Section 1775.45. Merger or consolidation into surviving or new domestic general partnership

Effective January 1, 2010, Chapter 1775 is repealed and no longer governs partnerships. 2008 HB332.

(A) Pursuant to a written agreement of merger between the constituent entities as provided in this section, a domestic partnership and one or more additional domestic partnerships or other domestic or foreign entities may be merged into a surviving domestic partnership. Pursuant to a written agreement of consolidation between the constituent entities as provided in this section, two or more domestic or foreign entities may be consolidated into a new domestic partnership formed by such consolidation. If any constituent entity is formed or organized under the laws of any state other than this state or under any chapter of the Revised Code other than this chapter, the merger or consolidation also must be permitted by the chapter of the Revised Code under which each domestic constituent entity exists and by the laws under which each foreign constituent entity exists.

(B) The written agreement of merger or consolidation of constituent entities into a surviving or new domestic partnership shall set forth all of the following:

(1) The name and the form of entity of each constituent entity, the state under the laws of which each constituent entity exists, and the name of the surviving or new domestic partnership;

(2) In the case of a merger, that one or more specified constituent entities will be merged into a specified surviving domestic partnership, and, in the case of a consolidation, that the constituent entities will be consolidated into a new domestic partnership;

(3) All statements and matters required to be set forth in such an agreement of merger or consolidation by the laws under which each constituent entity exists;

(4) In the case of a consolidation, the partnership agreement of the new domestic partnership or a provision that the written partnership agreement of a specified constituent partnership, a copy of which shall be attached to the agreement of consolidation, with any amendments that are set forth in the agreement of consolidation, shall be the agreement of partnership of the new domestic partnership;

(5) The name and address of the statutory agent upon whom any process, notice, or demand against any constituent entity, the surviving domestic partnership, or the new domestic partnership may be served;

(6) In the case of a merger, any changes in the general partners of the surviving domestic partnership and, in the case of a consolidation, the general partners of the new domestic partnership or a provision specifying the general partners of one or more specified constituent partnerships that shall constitute the initial general partners of the new domestic partnership;

(7) The terms of the merger or consolidation; the mode of carrying them into effect; and the manner and basis of converting the interests or shares in the constituent entities into, or substituting the interests or shares in the constituent entities for, interests, evidences of indebtedness, other securities, cash, rights, or any other property or any combination of interests, evidences of indebtedness, securities, cash, rights, or any other property of the surviving domestic partnership, of the new domestic partnership, or of any other entity. No such conversion or substitution shall be effected if there are reasonable grounds to believe that the conversion or substitution would render the surviving or new domestic partnership unable to pay its obligations as they become due in the usual course of its affairs.

(C) The written agreement of merger or consolidation of constituent entities into a surviving or new domestic partnership may set forth any of the following:

(1) The effective date of the merger or consolidation, which date may be on or after the date of the filing of the certificate of merger or consolidation;

(2) A provision authorizing one or more of the constituent entities to abandon the proposed merger or consolidation prior to filing the certificate of merger or consolidation pursuant to section 1775.47 of the Revised Code by action of the partners of a constituent partnership, the directors of a constituent corporation, or the comparable representatives of any other constituent entity;

(3) In the case of a merger, any amendments to the agreement of partnership of the surviving domestic partnership, or a provision that the written partnership agreement of a specified constituent partnership other than the surviving domestic partnership, with any amendments that are set forth in the agreement of merger, shall be the partnership agreement of the surviving domestic partnership;

(4) A statement of, or a statement of the method of determining, the fair value of the assets to be owned by the surviving domestic partnership;

(5) The parties to the agreement of merger or consolidation in addition to the constituent entities;

(6) Any additional provision necessary or desirable with respect to the proposed merger or consolidation.

(D) To effect the merger or consolidation, the agreement of merger or consolidation shall be adopted by the partners of each constituent domestic partnership, including the surviving domestic partnership in the case of a merger, and shall be adopted by or otherwise authorized by or on behalf of each other constituent entity in accordance with the laws under which it exists.

(E) All partners, whether or not they are entitled to vote or act, shall be given written notice of any meeting of general partners of a constituent domestic partnership or of any proposed action by general partners of a constituent domestic partnership, which meeting or action is to adopt an agreement of merger or consolidation. The notice shall be given to the partners either by mail at their addresses as they appear on the records of the partnership or in person and, unless the partnership agreement provides a shorter or longer period, shall be given not less than seven and not more than sixty days before the meeting or the effective date of the action. The notice shall be accompanied by a copy or a summary of the material provisions of the agreement of merger or consolidation.

(F) The vote or action of the partners of a constituent domestic partnership that is required to adopt an agreement of merger or consolidation is the unanimous vote or action of the partners or such different number or proportion as provided in writing in the partnership agreement. If the agreement of merger or consolidation would have an effect or authorize any action that under any applicable provision of law or the partnership agreement could be effected or authorized only by or pursuant to a specified vote or action of the partners, or of any class or group of partners, the agreement of merger or consolidation also shall be adopted or approved by the same vote or action as would be required to effect that change or authorize that action. Each person who will continue to be or who will become a general partner of a partnership that is the surviving or new entity in a merger or consolidation shall specifically agree in writing to continue or to become, as the case may be, a general partner of the partnership that is the surviving or new entity.

(G) At any time before the filing of the certificate of merger or consolidation pursuant to section 1775.47 of the Revised Code, the merger or consolidation may be abandoned by the partners of any constituent partnership, the directors of any constituent corporation, or the comparable representatives of any other constituent entity if the partners, directors, or other representatives are authorized to do so by the agreement of merger or consolidation or by the same vote or action as was required to adopt the agreement of merger or consolidation. The agreement of merger or consolidation may contain a provision authorizing less than all of the partners of any constituent partnership, the directors of any constituent corporation, or the comparable representatives of any other constituent entity to amend the agreement of merger or consolidation at any time before the filing of the certificate of merger or consolidation, except that, after the adoption of the agreement of merger or consolidation by the partners of any constituent domestic partnership, less than all of the partners shall not be authorized to amend the agreement of merger or consolidation to do any of the following:

(1) Alter or change the amount or kind of interests, shares, evidences of indebtedness, other securities, cash, rights, or any other property to be received by partners of the constituent domestic partnership in conversion of, or in substitution for, their interests;

(2) Alter or change any term of the partnership agreement of the surviving or new domestic partnership, except for alterations or changes that could otherwise be adopted by the partners of the surviving or new domestic partnership;

(3) Alter or change any other terms and conditions of the agreement of merger or consolidation if any of the alterations or changes, alone or in the aggregate, would materially adversely affect the partners or any class or group of partners of the constituent domestic partnership.

Effective Date: 07-05-2002; 10-12-2006; 2008 HB332 01-01-2010