Louisiana Revised Statutes 12:243 – Merger or consolidation procedure
Terms Used In Louisiana Revised Statutes 12:243
- Address: means street and municipal number, or other definite and ascertainable physical location if street and municipal number are not available; and, if a building not wholly occupied by the addressee, the location in the building. See Louisiana Revised Statutes 12:201
- Amendment: A proposal to alter the text of a pending bill or other measure by striking out some of it, by inserting new language, or both. Before an amendment becomes part of the measure, thelegislature must agree to it.
- Articles: means the original articles of incorporation, and all amendments thereto including those contained in merger agreements, or if restated, the latest restatement thereof, except in those instances in which the context expressly refers to the original articles of incorporation only. See Louisiana Revised Statutes 12:201
- Business corporation: means a corporation for profit formed under the laws of this state. See Louisiana Revised Statutes 12:201
- Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
- Directors: means persons designated in the articles as such, and persons designated, elected or appointed by any other name or title to act as directors, and their successors. See Louisiana Revised Statutes 12:201
- Foreign corporation: means a corporation formed under the laws of any jurisdiction other than this state. See Louisiana Revised Statutes 12:201
- Member: means each natural or artificial person admitted to membership in a corporation, and, unless the context indicates otherwise, includes shareholders. See Louisiana Revised Statutes 12:201
- nonprofit corporation: means a corporation formed under this Chapter, as well as a corporation formed under the laws of this state before January 1, 1969 but of a class of corporations that might be formed under this Chapter. See Louisiana Revised Statutes 12:201
- Registered office: means that office maintained by the corporation in this state, the address of which is kept on file in the office of the Secretary of State in the manner required by this Chapter. See Louisiana Revised Statutes 12:201
- Shareholder: means a natural or artificial person who is the owner of a property interest in a corporation represented by a certificate for shares of stock. See Louisiana Revised Statutes 12:201
- Total voting power: means the entirety of the voting power. See Louisiana Revised Statutes 12:201
Merger or consolidation may be effected only as a result of a joint agreement entered into, approved and filed as follows:
(1) The board of directors of each of the nonprofit, business and foreign corporations which desire to merge or consolidate may enter into a joint agreement signed by a majority of the directors of each, prescribing the terms and conditions of merger or consolidation and the mode of carrying the same into effect, and containing such other provisions as are deemed necessary. If the surviving corporation is a nonprofit corporation and the merger agreement prescribes changes to be effected by the merger in its articles, the agreement shall comply with the requirements of La. Rev. Stat. 12:240(A) to the extent applicable.
(2) The agreement must be approved by the shareholders or members of any foreign corporation or corporations involved, in the manner provided by the laws under which they were formed, and by the shareholders of any business corporation or corporations involved, in the manner provided in Chapter 1 of this Title.
(3) The agreement shall be submitted to the members of each of the merging or consolidating nonprofit corporations at an annual or special meeting. Written notice shall be given by each such corporation to each member entitled to vote at the meeting, in the manner provided in La. Rev. Stat. 12:230(A). A copy or a summary of the agreement shall be included in, or enclosed with, such notice, and if the corporation has no nonshareholding members, the notice shall include the statement: “Dissenting shareholders who comply with the procedural requirements of the Nonprofit Corporation Law of Louisiana will be entitled to receive payment of the fair cash value of their shares if the merger or consolidation is effected upon approval by less than two-thirds of the corporation’s total voting power.” The agreement must be approved by the members of each nonprofit corporation by vote of at least two-thirds in interest (or such smaller proportion, not less than a majority, as the articles may provide) of the voting members present. In addition, if the agreement is a merger agreement, and expressly prescribes a change in the articles of the surviving nonprofit corporation which, if contained in a proposed amendment to such corporation’s articles, would entitle any class or series of shares of such corporation to vote as a class thereon, the merger agreement must also be approved by such affirmative vote of the holders of the shares of such class or series as would be required for the adoption of such an amendment to the articles.
(4) The fact that the agreement has been approved by the shareholders or members of each party thereto as hereinabove provided shall be certified on the agreement by the respective secretaries or assistant secretaries, and the agreement, so approved and certified, shall be signed and acknowledged by the president or vice-president of each of the corporate parties thereto.
(5) The shareholders or members of each nonprofit, business and foreign corporation shall have the right, exercisable by the vote required for approval of the agreement, to propose amendments to the agreement, and if such amendments be concurred in by the shareholders and members of all of the other nonprofit, business and foreign corporations, in each case by the vote required for approval of the agreement, the agreement so amended, when certified, signed and acknowledged as provided in this section, shall be considered the merger or consolidation agreement.
