CHAPTER 25-8
MERGER

25-8-1 Definitions.

(A)    “Constituent Organization” in this Part means an organization, including a corporation, a limited liability company, an unincorporated cooperative or other tribally-formed entity, that is a party to a merger.

(B)    Unless the context requires otherwise, in this Part “corporation” includes a domestic corporation and a foreign corporation.

(C)    Unless the context requires otherwise, in this Part “LLC” includes a domestic LLC and a foreign LLC.

(D)    “Organizational Documents” includes articles of organization, operating agreements, articles of incorporation, bylaws, partnership agreements, agreements of trust and declarations of trust, and any other basic records that create an entity’s organization and determine its internal governance and relations among person that own it, have an interest in it, or are Owners of it.

25-8-2 Merger.

(A)    Unless otherwise provided in its Organizational Documents, one or more Constituent Organizations may merge with or into one or more LLC’s or one or more other foreign LLC’s as provided in the plan of merger.

(B)    Interests or shares in a Constituent Organization that is a party to a merger may be exchanged for or converted into cash, property, obligations, or interest in the surviving LLC.

25-8-3 Approval of Merger.

(A)    Unless otherwise provided in the Operating Agreement, a domestic LLC that is a party to a proposed merger shall approve the plan of merger by an affirmative vote by all of the Owners.

(B)    Unless otherwise provided in the Operating Agreement, the manager or managers of a domestic LLC may not approve a merger without also obtaining the approval of the LLC’s Owners under subsection (A), above.

(C)    All other Constituent Organizations shall approve the merger in the manner and by the vote required by the laws applicable to the Constituent Organizations and their respective Organizational Documents.

(D)    Each Constituent Organization shall have any rights to abandon the merger as provided for in the plan of merger or in the laws applicable to the Constituent Organization or its Organizational Documents.

(E)    Upon approval of a merger, the Constituent Organization shall notify its Owners, shareholders, and all others that have an ownership interest in it of the approval and of the effective date of the merger.

25-8-4 Plan of Merger.

Each Constituent Organization shall enter into a written plan of merger to be approved under Section 25-8-3.

25-8-5 Articles of Merger.

(A)    The surviving LLC shall deliver to the Office of the Secretary articles of merger, executed by each party to the plan of merger, that include all of the following:

(1)    The name and state or jurisdiction of organization for each Constituent Organization.

(2)    The plan of merger.

(3)    The name of the surviving or resulting LLC.

(4)    A statement as to whether the management of the surviving LLC will be reserved to its Owners or vested in one or more managers.

(5)    The delayed effective date of the merger under Section 25-1-11(D), if applicable.

(6)    A statement as to whether the surviving LLC is Tribally-Owned.

(7)    If Tribally-Owned, a statement as to whether the surviving LLC enjoys the Nation’s sovereign immunity.

(8)    A statement that the plan of merger was approved in accordance with Section 25-8-3.

(B)    A merger takes effect upon the effective date of the articles of merger.

25-8-6 Effects of Merger.

A merger has the following effects:

(A)    The Constituent Organizations must become a single entity, which shall be the entity designated in the plan of merger as the surviving LLC.

(B)    Each Constituent Organization, except the surviving LLC, ceases to exist.

(C)    The surviving LLC possesses all of the rights, privileges, immunities, and powers of each merged Constituent Organization and is subject to all of the restrictions, disabilities, and duties of each merged Constituent Organization.

(D)    All property and all debts, including contributions, and each interest belonging to or owed to each of the Constituent Organizations are vested in the surviving LLC without further act.

(E)    Title to all real estate and any interest in real estate, vested in any Constituent Organization, does not revert and is not in any way impaired because of the merger.

(F)    The surviving LLC has all the liabilities and obligations of each of the Constituent Organizations and any claim existing or action or proceedings pending by or against any merged Constituent Organization may be prosecuted as if the merger had not taken place, or the surviving LLC may be substituted in the action.

(G)    The rights of creditors and any liens on the property of any Constituent Organization survive the merger.

(H)    The interests in a Constituent Organization that are to be converted or exchanged into interest, cash, obligations, or other property under the terms of the plan of merger are converted and the former interest holders are entitled only to the rights provided in the plan of merger of the rights otherwise provided by law.

(I)    The Articles of Organization of the surviving LLC is amended to the extent provided in the articles of merger.

25-8-7 Right to Object.

Unless otherwise provided in the Operating Agreement, upon receipt of the notice required by Section 25-8-3(E), an Owner who did not vote in favor of the merger may, within twenty (20) days after the date of the notice, voluntarily dissociate from the LLC under Section 25-3-7(C) and receive fair value for the Owner’s LLC interest under Section 25-5-4.