TITLE 7
Corporations, Associations, and Partnerships
CHAPTER 7-13
Limited Partnerships
SECTION 7-13-68
§ 7-13-68 Merger and consolidation.
(a) As used in this section, "other business entity" means a corporation, a
business trust or association, a real estate investment trust, a common-law
trust, a limited liability corporation, whether foreign or domestic, or an
unincorporated business, including a partnership, whether general or limited,
but excluding a domestic limited partnership.
(b)(1) Pursuant to an agreement of merger or consolidation, a
domestic limited partnership may merge or consolidate with or into one or more
domestic limited partnerships or other business entities formed or organized
under the laws of the state of Rhode Island or any other state or the United
States or any foreign country or other foreign jurisdiction, with any domestic
limited partnership or other business entity that the agreement provides being
the surviving or resulting domestic limited partnership or other business
entity. Unless otherwise provided in the partnership agreement, a merger or
consolidation shall be approved by each domestic limited partnership which is
to merge or consolidate:
(i) By all general partners; and
(ii) By the limited partners or, if there is more than one
class or group of limited partners, then by each class or group of limited
partners, in either case, by limited partners who own more than fifty percent
(50%) of the then current percentage or other interest in the profits of the
domestic limited partnership owned by all of the limited partners or by the
limited partners in each class or group, as appropriate.
(2) In connection with a merger or consolidation under this
section, rights or securities of, or interests in, a limited partnership or
other business entity which is not a limited partnership or other business
entity which is a constituent party to the merger or consolidation may be
exchanged for or converted into cash, property, rights or securities of, or
interests in, the surviving or resulting limited partnership or other business
entity in the merger or consolidation. Despite prior approval, an agreement of
merger or consolidation may be terminated or amended pursuant to a provision
for termination or amendment contained in the agreement of merger or
consolidation.
(c) If a domestic limited partnership is merging or
consolidating under this section, the domestic limited partnership or other
business entity surviving or resulting in or from the merger or consolidation
shall file a certificate of merger or consolidation in the office of the
secretary of state, stating:
(1) The name and jurisdiction of formation or organization of
each of the domestic limited partnerships or other business entities which is
to merge or consolidate;
(2) That an agreement of merger or consolidation has been
approved and executed by each of the domestic limited partnerships or other
business entities which is to merge or consolidate;
(3) The name of the surviving or resulting domestic limited
partnership or other business entity;
(4) The future effective date or time, which shall be a date
or time certain, of the merger or consolidation if it is not to be effective
upon the filing of the certificate of merger or consolidation;
(5) That the agreement of merger or consolidation is on file
at a place of business of the surviving or resulting domestic limited
partnership or other business entity, and shall state the address of that place
of business;
(6) That a copy of the agreement of merger or consolidation
will be furnished by the surviving or resulting domestic limited partnership or
other business entity, on request and without cost, to any partner of any
domestic limited partnership or any person holding an interest in any other
business entity which is to merge or consolidate; and
(7) If the surviving or resulting entity is not a domestic
limited partnership or corporation organized under the laws of Rhode Island, a
statement that the surviving or resulting other business entity agrees that it
may be served with process in Rhode Island in any action, suit or proceeding
for the enforcement of any obligation of any domestic limited partnership which
is to merge or consolidate, irrevocably appointing the secretary of state as
its agent to accept service of process in the action, suit or proceeding and
specifying the address to which a copy of the process is to be mailed to it by
the secretary of state. In the event of service under this section on the
secretary of state, the procedures set forth in § 7-1.2-503 are
applicable, except that the plaintiff in any action, suit or proceeding shall
furnish the secretary of state with the address specified in the certificate of
merger or consolidation provided for in this section and any other address
which the plaintiff elects to furnish, together with copies of the process as
required by the secretary of state, and the secretary of state shall notify the
surviving or resulting other business entity at all addresses furnished by the
plaintiff in accordance with the procedures set forth in § 7-1.2-503.
(d) Any failure to file a certificate of merger or
consolidation in connection with a merger or consolidation pursuant to this
section which was effective prior to the effective date of this section does
not affect the validity or effectiveness of the merger or consolidation.
(e) Unless a future effective date or time is provided in a
certificate of merger or consolidation, in which event a merger or
consolidation is effective at that future effective date or time, a merger or
consolidation is effective upon the filing in the office of the secretary of
state of a certificate of merger or consolidation.
(f) A certificate of merger or consolidation acts as a
certificate of cancellation for a domestic limited partnership which is not the
surviving or resulting entity in the merger or consolidation.
(g)(1) Notwithstanding anything to the contrary contained in
a partnership agreement, a partnership agreement containing a specific
reference to this subsection may provide that an agreement of merger or
consolidation approved in accordance with subsection (b) may:
(i) Effect any amendment to the partnership agreement; or
(ii) Effect the adoption of a new partnership agreement for a
limited partnership if it is the surviving or resulting limited partnership in
the merger or consolidation.
(2) Any amendment to a partnership agreement or adoption of a
new partnership agreement made pursuant to the preceding sentence is effective
at the effective time or date of the merger or consolidation. The provisions of
this subsection shall not be construed to limit the accomplishment of a merger
or of any of the matters referred to in this section by any other means
provided for in a partnership agreement or other agreement or as otherwise
permitted by law, including that the partnership agreement of any constituent
limited partnership to the merger or consolidation (including a limited
partnership formed for the purpose of consummating a merger or consolidation)
is the partnership agreement of the surviving or resulting limited partnership.
(h) When any merger or consolidation has become effective
under this section, for all purposes of the laws of the state of Rhode Island,
all of the rights, privileges and powers of each of the domestic limited
partnerships and other business entities that have merged or consolidated, and
all property, real, personal, and mixed, and all debts due to any of those
domestic limited partnerships and other business entities, as well as all other
things and causes of action belonging to each of those domestic limited
partnerships and other business entities, are vested in the surviving or
resulting domestic limited partnership or other business entity, and are
subsequently the property of the surviving or resulting domestic limited
partnership or other business entity as they were of each of the domestic
limited partnerships and other business entities that have merged or
consolidated. The title to any real property vested by deed or otherwise, under
the laws of the state of Rhode Island, in any of those domestic limited
partnerships and other business entities, does not revert or in any way become
impaired because of this chapter; but all rights of creditors and all liens
upon any property of the domestic limited partnerships and other business
entities are preserved unimpaired, and all debts, liabilities and duties of
each of the domestic limited partnerships and other business entities that have
merged or consolidated subsequently attach to the surviving or resulting
domestic limited partnership or other business entity, and may be enforced
against it to the same extent as if the debts, liabilities and duties had been
incurred or contracted by it. Unless otherwise agreed, a merger or
consolidation of a domestic limited partnership, including a domestic limited
partnership which is not the surviving or resulting entity in the merger or
consolidation, does not require the domestic limited partnership to wind up its
affairs under § 7-13-46 or pay its liabilities and distribute its assets
under § 7-13-47.
History of Section.
(P.L. 1992, ch. 227, § 3; P.L. 1997, ch. 188, § 4; P.L. 2005, ch. 36,
§ 8; P.L. 2005, ch. 72, § 8.)