CHAPTER 7. MERGER
IC 23-18-7
Chapter 7. Merger
IC 23-18-7-1
Planned merger; exchange or conversion of interests
Sec. 1. (a) Unless otherwise provided in writing by the operatingagreement, a limited liability company may merge with or intoanother limited liability company according to a plan of merger.
(b) An interest in a limited liability company that is a party to themerger may be exchanged for or converted into an interest,obligation, or other securities of the surviving limited liabilitycompany or into cash or other property.
As added by P.L.8-1993, SEC.301.
IC 23-18-7-2
Written plan of merger; contents
Sec. 2. (a) Each constituent limited liability company shall enterinto a written plan of merger that is approved under section 3 of thischapter.
(b) The plan of merger must include the following:
(1) The name of each limited liability company planning tomerge and the name of the surviving limited liability companyinto which each other limited liability company plans to merge.
(2) The terms and conditions of the merger.
(3) The manner and basis of converting the interests of eachlimited liability company, in whole or in part, into interests,obligations, or other securities of the surviving limited liabilitycompany or cash or other property.
(c) The plan of merger may include the following:
(1) Amendments to the articles of organization of the survivinglimited liability company.
(2) Other provisions relating to the merger.
As added by P.L.8-1993, SEC.301.
IC 23-18-7-3
Approval of plan of merger; abandonment
Sec. 3. (a) Unless otherwise provided in writing in the operatingagreement, a limited liability company that is a party to a proposedmerger must approve the plan of merger by the unanimous consentof the members.
(b) A party to the merger may abandon the merger under the planof merger or this chapter.
As added by P.L.8-1993, SEC.301.
IC 23-18-7-4
Articles of merger; effective date of merger; recordation;dissolution effect
Sec. 4. (a) After a plan of merger is approved, the survivinglimited liability company shall deliver to the secretary of state forfiling articles of merger setting forth the following: (1) The name and jurisdiction of organization of each limitedliability company that is a party to merger.
(2) The plan of merger.
(3) A statement that the plan of merger was approved by eachlimited liability company as required by the laws of the state ofits organization.
(b) Unless a delayed effective date is specified, a merger takeseffect when the articles of merger are filed.
(c) The surviving limited liability company resulting from amerger may, after the merger has become effective, file for recordwith the county recorder of each county where the limited liabilitycompany has real property at the time of the merger, the title that willbe transferred by the merger, a file-stamped copy of the articles ofmerger. If the plan of merger sets forth amendments to the articles oforganization that change the name of the surviving limited liabilitycompany, a file-stamped copy of the articles of merger may be filedfor record with the county recorder of each county where thesurviving limited liability company has real property at the time themerger becomes effective. A failure to record a copy of the articlesof merger under this subsection does not affect the validity of themerger or the change in the limited liability company's name.
(d) Articles of merger are articles of dissolution for each domesticlimited liability company that is not the surviving limited liabilitycompany in the merger.
As added by P.L.8-1993, SEC.301.
IC 23-18-7-5
Effect of merger
Sec. 5. When a merger takes effect:
(1) every other party to the merger merges into the survivinglimited liability company and the separate existence of everylimited liability company except the surviving limited liabilitycompany ceases;
(2) the title to all real estate and other property owned by eachparty to the merger is vested in the surviving limited liabilitycompany without reversion or impairment;
(3) the surviving limited liability company has all liabilities ofeach party to the merger;
(4) a proceeding pending against a party to the merger may becontinued as if the merger did not occur or the surviving limitedliability company may be substituted in the proceeding for eachlimited liability company whose existence ceased;
(5) the articles of organization of the surviving limited liabilitycompany are amended to the extent provided in the plan ofmerger; and
(6) the interests of each party to the merger that are to beconverted into interests, obligations, or other securities of thesurviving limited liability company or cash or other property areconverted and the former holders of interests are entitled onlyto the rights provided in the articles of merger.As added by P.L.8-1993, SEC.301.
IC 23-18-7-6
Foreign and domestic company merger
Sec. 6. (a) A foreign limited liability company may participate ina merger with a domestic limited liability company if the followingconditions are satisfied:
(1) The merger is permitted by the laws of the jurisdiction underwhose laws the foreign limited liability company is organizedand the foreign limited liability company complies with thelaws in effecting the merger.
(2) The foreign limited liability company complies with section4 of this chapter if it is the surviving limited liability companyof the merger.
(3) Each domestic limited liability company complies with theapplicable provisions of sections 1 through 3 of this chapterand, if it is the surviving limited liability company of themerger, with section 4 of this chapter.
(b) Upon the merger taking effect, the surviving foreign limitedliability company agrees to the following:
(1) That it may be served with process in Indiana in anyproceeding for enforcement of any obligation of any limitedliability company to the merger that was organized underIndiana law, and for enforcement of any obligation of thesurviving limited liability company arising from the merger.
(2) That the surviving foreign limited liability companyappoints the secretary of state as its agent for service of processin any such proceeding, and the surviving limited liabilitycompany shall specify the address to which a copy of theprocess shall be mailed by the secretary of state.
As added by P.L.8-1993, SEC.301.
IC 23-18-7-7
Abandonment of proposed merger
Sec. 7. (a) Unless the plan of merger precludes the right toabandon the merger, a proposed merger may be abandoned before theeffective date of the articles of merger, unless provided otherwise inthe operating agreement, by the affirmative vote, approval, orconsent of a majority in interest of the members of each limitedliability company that is party to the merger.
