North Dakota Code 10-33-90 – Effective date of merger or consolidation – Effect
1. A merger or consolidation is effective when the articles of merger or consolidation are filed with the secretary of state or on a later date named in the articles.
Terms Used In North Dakota Code 10-33-90
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Bequest: Property gifted by will.
- Continuance: Putting off of a hearing ot trial until a later time.
- 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.
- Deed: The legal instrument used to transfer title in real property from one person to another.
- Devise: To gift property by will.
- Escrow: Money given to a third party to be held for payment until certain conditions are met.
- Fiduciary: A trustee, executor, or administrator.
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
- Grantor: The person who establishes a trust and places property into it.
- Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
- Liabilities: The aggregate of all debts and other legal obligations of a particular person or legal entity.
- Personal property: All property that is not real property.
- Personal property: includes money, goods, chattels, things in action, and evidences of debt. See North Dakota Code 1-01-49
- Property: includes property, real and personal. See North Dakota Code 1-01-49
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See North Dakota Code 1-01-49
- subscription: includes "mark" when the person cannot write, the person's name being written near it and written by a person who writes that person's own name as a witness. See North Dakota Code 1-01-49
- Trustee: A person or institution holding and administering property in trust.
2. When a merger or consolidation becomes effective:
a. The constituent corporations become a single corporation, which, in case of merger, is a surviving corporation or, in case of consolidation, is a new corporation.
b. Subject to subdivision c and section 10-33-91, and except for the surviving corporation, the separate existence of the constituent corporations ends.
c. When the agreement of merger or consolidation expressly provides for the continuance of the corporate existence of a constituent corporation and expressly declares the purpose for the continuance, the corporate existence of the constituent corporation continues in the single corporation for the purpose declared in the agreement.
d. The single corporation has the rights, privileges, immunities, and powers, and is subject to the duties and liabilities, of a corporation formed under this chapter.
e. The single corporation has the rights, privileges, immunities, powers, and franchises, public and private, of each constituent corporation.
f. All real or personal property, debts, including debts arising from a subscription for membership, and interests belonging to each constituent corporation are transferred to the single corporation without further act or deed.
g. Interest in real estate possessed by a constituent corporation does not revert to the grantor, or otherwise, nor is it in any way impaired by reason of the merger or consolidation; and the personal property of a constituent corporation does not revert by reason of the merger or consolidation.
h. Except when the will or other instrument provides otherwise, and subject to section 10-33-95, a devise, bequest, gift, or grant contained in a will or other instrument, in trust or otherwise, made before or after the merger or consolidation has become effective, to or for any of the constituent corporations, inures to the single corporation.
i. Debts, liabilities, and obligations of each constituent corporation become the debts, liabilities, and obligations of the single corporation, just as if the debts, liabilities, and obligations had been incurred or contracted by the single corporation.
j. Existing claims or a pending action or proceeding by or against a constituent corporation may be prosecuted to judgment as though the merger or consolidation had not been effected, or the single corporation may be substituted for the constituent corporation.
k. The liabilities of the members, officers, directors, or similar groups or persons, however denominated, of a constituent corporation are not affected by the merger or consolidation of a constituent corporation.
l. The rights of creditors or liens upon the property of a constituent corporation are not impaired by the merger or consolidation, but the liens are limited to the property upon which they were liens immediately before the merger or consolidation.
m. The articles of the surviving corporation are considered to be amended to the extent that changes in its articles are contained in a plan of merger.
n. In the case of a consolidation, the plan of consolidation constitutes the articles of incorporation of the new corporation.
3. a. For purposes of this subsection, “fiduciary capacity” means the capacity of a trustee, executor, administrator, personal representative, guardian, conservator, receiver, escrow agent, agent for the investment of money, attorney in fact, or a similar capacity.
b. Except when the will, declaration of trust, or other instrument provides otherwise, the single corporation is, without further act or deed, the successor of the constituent corporation in the fiduciary capacity in which a constituent corporation was acting at the time of the merger or consolidation and is liable to any beneficiary as fully as if the constituent corporation had continued its separate corporate existence.
c. If a constituent corporation is nominated and appointed, or has been nominated and appointed, in a fiduciary capacity in a will, declaration of trust, or other instrument, order, or judgment before or after the merger or consolidation, then even if the will or other instrument, order, or judgment does not become operative or effective until after the merger or consolidation becomes effective, every fiduciary capacity and the rights, powers, privileges, duties, discretions, and responsibilities provided for in the nomination or appointment fully vest in and are to be exercised by the single corporation, whether there are one or more successive mergers or consolidations.