42:1A-46. Other business entity; merger or consolidation; effect of certificate

46. a. As used in this section, "other business entity" means a business corporation, partnership, limited partnership or a limited liability company.

b. (1) Pursuant to an agreement of merger or consolidation, a partnership may merge or consolidate with or into one or more partnerships or other business entities formed or organized under the laws of this State or any other state or the United States or any foreign country or other foreign jurisdiction, with such partnership or other business entity as the agreement shall provide being the surviving or resulting partnership or other business entity. Unless otherwise provided in the partnership agreement, a merger or consolidation shall be approved by all partners of each partnership which is to merge or consolidate. In connection with a merger or consolidation hereunder, rights or securities of, or interests in, a partnership or other business entity which is a constituent party to the merger or consolidation may be exchanged for or converted into cash, property, rights or securities of, or interests in, the surviving or resulting partnership or other business entity or, in addition to or in lieu thereof, may be exchanged for or converted into cash, property, rights or securities of, or interests in, a partnership or other business entity which is not the surviving or resulting partnership or other business entity in the merger or consolidation. Notwithstanding prior approval, an agreement of merger or consolidation may be terminated or amended pursuant to a provision for such termination or amendment contained in the agreement of merger or consolidation.

(2) A partnership may not merge or consolidate with any other business entity if authority for such merger or consolidation is not granted by the laws of the jurisdiction under which the other business entity is organized.

(3) With respect to the merger or consolidation of partnerships, each partnership shall comply with the provisions of this section and each other business entity shall comply with the applicable provisions of the laws of the jurisdiction under which it is organized.

c. If a partnership merges or consolidates under this section, the partnership or other business entity surviving or resulting in, or from, the merger or consolidation, shall file a certificate of merger or consolidation in the office of the Division of Commercial Recording in the Department of the Treasury. The Director of the Division of Commercial Recording shall, upon filing, forward a copy of the certificate of merger or consolidation to the Director of the Division of Taxation. The certificate of merger or consolidation shall state:

(1) The name and jurisdiction of formation or organization of each of the partnerships or other business entities which is to merge or consolidate;

(2) That an agreement of merger or consolidation has been approved and executed by each of the partnerships or other business entities which is to merge or consolidate;

(3) The name of the surviving or resulting partnership or other business entity;

(4) The future effective date or time (which shall be a date or time certain) of the merger or consolidation if it is not to be effective upon the filing of the certificate of merger or consolidation;

(5) That the agreement of merger or consolidation is on file at a place of business of the surviving or resulting partnership or other business entity, and shall state the address thereof;

(6) That a copy of the agreement of merger or consolidation shall be furnished by the surviving or resulting partnership or other business entity, on request and without cost, to any member of any partnership or any person holding an interest in any other business entity which is to merge or consolidate; and

(7) If the surviving or resulting entity is not a partnership or other business entity organized under the laws of this State, a statement that such surviving or resulting other business entity agrees that it may be served with process in this State in any action, suit or proceeding for the enforcement of any obligation of any partnership which is to merge or consolidate, irrevocably appointing the State Treasurer 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 State Treasurer.

d. Unless a future effective date or time is provided in a certificate of merger or consolidation, in which event a merger or consolidation shall be effective at any such future effective date or time, a merger or consolidation shall be effective upon the filing in the office of the Division of Commercial Recording of a certificate of merger or consolidation.

e. A certificate of merger or consolidation shall act as a certificate of cancellation for a partnership which is not the surviving or resulting entity in the merger or consolidation.

f. An agreement of merger or consolidation approved in accordance with subsection b. of this section may (1) effect any amendment to the partnership agreement or (2) effect the adoption of a new partnership agreement for a partnership if it is the surviving or resulting partnership in the merger or consolidation. Any amendment to a partnership agreement or adoption of a new partnership agreement made pursuant to this subsection shall be effective at the time or date of the merger or consolidation. The provisions of this subsection shall not be construed to limit the accomplishment of a merger or of any of the matters referred to herein by any other means provided for in a partnership agreement or other agreement or as otherwise permitted by law, including that the partnership agreement of any constituent partnership to the merger or consolidation (including a partnership formed for the purpose of consummating a merger or consolidation) shall be the partnership agreement of the surviving or resulting partnership.

g. When any merger or consolidation becomes effective under this section, for all purposes of the laws of this State, all of the rights, privileges and powers of each of the partnerships and other business entities that have merged or consolidated, and all property, real, personal and mixed, and all debts due to any of those partnerships and other business entities, as well as all other things and causes of action belonging to each of those partnerships and other business entities, shall be vested in the surviving or resulting partnership or other business entity, and shall thereafter be the property of the surviving or resulting partnership or other business entity as they were of each of the partnerships and other business entities that have merged or consolidated, and the title to any real property vested by deed or otherwise, under the laws of this State, in any of those partnerships and other business entities, shall not revert or in any way be impaired by reason of this act; but all rights of creditors and all liens upon any property of any of those partnerships and other business entities shall be preserved unimpaired, and all debts, liabilities and duties of each of those partnerships and other business entities that have merged or consolidated shall attach to the surviving or resulting 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 or consolidation of a partnership, including a partnership which is not the surviving or resulting entity in the merger or consolidation, shall not require the dissolution of the partnership pursuant to section 39 of this act or require the partnership to pay its liabilities and distribute its assets pursuant to section 45 of this act.

L.2000,c.161,s.46.