Section 10A-1-8.02

Mergers of entities.

(a) Pursuant to an approved plan of merger, a corporation, limited partnership, limited liability company, general partnership, real estate investment trust, or any other entity may merge with any other entity or entities, whether the other entity or entities are the same or another form of entity, as provided in this section.

(b) A plan of merger shall include the following:

(1) The name of each entity that is a party to the merger.

(2) The name of the surviving entity into which the other entity or entities will merge.

(3) The form of the surviving entity and the status in the surviving entity of each owner of an entity that is a party to the merger.

(4) The terms and conditions of the merger.

(5) The manner and basis of converting the interests of each party to the merger into interests or obligations of the surviving entity, or into money or other property in whole or part.

(c) A plan of merger may set forth:

(1) Amendments to the certificate of formation of the surviving entity.

(2) Other provisions relating to the merger.

(d) A plan of merger shall be approved as follows:

(1) CORPORATIONS.

a. In the case of a corporation, other than a nonprofit corporation, that is a party to a merger, the plan of merger must be approved in accordance with the procedures and by the shareholder vote required by Section 10A-2-11.03 or Section 10A-2-11.04. If the governing documents of the corporation provide for approval of a merger by less than all of the corporation's shareholders, approval of the merger shall constitute corporate action subject to dissenter's rights pursuant to Article 13 of Chapter 2. No merger of a corporation into a general or limited partnership may be effected without the consent in writing of each shareholder who will have personal liability with respect to the resulting or surviving entity, notwithstanding any provision in the governing documents of the corporation that is a party to the merger providing for less than unanimous shareholder approval for the conversion.

b. In the case of a nonprofit corporation, the plan of merger must be approved by all the corporation's members entitled to vote thereon, if it is a nonprofit corporation with members with voting rights, except as otherwise provided in the corporation's governing documents; but in no case may the governing documents provide for approval by less than a majority of the members entitled to vote thereon. If the nonprofit corporation has no members, or no members entitled to vote thereon, the plan of merger must be approved by a unanimous vote of the board of directors of the nonprofit corporation, except as otherwise provided in the governing documents; but in no case may the governing documents provide for approval by less than a majority of the board of directors.

(2) LIMITED PARTNERSHIPS. In the case of a limited partnership that is a party to the merger, the plan of merger must be approved in writing by all of the partners or as otherwise provided in the partnership agreement. No merger of a limited partnership with a general partnership in which the general partnership is the surviving or resulting entity may be effected without the consent in writing of each limited partner who will have personal liability with respect to the surviving or resulting entity, notwithstanding any provision in the limited partnership agreement of the merging limited partnership providing for approval of the merger by less than all partners.

(3) LIMITED LIABILITY COMPANIES. In the case of a limited liability company that is a party to the merger, the plan of merger must be approved in writing by all of the limited liability company's members or as otherwise provided in the limited liability company's governing documents. No merger of a limited liability company with a general or limited partnership that is the surviving or resulting entity may be effected without the consent in writing of each member who will have personal liability with respect to the surviving or resulting entity, notwithstanding any provision in the governing documents of the merging limited liability company providing for less than unanimous shareholder approval for a merger.

(4) GENERAL PARTNERSHIPS, INCLUDING REGISTERED LIMITED LIABILITY PARTNERSHIPS. In the case of a general partnership that is a party to the merger, the plan of merger must be approved in writing by all of the partners or as otherwise provided in the partnership agreement. No merger of a registered limited liability partnership into a general or limited partnership may be effected without the consent in writing of each partner who will have personal liability with respect to the surviving or resulting entity, notwithstanding any provision in the partnership agreement of the registered limited liability partnership providing for less than unanimous partner approval for a merger.

(5) REAL ESTATE INVESTMENT TRUST. In the case of a real estate investment trust that is a party to the merger, the plan of merger must be approved in writing by all of the trust's shareholders except as otherwise provided in the trust's declaration of trust, but in no case may the vote required for shareholder approval be set at less than a majority of all the votes entitled to be cast. No merger of a real estate investment trust with a general or limited partnership that is to be the surviving or resulting entity may be effected without the consent in writing of each shareholder who will have personal liability with respect to the surviving or resulting business entity.

(6) OTHER ENTITY. In the case of an entity other than a corporation, limited partnership, limited liability company, general partnership, or real estate investment trust that is a party to the merger, by approval in writing of all owners of the entity. No merger of any entity shall be effected without the consent in writing of any owner who has limited liability as an owner of an entity party to the merger, and who will have personal liability with respect to the surviving or resulting entity.

(e) 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, or if the plan does not provide for amendment or abandonment, in the same manner as required for the approval of the plan of merger originally.

(f) The merger takes effect as follows:

(1) Upon the filing of the statement of merger in accordance with Section 10A-1-4.02(c)(1), except as otherwise provided in subdivision (2).

