SECTIONS 17550-17556 - California Statutes

CORPORATIONS CODE

SECTION 17550-17556

17550. (a) The following entities may be merged pursuant to this
chapter:
(1) Two or more limited liability companies into one limited
liability company.
(2) One or more limited liability companies and one or more other
business entities into one of those other business entities.
(3) One or more limited liability companies and one or more other
business entities into one limited liability company.
(b) Notwithstanding this section, the merger of any number of
limited liability companies with any number of other business
entities may be effected only if the other business entities that are
organized in California are authorized by the laws under which they
are organized to effect the merger, and:
(1) If a limited liability company is the surviving limited
liability company, the foreign other business entities are not
prohibited by the laws under which they are organized from effecting
that merger.
(2) If a foreign limited liability company or foreign other
business entity is the survivor of the merger, the laws of the
jurisdiction under which the survivor is organized authorize that
merger. Notwithstanding the foregoing sentence, if one or more
domestic corporations is also a party to the merger, the merger may
be effected only if, with respect to any foreign other business
entity that is a corporation, the foreign corporation is authorized
by the laws under which it is organized to effect that merger.

17551. (a) Each limited liability company and other business entity
that desires to merge shall approve an agreement of merger. The
agreement of merger shall be approved by the vote of a majority in
interest of the members of each constituent limited liability
company, or such greater percentage of the voting interests of
members as may be specified in the articles of organization or
written operating agreement of that constituent limited liability
company. Notwithstanding the previous sentence, if the members of any
constituent limited liability company become personally liable for
any obligations of a constituent limited liability company or
constituent other business entity as a result of the merger, the
principal terms of the agreement of merger shall be approved by all
of the members of the constituent limited liability company, unless
the agreement of merger provides that all members will have the
dissenters' rights provided in Chapter 13 (commencing with Section
17600). The agreement of merger shall be approved on behalf of each
constituent other business entity by those persons required to
approve the merger by the laws under which it is organized. Other
persons, including a parent of a constituent limited liability
company, may be parties to the agreement of merger. The agreement of
merger shall state:
(1) The terms and conditions of the merger.
(2) The name and place of organization of the surviving limited
liability company or surviving other business entity, and of each
disappearing limited liability company and disappearing other
business entity. The agreement of merger may change the name of the
surviving limited liability company, which new name may be the same
as or similar to the name of a disappearing domestic or foreign
limited liability company, subject to Section 17052.
(3) The manner of converting the interests of each of the
constituent limited liability companies into interests, shares, or
other securities of the surviving limited liability company or
surviving other business entity. If interests of any of the
constituent limited liability companies are not to be converted
solely into interests, shares, or other securities of the surviving
limited liability company or surviving other business entity, the
agreement of merger shall state the cash, property, rights,
interests, or securities that the holders of the interests are to
receive in exchange for the interests, that cash, property, rights,
interests, or securities may be in addition to or in lieu of
interests, shares, or other securities of the surviving limited
liability company or surviving other business entity, or that the
interests are canceled without consideration.
(4) The amendments to the articles of organization of the
surviving limited liability company, if applicable, to be effected by
the merger, if any.
(5) Any other details or provisions as are required by the laws
under which any constituent other business entity is organized,
including, if a domestic corporation is a party to the merger,
subdivision (b) of Section 1113.
(6) Any other details or provisions that are desired, including,
without limitation, a provision for the treatment of fractional
interests.
(b) Each interest of the same class of any constituent limited
liability company, other than an interest in another constituent
limited liability company, that is being canceled and that is held by
