61-2-211 - Merger.
61-2-211. Merger.
(a) As used in this section, other business entity means a corporation, limited liability company, business trust or association, a real estate investment trust, a common law trust, or an unincorporated business, including a partnership (whether general or limited, but excluding a domestic limited partnership).
(b) (1) Pursuant to an agreement of merger, a domestic limited partnership may merge with or into one (1) or more domestic limited partnerships or other business entities formed or organized under the laws of the state of Tennessee or any other state or the United States or any foreign country or other foreign jurisdiction, with such domestic limited partnership or other business entity as the agreement shall provide being the surviving or resulting domestic limited partnership or other business entity. Unless otherwise provided in the partnership agreement, a merger shall be approved by each domestic limited partnership which is to merge:
(A) By all general partners; and
(B) By the limited partners or, if there is more than one (1) class or group of limited partners, then by each class or group of limited partners, in either case, by limited partners who own more than fifty percent (50%) of the then current percentage or other interest in the profits of the domestic limited partnership owned by all of the limited partners or by the limited partners in each class or group, as appropriate.
(2) Notwithstanding prior approval, an agreement of merger may be terminated prior to filing of a certificate of merger with the secretary of state or amended pursuant to a provision for such termination or amendment contained in the agreement of merger.
(c) If a domestic limited partnership is merging under this section, the domestic limited partnership or other business entity surviving or resulting in or from the merger shall file a certificate of merger in the office of the secretary of state. The certificate of merger shall state:
(1) The name, jurisdiction and date of formation or organization of each of the domestic limited partnerships or other business entities which is to merge;
(2) That an agreement of merger has been approved and executed by each of the domestic limited partnerships or other business entities which is to merge;
(3) The name of the surviving or resulting domestic limited partnership or other business entity;
(4) The future effective date or time (which shall be a date or time certain and which shall comply with § 61-2-1104(b)) of the merger if it is not to be effective upon the filing of the certificate of merger;
(5) That the agreement of merger is on file at a place of business of the surviving or resulting domestic limited partnership or other business entity, and shall state the address of such entity;
(6) That a copy of the agreement of merger will be furnished by the surviving or resulting domestic limited partnership or other business entity, on request and without cost, to any partner of any domestic limited partnership or any person holding an interest in any other business entity which is to merge; and
(7) If the surviving or resulting entity is not a domestic limited partnership or corporation organized under the laws of the state of Tennessee a statement that such surviving or resulting other business entity agrees that it may be served with process in the state in any action, suit or proceeding for the enforcement of any obligation of any domestic limited partnership which is to merge, irrevocably appointing the secretary of state as its agent to accept service of process in any such action, suit or proceeding and specifying the address to which a copy of such process shall be mailed to it by the secretary of state. In the event of service hereunder upon the secretary of state, the procedures set forth in § 61-2-106 shall be applicable, except that the plaintiff in any such action, suit or proceeding shall furnish the secretary of state with the address specified in the certificate of merger provided for in this section and any other address which the plaintiff may elect to furnish, together with copies of such process as required by the secretary of state, and the secretary of state shall notify such surviving or resulting other business entity at all such addresses furnished by the plaintiff in accordance with the procedures set forth in § 61-2-106.
(d) Unless a future effective date or time pursuant to § 61-2-1104(b) is provided in a certificate of merger, in which event a merger shall be effective at any such future effective date or time, a merger shall be effective upon the filing in the office of the secretary of state of a certificate of merger.
(e) A certificate of merger shall act as a certificate of cancellation for a domestic limited partnership which is not the surviving or resulting entity in the merger.
(f) When any merger has become effective under this section, for all purposes of the laws of the state, all of the rights, privileges and powers of each of the domestic limited partnerships and other business entities that have merged, and all property, real, personal and mixed, and all debts due to any of the domestic limited partnerships and other business entities, as well as all other things and causes of action belonging to each of such domestic limited partnerships and other business entities, shall be vested in the surviving or resulting domestic limited partnership or other business entity, and shall thereafter be the property of the surviving or resulting domestic limited partnership or other business entity as they were of each of the domestic limited partnerships and other business entities that have merged, and the title to any real property vested by deed or otherwise in any of such domestic limited partnerships and other business entities, shall not revert or be in any way impaired by reason of this chapter; but all rights of creditors and all liens upon any property of any of the domestic limited partnerships and other business entities shall be preserved unimpaired, and all debts, liabilities and duties of each of the domestic limited partnerships and other business entities that have merged shall thenceforth attach to the surviving or resulting domestic limited partnership or other business entity, and may be enforced against it to the same extent as if the debts, liabilities and duties had been incurred or contracted by it. Unless otherwise agreed, a merger of a domestic limited partnership, including a domestic limited partnership which is not the surviving or resulting entity in the merger, shall not require such domestic limited partnership to wind up its affairs under § 61-2-803 or pay its liabilities and distribute its assets under § 61-2-804.
(g) Each certificate of merger required by this part to be filed with the secretary of state shall also be recorded in the office of the register of deeds in the county in which the limited partnership is to have its principal office and in each county in which a limited partnership which is a party to such merger had its principal office; provided, that when such certificate is filed by the secretary of state, the matters covered by such certificate shall be effective as stated therein, and a copy of such certificate certified by the secretary of state shall be conclusive evidence of the matters covered therein. The register of deeds may charge five dollars ($5.00) plus fifty cents (50¢) per page in excess of five (5) pages for such filing.
[Acts 1988, ch. 922, § 1; 1989, ch. 270, §§ 24, 25; 1994, ch. 868, § 12.]