§ 908 — Merger of partnership and limited liability company

(a) Under a plan of merger approved under subsection (c) of this Section, any one or more partnerships of this State may merge with or into one or more limited liability companies of this State, any other state or states of the United States, or the District of Columbia, if the laws of the other state or states or the District of Columbia permit the merger. The partnership or partnerships and the limited liability company or companies may merge with or into a partnership, which may be any one of these partnerships, or they may merge with or into a limited liability company, which may be any one of these limited liability companies, which shall be a partnership or limited liability company of this State, any other state of the United States, or the District of Columbia, which permits the merger. (b) A plan of merger must set forth all of the following: (1) The name of each entity that is a party to the merger. (2) The name of the surviving entity into which the other entities will merge. (3) The type of organization of the surviving entity. (4) The terms and conditions of the merger. (5) The manner and basis for converting the interests of each party to the merger into interests, obligations, or other securities of the surviving entity, or into money or other property in whole or in part. (6) The street address of the surviving entity's principal place of business. (c) The plan of merger required by subsection (b) of this Section must be approved by each party to the merger in accordance with all of the following: (1) In the case of a partnership, by all of the partners or by the number or percentage of the partners required to approve a merger specified in the partnership agreement. (2) In the case of a limited liability company, by all members or by the number or percentage of members required to approve a merger specified in the operating agreement. (d) After a plan of merger is approved and before the merger takes effect, the plan may be amended or abandoned as provided in the plan of merger. (e) After approval of the plan of merger under this Section, unless the merger is abandoned under subsection (d) of this Section, a statement of merger must be signed on behalf of each party to the merger and delivered to the Secretary of State of this State for filing. The statement of merger must set forth all of the following: (1) The name and, in the case of a limited liability partnership, jurisdiction of each partnership and the name and jurisdiction of organization of each limited liability company that is a party to the merger. (2) That a plan of merger has been approved and signed by each partnership and each limited liability company that is a party to the merger. (3) The name and address of the surviving partnership or surviving limited liability company. (4) The effective date of the merger. (5) If a party to the merger is a foreign limited liability company or a foreign limited liability partnership, the jurisdiction and date of the filing of its articles of organization or statement of qualification, as the case may be, and the date when its application for authority was filed with the Secretary of State of this State or, if an application has not been filed, a statement to that effect. (6) If the surviving entity is not a partnership or limited liability company organized under the laws of this State, an agreement that the surviving entity may be served with process in this State and is subject to liability in any action or proceeding for the enforcement of any liability or obligation of any partnership or limited liability company which is a party to the merger or which was previously subject to suit in this State, and for the enforcement, as provided in this Act, of the right of partners of any partnership or members of any limited liability company to receive payment for their interests in the partnership or limited liability company, as the case may be, against the surviving entity. (f) If a foreign limited liability company or a foreign limited liability partnership is the surviving entity of a merger, it may not do business in this State until an application for that authority is filed with the Secretary of State. (g) The surviving partnership or other entity shall furnish a copy of the plan of merger, on request, and without cost, to any person holding an interest in an entity that is to merge. (h) To the extent that the statement of merger is inconsistent with the articles of organization of a limited liability company or the statement of qualification of a limited liability partnership, the statement of merger shall operate as an amendment to the articles of organization or statement of qualification, as the case may be. (i) The merger is effective upon the filing of the statement of merger with the Secretary of State of this State, or on a later date as specified in the statement of merger not later than 30 days subsequent to the filing of the statement of merger under subsection (e) of this Section. (j) When any merger becomes effective under this Section: (1) the separate existence of each partnership and each limited liability company that is a party to the merger, other than the surviving entity, terminates; (2) all property owned by each partnership and each limited liability company that is a party to the merger vests in the surviving entity; (3) all debts, liabilities, and other obligations of each partnership and each limited liability company that is a party to the merger become the obligations of the surviving entity; (4) an action or proceeding by or against a partnership or limited liability company that is a party to the merger may be continued as if the merger had not occurred or the surviving entity may be substituted as a party to the action or proceeding; and (5) except as prohibited by other law, all the rights, privileges, immunities, powers, and purposes of each partnership and limited liability company that is a party to the merger vest in the surviving entity. (k) The Secretary of State of this State is an agent for service of process in an action or proceeding against any surviving foreign entity to enforce an obligation of any party to a merger if the surviving foreign entity fails to appoint or maintain an agent designated for service of process in this State or the agent for service of process cannot with reasonable diligence be found at the designated office. Service is effected under this subsection (k) at the earliest of: (1) the date the surviving entity receives the process notice or demand; (2) the date shown on the return receipt, if signed on behalf of the surviving entity; or (3) 5 days after its deposit in the mail, if mailed postpaid and correctly addressed. (l) Service under subsection (k) of this Section shall be made by the person instituting the action by doing all of the following: (1) Serving on the Secretary of State of this State, or on any employee having responsibility for administering this Act in his or her office, a copy of the process, notice, or demand, together with any papers required by law to be delivered in connection with service and paying the fee prescribed by Section 108 of this Act. (2) Transmitting notice of the service on the Secretary of State of this State and a copy of the process, notice, or demand and accompanying papers to the surviving entity being served, by registered or certified mail at the address set forth in the statement of merger. (3) Attaching an affidavit of compliance with this Section, in substantially the form that the Secretary of State of this State may by rule prescribe, to the process, notice, or demand. (m) Nothing contained in this Section shall limit or affect the right to serve any process, notice, or demand required or permitted by law to be served upon a partnership in any other manner now or hereafter permitted by law. (n) The Secretary of State of this State shall keep, for a period of 5 years from the date of service, a record of all processes, notices, and demands served upon him or her under this Section and shall record the time of the service and the person's action with reference to the service. (o) Except as provided by agreement with a person to whom a partner of a partnership is obligated, a merger of a partnership that has become effective shall not affect any obligation or liability existing at the time of the merger of a partner of a partnership that is merging.

Legislative History

(Source: P.A. 92-740, eff. 1-1-03.)