a constituent limited liability company or its parent or a limited
liability company of which the constituent limited liability company
is a parent, unless all members of the class consent, shall be
treated equally with respect to any distribution of cash, property,
rights, interests, or securities. Notwithstanding this subdivision,
except in a merger of a limited liability company with a limited
liability company in which it controls at least 90 percent of the
membership interests entitled to vote with respect to the merger, the
nonredeemable interests of a constituent limited liability company
may be converted only into nonredeemable interests or securities of
the surviving limited liability company or other business entity or a
parent if a constituent limited liability company or a constituent
other business entity or its parent owns, directly or indirectly,
prior to the merger, interests of another constituent limited
liability company or interests or securities of a constituent other
business entity representing more than 50 percent of the interests or
securities entitled to vote with respect to the merger of the other
constituent limited liability company or constituent other business
entity, or more than 50 percent of the voting power, as defined in
Section 194.5, of a constituent other business entity that is a
domestic corporation unless all of the members of the class consent.
The provisions of this subdivision do not apply to any transaction
if the commissioner has approved the terms and conditions of the
transaction and the fairness of those terms and conditions pursuant
to Section 25142.
(c) Notwithstanding its prior approval, an agreement of merger may
be amended prior to the filing of the certificate of merger or the
agreement of merger as provided in Section 17552 if the amendment is
approved by the members of each constituent limited liability company
in the same manner as required for approval of the original
agreement of merger and, if the amendment changes any of the
principal terms of the agreement of merger, the amendment is approved
by each of the constituent other business entities in the same
manner as required for approval of the original agreement of merger.
(d) A merger may be abandoned by the members of a constituent
limited liability company in the same manner as required for approval
of the agreement of merger, subject to the contractual rights, if
any, of third parties, including other constituent limited liability
companies and constituent other business entities, at any time before
the merger is effective.
(e) An agreement of merger approved in accordance with subdivision
(a) may effect any amendment to the operating agreement of any
constituent limited liability company or effect the adoption of a new
operating agreement for a constituent limited liability company if
it is the surviving limited liability company in the merger. Any
amendment to an operating agreement or adoption of a new operating
agreement made pursuant to the foregoing sentence shall be effective
at the effective time or date of the merger. Notwithstanding the
above provisions of this subdivision, if a greater number of members
is required to approve an amendment to the operating agreement of the
constituent limited liability company than is required to approve
the agreement of merger pursuant to subdivision (a), and the number
of members that approve the agreement of merger is less than the
number of members required to approve an amendment to the operating
agreement of the constituent limited liability company, any amendment
to the operating agreement or adoption of a new operating agreement
of the surviving limited liability company made pursuant to the first
sentence of this subdivision shall be effective only if the
agreement of merger is approved by the number of members required to
approve an amendment to the operating agreement of the constituent
limited liability company.
(f) The surviving limited liability company or surviving other
business entity shall keep the agreement of merger at the office
referred to in subdivision (a) of Section 17057 or at the business
address specified in paragraph (5) of subdivision (a) of Section
17552, as applicable. Upon the request of a member of a constituent
limited liability company or a holder of shares, interests, or other
securities of a constituent other business entity, a manager or, if
no managers have been elected, any member of the surviving limited
liability company or a person with authority to do so on behalf of
the surviving other business entity shall promptly deliver to the
member or the holder of shares, interests, or other securities, at
the expense of the surviving limited liability company or surviving
other business entity, a copy of the agreement of merger. A waiver by
a member or holder of shares, interests, or other securities of the
rights provided in this subdivision shall be unenforceable.

