§ 10A-2A-11.02 — Merger

Alabama § 10A-2A-11.02

• Jurisdiction: Alabama
• Title 10A: Alabama Business and Nonprofit Entities Code
• Ch. 2A: Alabama Business Corporation Law
• Art. 11: Mergers and Stock Exchanges

Text

(a) A corporation may merge with one or more other constituent organizations pursuant to this article, and a plan of merger, if:
(1) the governing statute of each of the other organizations authorizes the merger;
(2) the merger is not prohibited by the law of a jurisdiction that enacted any of those governing statutes; and
(3) each of the other organizations complies with its governing statute in effecting the merger.
(b) A plan of merger must be in writing and must include:
(1) the name, type of organization, and mailing address of the principal office of each constituent organization, the jurisdiction of the governing statute of each constituent organization, and the respective unique identifying number or other designation as assigned by the Secretary of State, if any, of each constituent organization;
(2) the name, type of organization, and mailing address of the principal office of the surviving organization, the unique identifying number or other designation as assigned by the Secretary of State, if any, of the surviving organization, the jurisdiction of the governing statute of the surviving organization, and, if the surviving organization is created pursuant to the merger, a statement to that effect;
(3) the terms and conditions of the merger, including the manner and basis for converting the stock or eligible interests in each constituent organization into any combination of money, stock, eligible interests in the surviving organization, and other consideration as allowed by subsection (c);
(4) if the surviving organization is to be created pursuant to the merger, the surviving organization’s organizational documents; and
(5) if the surviving organization is not to be created pursuant to the merger, any amendments to be made by the merger to the surviving organization’s organizational documents.
(c) In connection with a merger, rights, securities, stock, or eligible interests, if any, in a constituent organization may be exchanged for or converted into cash, property, rights, securities, stock, or eligible interests, if any, in the surviving organization, or, in addition to or in lieu thereof, may be exchanged for or converted into cash, property, rights, securities, stock, or eligible interests, if any, in another organization, or may be cancelled.
(d) In addition to the requirements of subsection (b), a plan of merger may:
(1) provide that (i) a constituent organization or any other party to the plan of merger that fails to perform its obligations under the plan of merger in accordance with the terms and conditions of the plan of merger, or that otherwise fails to comply with the terms and conditions of the plan of merger, in each case, required to be performed or complied with prior to the time the merger becomes effective, or that otherwise fails to consummate, or fails to cause the consummation of, the merger (whether prior to a specified date, upon satisfaction or, to the extent permitted by law, waiver of all conditions to consummation set forth in the plan of merger, or otherwise) shall be subject, in addition to any other remedies available at law or in equity, to the penalties or consequences as are set forth in the plan of merger (which penalties or consequences may include an obligation to pay to the other party or parties to the plan of merger an amount representing, or based on the loss of, any premium or other economic entitlement the stockholders or owners, as the case may be, of the other party would be entitled to receive pursuant to the terms of the plan of merger if the merger were consummated in accordance with the terms of the plan of merger) and (ii) if, pursuant to the terms of the plan of merger, a corporation is entitled to receive payment from another party to the plan of merger of any amount representing a penalty or consequence (as specified in clause (i) of this Section 10A-2A-11.02(d)(1)), the corporation shall be entitled to enforce the other party’s payment obligation and, upon receipt of any payment, shall be entitled to retain the amount of the payment so received;
(2) provide (i) for the appointment, at or after the time at which the plan of merger is adopted by the stockholders of a constituent corporation in accordance with the requirements of Section 10A-2A-11.04, of one or more persons (which may include the surviving or resulting entity or any officer, manager, representative or agent thereof) as representative of the stockholders of a constituent corporation of this state, including those whose shares of capital stock shall be cancelled, converted, or exchanged in the merger, and for the delegation to that person or persons of the sole and exclusive authority to take action on behalf of the stockholders pursuant to the plan of merger, including taking such actions as the representative determines to enforce (including by entering into settlements with respect to) the rights of the stockholders under the plan of merger, on the terms and subject to the conditions set forth in the plan of merger, (ii) that any appointment pursuant to clause (i) of this Section 10A-2A-11.02(d)(2) shall be irrevocable and binding on all stockholders from and after the adoption of the plan of merger by the requisite vote of the stockholders pursuant to Section 10A-2A-11.04, and (iii) that any provision adopted pursuant to this Section 10A-2A-11.02(d)(2) may not be amended after the merger has become effective or may be amended only with the consent or approval of persons specified in the plan of merger; and
(3) contain any other provision not prohibited by law.
(e) Terms of a plan of merger may be made dependent on facts objectively ascertainable outside the plan in accordance with Section 10A-2A-1.20(c).
(f) A plan of merger may be amended only with the consent of each constituent organization, except as provided in the plan. A domestic constituent organization may approve an amendment to a plan:
(1) in the same manner as the plan was approved, if the plan does not provide for the manner in which it may be amended; or
(2) in the manner provided in the plan, except that if the plan has been approved by the stockholders, members, or interest holders that were entitled to vote on, consent to, or approve of, the plan, then those stockholders, members, or interest holders are entitled to vote on, consent to, or approve of any amendment of the plan that will change:
(i) the amount or kind of stock or other securities, eligible interests, obligations, rights to acquire stock, other securities or eligible interests, cash, or other property to be received under the plan by the stockholders, members, or interest holders of a constituent organization;
(ii) the certificate of incorporation of any corporation, foreign corporation, nonprofit corporation, foreign nonprofit corporation or the organizational documents of any unincorporated entity or foreign unincorporated entity, that will be the surviving organization, except for changes permitted by Section 10A-2A-10.05 or by comparable provisions of the governing statute of the foreign corporation, nonprofit corporation, foreign nonprofit corporation, unincorporated entity, or foreign unincorporated entity; or
(iii) any of the other terms or conditions of the plan if the change would adversely affect the stockholders, members, or interest holders in any material respect.
(g) At the time of the approval of the plan of merger in accordance with this chapter, the plan of merger is not required to contain or have attached thereto any disclosure letter, disclosure schedules, or similar documents or instruments contemplated by the plan of merger that modify, supplement, qualify, or make exceptions to representations, warranties, covenants, or conditions contained in the plan of merger.

Legislative History

(Act 2019-94, §1; Act 2023-503, §3; Act 2025-281, §2.)