SEC. 79-29-209. Merger of limited liability company.
(1) Unless otherwise provided in the certificate of formation or limited liability company agreement and subject to any law applicable to the other parties to the merger, one or more limited liability companies may merge with or into one or more domestic or foreign limited liability companies with such limited liability company or foreign limited liability company being the surviving organization.
(2) Unless otherwise provided in the certificate of formation or limited liability company agreement, a merger must be approved by the limited liability company's managers, if management is vested in managers, and by the consent of the members by a majority of the votes entitled to be cast thereon. Unless otherwise provided in the certificate of formation or limited liability company agreement, if separate classes of limited liability company interests exists, the merger shall be approved by the consent of the members by a majority of the votes entitled to be cast by each class voting separately.
(3) A foreign limited liability company that is a party to a proposed merger shall approve the merger in the manner and by the vote required by the laws applicable to it.
(4) Each party to the merger shall have such rights to abandon the merger as are provided in the plan or agreement of merger or the statutes applicable to such party.
(5) Each party to the merger shall enter into a written plan or agreement of merger, subject to approval as provided in subsections (2) and (3) of this section.
(6) The plan or agreement of merger shall set forth:
(a) The name of each domestic or foreign limited liability company which is a party to the merger and the name of the surviving organization of the merger;
(b) The terms and conditions of the proposed merger;
(c) The manner and basis for converting the interests in each party to the merger into obligations or other securities of the surviving organization or any other limited liability company or into cash or other property, in whole or in part;
(d) Such amendments to the certificate of formation or limited liability company agreement of the domestic or foreign limited liability company which is the surviving organization as are desired to be effected by the merger, or that no such changes are desired; and
(e) Such other provisions relating to the proposed merger as are deemed necessary or desirable.
(7) The organization surviving the merger shall file a certificate of merger executed by each party thereto setting forth:
(a) The name and jurisdiction of formation or organization of each party which is to merge;
(b) That a plan or agreement of merger has been approved and executed by each party to the merger;
(c) The name of the surviving organization;
(d) The future effective date of the merger, which shall be a date or time certain not later than the ninetieth (90th) day after the date it is filed, if it is not to be effective upon the filing of the certificate of merger;
(e) The plan or agreement of merger; and
(f) If the surviving organization is a foreign limited liability company, a statement that it agrees that it may be served with process in this state, through service on the Secretary of State as its agent for service of process in a proceeding to enforce any obligation of each domestic limited liability company party to the merger.
(8) Articles of merger shall act as articles of dissolution for a limited liability company which is not the surviving organization in the merger.
(9) As a result of a merger:
(a) Every party to the merger merges into the surviving organization and the separate existence of every organization except the surviving organization ceases;
(b) The title to all real and personal property owned by each party to the merger is vested in the surviving organization;
(c) The surviving organization has all liabilities of each organization party to the merger;
(d) A proceeding pending against any party to the merger may be continued as if the merger did not occur or the surviving entity may be substituted in the proceeding for the organization whose existence ceased;
(e) The certificate of formation of the surviving organization is amended to the extent provided in the plan or agreement of merger;
(f) The limited liability company interests of each party to the merger that are to be converted into interests, obligations or other securities of the surviving or any other organization or into cash or other property are converted and the former owners of such interests are entitled only to the rights provided in the plan or agreement of merger or under this chapter.
SOURCES: Laws, 1994, ch. 402, Sec. 21, eff from and after July 1, 1994.
1997 Amendment:
SECTION 36. Section 79-29-209, Mississippi Code of 1972, is amended as follows:
79-29-209. (1) Unless otherwise provided in the certificate of formation or limited liability company agreement and subject to any law applicable to the other parties to the merger, one or more limited liability companies may merge with or into one or more domestic or foreign limited liability companies with such limited liability company or foreign limited liability company being the surviving organization.
(2) Unless otherwise provided in the certificate of formation or limited liability company agreement, a merger must be approved by the limited liability company's managers, if management is vested in managers, and by the consent of the members by a majority of the votes entitled to be cast thereon. Unless otherwise provided in the certificate of formation or limited liability company agreement, if separate classes of limited liability company interests exists, the merger shall be approved by the consent of the members by a majority of the votes entitled to be cast by each class voting separately.
(3) A foreign limited liability company that is a party to a proposed merger shall approve the merger in the manner and by the vote required by the laws applicable to it.
(4) Each party to the merger shall have such rights to abandon the merger as are provided in the plan or agreement of merger or the statutes applicable to such party.
(5) Each party to the merger shall enter into a written plan or agreement of merger, subject to approval as provided in subsections (2) and (3) of this section.
(6) The plan or agreement of merger shall set forth:
(a) The name of each domestic or foreign limited liability company which is a party to the merger and the name of the surviving organization of the merger;
(b) The terms and conditions of the proposed merger;
(c) The manner and basis for converting the interests in each party to the merger into obligations or other securities of the surviving organization or any other limited liability company or into cash or other property, in whole or in part;
(d) Such amendments to the certificate of formation or limited liability company agreement of the domestic or foreign limited liability company which is the surviving organization as are desired to be effected by the merger, or that no such changes are desired; and
(e) Such other provisions relating to the proposed merger as are deemed necessary or desirable.
(7) The organization surviving the merger shall deliver to the office of the Secretary of State a certificate of merger signed by each party thereto setting forth:
(a) The name and jurisdiction of formation or organization of each party which is to merge;
(b) That a plan or agreement of merger has been approved and signed by each party to the merger;
(c) The name of the surviving organization;
(d) The future effective date of the merger, which shall be a date or time certain not later than the ninetieth day after the date it is filed by the Secretary of State, if it is not to be effective upon the filing of the certificate of merger;
(e) The plan or agreement of merger; and
(f) If the surviving organization is a foreign limited liability company, a statement that it agrees that it may be served with process in this state, through service on the Secretary of State as its agent for service of process in a proceeding to enforce any obligation of each domestic limited liability company party to the merger.
(8) Articles of merger shall act as articles of dissolution for a limited liability company which is not the surviving organization in the merger.
(9) As a result of a merger:
(a) Every party to the merger merges into the surviving organization and the separate existence of every organization except the surviving organization ceases;
(b) The title to all real and personal property owned by each party to the merger is vested in the surviving organization;
(c) The surviving organization has all liabilities of each organization party to the merger;
(d) A proceeding pending against any party to the merger may be continued as if the merger did not occur or the surviving entity may be substituted in the proceeding for the organization whose existence ceased;
(e) The certificate of formation of the surviving organization is amended to the extent provided in the plan or agreement of merger;
(f) The limited liability company interests of each party to the merger that are to be converted into interests, obligations or other securities of the surviving or any other organization or into cash or other property are converted and the former owners of such interests are entitled only to the rights provided in the plan or agreement of merger or under this chapter.
SOURCE: 1997 Laws, Chapter 418, Sec. 36, HB1313, Effective July 1, 1997.