17552. (a) If the surviving entity is a limited liability company
or an other business entity (other than a corporation in a merger in
which a domestic corporation is a constituent party), after approval
of a merger by the constituent limited liability companies and any
constituent other business entities, the constituent limited
liability companies or constituent other business entities shall file
a certificate of merger in the office of, and on a form prescribed
by, the Secretary of State. The certificate of merger shall be
executed and acknowledged by each domestic constituent limited
liability company by all of the managers of the limited liability
company, unless a lesser number is specified in the articles of
organization or the operating agreement of the constituent limited
liability company, and by each constituent foreign limited liability
company and each constituent other business entity by those persons
required to execute the certificate or agreement of merger by the
laws under which the constituent foreign limited liability company or
other business entity is organized. The certificate of merger shall
set forth all of the following:
(1) The names and the Secretary of State's file numbers, if any,
of each of the constituent limited liability companies and
constituent other business entities, separately identifying the
disappearing limited liability companies and disappearing other
business entities and the surviving limited liability company or
surviving other business entity.
(2) If a vote of the members was required under Section 17551, a
statement setting forth the total number of outstanding interests of
each class entitled to vote on the merger and that the principal
terms of the agreement of merger were approved by a vote of the
number of interests of each class that equaled or exceeded the vote
required, specifying each class entitled to vote and the percentage
vote required of each class.
(3) If the surviving entity is a limited liability company and not
an other business entity, any change required to the information set
forth in the articles of organization of the surviving limited
liability company resulting from the merger, including any change in
the name of the surviving limited liability company resulting from
the merger. The filing of a certificate of merger setting forth any
changes to the articles of organization of the surviving limited
liability company shall have the effect of the filing of an amendment
to the articles of organization by the surviving limited liability
company, and the surviving limited liability company need not file a
certificate of amendment under Section 17054 to reflect those
changes.
(4) The future effective date or time (which shall be a date or
time certain not more than 90 days subsequent to the date of filing)
of the merger, if the merger is not to be effective upon the filing
of the certificate of merger with the office of the Secretary of
State.
(5) If the surviving entity is an other business entity or a
foreign limited liability company, the full name, type of entity,
legal jurisdiction in which the entity was organized and by whose
laws its internal affairs are governed, and the address of the
principal place of business of the entity.
(6) Any other information required to be stated in the certificate
of merger by the laws under which each constituent other business
entity is organized, including, if a domestic corporation is a party
to the merger, paragraph (2) of subdivision (g) of Section 1113.
If the surviving entity is a foreign limited liability company in
a merger in which a domestic corporation is a disappearing other
business entity, a copy of the agreement of merger and attachments as
required under paragraph (1) of subdivision (g) of Section 1113
shall be filed at the same time as the filing of the certificate of
merger.
(b) If the surviving entity is a domestic corporation or a foreign
corporation in a merger in which a domestic corporation is a
constituent party, after approval of the merger by the constituent
limited liability companies and constituent other business entities,
the surviving corporation shall file in the office of the Secretary
of State a copy of the agreement of merger and attachments required
under paragraph (1) of subdivision (g) of Section 1113. The
certificate of merger shall be executed and acknowledged by each
domestic constituent limited liability company by all of the managers
of the limited liability company unless a lesser number is specified
in the articles of organization or the operating agreement of the
domestic constituent limited liability company.
(c) A certificate of merger, or the agreement of merger, as is
applicable under subdivisions (a) or (b), shall have the effect of
the filing of a certificate of cancellation of articles of
organization for each disappearing limited liability company and no
disappearing limited liability company need file a certificate of
cancellation of articles of organization under Section 17356 as a
result of the merger.
(d) If a disappearing other business entity is a foreign
corporation qualified to transact intrastate business in this state,
the filing of the certificate of merger or the agreement of merger
shall automatically surrender its right to transact intrastate
business.

17553. (a) Unless a future effective date or time is provided in
the certificate of merger or in any agreement of merger required to
be filed under Section 17552, in which event the merger shall be
effective at that future effective date or time (which shall be a
date or time certain not more than 90 days subsequent to the date of
filing), a merger shall be effective upon the filing of the
certificate of merger, or the agreement of merger, as is applicable
under subdivision (a) or (b), in the office of the Secretary of
State.
(b) (1) For all purposes, a copy of the certificate of merger duly
certified by the Secretary of State is conclusive evidence of the
merger of (A) the constituent limited liability companies (either by
themselves or together with constituent other business entities) into
the surviving other business entity, or (B) the constituent limited
liability companies or the constituent other business entities, or
both, into the surviving limited liability company.
(2) In a merger in which the surviving entity is a corporation in
a merger in which a domestic corporation and a domestic limited
liability company are parties to the merger, a copy of an agreement
of merger certified on or after the effective date by an official
having custody thereof has the same force in evidence as the original
and, except as against the state, is conclusive evidence of the
performance of all conditions precedent to the merger, the existence
on the effective date of the surviving corporation, and the
performance of the conditions necessary to the adoption of any
amendment to the articles of incorporation of the surviving
corporation, if applicable, contained in the agreement of merger.