(6)(a) The secretary of state may prescribe and furnish forms for filing the merger agreement. The agreement, so adopted, certified and acknowledged, shall be filed with the secretary of state, who, after all incorporation taxes, fees and charges have been paid as required by law, shall record the same in his office, endorse thereon the date and, if requested, the hour of filing thereof with him, and issue a certificate of merger or consolidation which shall recite the names of all of the merging and consolidating corporations, the name of the state or country under the laws of which each was formed, whether a merger or consolidation is involved, the name of the surviving or consolidated corporation, the name of the state or country under the laws of which the consolidated corporation is formed, the date and, if endorsed on the agreement, the hour of filing of the agreement with him, and the effective time of the merger or consolidation, if stated in the agreement.
(b) The agreement may be delivered to the secretary of state in advance, for filing as of any specified date (and, if specified upon such delivery, as of any given time on such date) within thirty days after the date of delivery. A duplicate original of the certificate of merger or consolidation, issued by the secretary of state, shall, within thirty days after issuance of the certificate, be filed for record in the office of the recorder of mortgages in each parish in this state in which any of the corporate parties to the agreement has its registered office, and in the conveyance records of each parish in this state in which any of the corporate parties to the agreement has immovable property, title to which will be transferred as a result of the merger or consolidation.
(7)(a) If a nonprofit, business or foreign corporation owns at least ninety percent of the outstanding shares of each class of one or more nonprofit, business or foreign corporations, none of the subsidiary nonprofit corporations has any nonshareholding members, and the laws under which each foreign corporation involved was formed permit merger by the procedure prescribed in this Subsection, the parent may:
(i) Merge into itself one or more subsidiaries by delivering to the secretary of state, who shall record it after all fees and charges have been paid as required by law, a certificate, signed and acknowledged by its president or a vice-president and its secretary or an assistant secretary, setting forth a copy of the resolution of its board of directors effecting such merger and the date of adoption thereof, or
(ii) Merge itself, or itself and one or more of such subsidiaries, into one of such subsidiaries, by filing with the secretary of state, who shall record it after all fees and charges have been paid as required by law, a certificate, signed and acknowledged by its president or a vice-president, and its secretary or an assistant secretary, setting forth a copy of a resolution of its board of directors effecting such merger and the date of adoption thereof, and stating if the parent is a nonprofit corporation, that the resolution has been approved by the parent’s members in the manner and by the vote prescribed in Subsection C of this Section for approval of merger or consolidation agreements.
(b) If the parent owns less than all of the outstanding shares of any subsidiary merged into itself, the resolution of the board of directors shall also state the terms and conditions of the merger, including the shares, secured or unsecured obligations, cash or other consideration to be delivered to the other shareholders of such subsidiary. If the parent is merged into a subsidiary, the resolution of the board of directors shall also state the shares, secured or unsecured obligations, cash or other consideration to be delivered to the shareholders or members of the parent and any merged subsidiaries.
(c) A duplicate original of the certificate, issued by the secretary of state, shall be filed for record with the recorder of mortgages of each parish in this state in which each nonprofit corporation involved has its registered office, and with the recorder of conveyances of each parish in this state in which any nonprofit, business or foreign corporation involved owns immovable property, title to which will be transferred as a result of the merger. A copy of the certificate shall, within twenty days after filing thereof with the secretary of state, be mailed to each minority shareholder of each subsidiary involved in the merger, at his last known address.
(d) If the surviving corporation is a nonprofit corporation, its name may be changed, effective upon effectiveness of the merger, by inclusion of a provision to that effect in the resolution of the parent corporation’s board of directors.
(e) The secretary of state may prescribe and furnish forms for filing the certificate of merger.
(8)(a) Notwithstanding approval by the members, and at any time prior to the effectiveness of the merger or consolidation, the merger or consolidation may be abandoned pursuant to a provision for such abandonment, if any, contained in the agreement of merger or consolidation.
(b) The secretary of state may prescribe and furnish forms for abandoning the merger or consolidation.
(9) An agreement of merger or consolidation or a certificate of merger may provide that any consideration to be delivered to shareholders or members of any party to the merger or consolidation may consist of shares or secured or unsecured obligations of any business, nonprofit or foreign corporation, whether or not a party to the consolidation or merger, or cash or other consideration.
Acts 1968, No. 105, §1. Amended by Acts 1970, No. 50, §§18, 19, emerg. eff. June 18, 1970, at 5:05 P.M.; Acts 1988, No. 101, §1; Acts 2019, No. 19, §2, eff. May 28, 2019.