(b) If the articles of merger have been filed with the secretary ofstate, notice of the abandonment must be given promptly to thesecretary of state.
(c) If the proposed merger is abandoned as provided in thissection, no liability arises under the articles of merger.
(d) An abandonment does not prejudice the rights of a personunder any other contract made by a limited liability company that isa party to the merger in connection with the proposed merger.
As added by P.L.8-1993, SEC.301.
IC 23-18-7-8
Certificates of merger
Sec. 8. The secretary of state shall prepare certificates of mergerthat specify the following:
(1) The name of each party to the articles of merger.
(2) The name of the successor and the location of thesuccessor's registered office in Indiana.
(3) The date the articles of merger are accepted for record bythe secretary of state.
As added by P.L.8-1993, SEC.301.
IC 23-18-7-9
Requirements for merger of domestic limited liability companywith other business entity; plan of merger
Sec. 9. (a) As used in this section, "other business entity" meansa corporation, limited liability company, limited liability partnership,limited partnership, business trust, real estate investment trust, or anyother entity that is formed under the requirements of applicable lawand is not otherwise subject to section 1 of this chapter.
(b) As used in this section, "surviving entity" means thecorporation, limited liability company, limited liability partnership,limited partnership, business trust, real estate investment trust, or anyother entity that is in existence immediately after consummation ofa merger under this section.
(c) One (1) or more domestic limited liability companies maymerge with or into one (1) or more other business entities formed,organized, or incorporated under the laws of Indiana or any otherstate, the United States, a foreign country, or a foreign jurisdiction ifthe following requirements are met:
(1) Each domestic limited liability company that is a party tothe merger complies with the applicable provisions of thischapter.
(2) Each domestic other business entity that is a party to themerger complies with the requirements of applicable law.
(3) The merger is permitted by the laws of the state, country, orjurisdiction under which each other business entity that is aparty to the merger is formed, organized, or incorporated, andeach other business entity complies with the laws in effectingthe merger.
(4) The merging entities approve a plan of merger that sets forththe following:
(A) The name of each domestic limited liability companyand the name and jurisdiction of formation, organization, orincorporation of each other business entity planning tomerge, and the name of the surviving or resulting domesticlimited liability partnership or other business entity intowhich each other domestic limited liability partnership orother business entity plans to merge.
(B) The terms and conditions of the merger.
(C) The manner and basis of converting the limited liability
company that is a party to the merger and the partnershipinterests, shares, obligations, or other securities of each otherbusiness entity that is a party to the merger into partnershipinterests, interests, shares, obligations, or other securities ofthe surviving entity or any other domestic corporation orother business entity or, in whole or in part, into cash orother property, and the manner and basis of converting rightsto acquire the shares of each domestic corporation that is aparty to the merger and rights to acquire partnershipinterests, interests, shares, obligations, or other securities ofeach other business entity that is a party to the merger intorights to acquire partnership interests, interests, shares,obligations, or other securities of the surviving entity or anyother domestic corporation or other business entity or, inwhole or in part, into cash or other property.
(D) If a partnership is to be the surviving entity, the namesand business addresses of the general partners of thesurviving entity.
(E) If a limited liability company is to be the surviving entityand management thereof is vested in one (1) or moremanagers, the names and business addresses of themanagers.
(F) All statements required to be set forth in the plan ofmerger by the laws under which each other business entitythat is a party to the merger is formed, organized, orincorporated.
(5) The plan of merger may set forth the following:
(A) If a domestic corporation is to be the surviving entity,any amendments to, or a restatement of, the articles ofincorporation of the surviving entity, and the amendments orrestatement will be effective at the effective date of themerger.
(B) Any other provisions relating to the merger.
(d) The plan of merger required by subsection (c)(4) must beadopted and approved by each domestic limited liability companythat is a party to the merger in the same manner as is provided in thischapter.
(e) Notwithstanding subsection (c)(4), if the surviving entity is apartnership, a shareholder of a domestic corporation that is a party tothe merger does not, as a result of the merger, become a generalpartner of the surviving entity and the merger does not becomeeffective under this chapter, unless:
(1) the shareholder specifically consents in writing to becomea general partner of the surviving entity; and
(2) written consent is obtained from each shareholder who, asa result of the merger, would become a general partner of thesurviving entity;
A shareholder providing written consent under this subsection isconsidered to have voted in favor of the plan of merger for purposesof this chapter. (f) This section, to the extent applicable, applies to the merger ofone (1) or more domestic limited liability companies with or into one(1) or more other business entities.
(g) Notwithstanding any other law, a merger consisting solely ofthe merger of one (1) or more domestic limited liability companywith or into one (1) or more foreign corporations must beconsummated solely according to the requirements of this section.
As added by P.L.178-2002, SEC.106.
IC 23-18-7-10
Entity conversion
Sec. 10. (a) As used in this section, "other entity" has the meaningset forth in IC 23-1-38.5-1.
(b) A domestic business corporation, domestic other entity,foreign business corporation, or foreign other entity may convert toa domestic limited liability company in accordance withIC 23-1-38.5.
(c) A domestic limited liability company may convert to adomestic business corporation, domestic other entity, foreignbusiness corporation, or foreign other entity in accordance withIC 23-1-38.5.
As added by P.L.130-2006, SEC.31.