domesticated company was a foreign limited liability company, articles of organization that comply with the requirements of § 47-34A-203. (b) A domestication becomes effective: (1) When the certificate of organization takes effect, if the domesticated company is a limited liability company; and (2) According to the governing statute of the domesticated company, if the domesticated organization is a foreign limited liability company. SL 2010, ch 218, § 13; SL 2013, ch 233, § 26; SL 2022, ch 168, § 1.

SDCL § 47-34A-913 Effect of domestication.

47-34A-913. Effect of domestication. (a) When a domestication takes effect: (1) The domesticated company is for all purposes the company that existed before the domestication; (2) All property owned by the domesticating company remains vested in the domesticated company; (3) All debts, obligations, or other liabilities of the domesticating company continue as debts, obligations, or other liabilities of the domesticated company; (4) An action or proceeding pending by or against a domesticating company may be continued as if the domestication had not occurred; (5) Except as prohibited by other law, all of the rights, privileges, immunities, powers, and purposes of the domesticating company remain vested in the domesticated company; (6) Except as otherwise provided in the plan of domestication, the terms and conditions of the plan of domestication take effect; and (7) Except as otherwise agreed, the domestication does not dissolve a domesticating limited liability company for the purposes of §§ 47-34A-801 to 47-34A-812, inclusive. (b) A domesticated company that is a foreign limited liability company consents to the jurisdiction of the courts of this state to enforce any debt, obligation, or other liability owed by the domesticating company, if, before the domestication, the domesticating company was subject to suit in this state on the debt, obligation, or other liability. A domesticated company that is a foreign limited liability company and not authorized to transact business in this state appoints the secretary of state as its agent for service of process for purposes of enforcing a debt, obligation, or other liability under this subsection. Service on the secretary of state under this subsection must be made in the same manner and has the same consequences as set forth in this chapter. (c) If a limited liability company has adopted and approved a plan of domestication under § 47-34A-910 providing for the company to be domesticated in a foreign jurisdiction, a statement surrendering the company's certificate of organization must be delivered to the secretary of state for filing setting forth: (1) The name of the company; (2) A statement that the certificate of organization is being surrendered in connection with the domestication of the company in a foreign jurisdiction; (3) A statement the domestication was approved as required by this chapter; and (4) The jurisdiction of formation of the domesticated foreign limited liability company. SL 2013, ch 233, § 27.

SDCL § 47-34A-914 Restrictions on approval of mergers, conversions, and domestications.

47-34A-914. Restrictions on approval of mergers, conversions, and domestications. (a) If a member of a constituent, converting, or domesticating limited liability company will have personal liability with respect to a surviving, converted, or domesticated organization, approval or amendment of a plan of merger, conversion, or domestication is ineffective without the consent of the member, unless: (1) The company's operating agreement provides for approval of a merger, conversion, or domestication with the consent of fewer than all the members; and (2) The member has consented to the provision of the operating agreement. (b) A member does not give the consent required by subsection (a) merely by consenting to a provision of the operating agreement that permits the operating agreement to be amended with the consent of fewer than all the members. SL 2013, ch 233, § 28.

SDCL § 47-34A-915 Article not exclusive.

47-34A-915. Article not exclusive. The proceedings authorized under §§ 47-34A-901 to 47-34A-914, inclusive, do not preclude an entity from being merged, converted, or domesticated under law other than these provisions. SL 2013, ch 233, § 29.

Source: South Dakota Legislature (sdlegislature.gov)URL: https://sdlegislature.gov/Statutes/47-34A-Article9Fetched: 10/20/2026