Section 10A-5A-10.07

Filings required for merger; effective date.

(a) After each constituent organization has approved the plan of merger, a statement of merger must be signed on behalf of:

(1) each constituent limited liability company, as provided in Section 10A-5A-2.04(a); and

(2) each other constituent organization, as provided by its governing statute.

(b) A statement of merger under this section must include:

(1) the name, type of organization, and mailing address of the principal office of each constituent organization and the jurisdiction of its governing statute;

(2) the name, type of organization, and mailing address of the principal office of the surviving organization, the jurisdiction of its governing statute, and, if the surviving organization is created pursuant to the merger, a statement to that effect;

(3) the date of the filing of the certificate of formation, if any, and all prior amendments and the filing office or offices, if any, and where such is filed of each constituent organization which was formed under the laws of this state;

(4) the date the merger is effective under the governing statute of the surviving organization;

(5) if the surviving organization is to be created pursuant to the merger:

(A) if it will be a limited liability company, the limited liability company's certificate of formation; or

(B) if it will be an organization other than a limited liability company, any organizational document that creates the organization that is required to be in a public writing;

(6) 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;

(7) a statement as to each constituent organization that the merger was approved as required by the organization's governing statute;

(8) 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-5A-10.08(b); and

(9) any additional information required by the governing statute of any constituent organization.

(c) The statement of merger shall be delivered for filing to the Secretary of State in accordance with Section 10A-1-4.02(c)(1), along with the fees specified in Section 10A-1-4.31, subject to the last sentence of this subsection (c). For each constituent organization which is formed under the laws of this state and which is not, immediately prior to the merger becoming effective, an organization described in Section 10A-1-4.02(c)(4), the Secretary of State shall within 10 days transmit a certified copy of the statement of merger to the office of the judge of probate in the county in which the certificate of formation for each such constituent organization was filed along with the proper fee for the judge of probate. For each constituent organization which is formed under the laws of this state and which is, immediately prior to the merger becoming effective, an organization described in Section 10A-1-4.02(c)(4), but which has a certificate of formation filed with the judge of probate, the Secretary of State shall transmit a certified copy of the statement of merger to the office of the judge of probate in the county in which the certificate of formation for each such constituent organization was filed along with the proper fee for the judge of probate. For each constituent organization which (1) is formed under the laws of this state, (2) is, immediately prior to the merger becoming effective, an organization described in Section 10A-1-4.02(c)(4), and (3) did not file its certificate of formation with the judge of probate, but rather in accordance with this title filed its certificate of formation with the Secretary of State, the Secretary of State shall not transmit a certified copy of the statement of merger to the office of the judge of probate and shall not collect any fee for the judge of probate.

(d) A merger becomes effective under this article:

(1) if the surviving organization is a limited liability company, upon the later of:

(A) the filing of the statement of merger with the Secretary of State; or

(B) as specified in the statement of merger; or

(2) if the surviving organization is not a limited liability company, as provided by the governing statute of the surviving organization.

(e) After a merger becomes effective, if the surviving organization is a limited liability company, then all filing instruments required to be filed under this title regarding that surviving organization shall be filed with the Secretary of State.

(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 such filing shall evidence chain of title, but lack of filing shall not affect the surviving organization's title to such real property.

(g) A statement of merger shall be a filing instrument under Chapter 1.

(h) Except as provided in the last sentence of subsection (c), the filing fees for a statement of merger shall be the same fees as provided in Section 10A-1-4.31(a)(5).

(Act 2014-144, p. 265, §1; Act 2016-379, §4.)