(2) Upon any delayed effective date if, but only if, each of the following requirements is satisfied:

a. A delayed effective date is specified in the statement of merger.

b. If either the converted entity or the merging entity is a foreign entity, then any filing required under the governing statute of such foreign entity to effectuate the merger is filed before the effective date specified in the statement of merger.

(3) If a delayed effective date is specified and the conditions of subdivision (2) are met, the merger is effective at the close of business, unless a different hour is specified, on that date in accordance with and subject to Section 10A-1-4.12.

(g) The certificate of merger shall include the following:

(1) The names of each of the entities which are to merge and their respective unique identifying numbers or other designations as assigned by the Secretary of State, if any.

(2) The public office where the certificate of formation, if any, of each of the parties to the merger is filed.

(3) A statement that a plan of merger has been approved by each of the entities which are to merge in the manner set forth in this article.

(4) If the surviving or resulting entity is one in which one or more owners lack limited liability protection, a statement that each owner of an entity party to the merger who is to be an owner of the surviving or resulting entity without limited liability protection has consented in writing to the merger as required by this article.

(5) The name of the surviving or resulting entity.

(6) The date, or date and time, on which the merger becomes effective if it is not to be effective upon the filing of the certificate of merger.

(7) That the plan of merger is on file at a place of business of the surviving or resulting entity, and shall state the address thereof.

(8) That a copy of the plan of merger will be furnished by the surviving or resulting entity, on request and without cost, to any owner of any entity which is a party to the merger.

(9) If the plan of merger includes any amendments to the certificate of formation of the surviving or resulting entity, a statement of all such amendments.

(h) The certificate of merger shall be filed with the Secretary of State in accordance with Section 10A-1-4.02.

(i) The merger shall have the following effects:

(1) Every other entity party to the merger merges into the surviving entity which shall be deemed to be the resulting entity of the merger and the separate existence of every entity, other than the surviving or resulting entity, ceases.

(2) All property, real, personal, and mixed owned by each of the merged entities; all rights, immunities, and franchises of the merged entities, of a public as well as a private nature; and all debts and obligations due the merged entities, are taken and deemed to be transferred and vested in the surviving or resulting entity without the necessity of any deed or other instrument of conveyance to the surviving or resulting entity and without payment and without collection by any filing officer of any deed or other transfer tax or fee. A certified copy of the certificate of merger may be filed in the real estate records in the office of the judge of probate in any county in which any entity a party to the merger owned real property, to be recorded without payment and without collection by the judge of probate of any deed or other transfer tax or fee. The judge of probate shall, however, be entitled to collect the filing fees prescribed by Section 12-19-90. Any filing shall evidence chain of title, but lack of filing does not affect the resulting entity's title to any real property.

(3) The surviving or resulting entity shall be responsible and liable for all the liabilities and obligations of the entities that are parties to the merger; however, neither the rights of creditors nor any liens upon the property of the entities that are parties to the merger shall be impaired by the merger.

(4) Any claim existing or action or proceeding, of any kind, pending by or against an entity that is a party to the merger may be prosecuted or continued as if the merger had not occurred, or the surviving or resulting entity may be substituted as a party to the action or proceeding.

(5) Service of process in an action or proceeding against a surviving or resulting foreign entity to enforce an obligation of a domestic entity that is a party to a merger may be made by registered mail addressed to the surviving entity at the address set forth in the certificate of merger or by any method provided by the Alabama Rules of Civil Procedure. Any notice or demand required or permitted by law to be served on a domestic entity may be served on the surviving or resulting foreign entity by registered mail addressed to the surviving entity at the address set forth in the certificate of merger or in any other manner similar to the procedure provided by the Alabama Rules of Civil Procedure for the service of process.

(6) a. An owner of an entity with limited liability protection remains liable, if at all, for an obligation incurred prior to the merger by an entity that ceases to exist as a result of the merger only to the extent, if any, that the owner would have been liable under the laws applicable to owners of the form of entity that ceased to exist if the merger had not occurred.

b. An owner with limited liability protection who, as a result of the merger, becomes an owner without limited liability protection of the surviving or resulting entity is liable for an obligation of the surviving or resulting entity incurred after merger to the extent provided for by the laws applicable to the surviving or resulting entity.

(7) An owner without limited liability protection of an entity that ceases to exist as a result of a merger and who as a result of the merger becomes an owner of a surviving or resulting entity with limited liability protection remains liable for an obligation of the entity that ceases to exist incurred before the merger takes effect only to the extent, if any, that the owner would have been liable if the merger had not occurred.

(Act 2000-211, p. 279, §3; §10-15-4; amended and renumbered by Act 2009-513, p. 967, §71; Act 2014-293, p. 1052, §1.)