17-23-201. Merger and consolidation.

(a) Pursuant to an agreement of merger or consolidation, a statutory trust may merge or consolidate with or into one (1) or more statutory trusts or other business entities formed or organized or existing under the laws of this state or any other state of the United States or any foreign country or other foreign jurisdiction, with the statutory trust or other business entity as the agreement provides being the surviving or resulting statutory trust or other business entity. Unless otherwise provided in the governing instrument of a statutory trust, a merger or consolidation shall be approved by all of the trustees and the beneficial owners of each statutory trust which is to merge or consolidate. In connection with a merger or consolidation, rights or securities of, or interests in, a statutory trust 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 statutory trust 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 statutory trust or other business entity which is not the surviving or resulting statutory trust 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 termination or amendment contained in the agreement of merger or consolidation.

(b) If a statutory trust is merging or consolidating under this section, the statutory trust or other business entity surviving or resulting from the merger or consolidation shall file a certificate of merger or consolidation in the office of the secretary of state. The certificate of merger or consolidation shall state:

(i) The name and jurisdiction of formation or organization of each statutory trust or other business entity which is to merge or consolidate;

(ii) That an agreement of merger or consolidation has been approved and executed by each statutory trust or other business entity which is to merge or consolidate;

(iii) The name of the surviving or resulting statutory trust or other business entity;

(iv) The future effective date or time of the merger or consolidation if it is not to be effective upon the filing of the certificate of merger or consolidation;

(v) That the executed agreement of merger or consolidation is on file at the principal place of business of the surviving or resulting statutory trust or other business entity, and the address thereof;

(vi) That a copy of the agreement of merger or consolidation will be furnished by the surviving or resulting statutory trust or other business entity, on request and without cost, to any beneficial owner of any statutory trust or any person holding an interest in any other business entity which is to merge or consolidate; and

(vii) If the surviving or resulting entity is not a statutory trust or other business entity formed or organized or existing under the laws of this state, a statement that the 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 statutory trust which is to merge or consolidate. The statement shall irrevocably appoint the secretary of state as the agent to accept service of process in any such action, suit or proceeding and specify the address to which a copy of the process shall be mailed by the secretary of state. In the event of service under this paragraph upon the secretary of state, the plaintiff shall furnish the secretary of state with the address specified in the certificate of merger or consolidation provided for in this paragraph and any other address which the plaintiff may elect to furnish, together with copies of the process required by the secretary of state. The secretary of state shall notify the surviving or resulting other business entity at all addresses furnished by the plaintiff by letter, certified mail, return receipt requested. The letter shall enclose a copy of the process and any other papers served upon the secretary of state. It shall be the duty of the plaintiff in the event of such service to serve process and any other papers in duplicate, to notify the secretary of state that service is being made pursuant to this paragraph, and to pay the secretary of state the sum of fifty dollars ($50.00) for use of the state, which shall be taxed as part of the costs in the proceeding, if the plaintiff shall prevail. The secretary of state shall maintain an alphabetical record of any process under this paragraph setting forth the name of the plaintiff and defendant, the title, docket number and nature of the proceedings in which process has been served upon him, the return date thereof, and the day and hour when the service was made. The secretary of state shall not be required to retain the information for a period longer than five (5) years from his receipt of the service of process.

(c) 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 the future effective date or time, a merger or consolidation shall be effective upon the filing in the office of the secretary of state of a certificate of merger or consolidation.

(d) A certificate of merger or consolidation shall act as a certificate of cancellation for a statutory trust which is not the surviving or resulting entity in the merger or consolidation.

(e) Notwithstanding anything to the contrary contained in the governing instrument, a governing instrument containing a specific reference to this subsection may provide that an agreement of merger or consolidation approved in accordance with subsection (a) of this section may:

(i) Effect any amendment to the governing instrument of the statutory trust; or

(ii) Effect the adoption of a new governing instrument of the statutory trust if it is the surviving or resulting statutory trust in the merger or consolidation.

(f) Any amendment to the governing instrument of a statutory trust or adoption of a new governing instrument of the statutory trust made pursuant to subsection (e) of this section shall be effective at the effective time or date of the merger or consolidation. The provisions of subsection (e) of this section and this subsection shall not be construed to limit the accomplishment of a merger or consolidation or of any of the matters referred to in this article by any other means provided for in the governing instrument of a statutory trust or other agreement or as otherwise permitted by law, including that the governing instrument of any constituent statutory trust to the merger or consolidation, including a statutory trust formed for the purpose of consummating a merger or consolidation, shall be the governing instrument of the surviving or resulting statutory trust.

(g) When any merger or consolidation shall have 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 statutory trusts and other business entities that have merged or consolidated, and all property, real, personal and mixed, and all debts due to any of those statutory trusts and other business entities, as well as all other things and causes of action belonging to each of such statutory trusts and other business entities, shall be vested in the surviving or resulting statutory trust or other business entity as they were of each of the statutory trusts and other business entities that have merged or consolidated. The title to any real property vested by deed or otherwise, under the laws of the state, in any of merging or consolidating statutory trusts and other business entities, shall not revert or be in any way impaired by reason of this chapter. All rights of creditors and all liens upon any property of any merging or consolidating statutory trusts and other business entities shall be preserved unimpaired, and all debts, liabilities and duties of each of the statutory trusts and other business entities that have merged or consolidated shall attach to the surviving or resulting statutory trust 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.