17554. (a) Upon a merger of limited liability companies or limited
liability companies and other business entities pursuant to this
chapter, the separate existence of the disappearing limited liability
companies and disappearing other business entities ceases and the
surviving limited liability company or surviving other business
entity shall succeed, without other transfer, act, or deed, to all
the rights and property, whether real, personal, or mixed, of each of
the disappearing limited liability companies and disappearing other
business entities and shall be subject to all the debts and
liabilities of each in the same manner as if the surviving limited
liability company or surviving other business entity had itself
incurred them.
(b) All rights of creditors and all liens upon the property of
each of the constituent limited liability companies and constituent
other business entities shall be preserved unimpaired and may be
enforced against the surviving limited liability company or the
surviving other business entity to the same extent as if the debt,
liability, or duty that gave rise to that lien had been incurred or
contracted by it, provided that such liens upon the property of a
disappearing limited liability company or disappearing other business
entity shall be limited to the property affected thereby immediately
prior to the time the merger is effective.
(c) Any action or proceeding pending by or against any
disappearing limited liability company or disappearing other business
entity may be prosecuted to judgment, that shall bind the surviving
limited liability company or surviving other business entity, or the
surviving limited liability company or surviving other business
entity may be proceeded against or be substituted in the disappearing
limited liability company's or disappearing other business entity's
place.
(d) If a partnership is a party to a merger nothing in this
chapter is intended to affect the liability a general partner of a
disappearing partnership may have in connection with the debts and
liabilities of the disappearing partnership existing prior to the
time the merger is effective.

17554.5. (a) Upon merger pursuant to this chapter, a surviving
domestic or foreign limited liability company or other business
entity shall be deemed to have assumed the liability of each
disappearing domestic or foreign limited liability company or other
business entity that is taxed under Part 10 (commencing with Section
17001) of, or under Part 11 (commencing with Section 23001) of,
Division 2 of the Revenue and Taxation Code for the following:
(1) To prepare and file, or to cause to be prepared and filed, tax
and information returns otherwise required of that disappearing
entity as specified in Chapter 2 (commencing with Section 18501) of
Part 10.2 of Division 2 of the Revenue and Taxation Code.
(2) To pay any tax liability determined to be due.
(b) If the surviving entity is a domestic limited liability
company, domestic corporation, or registered limited liability
partnership or a foreign limited liability company, foreign limited
liability partnership, or foreign corporation that is registered or
qualified to do business in California, the Secretary of State shall
notify the Franchise Tax Board of the merger.

