Code of Virginia

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Code of Virginia
Title 13.1. Corporations
Chapter 12. Virginia Limited Liability Company Act
5/8/2021

Article 13. Merger.

§ 13.1-1069.1. Definitions.

As used in this article:

"Merger" means a business combination pursuant to § 13.1-1070.

"Party to a merger" means any domestic or foreign limited liability company or other business entity that will merge under a plan of merger.

"Survivor" in a merger means the domestic or foreign limited liability company or other business entity into which one or more other domestic or foreign limited liability companies or other business entities are merged.

2016, c. 288.

§ 13.1-1070. Merger.

A. One or more domestic limited liability companies may merge with one or more domestic or foreign limited liability companies or other business entities pursuant to a plan of merger.

B. A foreign limited liability company or other business entity may be a party to a merger with a domestic limited liability company only if the merger is permitted by the laws under which the foreign limited liability company or other business entity is organized, formed, or incorporated.

C. The plan of merger shall include:

1. The name and entity type of each domestic or foreign limited liability company or other business entity that will merge and the name of the domestic or foreign limited liability company or other business entity that will be the survivor of the merger;

2. The name of the state or other jurisdiction under whose law each party to the merger is organized, formed, or incorporated;

3. The terms and conditions of the merger;

4. The manner and basis of converting the membership interests of each merging domestic or foreign limited liability company and eligible interests of each merging domestic or foreign other business entity into membership interests, eligible interests, or other securities, obligations, rights to acquire membership interests, eligible interests, or other securities, cash, or other property, or any combination of the foregoing;

5. The manner and basis of converting any rights to acquire the membership interests of each merging domestic or foreign limited liability company and eligible interests of each merging domestic or foreign other business entity into membership interests, eligible interests, or other securities, obligations, rights to acquire membership interests, eligible interests, or other securities, cash, or other property, or any combination of the foregoing;

6. When the survivor is a domestic limited liability company, any amendments to its articles of organization, which may be in the form of amended and restated articles of organization; and

7. Any other provisions required by the laws under which any party to the merger is organized or by which it is governed, or by the articles of organization or other organizational document of any party.

D. The plan of merger may also include a provision that the plan may be amended before the effective time and date of the certificate of merger, but if the members of a domestic limited liability company that is a party to the merger are required by any provision of this chapter to approve the plan, the plan may not be amended after approval of the plan by the members to change any of the following, unless the amendment is approved by the members:

1. The amount or kind of eligible interests or other securities, obligations, rights to acquire eligible interests, or other securities, cash, or other property to be received by the members, shareholders, or holders of eligible interests in any party to the merger;

2. The articles of organization of any domestic or foreign limited liability company, the articles of incorporation of any domestic or foreign stock or nonstock corporation, the articles of trust or governing instrument of any domestic or foreign business trust, the certificate of limited partnership of any domestic or foreign limited partnership, or the partnership agreement of any domestic or foreign partnership that will survive the merger; or

3. Any of the other terms or conditions of the plan if the change would adversely affect the members in any material respect.

1992, c. 575; 1997, c. 190; 2003, c. 340; 2004, c. 601; 2005, c. 765; 2008, c. 108; 2016, c. 288.

§ 13.1-1071. Action on a plan of merger.

Each domestic limited liability company that is a party to a merger shall approve the plan of merger, unless the articles of organization or a written operating agreement of the limited liability company provides otherwise, by the unanimous vote of the members of the limited liability company. However, a provision of a limited liability company's articles of organization or operating agreement purporting to authorize the limited liability company to approve a merger by a less than unanimous vote of the members shall be effective to permit approval of a merger by a less than unanimous vote only if either (i) the articles of organization or operating agreement included that provision at the time each member who does not vote in favor of the merger became bound by the articles of organization or operating agreement or (ii) the provision was added to the articles of organization or operating agreement through an amendment to which each member who does not vote in favor of the merger specifically consented.

1992, c. 575; 1993, c. 113; 2016, c. 288.

§ 13.1-1072. Articles of merger.

A. After a plan of merger has been adopted and approved as required by this chapter, articles of merger shall be signed on behalf of each party to the merger. The articles shall set forth:

1. The plan of merger;

2. If the articles of organization of a domestic limited liability company that is the survivor of a merger are amended, as an attachment to the articles of merger, the amendments to the survivor's articles of organization;

3. The date the plan of merger was approved by each domestic limited liability company that is a party to the merger;

4. A statement that the plan of merger was approved by each domestic limited liability company that is a party to the merger in accordance with the provisions of § 13.1-1071; and

5. As to each foreign limited liability company or other business entity that is a party to the merger, a statement that the merger is permitted by the state or other jurisdiction under whose law the foreign limited liability company or other business entity is organized, formed, or incorporated and that the foreign limited liability company or other business entity has complied with that law in effecting the merger.

B. Articles of merger shall be delivered to the Commission for filing by the survivor of the merger. If the Commission finds that the articles of merger comply with the requirements of law and that all required fees have been paid, it shall issue a certificate of merger. Articles of merger filed under this section may be combined with any filing required under the provisions of this title and Title 50 regarding any domestic other business entity that is a party to the merger if the combined filing satisfies the requirements of this section and the requirements for the filing of articles of merger or a statement of merger on behalf of the domestic other business entity.

1992, c. 575; 1993, c. 113; 1997, c. 190; 2003, cc. 340, 597; 2004, c. 274; 2008, c. 108; 2016, c. 288.

§ 13.1-1073. Effect of merger.

When a merger takes effect:

1. The separate existence of every domestic limited liability company that is a party to the merger except the surviving domestic limited liability company, if any, ceases;

2. The title to all real estate and other property owned by each domestic limited liability company party to the merger is vested in the surviving domestic or foreign limited liability company, partnership, limited partnership, business trust or corporation without reversion or impairment;

3. The surviving domestic or foreign limited liability company, partnership, limited partnership, business trust or corporation has all liabilities of each domestic limited liability company party to the merger;

4. A proceeding pending by or against any domestic limited liability company party to the merger may be continued as if the merger had not occurred, or the surviving domestic or foreign limited liability company, partnership, limited partnership, business trust or corporation may be substituted in the proceeding for the domestic limited liability company whose existence ceased;

5. If a domestic limited liability company is the surviving entity of the merger, the articles of organization and operating agreement of that limited liability company are amended to the extent provided in the plan of merger; and

6. The former holders of membership interests of every domestic limited liability company party to the merger are entitled only to the rights provided in the plan of merger.

1992, c. 575; 1997, c. 190; 2003, c. 340.

§ 13.1-1073.1. Abandonment of merger.

A. Unless otherwise provided in a plan of merger or in the laws under which a foreign limited liability company or a domestic or foreign other business entity that is a party to a merger is organized or by which the merger is governed, after the plan has been approved as required by this article, and at any time before the certificate of merger has become effective, it may be abandoned by a domestic limited liability company that is a party thereto without action by members in accordance with any procedures set forth in the plan of merger or, if no procedures are set forth in the plan, by a vote of the members of the limited liability company that is equal to or greater than the vote cast for the plan of merger pursuant to § 13.1-1071, subject to any contractual rights of other parties to the merger.

B. If a merger is abandoned under subsection A after articles of merger have been filed with the Commission but before the certificate of merger has become effective, a statement that the merger has been abandoned in accordance with this section, signed on behalf of a party to the merger, shall be delivered to the Commission for filing before the effective time and date of the certificate of merger. Upon filing, the statement shall take effect and the merger shall be deemed abandoned and shall not become effective.

2016, c. 288.