§ 12:243 — Merger or consolidation procedure

§243. Merger or consolidation procedure
Merger or consolidation may be effected only as a result of a joint agreement entered
into, approved and filed as follows:
(1) The board of directors of each of the nonprofit, business and foreign corporations
which desire to merge or consolidate may enter into a joint agreement signed by a majority
of the directors of each, prescribing the terms and conditions of merger or consolidation and
the mode of carrying the same into effect, and containing such other provisions as are
deemed necessary. If the surviving corporation is a nonprofit corporation and the merger
agreement prescribes changes to be effected by the merger in its articles, the agreement shall
comply with the requirements of R.S. 12:240(A) to the extent applicable.
(2) The agreement must be approved by the shareholders or members of any foreign
corporation or corporations involved, in the manner provided by the laws under which they
were formed, and by the shareholders of any business corporation or corporations involved,
in the manner provided in Chapter 1 of this Title.
(3) The agreement shall be submitted to the members of each of the merging or
consolidating nonprofit corporations at an annual or special meeting. Written notice shall
be given by each such corporation to each member entitled to vote at the meeting, in the
manner provided in R.S. 12:230(A). A copy or a summary of the agreement shall be
included in, or enclosed with, such notice, and if the corporation has no nonshareholding
members, the notice shall include the statement: "Dissenting shareholders who comply with
the procedural requirements of the Nonprofit Corporation Law of Louisiana will be entitled
to receive payment of the fair cash value of their shares if the merger or consolidation is
effected upon approval by less than two-thirds of the corporation's total voting power." The
agreement must be approved by the members of each nonprofit corporation by vote of at least
two-thirds in interest (or such smaller proportion, not less than a majority, as the articles may
provide) of the voting members present. In addition, if the agreement is a merger agreement,
and expressly prescribes a change in the articles of the surviving nonprofit corporation
which, if contained in a proposed amendment to such corporation's articles, would entitle any
class or series of shares of such corporation to vote as a class thereon, the merger agreement
must also be approved by such affirmative vote of the holders of the shares of such class or
series as would be required for the adoption of such an amendment to the articles.
(4) The fact that the agreement has been approved by the shareholders or members
of each party thereto as hereinabove provided shall be certified on the agreement by the
respective secretaries or assistant secretaries, and the agreement, so approved and certified,
shall be signed and acknowledged by the president or vice-president of each of the corporate
parties thereto.
(5) The shareholders or members of each nonprofit, business and foreign corporation
shall have the right, exercisable by the vote required for approval of the agreement, to
propose amendments to the agreement, and if such amendments be concurred in by the
shareholders and members of all of the other nonprofit, business and foreign corporations,
in each case by the vote required for approval of the agreement, the agreement so amended,
when certified, signed and acknowledged as provided in this section, shall be considered the
merger or consolidation agreement.
(6)(a) The secretary of state may prescribe and furnish forms for filing the merger
agreement. The agreement, so adopted, certified and acknowledged, shall be filed with the
secretary of state, who, after all incorporation taxes, fees and charges have been paid as
required by law, shall record the same in his office, endorse thereon the date and, if
requested, the hour of filing thereof with him, and issue a certificate of merger or
consolidation which shall recite the names of all of the merging and consolidating
corporations, the name of the state or country under the laws of which each was formed,
whether a merger or consolidation is involved, the name of the surviving or consolidated
corporation, the name of the state or country under the laws of which the consolidated
corporation is formed, the date and, if endorsed on the agreement, the hour of filing of the
agreement with him, and the effective time of the merger or consolidation, if stated in the
agreement.
(b) The agreement may be delivered to the secretary of state in advance, for filing
as of any specified date (and, if specified upon such delivery, as of any given time on such
date) within thirty days after the date of delivery. A duplicate original of the certificate of
merger or consolidation, issued by the secretary of state, shall, within thirty days after
issuance of the certificate, be filed for record in the office of the recorder of mortgages in
each parish in this state in which any of the corporate parties to the agreement has its
registered office, and in the conveyance records of each parish in this state in which any of
the corporate parties to the agreement has immovable property, title to which will be
transferred as a result of the merger or consolidation.
(7)(a) If a nonprofit, business or foreign corporation owns at least ninety percent of
the outstanding shares of each class of one or more nonprofit, business or foreign
corporations, none of the subsidiary nonprofit corporations has any nonshareholding
members, and the laws under which each foreign corporation involved was formed permit
merger by the procedure prescribed in this Subsection, the parent may:
(i) Merge into itself one or more subsidiaries by delivering to the secretary of state,
who shall record it after all fees and charges have been paid as required by law, a certificate,
signed and acknowledged by its president or a vice-president and its secretary or an assistant
secretary, setting forth a copy of the resolution of its board of directors effecting such merger
and the date of adoption thereof, or
(ii) Merge itself, or itself and one or more of such subsidiaries, into one of such
subsidiaries, by filing with the secretary of state, who shall record it after all fees and charges
have been paid as required by law, a certificate, signed and acknowledged by its president
or a vice-president, and its secretary or an assistant secretary, setting forth a copy of a
resolution of its board of directors effecting such merger and the date of adoption thereof,
and stating if the parent is a nonprofit corporation, that the resolution has been approved by
the parent's members in the manner and by the vote prescribed in Subsection C of this
Section for approval of merger or consolidation agreements.
(b) If the parent owns less than all of the outstanding shares of any subsidiary merged
into itself, the resolution of the board of directors shall also state the terms and conditions
of the merger, including the shares, secured or unsecured obligations, cash or other
consideration to be delivered to the other shareholders of such subsidiary. If the parent is
merged into a subsidiary, the resolution of the board of directors shall also state the shares,
secured or unsecured obligations, cash or other consideration to be delivered to the
shareholders or members of the parent and any merged subsidiaries.
(c) A duplicate original of the certificate, issued by the secretary of state, shall be
filed for record with the recorder of mortgages of each parish in this state in which each
nonprofit corporation involved has its registered office, and with the recorder of conveyances
of each parish in this state in which any nonprofit, business or foreign corporation involved
owns immovable property, title to which will be transferred as a result of the merger. A copy
of the certificate shall, within twenty days after filing thereof with the secretary of state, be
mailed to each minority shareholder of each subsidiary involved in the merger, at his last
known address.
(d) If the surviving corporation is a nonprofit corporation, its name may be changed,
effective upon effectiveness of the merger, by inclusion of a provision to that effect in the
resolution of the parent corporation's board of directors.
(e) The secretary of state may prescribe and furnish forms for filing the certificate
of merger.
(8)(a) Notwithstanding approval by the members, and at any time prior to the
effectiveness of the merger or consolidation, the merger or consolidation may be abandoned
pursuant to a provision for such abandonment, if any, contained in the agreement of merger
or consolidation.
(b) The secretary of state may prescribe and furnish forms for abandoning the merger
or consolidation.
(9) An agreement of merger or consolidation or a certificate of merger may provide
that any consideration to be delivered to shareholders or members of any party to the merger
or consolidation may consist of shares or secured or unsecured obligations of any business,
nonprofit or foreign corporation, whether or not a party to the consolidation or merger, or
cash or other consideration.

Legislative History

Acts 1968, No. 105, §1. Amended by Acts 1970, No. 50, §§18, 19, emerg. eff. June 18, 1970, at 5:05 P.M.; Acts 1988, No. 101, §1; Acts 2019, No. 19, §2, eff. May 28, 2019.