17555. (a) The merger of any number of domestic limited liability
companies with any number of foreign limited liability companies or
foreign other business entities shall be required to comply with
Section 17550.
(b) If the surviving entity is a domestic limited liability
company or a domestic other business entity, the merger proceedings
with respect to that limited liability company or other business
entity and any domestic disappearing limited liability company shall
conform to the provisions of this chapter governing the merger of
domestic limited liability companies, but if the surviving entity is
a foreign limited liability company or a foreign other business
entity, then, subject to the requirements of subdivision (d) and
Chapter 13 (commencing with Section 17600), with respect to any
domestic constituent corporation, Section 1113 and Chapters 12
(commencing with Section 1200) and 13 (commencing with Section 1300)
of Division 1 of Title 1, and with respect to any domestic
constituent limited partnership, Article 7.6 (commencing with Section
15679.1) of Chapter 3 and Article 11.5 (commencing with Section
15911.20) of Chapter 5.5 of Title 2, the merger proceedings may be in
accordance with the laws of the state or place of organization of
the surviving limited liability company or surviving other business
entity.
(c) If the surviving entity is a domestic limited liability
company or domestic other business entity, other than a domestic
corporation, a certificate of merger shall be filed as provided in
subdivision (a) of Section 17552 and thereupon, subject to
subdivision (a) of Section 17553, the merger shall be effective as to
each domestic constituent limited liability company and domestic
constituent other business entity. If the surviving entity is a
domestic corporation, the agreement of merger with attachments shall
be filed as provided in subdivision (b) of Section 17552, and
thereupon, subject to subdivision (a) of Section 17553, the merger
shall be effective as to each domestic constituent limited liability
company and domestic constituent other business entity unless another
effective date is provided for in Chapter 11 (commencing with
Section 1100) of Division 1 of Title 1, with respect to any
constituent corporation or any constituent other business entity.
(d) If the surviving entity is a foreign limited liability company
or foreign other business entity, the merger shall become effective
in accordance with the laws of the jurisdiction in which the
surviving limited liability company or surviving other business
entity is organized; but the merger shall be effective as to any
domestic disappearing limited liability company as of the time of
effectiveness in the foreign jurisdiction upon the filing in this
state of a certificate of merger or agreement of merger as provided
in Section 17552.
(e) If a merger described in subdivision (c) or (d) also includes
a foreign disappearing limited liability company previously
registered for the transaction of intrastate business in this state
pursuant to Section 17451, the filing of the certificate of merger or
agreement of merger, as applicable, automatically has the effect of
a cancellation of registration for that foreign limited liability
company pursuant to Section 17456 without the necessity of the filing
of a certificate of cancellation.
(f) The provisions of subdivision (b) of Section 17551 and Chapter
13 (commencing with Section 17600) apply to the rights of the
members of any of the constituent limited liability companies that
are domestic limited liability companies and of any domestic limited
liability company that is a parent of any foreign constituent limited
liability company.
(g) If the surviving entity is a foreign limited liability company
or foreign other business entity, the surviving entity shall file
the following with the Secretary of State:
(1) An agreement that it may be served in this state in a
proceeding for the enforcement of an obligation of any constituent
entity and in a proceeding to enforce the rights of any holder of a
dissenting interest or dissenting shares in a constituent domestic
limited liability company or domestic other business entity.
(2) An irrevocable appointment of the Secretary of State as its
agent for service of process, and an address to which process may be
forwarded.
(3) An agreement that it will promptly pay the holder of any
dissenting interest or dissenting share in a constituent domestic
limited liability company or domestic other business entity the
amount to which that person is entitled under California law.

17556. Whenever a domestic or foreign limited liability company or
other business entity having any real property in this state merges
with another limited liability company or other business entity
pursuant to the laws of this state or of the state or place in which
any constituent limited liability company or constituent other
business entity was organized, and the laws of the state or place of
organization (including this state) of any disappearing limited
liability company or disappearing other business entity provide
substantially that the making and filing of the agreement of merger
or certificate of merger vests in the surviving limited liability
company or surviving other business entity all the real property of
any disappearing limited liability company and disappearing other
business entity, the filing for record in the office of the county
recorder of any county in this state in which any of the real
property of the disappearing limited liability company or
disappearing other business entity is located of either of the
documents specified in subdivision (a) or (b) shall evidence record
ownership in the surviving limited liability company or surviving
other business entity of all interest of the disappearing limited
liability company or disappearing other business entity in and to the
real property located in that county.
(a) A certificate of merger certified by the Secretary of State,
or any other certificate as may be prescribed by the Secretary of
State.
(b) A copy of the agreement of merger or certificate of merger,
certified by the Secretary of State or an authorized public official
of the state or place pursuant to the laws of which the merger is
effected.