Articles of merger; publication of notice of merger

(a) After a plan of merger is approved by the board of directors, and, if required by Code Section 14-3-1103, by the members and any other persons, the surviving corporation or entity shall deliver to the Secretary of State for filing articles of merger setting forth: (1) The plan of merger; (2) If approval of members was not required, a statement to that effect and a statement that the plan was approved by a sufficient vote of the board of directors; (3) If approval by members was required: (A) The designation, number of memberships outstanding, number of votes entitled to be cast by each class entitled to vote separately on the plan, and number of votes of each class indisputably voting on the plan; and (B) Either the total number of votes cast for and against the plan by each class entitled to vote separately on the plan or the total number of undisputed votes cast for the plan by each class and a statement that the number cast for the plan by each class was sufficient for approval by that class; (4) If approval of the plan by some person or persons other than the members or the board is required pursuant to paragraph (3) of subsection (a) of Code Section 14-3-1103, a statement that the approval was obtained; and (5) If approval of the shareholders of one or more corporations or entities party to the merger was required, a statement that the merger was duly approved by the shareholders. (b) In lieu of filing articles of merger that set forth the plan of merger, the surviving corporation or entity may deliver to the Secretary of State for filing a certificate of merger which sets forth: (1) The name and state of incorporation of each corporation or entity which is merging and the name of the surviving corporation or entity into which each other corporation or entity is merging; (2) Any amendments to the articles of incorporation or governing agreements of the surviving corporation or entity; 715 14-3-1104 CORPORATIONS & PARTNERSHIPS 14-3-1104 (3) That the executed plan of merger is on file at the principal place of business of the surviving corporation or entity, stating the address thereof; (4) That a copy of the plan of merger will be furnished by the surviving corporation or entity, on request and without cost, to any member or shareholder of any corporation or entity that is a party to the merger; (5) If approval of members was not required, a statement to that effect and a statement that the plan was approved by a sufficient vote of the board of directors; (6) If approval by members was required: (A) The designation, number of memberships outstanding, number of votes entitled to be cast by each class entitled to vote separately on the plan, and number of votes of each class indisputably voting on the plan; and (B) Either the total number of votes cast for and against the plan by each class entitled to vote separately on the plan or the total number of undisputed votes cast for the plan by each class and a statement that the number cast for the plan by each class was sufficient for approval by that class; (7) If approval of the plan by some person or persons other than the members or the board is required pursuant to paragraph (3) of subsection (a) of Code Section 14-3-1103, a statement that the approval was obtained; and (8) If approval of the shareholders of one or more corporations or entities party to the merger was required, a statement that the merger was duly approved by the shareholders. (c) Unless a delayed effective date is specified, a merger takes effect when the articles or certificate of merger is filed. (d) For purposes of this Code section, the definitions contained in Code Section 14-3-1108 shall be applicable. (Code 1981, § 14-3-1104, enacted by Ga. L. 1991, p. 465, § 1; Ga. L. 1997, p. 1165, § 17; Ga. L. 2004, p. 508, § 50.) COMMENT This section is based on the Model Act and on its Business Code counterparts, sections 14-2-1105 and 14-2-1105.1. Business Code language pertaining to ‘‘share exchanges’’ is omitted because this Code has no such concept. Subsection (a)(3) requires a more detailed description of the member approval than is required under the Business Code, and subsection (a)(4) has no Business Code counterpart because the Business Code does not provide for veto power in a designated person. See section 14-3-1030. This section incorporates the publication requirement that the Business Code sets forth separately as section 14-2-1105.1. 716 14-3-1104.1 Note to 1997 Amendment Amendments to subsections (a) and (b) were made to conform the definitions to changes made in the Business Corporation Code in 1996. The words ‘‘or entity’’ were added after ‘‘corporation’’ to permit mergers of various types of entities, provided that each entity complies with the applicable laws governing mergers.