North Carolina § 59-73 - 33. Effects of merger.

§ 59-73. 33. Effects of merger.

When a merger takes effect: Each other merging business entity merges into the surviving business entity, and the separate existence of each merging business entity except the surviving business entity ceases; The title to all real estate and other property owned by each merging business entity is vested in the surviving business entity without reversion or impairment; The surviving business entity has all liabilities of each merging business entity; A proceeding pending by or against any merging business entity may be continued as if the merger did not occur, or the surviving business entity may be substituted in the proceeding for a merging business entity whose separate existence ceases in the merger; The interests in each merging business entity that are to be converted into interests, obligations, or securities of the surviving business entity or into the right to receive cash or other property are thereupon so converted, and the former holders of the interests are entitled only to the rights provided to them in the plan of merger or, in the case of former holders of shares in a domestic corporation, as defined in G.S. 55-1-40, any rights they may have under Article 13 of Chapter 55 of the General Statutes; and If the surviving business entity is not a domestic corporation, the surviving business entity is deemed to agree that it will promptly pay to the shareholders of any merging domestic corporation exercising appraisal rights the amount, if any, to which they are entitled under Article 13 of Chapter 55 of the General Statutes and otherwise to comply with the requirements of Article 13 as if it were a surviving domestic corporation in the merger. If the surviving business entity is not a domestic limited liability company, a domestic corporation, a domestic nonprofit corporation, or a domestic limited partnership, when the merger takes effect the surviving business entity is deemed: To agree that it may be served with process in this State in any proceeding for enforcement of (i) any obligation of any merging domestic limited liability company, domestic corporation, domestic nonprofit corporation, domestic limited partnership, or other partnership as defined in G.S. 59-36 that is formed under the laws of this State, (ii) the appraisal rights of shareholders of any merging domestic corporation under Article 13 of Chapter 55 of the General Statutes, and (iii) any obligation of the surviving business entity arising from the merger; and To have appointed the Secretary of State as its registered agent for service of process in any such proceeding. Service on the Secretary of State of any such process shall be made by delivering to and leaving with the Secretary of State, or with any clerk authorized by the Secretary of State to accept service of process, duplicate copies of such process and the fee required by G.S. 59-35.2. Upon receipt of service of process on behalf of a surviving business entity in the manner provided for in this section, the Secretary of State shall immediately mail a copy of the process by registered or certified mail, return receipt requested, to the surviving business entity. If the surviving business entity is authorized to transact business or conduct affairs in this State, the address for mailing shall be its principal office designated in the latest document filed with the Secretary of State that is authorized by law to designate the principal office or, if there is no principal office on file, its registered office. If the surviving business entity is not authorized to transact business or conduct affairs in this State, the address for mailing shall be the mailing address designated pursuant to G.S. 59-73.32(a)(3). The merger shall not affect the liability or absence of liability of any holder of an interest in a merging business entity for any acts, omissions, or obligations of any merging business entity made or incurred prior to the effectiveness of the merger. The cessation of separate existence of a merging business entity shall not constitute a dissolution or termination of the merging business entity. History (1999-369, s. 4.1; 2000-140, s. 52; 2001-358, s. 10(a); 2001-387, ss. 105(b), 112, 115, 170(c), 173, 175(a); 2002-159, s. 17; 2007-385, s. 5; 2011-347, ss. 17, 18.) Editor's Note. - Session Laws 2001-358, s. 53, provided that the act, which amended this section, was effective October 1, 2001, and applicable to documents submitted for filing on or after that date. Section 173 of Session Laws 2001-387 changed the effective date of Session Laws 2001-358 from October 1, 2001, to January 1, 2002. Section 6 of Session Laws 2001-413, effective September 14, 2001, added a sentence to s. 175(a) of Session Laws 2001-387, making s. 173 of that act effective when it became law (August 26, 2001). As a result of these changes, the amendment by Session Laws 2001-358 is effective January 1, 2002, and applicable to documents submitted for filing on or after that date. Session Laws 2001-387, ss. 105(b), 112, and 115, effective January 1, 2002, in subdivision (b)(2), recodified former G.S. 59-73.6 as this section. This section was amended several times in 2001 in the coded bill drafting format provided in G.S. 120-20.1. Session Laws 2001-358, s. 10 (a) amended subsection (b)(2) of § 59-73.6 by substituting "59-35.1(c)" for "59-73.7(c)." The section was then recodified as § 59-73.33 by Session Laws 2001-387, s. 105(b). Without referring to the change made by Session Laws 2001-358 in subsection (b)(2), Session Laws 2001-387, ss. 115 and 170(c) subsequently amended subsection (b)(2) by substituting "59-35.1(f)" for "59-73.7(c)" and then substituting "59-35.2" for "59-35.1(f)." The fees that were to have been in G.S. 59-35.1(c), as amended in Session Laws 2001-358, are now in G.S. 59-35.2. The section is set out in the form above at the direction of the Revisor of Statutes. Effect of Amendments. - Session Laws 2011-347, ss. 17 and 18, effective October 1, 2011, in subdivision (a)(6), deleted "dissenting" preceding "shareholders" and inserted "exercising appraisal rights" near the middle; and, in subdivision (b)(1), substituted "appraisal rights of shareholders" for "rights of dissenting shareholders" near the middle.